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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10477

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ROBERT A MACKAY, also known as Bob Mackay, also known as Fatman, also

known as Fat Boy

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:04-CV-413 

USDC No. 3:97-CR-208-1

Before WIENER, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Robert A. Mackay, federal prisoner # 03473-063,

appeals the district court’s denial of the 28 U.S.C. § 2255 motion challenging his

guilty plea conviction and sentence for conspiracy to distribute and possess with

intent to distribute 1,000 kilograms or more of marijuana. We granted a

certificate of appealability as to whether Mackay’s guilty plea was valid in light

United States Court of Appeals

Fifth Circuit

F I L E D

July 9, 2009

Charles R. Fulbruge III

Clerk
No. 07-10477

2

of the alleged ineffective assistance of counsel that he received regarding his

sentencing exposure and whether the district court abused its discretion by

deciding this issue without conducting an evidentiary hearing. 

To establish that his attorney performed ineffectively, Mackay must show

both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668,

687 (1984). To demonstrate deficiency, he must show that “counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. To show prejudice in the context of a

guilty plea, Mackay must establish that “there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). However, a

prisoner’s allegation that he would not have pleaded guilty must be reasonable.

Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994). A failure to establish either

deficient performance or prejudice defeats the claim. Strickland, 466 U.S. at

697.

After assuming arguendo that counsel had provided deficient performance

with respect to advising Mackay of his sentencing exposure for pleading guilty.,

however, the district court held that Mackay had not established prejudice

because he had not shown that there was a reasonable probability that, at the

time of his plea, he would have proceeded to trial in the absence of the allegedly

erroneous advice of counsel. Mackay, who is represented by counsel, only argues

generally that his affidavit, his counsel’s affidavit, and the remarks each made

at sentencing show that he would not have proceeded to trial had he not been

assured that he would receive a sentence of 121 to 151 months of imprisonment.

Mackay has provided no direct evidence that he would not have pleaded

guilty if he had known that his sentence was not limited in this manner by his

plea. Rather, the evidence in the record supports the contrary conclusion. The
No. 07-10477

3

language of the plea agreement is clear that no representations or promises were

made as to the sentence to be imposed. Additionally, he was admonished at

rearraignment that sentence could be imposed from ten years to life

imprisonment, and he responded negatively to the court’s specific inquiry

whether anyone had made promises to him as to the sentence that would be

imposed. See United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)

(holding there is a strong presumption of verity for solemn declarations in court).

Moreover, despite vigorously pursuing a motion to withdraw his guilty plea

based on an alleged breach of the plea agreement with respect to forfeited

property, Mackay failed to challenge the alleged breach with respect to

sentencing exposure despite the fact that the PSR listed the applicable

guidelines range as 360 months to life imprisonment. Although this failure

could be attributed to counsel, Mackay’s own comments at sentencing fail to

show that the government had promised him a 10-year sentence. Accordingly,

Mackay has not shown that the district court erred in denying his ineffective

assistance claim. See Strickland, 466 U.S. at 697; United States v. Stumpf, 827

F.2d 1027, 1030 (5th Cir. 1987).

In light of the bulk of the evidence, Mackay’s generalized assertions that

he would have proceeded to trial are insufficient to establish that the district

court abused its discretion by declining to conduct an evidentiary hearing on the

validity of the plea. See Cervantes, 132 F.3d at 1110; United States v. Walker,

68 F.3d 931, 934 (5th Cir. 1995).

AFFIRMED.