UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-6449

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ISHMAEL AVIVE SANTIAGO,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO)

Argued: October 27, 2015 Decided: December 22, 2015

Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK, 

United States District Judge for the Eastern District of 

Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Christopher D. Smith, WEST VIRGINIA UNIVERSITY COLLEGE 

OF LAW, Morgantown, West Virginia, for Appellant. Seth Morgan 

Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Lawrence David Rosenberg, 

Washington, D.C., Stephanie D. Taylor, JONES DAY, Pittsburgh, 

Pennsylvania, for Appellant. Thomas G. Walker, United States 

Attorney, Jenifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Ishmael Avive Santiago appeals the denial of his 28 U.S.C. 

§ 2255 motion, arguing that his counsel rendered ineffective 

assistance at his Rule 11 hearing, at sentencing, and on appeal. 

See Strickland v. Washington, 466 U.S. 668 (1984). Because 

Santiago fails to show Strickland prejudice, we affirm.

I.

Santiago was charged in a three-count indictment with 

conspiracy to commit Hobbs Act robbery, in violation of 18 

U.S.C. § 1951 (Count 1); Hobbs Act robbery, in violation of 18 

U.S.C. §§ 1951 and 2 (Count 2); and using and carrying a firearm 

and possessing a firearm in furtherance of a crime of violence 

and aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and 

2 (Count 3). These charges stem from the robbery of a Walgreens 

in Clayton, North Carolina, carried out by Santiago and his 

cousin, Rhaim. 

As the two men entered the store, they wore bandanas over 

the lower portion of their faces and Rhaim was armed with an SKS 

rifle1. After they entered the store, Rhaim accosted a store 

clerk who was stocking merchandise, pointed his rifle at her,

 1 Although not necessary for our decision, we note that 

Rhaim and Santiago both confessed to authorities that they 

mutually agreed, along with an unnamed juvenile male, to 

purchase a rifle and commit an armed robbery. 
4

and demanded that she open the cash register. Upset that the 

clerk was taking too long, Rhaim struck her in the back of the 

head with the rifle and walked her to the cash register. 

Santiago and Rhaim absconded with less than $500. The store 

clerk suffered a laceration on the back of her head and was 

treated at the local hospital. Santiago turned himself in 

several days later and confessed his involvement in the robbery. 

In addition, authorities recovered a cell phone with images of 

Santiago and Rhaim posing with the gun and money after the 

robbery2.

At Santiago’s initial hearing before a magistrate judge, he 

was told that the § 924(c) count subjected him to “a penalty of 

not less than [five] years, no more than life imprisonment 

consecutive to any other sentence imposed.” (S.J.A. 231). The 

magistrate judge asked if Santiago understood and Santiago 

responded affirmatively.

Prior to trial, Santiago decided to plead guilty to Counts 

1 and 3 pursuant to a plea agreement. Relevant here, regarding 

Count 1, the plea agreement provided that Santiago would be 

entitled to a three-level reduction of his offense level due to 

acceptance of responsibility. As to Count 3, the plea agreement 

explained that Santiago faced a maximum term of imprisonment of 

 2 The robbery was also caught on video surveillance. 
5

“life, consecutive to any other term of imprisonment” and a 

minimum term of imprisonment of “[five] years, consecutive to 

any other term of imprisonment.” (J.A. 212). Santiago also 

agreed, as part of the plea agreement, that:

the Court will take into account, but is not bound by, 

the applicable United States Sentencing Guidelines, 

that the sentence has not yet been determined by the 

Court, that any estimate of the sentence received from 

any source is not a promise, and that even if a 

sentence up to the statutory maximum is imposed, the 

Defendant may not withdraw the plea of guilty.

(J.A. 212).

