In Re: Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 2, 2006 Decided June 1, 2007

No. 05-3030

IN RE: SEALED CASE

Appeal from the United States District Court
for the District of Columbia
(No. 98cr00074-01)

Lisa B. Wright, Assistant Federal Defender, argued the
cause for appellant. With her on the briefs was A.J. Kramer,
Federal Public Defender.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and Roy W.
McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The defendant in this case pled
guilty to one count of possession with intent to distribute 50
grams or more of cocaine base. He now seeks to vacate his
sentence on the ground that his trial counsel was ineffective in
failing to accurately advise him of his sentencing range under
the United States Sentencing Guidelines. Assuming without
 2

deciding that counsel’s representation was deficient, we
conclude that the defendant was not prejudiced by that
deficiency. We therefore affirm the district court’s denial of his
motion to vacate his sentence.

I

On November 24, 1997, the defendant sold a buyer 11.6
grams of cocaine base (“crack”). The sale took place in a
grocery store parking lot, inside the buyer’s car. Unbeknownst
to the defendant, the buyer was an undercover law enforcement
officer, and the transaction was caught on tape.

On March 5, 1998, a grand jury issued an indictment
charging the defendant with two counts of unlawful use of a
telephone to facilitate the distribution of cocaine base, in
violation of 21 U.S.C. § 843(b) (Counts 1 and 2), and one count
of distributing five grams or more of cocaine base, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count 3). On March
10, agents of the Drug Enforcement Agency and officers of the
United States Park Police arrested the defendant on the
indictment and executed a search warrant at his apartment. In
the course of the search, the police found two semi-automatic
pistols and approximately 100 grams of crack. On March 19,
the grand jury issued a superseding indictment charging the
defendant with the three above-mentioned counts, as well as two
additional counts: possession with intent to distribute 50 grams
or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(iii) (Count 4); and possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §
922(g)(1) (Count 5).

On July 21, 1998, with the advice of counsel, the defendant
entered into a plea agreement with the government. The
defendant agreed to plead guilty to Count 4 of the indictment,
 3

possession with intent to distribute 50 grams or more of cocaine
base, which was based on the drugs found in the defendant’s
apartment. He also agreed to cooperate with law enforcement
authorities “in any matter as to which the Government deem[ed]
the cooperation relevant.” Plea Agreement ¶ 6(a). For its part,
the government agreed, inter alia, to: (i) dismiss the remaining
counts of the indictment; (ii) consent to a three-level decrease in
the defendant’s offense level under the United States Sentencing
Guidelines for acceptance of responsibility, see U.S.
SENTENCING GUIDELINES MANUAL § 3E1.1 (1998) [hereinafter
U.S.S.G.]; and (iii) file a motion, pursuant to U.S.S.G. § 5K1.1,
for a downward departure from the defendant’s Sentencing
Guidelines range if it “determine[d] that [the defendant] has
provided substantial assistance in the investigation or
prosecution of another person who has committed an offense,”
Plea Agreement ¶ 20. The plea agreement noted that the
defendant’s mandatory minimum sentence for the crime to
which he was pleading guilty was ten years’ imprisonment, that
the maximum possible sentence was life, and that the ultimate
sentence would be imposed in accordance with the Sentencing
Guidelines. The agreement further stated that the defendant
understood that the sentence was within the sole discretion of
the court, and that he would not be allowed to withdraw from
the guilty plea due to the harshness of the sentence.

On July 24, 1998, the district court held a plea hearing
pursuant to Rule 11 of the Federal Rules of Criminal Procedure.
Among other things, the court asked the defendant whether he
understood that he faced a mandatory minimum term of ten
years in prison and a maximum term of life. The defendant
stated that he understood. The court then discussed the
Sentencing Guidelines, telling the defendant that the court
would not “actually be able to determine the guideline range in
your case until after a presentence report has been completed,”
and that the court had “authority in some circumstances to
 4

impose a sentence that is more severe or less severe than the
sentence called for by the guidelines.” Plea Hr’g Tr. 7 (July 24,
1998). The court asked the defendant whether he understood
that “the sentence will be up to the Court,” and asked whether
anyone had “made any prediction or promise as to what
sentence” the court would impose. Id. at 9. The defendant
stated that he understood and that no one had made any
predictions about his sentence. The court again warned that the
defendant could not rely on any predictions because “I don’t
know myself right now until I get the presentence report.” Id.
The defendant confirmed his understanding.

