IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10748

Summary Calendar

UNITED STATES OF AMERICA,

Plantiff-Appellee

v.

ALEJANDRO TAMAYO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CV-94

USDC No. 3:05-CR-313-1

Before REAVLEY, JOLLY, and, DAVIS, Circuit Judges.

PER CURIAM:*

Alejandro Tamayo, federal prisoner # 34943-177, appeals the district

court’s denial of his 28 U.S.C. § 2255 motion challenging his conviction for 

conspiracy to possess with the intent to distribute more than 500 grams of

methamphetamine. This court granted a certificate of appealability on the issue 

whether defense counsel grossly underestimated Tamayo’s probable guidelines

range of life imprisonment and thereby rendered his guilty plea involuntary.

United States Court of Appeals

Fifth Circuit

F I L E D

December 18, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-10748

Tamayo argues that his guilty plea was involuntary because trial counsel

grossly underestimated his sentencing exposure. He contends that counsel

erroneously advised him of a guidelines range of 10 to 12 years. Tamayo asserts

that his trial counsel did not understand the sentencing guidelines, as evidenced

by counsel’s statement in the objections to the PSR that Tamayo faced an offense

level of 30 or 31 without assault charges. 

With regard to the district court’s denial of a § 2255 motion, this court

reviews the district court’s factual findings for clear error and its conclusions of

law de novo. United States v. Molina-Uribe, 429 F.3d 514, 518 (5th Cir. 2005). 

“A finding is clearly erroneous only if it is implausible in the light of the record

considered as a whole.” St. Aubin v. Quarterman, 470 F.3d 1096, 1102 (5th Cir.

2006). Where the district court’s finding in a § 2255 proceeding rests upon

credibility determinations made after an evidentiary hearing, this court will not

substitute its reading of the evidence for that of the district court. United States

v. Nixon, 881 F.2d 1305, 1310 (5th Cir. 1989).

“[A] guilty plea is not rendered involuntary because the defendant’s

misunderstanding was based on defense counsel’s inaccurate prediction that a

lesser sentence would be imposed.” Daniel v. Cockrell, 283 F.3d 697, 703 (5th

Cir. 2002), abrogation on other grounds recognized by United States v. Grammas,

376 F.3d 433, 437-38 (5th Cir. 2004) (emphasis in original). As long as the

defendant understood the term of imprisonment to which he might possibly be

sentenced, he was aware of the plea’s consequences. United States v. Santa

Lucia, 991 F.2d 179, 180 (5th Cir. 1993). Nevertheless, “[b]y grossly

underestimating [the defendant’s] sentencing exposure . . ., [counsel] breache[s]

his duty as a defense lawyer in a criminal case to advise his client fully on

whether a particular plea to a charge appears desirable.” Grammas, 376 F.3d

at 436-37 (internal quotation marks and citations omitted). 

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No. 11-10748

The record supports a finding that counsel did not make an inaccurate

predication or grossly underestimate Tamayo’s sentence. Tamayo testified that

counsel informed him that his sentencing range would be 10 to 12 years with a

maximum sentence of 15 years. Counsel testified that he never made such a

prediction. Rather, he unequivocally stated that he began the calculation of the

guidelines range with a base offense level of 38. Counsel informed Tamayo of

the possibility of life imprisonment, and the record also shows that Tamayo was

aware of this possibility at the time he entered his guilty plea. Moreover,

counsel’s objections to the PSR do not provide support for a finding that counsel

estimated a sentencing range at 10 to 12 years. In the objections, counsel

acknowledged that even if the court granted “each and every objection set forth

in this document,” Tamayo’s offense level would remain at 37. The document did

not purport to argue that Tamayo’s offense level would be 30 or 31 based on the

crime for which he was convicted. Counsel specifically noted that a level 37

would be the minimum possible. He explained at sentencing that he advocated

for a sentence with an offense level range of 30 or 31, in the hopes that the

district court would depart from the guidelines range. 

The record supports the finding by the district court that Tamayo’s

representations before the trial court as well as the testimony from the

evidentiary hearing refute Tamayo’s contention that his guilty plea was

prompted by his counsel’s incorrect assumption that his sentencing range would

be 10 to 12 years; thus, the court’s finding is not clearly erroneous. See St.

Aubin, 470 F.3d at 1102. Tamayo’s assertion that he entered his guilty plea

based on the erroneous advice of counsel was rejected by the district court as

incredible, and this court will not disturb the finding. See Nixon, 881 F.2d at

1310. Thus, he fails to show that counsel’s performance was deficient. 

Accordingly, the judgment of the district court is AFFIRMED.

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 Case: 11-10748 Document: 00512087707 Page: 3 Date Filed: 12/18/2012