REVISED June 7, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31005

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DWIGHT ANTHONY REED

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before SMITH, HAYNES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Following a jury trial, Reed was convicted of multiple counts oftrafficking

in counterfeit goods and sentenced to forty-eight months’ imprisonment. Reed

appealed his conviction and sentence but subsequently dismissed the appeal

voluntarily. Reed then filed a motion under 28 U.S.C. § 2255 seeking to vacate

his conviction and sentence on various grounds, including ineffective assistance

of counsel. The district court denied Reed’s motion and denied a certificate of

appealability. On Reed’s motion, this court granted a certificate of appealability

only on the issue of whether the district court erred in denying, without

conducting an evidentiary hearing, Reed’s claim that his trial counsel was

United States Court of Appeals

Fifth Circuit

F I L E D

June 6, 2013

Lyle W. Cayce

Clerk
No. 12-31005

2

ineffective in failing to properly advise him on the sentence he would have faced

had he accepted the government’s plea offer. For the following reasons, we

VACATE the district court’s order with respect to this issue only and REMAND

for an evidentiary hearing.

BACKGROUND

Reed was the owner of a clothing store operating in the Pierre Bossier Mall

in Bossier City, Louisiana. On September 25, 2009, Reed was charged in a

twenty-one-count indictment. The indictment alleged that in 2005 and 2006,

Reed trafficked in counterfeit goods with brands such as Nike, Louis Vuitton,

Gucci, and Coach. In Reed’s affidavit attached to his § 2255 motion, he states

that he had an initial conference with his trial counsel in November or December

2009. According to Reed, counsel informed him that the government had offered

a plea deal in which Reed would plead guilty to the count involving Louis

Vuitton merchandise and the remaining counts would be dismissed. Reed

further states that counsel informed him that, based on the Sentencing

Guidelines, he would be facing a thirty-six month sentence if he accepted the

plea deal and a forty-eight- to sixty-month sentence if he went to trial.

On March 25, 2010, Reed was charged in a twenty-one-count superseding

indictment that was nearly identical to the original indictment. According to

Reed’s affidavit, his trial counsel met with him in April 2010 and once again

stated that he would face thirty-six months if he pleaded guilty and forty-eight

to sixty months if he went to trial. In his § 2255 motion, Reed suggests that he

proceeded to trial because the potential sentencing exposure did not seem much

worse than what he would face if he accepted the plea deal. Although two of the

counts were dismissed on the first day of trial, the jury convicted Reed on all

remaining counts. Reed testified at trial, and at one point admitted that he

knew he had been selling counterfeit Louis Vuitton and Coach purses. R. 1055.
No. 12-31005

1 Because a certificate of appealability was granted as to only one claim, Reed’s

remaining claims are not addressed here.

3

However, he stated that he did not know that any of the other merchandise he

sold was counterfeit. Id.

The presentence report (“PSR”) calculated a base offense level of eight for

trafficking in counterfeit goods and an eight-level increase based on the

calculated retail value of the counterfeit goods attributed to Reed. The PSR also

recommended a two-level increase on the ground that Reed had obstructed

justice by providing false information. The PSR explained that Reed “testified

during trial that he was unaware the merchandise he was selling in his store

was counterfeit,” but noted that Reed had received letters from mall

representatives on May 2, 2005, and May 23, 2005, complaining about the sale

of counterfeit merchandise from Reed’s store. The PSR recommended a total

offense level of eighteen and a criminal history category of I, giving Reed an

advisory guidelines range of twenty-seven to thirty-three months imprisonment.

Reed did not object to the PSR.

The district court accepted the proposed guidelines calculation, including

the enhancement for obstruction of justice. The district court stated that “in the

trialthe defendanttook the stand and testified, and it’s obvious to the Courtthat

the jury did not buy his side of the story.” R. 1132. The district court departed

from the guidelines range and imposed a sentence of forty-eight months

imprisonment on each count, to run concurrently. The district court explained

that Reed’s criminal history was underrepresented in the guidelines calculation.

In Reed’s § 2255 motion, he contends that his advisory guidelines range

would have been eight to fourteen months imprisonment if he had accepted the

government’s plea deal.1 Reed argues that his trial counsel rendered ineffective

assistance by erroneously stating that he would face a thirty-six month sentence

if he accepted the government’s plea deal. Reed further argues that he would
No. 12-31005

4

have accepted the plea deal but for counsel’s erroneous overestimation of his

sentence. As mentioned above, Reed includes a signed affidavit with his motion.

The government’s response to Reed’s motion does not include an affidavit

from his trial counsel or otherwise challenge the factual assertions in Reed’s

affidavit. The government argues only that “besides the defendant’s allegations,

there is no indication that the attorney ever predicted a certain sentence if the

defendant pleaded guilty.” S.R. 89. The district court rejected Reed’s claim with

the following analysis:

The only evidence Reed offers the Court in conjunction with this

allegation [is] his self-serving and uncorroborated account of his

discussions with his counsel. This is not a sufficient showing that

Reed’s counsel was, in fact, ineffective during plea negotiations.