The district court conducted a Rule 11 colloquy prior to 

accepting Santiago’s plea. During the colloquy, the court 

mistakenly stated that Count 3 “carries up to five years in 

prison . . . consecutive to any other prison time.” (J.A. 27-28)

(emphasis added). Neither the Government nor Santiago’s attorney 

objected to this statement. The court also did not inform 

Santiago of the potential for an enhanced mandatory minimum 

under § 924(c)(1)(A).3 After the court’s misstatement, Santiago 

affirmed that he read and understood the plea agreement and that 

he had no additional questions. Santiago also affirmed that his 

counsel had explained the plea agreement and that his plea was 

 3 Section 924(c) provides a mandatory minimum of five years 

if the defendant used and carried a firearm during a crime of 

violence, but also provides for an enhanced penalty of seven

years if the firearm was brandished and ten years if the firearm 

was discharged. 18 U.S.C. § 924(c)(1)(A)(i-iii).
6

voluntary. At the end of the hearing, the court accepted the 

plea.

Following the Rule 11 hearing, the probation office 

prepared Santiago’s Presentence Report (PSR). On Count 3, the 

PSR found that because the firearm was brandished during the 

robbery, § 924(c)(1)(A)(ii) applied. That statute provides for a 

mandatory minimum of seven years imprisonment (rather than five) 

if the firearm was brandished. Thus, the PSR recommended a 

guidelines range of 84 months on Count 3 consecutive to any 

sentence for Count 1. For Count 1, the PSR recommended a base 

offense level of 20, with a three-level enhancement for causing 

bodily injury, a four-level enhancement for abduction, and a 

three-level reduction for acceptance of responsibility. This 

calculation yielded a total offense level of 24 and a guidelines 

range of 51-63 months imprisonment. Without the three-level 

reduction for acceptance of responsibility provided by the plea 

agreement, Santiago faced an offense level of 27 and a 

corresponding guidelines range of 70-87 months imprisonment. 

At sentencing, Santiago confirmed that he had received the 

PSR and had an opportunity to review it prior to the hearing. 

When asked twice if he had any comment on the PSR, Santiago 

deferred to counsel, who objected to the four-level abduction 

enhancement on Count 1. Neither Santiago nor his counsel 

mentioned the increase in the mandatory minimum from five years 
7

to seven years and at no point did Santiago move to withdraw his 

plea. The district court overruled the objection to the 

abduction enhancement and sentenced Santiago to 51 months 

imprisonment on Count 1 and 84 months imprisonment on Count 3, 

to run consecutively.

Santiago filed a timely notice of appeal. Counsel filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), but 

did ask us to review the four-level abduction enhancement. We 

issued a per curiam opinion affirming in part and dismissing in 

part. United States v. Santiago, 498 Fed. App’x 222 (4th Cir. 

2012). In reviewing Santiago’s guilty plea, we concluded that 

the district court “substantially complied with Rule 11’s 

requirements, and committed no error warranting correction on 

plain error review.” Id. at *224.

In November 2013, Santiago filed a motion to vacate his 

conviction under 28 U.S.C. § 2255. Santiago attached an 

affidavit alleging that his counsel was ineffective for failing 

to object to the district court’s misstatement about the 

sentence and, consequently, his plea was unknowing as to Count 

3. Santiago alleged that, had the district court’s error not 

occurred, he would have pleaded not guilty on Count 3 and gone 

to trial and “likely would have received the 60 month sentence” 

for Count 3. (J.A. 67). The Government moved to dismiss, arguing 

that any error by the district court was cured by the plea 
8

agreement, which correctly stated that five years was the 

statutory minimum, not the statutory maximum. The district court 

granted the motion to dismiss, concluding that counsel was not 

ineffective in failing to object at the Rule 11 hearing because 

the plea agreement had the proper terms. The court explained,

“[Santiago] cannot meet the Strickland standard to show 

ineffective assistance of counsel as it is not objectively 

unreasonable to refuse to object to harmless error or pursue 

such a claim on appeal.” (J.A. 119).

Santiago filed a timely appeal and this court issued the 

following certificate of appealability:

We grant a certificate of appealability on Santiago’s 

claim that his counsel, Leza Lee Driscoll, rendered 

ineffective assistance of counsel at the Fed. R. Crim. 

P. 11 hearing, at sentencing and on direct appeal for 

failing to object to or raise a claim concerning the 

district court’s failure to advise Santiago of the 

correct mandatory minimum and maximum penalties he was 

facing for a violation of 18 U.S.C. § 924(c) (2012).

(J.A. 125).