Next, the court asked the government for a proffer of the
evidence that it would have presented at trial. The government
stated that its evidence would have established, among other
things, that the defendant sold approximately 11 grams of crack
to an undercover officer, and that a later search of the
defendant’s residence turned up approximately 100 more grams
of crack, as well as two semi-automatic pistols. The court asked
whether the defendant was “essentially in agreement with” the
government’s version of events, and the defendant stated that he
was. Id. at 10. Finally, the court asked whether the defendant
was guilty of the crime charged in Count 4 of the indictment.
After the defendant stated that he was, the court accepted his
plea of guilty.

The United States Probation Office prepared its first
Presentence Investigation Report (PSR) on November 5, 1998.
The report calculated the defendant’s base offense level as 32,
because the offense involved 50 to 150 grams of crack. See
U.S.S.G. § 2D1.1(c)(4). After adjusting upward two levels
because of the pistols, see id. § 2D1.1(b)(1), and downward
three levels because the defendant accepted responsibility for the
offense, see id. § 3E1.1, the PSR settled upon a final offense
level of 31. The PSR also calculated the defendant’s criminal
 5

history, which included two prior felony convictions, as
Category IV. The resulting sentencing range was 151 to 188
months’ incarceration. Id. ch. 5, Pt. A (sentencing table).

Upon receipt of the initial PSR, the government advised the
Probation Office that the report failed to account for the
defendant’s status as a career offender, which derived from the
fact that his two prior convictions were for “controlled substance
offenses.” Id. § 4B1.1. In 1990, the defendant had been
convicted of attempted distribution of cocaine in the Superior
Court of the District of Columbia. In 1993, he was convicted in
the same court of attempted possession with intent to distribute
cocaine.

The Probation Office revised the PSR accordingly. Under
the career offender guideline, § 4B1.1, the defendant’s base
offense level was 37, because the statutory maximum sentence
for the offense to which he pled guilty was life imprisonment.
See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 4B1.1. After
adjusting downward three points for acceptance of
responsibility, the revised PSR fixed the defendant’s final
offense level at 34. The defendant’s criminal history category
under the career offender provision was VI. See U.S.S.G. §
4B1.1. In contrast to the initial PSR’s sentencing range of 151
to 188 months, the sentencing range generated by the revised
offense level and criminal history category was 262 to 327
months. Id. ch. 5, Pt. A (sentencing table).

At a status hearing held by the court on November 23, 1998,
defense counsel requested a continuance so that the defendant
could “get his head together” in light of the “major change in the
time he may get.” Status Hr’g Tr. 2, 3 (Nov. 23, 1998). The
court delayed sentencing two more times so that the defendant
could research the issues surrounding his sentencing. At some
point, the prosecutor also advised defense counsel that, although
 6

the defendant had attempted to cooperate with the government,
he did not have enough information to provide substantial
assistance, and that the government would therefore be unable
to file a motion supporting a downward departure from the
Guidelines.

The sentencing hearing was finally conducted on February
5, 1999. The hearing began with the defense asking the court to
allow the defendant to withdraw his guilty plea and go to trial.
The defendant told the court that his “understanding was that the
plea bargain would afford [him] the time of about 10 years, not
knowing what the presentence report would reveal,” but that
“about 10 years is a far cry different from more than twice as
much, which is what my guidelines call for from the presentence
report.” Sentencing Hr’g Tr. 5 (Feb. 5, 1999). The defendant
concluded:

All the counts I’m not guilty of. There are counts that
I am guilty of, but not all of them. I have remorse for
that because I did time on that before. . . . So I do have
to own up to my responsibility [for] the counts that I
know that I did commit that were wrong, but I did not
commit all of the counts.

Id. at 6. The court, however, denied the defendant’s motion to
withdraw the plea, finding that the defendant had “understood
the plea bargain” and “voluntarily accepted it.” Id. It then
sentenced the defendant to 262 months in prison, the bottom of
the Guidelines range. Id.1

1
The defendant was sentenced under the mandatory Sentencing
Guidelines regime that was in effect prior to the Supreme Court’s
decision in United States v. Booker, a decision that rendered the
Guidelines “effectively advisory.” 543 U.S. 220, 245 (2005). He does
not raise any argument based on Booker on this appeal.
 7

On direct appeal to this court, with the assistance of new
counsel, the defendant argued that a provision in the plea
agreement waiving his right to seek a downward departure from
the Guidelines was unenforceable because he had not knowingly
waived that right. A panel of this court rejected the appeal,
noting that the defendant did not challenge the provision in the
district court, and that even on appeal he did not identify any
ground for a downward departure. See In re Sealed Case, No.
99-3028, 2000 WL 815995 (D.C. Cir. May 16, 2000)
(unpublished opinion). The Supreme Court denied the
defendant’s petition for a writ of certiorari on November 13,
2000. Sealed Petitioner v. United States, 531 U.S. 998 (2000).