Reed made the decision to go to trial. The outcome was not a

favorable one for Reed and now he is attempting to go back and

benefit from a plea bargain he rejected. The Northern District of

Texas has quite correctly referred to this argument as “a

quintessential example of attempting to have [one’s] cake and eat it

too.” Green v. Johnson, 46 F. Supp. 2d 614, 622-23. In Green, the

court warned that “if habeas relief were freely granted in such

circumstances, no rational defendant would ever accept a plea

bargain before trial. Instead, he would try to obtain an acquittal at

trial and, if unsuccessful, retroactively seek – through habeas relief

– the benefit of any plea bargain previously offered by prosecution.”

Based on the lack of competent evidence and the reasoning of Green,

this allegation must be dismissed.

S.R. 179-80. Reed now appeals the district court’s dismissal of his claim.

DISCUSSION

“[T]he negotiation of a plea bargain is a critical phase of litigation for the

purposes of the Sixth Amendment right to effective assistance of counsel.”

Padilla v. Kentucky, 130 S. Ct. 1473, 1486 (2010). “When considering whether

to plead guilty or proceed to trial, a defendant should be aware of the relevant

circumstances and the likely consequences of his decision so that he can make

an intelligent choice.” United States v. Rivas-Lopez, 678 F.3d 353, 356-57 (5th
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5

Cir. 2012). “To establish an ineffective assistance claim, a defendant must show

that counsel’s performance fell below an objective standard of reasonableness

and that there is a reasonable probability that but for counsel’s poor

performance the result of the proceeding would have been different.” Id. at 357.

As to prejudice, when a defendant alleges that counsel’s deficient performance

caused him to reject a plea offer, he

must show that but for the ineffective advice of counsel there is a

reasonable probability that the plea offer would have been

presented to the court (i.e. that the defendant would have accepted

the plea and the prosecution would not have withdrawn it in light

of intervening circumstances), that the court would have accepted

its terms, and that the conviction or sentence, or both, under the

offer’s terms would have been less severe than under the judgment

and sentence that in fact were imposed.

Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). “Any amount of additional jail

time is significant for purposes of showing prejudice.” Rivas-Lopez, 678 F.3d at

357.

A. Deficient performance

The district court made no factual findings and did not conclude that

Reed’s allegations were false. Rather, the district court rejected Reed’s

allegation of deficient performance, without holding an evidentiary hearing, on

the ground that Reed’s “self-serving and uncorroborated account of his

discussions with his counsel” was “not a sufficient showing that Reed’s counsel

was, in fact, ineffective during plea negotiations.” S.R. 179.

We review the district court’s denial of an evidentiary hearing for abuse

of discretion. United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006). “A

motion brought under 28 U.S.C. § 2255 can be denied without a hearing only if

the motion, files, and records of the case conclusively show that the prisoner is

entitled to no relief.” United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir.

1992) (per curiam). Conclusory allegations, unsubstantiated by evidence, do not
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6

supportthe requestfor an evidentiary hearing. United States v. Auten, 632 F.2d

478, 480 (5th Cir. 1980).

A defendantis entitled to an evidentiary hearing on his § 2255 motion only

if he presents “independent indicia of the likely merit of [his] allegations.” See

United States v. Cavitt, 550 F.3d 430, 442 (5th Cir. 2008). However, this

requirement must be understood practically, in the context of the claim being

presented. For example, when a defendant’s allegations contradict his sworn

testimony given at a plea hearing, we have required more than “mere

contradiction of his statements,”typically “specific factual allegations supported

by the affidavit of a reliable third person.” United States v. Raetzsch, 781 F.2d

1149, 1151 (5th Cir. 1986); United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir.

1985). Similarly, speculative and unsupported accusations of government

wrongdoing do not entitle a defendant to an evidentiary hearing. See, e.g.,

United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980) (“Auten does not point

to any evidence, nor do we find any in the record, to support his allegation that

the government knowingly used perjured testimony . . . . Auten’s conclusory

assertions do not support the request for an evidentiary hearing.”); UnitedStates

v. Edwards, 442 F.3d 258, 265 (5th Cir. 2006) (“Our review of the record reveals

no factual support for this improbable scenario [involving alleged government

Brady violations]; instead, the record affirmatively contradicts Appellants’

arguments.”).

By contrast, Reed’s allegations are not speculative or conclusory. In his

affidavit, he makes a specific factual claim based on personal knowledge – that

trial counsel predicted a thirty-six month sentence if he accepted the

government’s plea deal. Reed’s affidavit constitutes competent evidence

sufficient, if believed, to establish that counsel in fact made such a prediction.

