### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 40229

UNITED STATES OF AME RICA,

Plaintiff

- Appellee

v. JAMES BAYLOUS WHITE, also known as Buck White,

Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:13

- CV

- 166

Before DENNIS, SOUTHWICK, and HO, Circuit Judges

. PER CURIAM: * A federal inmate filed a motion for relief from his conviction based on his counsel’s failure to advise him about the availability of the option of an open plea. T he district court denied relief. We A FFIRM.

FACTUAL AND PROCEDURAL BACKGROUND In January 2010, a federal grand jury in the Eastern District of Texas , Sherman Division, indicted James Baylous White on two counts of conspiracy

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 21, 2020 Lyle W. Cayce Clerk Case: 19-40229 Document: 00515572184 Page: 1 Date Filed: 09/21/2020No. 19

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2 to manufacture, distribute, or possess with intent to manufacture o r distribute methamphetamine and pseudoephedrine. The Government offered a plea agreement through which White would plead guilty to Count One concerning methamphetamine and stipulate that he “ was an organizer, leader, manager or supervisor ,” making United States Sentencing Guidelines Section 3B1.1(c) applicable

. In return, t he Government would dismiss Count Two and agree that a three

- level reduction for acceptance of responsibility would apply

. White did not accept the offer , and the case proceeded to trial on both count s. At trial, the Government called White’s girlfriend , Bertha Mae Russell, as a witness. Russell had pled guilty to an offense and agreed to cooperate with the Government by testifying against White. App a rently, the tes timony

was unexpected and sufficiently compelling that White decided to change his plea

. White pled guilty to Count Two of the indictment without the benefit of a written plea agreement, and the Government dismissed Count One. At the sentencing hearing, White objected to the Presentence Report (“PSR”). White first objected to a two

- level enhancement under Guidelines Section 2D1.1 1 (b)(1) for possessio n of a dangerous weapon , and the district
court overruled the objection . White also objected to a three

- level enhancement under Section 3B1.1(c) for his supervisory role in the offense, and the district
court again overruled th e objection

. The district c ourt also held White was not eligible for a reduction for acceptance of responsibility because he did not enter his guilty plea until after his jury trial had begun.
T he district court imposed a 240

- month term of imprisonment followed by three years of sup ervised release. White’s direct appeal was unsuccessful. See United States v. White , 495 F. App’x 549, 55 2 (5th Cir. 2012). White filed for post

- conviction relief, claiming that his trial counsel , Phillip Linder, provided ineffective assistance. See 28 U.S.C. § 2255. Relevant to this appeal is White’s claim that he rejected the plea offer based on Linder’s Case: 19-40229 Document: 00515572184 Page: 2 Date Filed: 09/21/2020No. 19

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3 inaccurate advice during plea negotiations that a three

- level enhancement could not be applied to him under the law, and that Whi te had to go to trial to challenge any sentencing enhancement. White also asserted that Linder had not informed White that he could lose credit for acceptance of responsibility if White went to trial. White contended that he would have accepted the plea offer but for the alleged incorrect advice. The district court denied the Section 2255 motion. This court granted a Certificate of Appealability (“COA”) on two of White’s claim s: whether Linder’s inaccurate advice caused White to reject the plea offer, and related ly, whether the district court abused its discretion in denying relief on this claim without holding an evidentiary hearing. Later , we vacated the district court’s judgment in part and remanded to the district court for proceedings on the ineff ective assistance claim. See United States v. White , 715 F. App ’ x 436, 438 (5th Cir. 2018). A magistrate judge conducted a n evidentiary hearing on remand