On November 12, 2001, the defendant filed a motion in the
district court, pursuant to 28 U.S.C. § 2255, seeking to vacate
his sentence on the ground that his trial counsel failed to provide
effective assistance when he entered into the plea agreement.
The defendant asserted that counsel did not advise him that he
qualified as a career offender under the Sentencing Guidelines,
or that his Guidelines range would be 262 to 327 months.
Indeed, the defendant charged that his lawyer failed to give him
any estimate of his Guidelines exposure at all, telling him that
until the Probation Office prepares a PSR, “no one else has any
idea” what the Guidelines range will be. Defendant’s Mot. to
Vacate, Set Aside or Correct Sentence at 11 (internal quotation
marks omitted). The defendant further contended that when he
“pressed,” his counsel told him to ask the prosecutor, and that
when the defendant did ask the prosecutor, he “understood her
to say that he would likely receive about 10 years.” Id. at 12,
13. If his counsel had correctly informed him of his sentencing
exposure, the defendant stated, he would have elected to go to
trial rather than plead guilty. And he affirmatively declared his
innocence of the crime “charged in Count Four.” Id. at 14.
 8

On December 7, 2004, the district court denied the
defendant’s motion to vacate his sentence. Relying on this
circuit’s opinion in United States v. Hanson, 339 F.3d 983 (D.C.
Cir. 2003), the court concluded that the defendant failed to show
that he was prejudiced by his counsel’s alleged ineffectiveness.
On July 29, 2005, the district court issued a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2). The defendant
now appeals the district court’s denial of his ineffective
assistance of counsel claim.

II

It is well-established that the validity of a guilty plea
depends on “‘whether the plea represents a voluntary and
intelligent choice,’” and that “the voluntariness of the plea
depends on whether counsel’s advice” satisfies the Sixth
Amendment guarantee of effective assistance. Hill v. Lockhart,
474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400
U.S. 25, 31 (1970)). It is also “well-established that . . . Sixth
Amendment claims may be raised in section 2255 proceedings.”
United States v. Toms, 396 F.3d 427, 432 (D.C. Cir. 2005). As
we noted in Toms, however, the “standard under which we
review a district court’s dismissal of a section 2255 petition
alleging ineffective assistance is unsettled.” 396 F.3d at 432.
Although other circuits have held that ineffective assistance
cases brought under section 2255 are reviewed de novo, see,
e.g., Williams v. United States, 452 F.3d 1009, 1012 (8th Cir.
2006); United States v. Molina-Uribe, 429 F.3d 514, 518 (5th
Cir. 2005), “we have thus far expressly declined to fix the
appropriate standard, not having been confronted with a case in
which the standard made a difference.” Toms, 396 F.3d at 433.
As in Toms, we “persist in our agnosticism on the appropriate
standard of review in this case,” since “we find that [the
defendant’s] claim fails even under the more searching de novo
standard.” Id.
 9

In Strickland v. Washington, the Supreme Court established
the now-familiar two-part test for ineffective assistance of
counsel claims. “First, the defendant must show that counsel’s
performance was deficient . . . . Second, the defendant must
show that the deficient performance prejudiced the defense.”
466 U.S. 668, 687 (1984). In this case, evaluation of the first
part of the Strickland test is complicated by the fact that the
defendant’s trial counsel has since died and is unable to testify
as to what advice he actually gave the defendant. As we have
found in other cases, however, this appeal can be resolved by
assuming that counsel was deficient in failing to inform the
defendant that he would be treated as a career offender under the
Sentencing Guidelines and, thus, that the first part of the
Strickland test has been met. See United States v. Horne, 987
F.2d 833, 835 (D.C. Cir. 1993); see also Strickland, 466 U.S. at
697 (“[A] court need not determine whether counsel’s
performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged
deficiencies.”). We therefore turn directly to the question of
whether the defendant suffered prejudice due to his counsel’s
deficient performance.

To satisfy the prejudice requirement in the context of an
attack on a guilty plea, “the defendant must show 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, 474 U.S. at 59. In United States v. Hanson, 339
F.3d 983, we confronted a case strikingly similar to the instant
appeal. In Hanson, the defendant pled guilty to distributing 50
grams or more of cocaine base. He subsequently moved to
withdraw his plea, asserting that his trial counsel had failed to
realize that he qualified as a career offender, and as a
consequence had calculated his Guidelines sentencing range as
121 to 151 months rather than the correct range of 262 to 327
months. The district court denied the motion and sentenced
 10

Hanson to 262 months’ imprisonment. On appeal, we accepted
that trial counsel’s assistance had been constitutionally
ineffective. Based upon a consideration of four factors,
however, we concluded that Hanson had failed to make the
required showing of prejudice. See id. at 990-92. Each of those
factors is present here as well.