II.

We review de novo the district court’s decision on a motion 

to vacate under § 2255. United States v. Poindexter, 492 F.3d 

263, 267 (4th Cir. 2007). “We are entitled to affirm on any 

ground appearing in the record, including theories not relied 

upon or rejected by the district court.” United States v. 
9

Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (internal 

quotation marks omitted). 

To prevail on an ineffective assistance claim under 

Strickland, Santiago must satisfy “two necessary components.” 

Jones v. Clarke, 783 F.3d 987, 991 (4th Cir. 2015). First, 

Santiago “must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that 

counsel was not functioning as the ‘counsel’ guaranteed the 

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. 

Second, Santiago “must show that the deficient performance 

prejudiced the defense. This requires showing that counsel’s 

errors were so serious as to deprive the defendant of a fair 

trial, a trial whose result is reliable.” Id. The Strickland

Court also made clear that “[i]f it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, . . . that course should be followed,” and we do so 

here. Id. at 697. 

To establish Strickland prejudice, Santiago “must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. 

“Strickland asks whether it is ‘reasonably likely’ the result 

would have been different,” and the “likelihood of a different 
10

result must be substantial, not just conceivable.” Harrington v. 

Richter, 562 U.S. 86, 111-12 (2011).

This prejudice analysis contains another layer in the 

context of a guilty plea. Because a guilty plea is a “solemn 

declaration[] in open court,” it has “strong presumption of 

verity” that we will not set aside on “subsequent presentation 

of conclusory allegations unsupported by specifics.” Blackledge 

v. Allison, 431 U.S. 63, 74 (1977). Because “a prisoner has 

everything to gain and nothing to lose from filing a collateral 

attack upon his guilty plea,” id. at 71, “strict adherence to 

the Strickland standard [is] all the more essential when 

reviewing the choices an attorney made at the plea bargain 

stage,” Premo v. Moore, 562 U.S. 115, 125 (2011).

Thus, to establish a “reasonable likelihood” under 

Strickland in this context,4 Santiago must show a “reasonable 

probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.” Id.

at 129 (internal quotation marks omitted). Importantly, Santiago 

must show both subjectively that he would have gone to trial and 

 4 Santiago has three claims of ineffective assistance: at 

the Rule 11 hearing; at sentencing once the seven year mandatory 

minimum was adopted; and on appeal for failing to raise the Rule 

11 violation. However, all three ultimately turn on Santiago’s 

contention that he would have gone to trial if he had been aware 

of the seven year mandatory minimum. 
11

that it would have been objectively reasonable to do so. United 

States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) (holding 

“what matters is whether proceeding to trial would have been 

objectively reasonable in light of all of the facts”). 

Santiago’s “subjective preferences, therefore, are not 

dispositive.” Id. As we recently explained:

The challenger “cannot make that showing merely by 

telling [the court] now that [he] would have gone to 

trial then if [he] had gotten different advice.” Pilla 

v. United States, 668 F.3d 368, 372 (6th Cir. 2012). 

In other words, to obtain relief from a guilty plea, 

the defendant must do more than allege he would have 

insisted on going to trial if counsel had not 

misadvised him as to the consequences of that 

decision. The “petitioner must convince the court that 

a decision to reject the plea bargain would have been 

rational under the circumstances.” Padilla v. 

Kentucky, 559 U.S. 356, 372 (2010).

Christian v. Ballard, 792 F.3d 427, 452 (4th Cir. 2015).

We readily acknowledge as a preliminary matter that the 

district court committed error when it stated that Santiago 

faced a maximum of five years imprisonment rather than a minimum 

of five years and that Santiago’s counsel should have noticed

this error and moved to correct it. Santiago’s counsel also 

failed to recognize that the court did not inform Santiago of 

the potential for enhanced mandatory minimums under § 924(c).5 It 

 5 At the very least, it became apparent that Santiago faced

a possible seven year mandatory minimum for brandishing when the 

Government, in putting the factual basis for the plea on the 

(Continued)
12

is pellucid that “a district court’s failure to alert a criminal 

defendant to a potential mandatory minimum sentence is a serious 

omission that strikes at the core of Rule 11.” United States v. 