. Linder testified that after he negotiat ed a plea offer and then review ed the offer with his client , White “was adamant about wanting to go to trial.” White did not believe that his girlfriend , Russell , would testify against him, and based on that belief, White did not think that the Government could establish his guilt.
Lin der denied that he had told White that a leadership role enhancement could not be applied , and Linder also denied that he had told White that it was necessary to go to trial to challenge the role enhancement. Linder explained to White that sentencing enha ncements could be challenged in objections to the PSR, but White did not want to plead guilty and admit that a role enhancement should be applied. Linder also advised White that he would lose credit for acceptance of responsibility if White went to trial. During Linder’s testimony, White ’s counsel introduced a letter White had written to the Government’s attorney

. In the letter, White stated he was Case: 19-40229 Document: 00515572184 Page: 3 Date Filed: 09/21/2020No. 19

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4 willing to plead guilty if the Government would “drop the leadership role and the gun enhancement” and provide its assurance that these enhancements “will not be used by the probation officer.” Linder testified that the Government provided him w ith a copy of the letter during his representation of White, but Linder knew that the Government would not agree to abandon the role enhancement and that the Government would argue at sentencing that the gun enhancement applied. White testified that Linder never told him he would not receive credit for acceptance of responsibility if he went to tri al ; in fact, Linder never discussed acceptance of responsibility with him at all

. If Linder had done so , White would have accepted the plea offer even though he did not want to stipulate to the role enhancement

. White testified he went to trial solely to challenge the role enhancement, believing it was the only way to make that challenge, and White decided to plead guilty after Russell gave testimony that supported the role enhancement. White further testified that Linder did not e xplain the differences between what would happen if White did or did not plead guilt y
. The magistrate judge issued a report finding that (1) White would not have accepted the plea offer, “regardless of what he was told about the plea agreement” ; (2) White wanted to go to trial and did not believe Russell would testify against him ; (3) White had failed to show deficient performance on the part of Linder ; and (4) Linder reviewed the terms of the plea agreement with White, but White was not interested in the details of the agreement, as he had already decided to reject the plea offer. The magistrate judge recommended that the Section 2255 motion be denied. White filed timely objections , but the district court adopted the report and recommendation

. The cour t dismissed the Section 2255 motion but granted a COA “with respect to the claim that counsel’s deficient performance Case: 19-40229 Document: 00515572184 Page: 4 Date Filed: 09/21/2020No. 19

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5 caused [White] to reject the Government’s pre

- trial plea offer.” White timely appealed.

DISCUSSION White was represented by counsel in the Section 2255 proceedings in district court but filed a pro se notice of appeal and appellate brief . He contend s the district court erred in denying him relief for these defects in his counsel’s assistance: (1) failing to advise White that he would not receive credit for acceptance of responsibility if White went to trial ; (2) erroneously advising White that he had to go to trial to challenge the role enhancement ; and (3) failing to advise White of the possibility of entering an open p lea. We consider the first two arguments together because they are within the scope of the COA. White’s third argument will be treated separately because of a threshold issue of whether the COA allows us to resolve it

.

I. Whether trial counsel’s deficie nt performance caused White to reject the Government’s plea offer On appeal from a district court’s grant or denial of a Section 2255 application, we review th at court’s legal conclusions de novo and its factual findings for clear error. United States v. Cavitt , 550 F.3d 430, 435 (5th Cir. 2008). Claims of ineffective assistance of counsel are mixed questions of law and fact, reviewed de novo

. United States v. Phea , 953 F.3d 838, 841 (5th Cir.
20 20 ). C redibility determinations are factual findings, which are not clearly erroneous so long as the findings are plausible in light of the record as a whole. United States v. Montes , 602 F.3d 381, 384 (5th Cir. 2010). An attorney renders constitution ally ineffective assistance if his performance falls below an objective standard of reasonableness ; that deficient performance also must prejudice the client

. Strickland v. Washington , 466 Case: 19-40229 Document: 00515572184 Page: 5 Date Filed: 09/21/2020No. 19

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6 U.S. 668, 687

– 88 (1984)