Nor do Reed’s allegations contradict any evidence in the record. Moreover, it is

hard to imagine what additional evidence Reed could present to establish what
No. 12-31005

7

his trial counsel told him in a presumably private conversation. An affidavit

from Reed’s trial counsel would of course be very helpful, but the government

has not obtained such an affidavit and it is not clear how Reed could have

obtained it prior to filing his motion. Affidavits from third parties would

seemingly be useless here; even if Reed relayed counsel’s prediction to others,

their testimony would be hearsay and therefore inadmissible to prove that

counsel had in fact made the prediction. Because Reed’s affidavit was sufficient

to prove his allegation and was not speculative, conclusory, plainly false, or

contradicted by the record,the district court erred in rejecting it without holding

an evidentiary hearing.

The government suggests that Reed’s allegations are inherently

improbable because Reed alleges a prediction of a fixed sentence rather than a

range. The government notes that Reed’s trial counsel was an assistant federal

public defender, and argues that “[a]dvising a defendant of a specific sentence

(36 months) rather than a range is not consistent with the practice of attorneys

with experience in federal criminal matters such as attorneys with the Federal

Public Defender’s office.” Red Brief at 14. However, to prove deficient

performance, Reed must show that counsel’s performance fell below an objective

standard of reasonable lawyering. It would be ironic to reject his claim as

unbelievable precisely because he alleges conduct that is inconsistent with the

normal practice of experienced attorneys.

Assuming trial counsel did predict a thirty-six month sentence for Reed if

he accepted the government’s plea offer, it is unclear whether this constituted

deficient performance. With the benefit of hindsight, thirty-six months does

appear to be a significant overestimation of Reed’s likely guidelines range.

Absent a two-level obstruction of justice enhancement based on Reed’s trial

testimony, and with a likely three-level reduction for acceptance of

responsibility, Reed’s total offense level would be thirteen. With his criminal
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8

history, this would provide a guidelines range of twelve to eighteen months

imprisonment. Of course, based on the information known to counsel at the time

of her advice to Reed, thirty-six months may well have been a reasonable

prediction. But without additional evidence, we cannot say that “the motion and

the files and records of the case conclusively show that [Reed] is entitled to no

relief.” 28 U.S.C. § 2255(b).

B. Prejudice

The district court did not address the issue of prejudice. The government

nonetheless argues that the district court’s dismissal of Reed’s claim may be

affirmed because Reed has failed to establish prejudice resulting from his trial

counsel’s allegedly deficient performance. The government does not dispute

Reed’s description ofthe plea offer or suggestthatit would have been withdrawn

or would not have been accepted by the district court. The government argues,

though, that Reed would not have accepted the plea offer in any case, and that

even if he had, his sentence would not necessarily have been lower.

Reed states in his § 2255 motion that he would have pleaded guilty if he

had been given an accurate picture of his sentencing exposure. The government

contends that this statement “is not consistent with his assertions of innocence

at trial.” Red Brief at 15. However, Reed states that he was offered a plea deal

in which he would plead guilty to only one count involving counterfeit Louis

Vuitton products. Reed did not assert innocence as to this count, and in fact

admitted at trial that he knew these products were counterfeit. It is not difficult

to conclude that Reed would plead guilty to conduct he was willing to admit at

trial.

The government also argues that “even if [Reed] had pleaded guilty, in

light of his trial testimony, he would not have necessarily received a reduction

for acceptance of responsibility.” Red Brief at 15. Apparently, its argument is

that because Reed was unwilling to admit to all of the relevant conduct
No. 12-31005

9

associated with the offense to which he would have pleaded guilty, he may not

have been deemed to have accepted responsibility for the offense. However, as

noted above, Reed was clearly willing to admit the conduct underlying the count

that was the subject of the plea offer, and “a defendant is not required to

volunteer, or affirmatively admit, relevant conduct beyond the offense of

conviction in order to obtain a reduction” for acceptance of responsibility.

U.S.S.G. § 3E1.1, cmt. 1(A). In any event, even if Reed would not have received

a reduction for acceptance of responsibility, it seems unlikely that he would have

received an obstruction of justice enhancement.

The government contends that even if Reed had started from a lower

guidelines range,the district court still could have departed upward based on his

criminal history. This is, of course, true, but there is no reason to conclude that

the district court would have imposed an even higher upward departure if Reed

had pleaded guilty rather than gone to trial. Because any amount of additional

jail time is significant for purposes of showing prejudice, Rivas-Lopez, 678 F.3d

at 357, it is not at all clear that Reed has not been prejudiced by counsel’s

allegedly deficient performance.

CONCLUSION

For the reasons stated above, we VACATE the district court’s order

dismissing Reed’s § 2255 motion only with respect to the claim of ineffective

assistance of counsel during plea negotiations. We REMAND the case to the

district court for further proceedings, to include an evidentiary hearing. We

express no view on the merits of Reed’s claim.