The first factor in Hanson was “the district court’s
admonition at the plea hearing that Hanson should not rely on
sentencing predictions.” Id. at 990. Based on circuit precedent,
we found that admonition to “weaken[] the defendant’s claim
that those predictions were at the root of his decision to plead
guilty.” Id. (citing Horne, 987 F.2d at 834-38). The district
court gave the same admonition here, telling the defendant that
it would not “be able to determine the guideline range in your
case until after a presentence report has been completed,” Plea
Hr’g Tr. 7 (July 24, 1998), and that he could not rely on “any
prediction or promise as to what sentence” the court would
impose, since the court did not “know [itself] right now until [it
received] the presentence report,” id. at 9.

The defendant contends that it was not accurate for the
court to tell a defendant that his Guidelines range was
unknowable and that there was a risk he would be sentenced to
the statutory maximum. But even if the court’s admonition was
inaccurate, it nonetheless weakens the defendant’s claim of
reliance on a sentencing prediction.2 We agree with the
defendant, however, that even if his claim of reliance on an
inaccurate sentencing prediction “is ‘weakened’ by the warning
he was given that no one could predict his sentence, it is not
defeated” by that warning. Defendant’s Br. 31 (quoting Hanson,

2
We note that in this case the sentencing prediction at issue was
allegedly made by the prosecutor rather than defense counsel, albeit
on a “referral” from defense counsel. See supra Part I.
 11

339 F.3d at 990). The district court’s admonition is only one
factor in our analysis, and not the most important factor.

Second, in Hanson as in this case, “even if counsel had
told” the defendant the correct Guidelines range -- 262 to 327
months in each case -- the defendant “would nonetheless have
had reason to expect a sentence below that.” Hanson, 339 F.3d
at 990-91. In both cases, the plea agreement signed by the
defendant held out the possibility of a departure below the
Guidelines range, if the defendant were able to provide the
government with substantial assistance in other investigations.
Compare Hanson, 339 F.3d at 991, with Plea Agreement ¶ 20.
We do not dispute the defendant’s contention that he was less
likely than Hanson to be able to provide useful information
(because, unlike Hanson, he was not eligible for pretrial release),
and hence that his prospects of receiving a Guidelines departure
were dimmer. Even so, an examination of the plea agreement
leaves no doubt that the possibility of a sentence below the
Guidelines range was a factor in the defendant’s decision to
enter into the plea, and that this factor would have been relevant
(although not as important as in Hanson) even if he had been
correctly advised regarding that range.

Third, as in Hanson, had the defendant proceeded to trial
and been convicted, he would have confronted a substantially
higher Sentencing Guidelines range than that applicable to his
plea (and a substantially greater sentence than that which the
district court ultimately imposed). See Hanson, 339 F.3d at 991.
In making this determination, we consider not only the count to
which the defendant pled guilty, but also the other counts he
would have faced had he gone to trial. See United States v.
McCoy, 215 F.3d 102, 106-07 (D.C. Cir. 2000). Released from
the strictures of its plea agreement, the government would have
had no reason not to try the defendant on all five counts of the
indictment. In addition, we proceed on the assumption that a
 12

knowledgeable attorney would have correctly advised the
defendant of the sentence he faced as a career offender if he
chose not to plead -- even if trial counsel in this case did not do
so. See Hanson, 339 F.3d at 991.

Focusing on the two most significant counts of the
indictment, we note that a conviction on Count 3 -- for
distributing five grams or more of cocaine base to the
undercover officer in the grocery store parking lot -- would have
yielded a Guidelines range of 360 months to life, rather than the
262 to 327 months range applicable to his plea.3 Moreover, had
the defendant been convicted on the count to which he
ultimately pled guilty (Count 4) -- possession with intent to
distribute 50 grams or more of cocaine base discovered during
the search of his apartment -- he would have received a