. For prejudice, White “must show that the re 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. A failure to establish either deficient performance or prejudice defeats the claim. Id. at 697. When a defendant like White contends that counsel’s deficient performance caused the defendant to reject a plea offer, the Strickland prejudice inquiry requires the defendant to show that : (1) but for counsel’s ineffective advice, there is a reasonable probability that the defendant would have accepted the plea; (2) the court would have accepted its terms; and (3) under the plea, the sentence would have been less seve re than the one imposed. Lafler v. Cooper , 566 U.S. 156, 164 (2012). White argues that the evidence shows that he was willing to accept the Government’s pl e a offer if Linder had properly advised him . At the evidentiary hearing on White’s claim for ineffe ctive assistance of counsel, White testified that Linder failed to advise him that by going to trial , White would not receive credit for acceptance of responsibility. Linder testified to the contrary

. T he district court found Linder’s testimony more credible and determined that Linder indeed reviewed with White “the risk of losing credit for acceptance of responsibility by going to trial.” Because this factual finding is plausible in light of the record as a whole, it is not clearly erroneous. See Montes , 602 F.3d at 384. White has therefore failed to show that Linder performed deficiently by failing to advise him that he would lose the credit for acceptance of responsibility by going to trial. White next argues that Linder erroneously advised that the only choices were to accept the plea offer or, if White wanted to challenge the role enhancement, to go to trial. According to White, the record shows that he would have accepted a plea deal had he bee n properly advised. The district Case: 19-40229 Document: 00515572184 Page: 6 Date Filed: 09/21/2020No. 19

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7 court did not address the factual question of what choices were described by his counsel . The court did determin e, though, that White “was not going to accept the plea offer, regardless of what he was told about the plea agreement.”
In view of the testimony that Linder informed White about the plea agreement
but that White was adamant about going to trial in part because he did not believe Russell would testify against him, the district court’s factual determination is pl ausible and not clearly erroneous. See Montes , 602 F.3d at 384. White thus fails to establish prejudice because he has not shown that, but for Linder’s deficient advice, there is a reasonable probability that White would have accepted the plea offer.

II. Whether White’s trial counsel was ineffective for failing to advise White of the possibility of entering an open plea White’s third argument of ineff ective assistance of counsel is that Linder failed to advise him of the possibility of entering an open plea. An open plea is a guilty plea made by a criminal defendant without the benefit of a plea agreement offered by the government. We first must cons ider whether this argument is within the scope of the COA granted by the district court

. This court determined that this issue would benefit from assistance of pro bono counsel. Attorney Paulette C. Miniter agreed to serve in that capacity. We thank her for able assistance to her client and this court. Her supplemental brief address ed “whether the claim that trial counsel was deficient in failing to advise Appellant of his right to enter an open plea falls within the grant of the [COA] , and, if so, the merits of this claim.” The Government submit ted a
response

. We first address the scope of the COA.
A. Claims covered by the Certificate of Appealability We will not consider claims that exceed the scope of issues on which a COA is granted. United States v. Kimler , 150 F.3d 429, 430

– 31 (5th Cir. 1998). Case: 19-40229 Document: 00515572184 Page: 7 Date Filed: 09/21/2020No. 19

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8 If a party expressly seeks a COA on additional issues, which White has not done, this court may certify those issues if the p arty meets the requirements for a COA. See i d. at 431. Thus, we first consider whether the open

- plea claim is within the scope of the COA granted by the district court

. We begin with a review of the procedural history of White’s Section 2255 motio n. In th e motion, White alleged Linder told him that “ the only way to challenge any enhancement at sentencing is” to go to trial , and Linder “did not inform [ him ] that he could lose the ‘acceptance of responsibility’ credit” if he went to trial. White claimed t hat “ [b] ut for [Linder’s] incorrect advice, [ he ] would have accepted the plea offer made by the Government.” White did not explicitly reference in the motion the now