Massenburg, 564 F.3d 337, 346 (4th Cir. 2009); see also United 

States v. Hairston, 522 F.3d 336, 341-42 (4th Cir. 2008) (same). 

That Santiago’s counsel failed to notice these errors, however, 

does not mean that Santiago was prejudiced by his counsel’s 

failure.

“Pleading guilty generally involves a conscious decision to 

accept both the benefits and burdens of a bargain. That decision 

may not be lightly undone by buyer’s remorse on the part of one 

who has reaped advantage from the purchase.” Fugit, 703 F.3d at 

260. Moreover, “[d]efendants plead guilty for various reasons, 

many of which are wholly unrelated to the length of a potential 

sentence.” Massenburg, 564 F.3d at 344. Here, it would not have 

been rational for Santiago to go to trial given the strength of 

the Government’s case against him and the benefits Santiago 

derived from the plea agreement. We have repeatedly noted that 

when the Government’s case is strong, a defendant faces a nearly 

insurmountable obstacle to showing that it would have been 

rational to go to trial. Christian, 792 F.3d at 453 (noting not 

 

record, stated that Santiago’s co-defendant struck the clerk in 

the back of the head with the gun. 
13

rational to reject plea when guilt was overwhelming), Fugit, 703 

F.3d at 260 (same); Massenburg, 564 F.3d at 344 (noting when 

case was a “strong one” the court “can legitimately question 

what Massenburg would have to gain by going to trial”). 

The Government presented overwhelming evidence of 

Santiago’s guilt. The robbery was on videotape, Santiago 

confessed to robbing the Walgreens with his cousin, and images 

depicted the two men posing with the gun and the money following 

the robbery. Santiago argues that he did not possess the gun 

that was brandished, but Count 3 charged Santiago with the 

§ 924(c) violation and aiding and abetting. Santiago’s defense 

that his cousin, with whom he committed the robbery, had actual

possession of the gun is not a “rational defense” against an 

aiding and abetting § 924(c) charge. Pilla, 668 F.3d at 373. 

In addition, there is no record evidence from Santiago’s 

plea or sentencing hearings suggesting that Santiago would have 

moved to withdraw his plea if the correct information was 

provided. While the district court called the five-year term a 

maximum rather than a minimum, the plea agreement—which Santiago 

affirmed multiple times he had read—correctly referred to the 

five-year term as a mandatory minimum. Regarding the seven-year 

minimum recommended by the PSR, the district court specifically 

asked Santiago if he read the PSR and had any objections or 

comments on it. While the PSR “cannot cure the Rule 11 violation 
14

in his case,” Santiago’s failure to take any action after 

learning of the seven year mandatory minimum provides “some 

evidence that he would have entered the plea regardless.” 

Massenburg, 564 F.3d at 344.

Finally, as recounted above, the low-end of Santiago’s 

guidelines range on Count 1 dropped from 70 months to 51 months 

as a result of the three-level reduction for acceptance of 

responsibility provided by the plea agreement. If Santiago had 

gone to trial, he would have faced the same mandatory minimum of 

seven years on Count 3, and, without the three-level reduction 

for acceptance of responsibility, he would have been looking at 

a longer sentence on Count 1. In effect, then, the “only 

consequence” of Santiago’s decision to plead guilty rather than 

going to trial “is that [Santiago] got a shorter prison term 

than otherwise.” Pilla, 668 F.3d at 373. That decision certainly 

did not prejudice Santiago. 

Santiago’s argument amounts to a presumption of Strickland

prejudice in mandatory-minimum cases. We have rejected this 

position in the context of plain error, and we reject it again 

here. See Massenburg, 564 F.3d at 345 (noting “[a]bsent a 

presumption of prejudice, Massenburg is left only to appeal to 

our desire for an adjudicatory process that is free from error,” 

and “[e]rrors are commonplace, . . . and our affection for 

procedural perfection cannot operate to the detriment of our 
15

commitment to other, equally important, principles of 

adjudication”). 

III.

Because Santiago cannot show Strickland prejudice, we 

affirm the district court’s dismissal of his § 2255 motion. 

AFFIRMED