- raised open

- plea argument. On March 31, 2016, t he district court denied the motion

. In this court’s order of May 30, 2017, we summarized White’s argument, then stated that “a COA is GRANTED on this ineffective assistance claim, as well as on the related issue” of whether to have an evidentiary hearing. Our order stated that the claim

con cerns the advice provided by counsel in connection with a proposed pretrial plea bargain, which, among other provisions, called for him to receive an enhancement for his role in the offense and for him to receive credit for acceptance of responsibility. Wh ite asserts that he was erroneously advised by counsel that a role enhancement could not be applied under the law, but that he had to go to trial in order to challenge the enhancement. He further asserts that counsel failed to advise him that he risked los ing credit for acceptance of responsibility if he did not plead guilty prior to trial. We issued an opinion on the COA on March 22, 2018, in which we remanded for “further proceedings on the ineffective

- assistance claim on which the COA was granted.” Whi te , 715 F. App’x at 43 8

. Because the authority given to the district court for the remand was to consider further the matters within the reach of the COA, that is the limit of Case: 19-40229 Document: 00515572184 Page: 8 Date Filed: 09/21/2020No. 19

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9 what the district court could decide. See United States v. Lee , 358 F.3d 315 , 321 (5th Cir. 2004). This limitation arises from the “mandate rule,” which , “[a]bsent exceptional circumstances,

. . . bars litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court. ” Id. It was not until counsel was appointed for White on remand that the issue of Linder’s failure to advise White of the option of an open plea was raised. The issue was first mentioned at the evidentiary hearing when Whit e’s

new counsel questioned White about whether Linder advised White of an open plea option and whether White would have entered such a plea if White had been advised. The magistrate judge’s report did not discuss th e testimony about an open plea or otherwise address the issue

. White object ed to the r eport and

r ecommendation, emphasizing his open

- plea argument . The district court adopted the magistrate judge ’s report and concluded, without elaboration, that White’s objections w ere unmeritorious. It granted a COA “with respect to the claim that counsel’s deficient performance caused Movant to reject the Government’s pre

- trial offer.” In light of the mandate rule, that new COA cannot include any issue that this court did not rem and to the district court. Id. The new COA could be narrower, but in light of the district court’s similar , if more succinct , language, we will apply the language of our 2017 COA order but without the issue of an evidentiary hearing being again before us

. White argues that the COA permits his open

- plea argument because he made the argument before the district court , and the court later granted a COA on ineffective assistance of counsel relating to rejection of the Government’s plea offer that did not deta il any specific parts of that argument. White cites one of our opinions which held that because a district court granted a COA that used “broad, general language” instead of a specific lis t of issues for which the Case: 19-40229 Document: 00515572184 Page: 9 Date Filed: 09/21/2020No. 19

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10 ineffective assistance claim was granted, the COA “effectively permit [ted] ” all claims of ineffective assistance. Jones v. Cain , 227 F.3d 228, 230 (5th Cir. 2000)

. T he “broad, general language” was not quoted in Jones for us to

compare to that used here

. The 2017 COA from this court a llowed consideration on remand of alleged ineffective counsel that caused White to be told “ that he had to go to trial in order to challenge ” an enhancement for his role in the offense, and that failed to advise White “ that he risked losing credit for acce ptance of responsibility if he did not plead guilty prior to trial. ” Both of those ineffective

assistance claims insist that better advice would have caused him to accept the offered plea bargain. Of course, plea bargaining i s a process in which counsel f or a criminal defendant negotiates with the prosecution in pursuit of a mutually agreeable bargain

. A criminal defendant is entitled to effective counsel during those negotiations. See Missouri v. Frye , 566 U.S. 134, 144 (2012). White’s claim is based on a factual predicate that he needed to be informed of the benefits of rejecting a bargain , while the COA is for deficiencies of counsel that failed to inform him of harms from rejecting a bargain

. Whi te argues that the open

- plea claim sufficiently relates to the claims that are clearly within the scope of the COA and relies on two of this court’s opinions

. One concerned a COA that had been granted “ on the issues whether trial counsel failed to advise [the defendant] about his appellate rights and whether counsel failed to file a notice of appeal as requested by” the defendant. United States v. Camargo , 119 F. App’x 670, 671 (5th Cir. 2005 ) . The government had argued that the COA did not reach the iss ue of counsel ’s possible failure to consult the defendant about whether the defendant wished to appeal. Id. The court held that the differences among the issues were mere “nuance” ; all were “sufficiently interrelated” to consider

. Id. Camargo is an Case: 19-40229 Document: 00515572184 Page: 10 Date Filed: 09/21/2020No. 19

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11 unpublished opinion and therefore is nonprecedential . I n any event, that decision is consistent with our result here as the difference between bad advice causing a rejection of a plea bargain and bad advice failing to explain the existence of an op tion to rejec t the bargain is not nuanced. White also relies on a decision in which a COA was granted on the claim that the defendant’s counsel on direct appeal should have presented certain issues about discrimination in jury sel ec tion

. Higgins v. Cain , 720 F.3d 255,
2 60 (5th Cir. 2013). Then, once in this court, a new claim was raised that counsel was ineffective because of a fail ure to obtain a transcript of the jury voir dire

. Id. at 261. We held that even if the issues identified in the COA did

no t mention a transcript, acquiring one would be irrelevant without the jury

selection issues identified in the COA. Id. at 261 n.14

. The transcript issue was not so much new as it was a means to resolve what was already presented. Based on these two cases , White contends the open

- plea argument is sufficiently related because an “open plea is of a piece with advising that the only way to challenge the enhancement was by standing trial,” and similarly, that Linder ’s failing to advise White of “his right to plead open is of ‘no moment’ absent [Linder ’s ] advising” White that the only way to challenge the role enhancement is to stand trial. W e conclude that the COA is explicitly limited to ineffectiveness that led
to rejection of the offered plea bargain. The argument about advice concerning

an open plea is not sufficiently related. Nonetheless, we briefly analyze whether, eve n if the COA would permit the argument , White has shown prejudice by not being informed abo ut open pleas

. B. Prejudice If this issue w ere within the scope of the COA, White would have to show that Linder ’s fail ure to provide advice about open plea s was constitutionally deficient and that White was prejudice d

. Strickland , 466 U.S. at 687

– 88

. “If Case: 19-40229 Document: 00515572184 Page: 11 Date Filed: 09/21/2020No. 19

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12 it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id. at 697. We will examine only the issue of prejudice. Prejudice in this context includes showing that but for Linder’s failure to advise, there is a reasonable probability that White would have entered an open guilty plea before trial

. See Cooper , 566 U.S. at 164

. According to White, his testimony shows tha t “he would have pleaded guilty without an agreement before trial if he had known of that option.” White also discusses a letter that he wrote before trial to the prosecutor that White now says indicated he “was willing to plead guilty if he could do so w ithout stipulating to the sentencing enhancements the Government sought.” The letter actually states he was willing to plead to one count if the prosecutor would be “willing to drop the leadership role and the gun enhancement.” That is not showing intere st in an open plea ; it is pursuing a bargain

. There is additional evidence shedding light on the possibility White would have made an open plea had he only known of it. Linder testified that White “was adamant about wanting to go to trial,” and that White told him , “I’m not going to plead, I want to go to trial, [Russell’s] not going to testify against me.” Russell testi fied that one month before trial, White wrote a letter telling her not to testify against him, but urging that if she did, to lie an d testify that White ingested the pseudoephedrine pills instead of using them to manufacture meth amphetamine , which he thought would undermine both charges brought against him

. There was ample evidence that White was unconcerned about Russell as a witness and thought he could win at trial. White cannot show a reasonable probability that he would have entered an open guilty plea before trial

. Thus, any ineffectiveness of counsel in failing to explain open pleas could not have prejudice d him

. AFFIRMED. Case: 19-40229 Document: 00515572184 Page: 12 Date Filed: 09/21/2020