3
The 360 to life range results from a criminal history category of
VI and an offense level of 37, with no reduction in the latter for
acceptance of responsibility as in the case of a plea, see U.S.S.G. §
3E1.1, cmt. n.2. See U.S.S.G. ch. 5, Pt. A (sentencing table). The
defendant’s status as a career offender mandates the criminal history
category. See id. § 4B1.1. The offense level of 37 results from a
combination of the career offender guideline, which assigns level 37
when the maximum statutory sentence is life, id. § 4B1.1, and the
relevant statute, 21 U.S.C. § 841(b)(1)(B), which authorizes a
maximum sentence of life for anyone who distributes five grams or
more of cocaine base and who has a prior felony drug conviction. The
defendant correctly points out that the statutory maximum life
sentence applies only if, before trial, the government files “an
information with the court . . . stating in writing the previous
convictions to be relied upon.” Id. § 851(a)(1). But there is no reason
to expect that the prosecutor would have failed to file the necessary
information in the absence of a negotiated plea agreement.
 13

mandatory sentence of life in prison.4 As in Hanson, “there is
no question but that a competent attorney would have advised
[the defendant] of the mandatory minimum sentence he faced”
if he decided not to plead. 339 F.3d at 991 (citing United States
v Booze, 293 F.3d 516, 518-19 (D.C. Cir. 2002)).

The final factor in analyzing the defendant’s claim of
prejudice is the strength of the defenses he would have had
against these charges had he gone to trial. As we explained in
Hanson, a defendant “does not need to show that he would have
prevailed at trial, only that there was a reasonable probability
that he ‘would have gone to trial.’” Hanson, 339 F.3d at 991
(quoting McCoy, 215 F.3d at 108) (emphasis in original).
“[A]ny rational decision regarding the latter,” however, “would
have required a realistic assessment” of the probability of the
former. Id.

The fact is that the defendant did not proffer any defense at
all to Count 3 in the briefs he filed in either this court or the
district court. That is not surprising, given that the defendant’s
sale of 11.6 grams of crack was to an undercover officer and
was caught on tape. At the time of his plea, the defendant
expressly admitted selling crack to the officer. See Plea Hr’g Tr.
10 (July 24, 1998). And even when he subsequently sought to
withdraw his plea to Count 4, the defendant never suggested that
he was innocent of Count 3. To the contrary, he conceded that
“[t]here are counts that I am guilty of,” and by the context

4
See 21 U.S.C. § 841(b)(1)(A) (requiring a mandatory life
sentence if the defendant committed the offense after two prior
convictions for felony drug offenses). The mandatory life provision
applies only if the government files an information regarding a
defendant’s prior convictions, id. § 851(a)(1), but again we see no
reason why the prosecutor would have failed to do so here. See supra
note 3.
 14

indicated that these included the charge of distributing crack to
the officer. Sentencing Hr’g Tr. 6 (Feb. 5, 1999).5 Under these
circumstances, any knowledgeable attorney would “have
advised [the defendant] that he stood little chance of obtaining
an acquittal at trial” on the distribution count, Hanson, 339 F.3d
at 991, which carried a Sentencing Guidelines range of 360
months to life.

Moreover, the defendant would also have faced the prospect
of conviction on Count 4, which carried a mandatory minimum
statutory sentence of life in prison. As the defendant correctly
points out, there was less certainty of conviction on this charge
than there was on Count 3; and there was likewise less certainty
that he would face a mandatory life sentence than was true for
the defendant in Hanson. Count 4 was based on the discovery
of 100 grams of crack during the execution of a search warrant
at the defendant’s residence. Because the defendant did not
have physical possession of the drugs at the time they were
seized, the government’s case would have had to rest on a theory
of constructive possession, requiring proof that he “knew of, and
was in a position to exercise dominion and control over them.”
United States v. Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002)
(internal quotation marks omitted). The government’s chances
of obtaining a conviction under such circumstances are certainly
lower than where it has both a tape and an eyewitness to the
defendant’s physical possession.

5
The defendant, who had a prior conviction for attempted
distribution of cocaine, told the court that he had “remorse for” the
counts he was guilty of “because I did time on that before. . . [, s]o I
do have to own up to my responsibility of the counts that I know I did
commit that were wrong, but I did not commit all of the counts.”
Sentencing Hr’g Tr. 6.
 15

Nevertheless, the chances of conviction were substantial.
In addition to the 100 grams of crack found in the defendant’s
home, uncontested evidence supported the charge that he had
sold the same drug to an undercover officer less than four
months earlier. That evidence would have been admissible not
only as direct evidence to prove Count 3, but also -- under
Federal Rule of Evidence 404(b) -- to prove the defendant’s
knowledge and intent regarding the 100 grams at issue in Count
4. See, e.g., United States v. Douglas, 482 F.3d 591, 596-601
(D.C. Cir. 2007); United States v. Crowder, 141 F.3d 1202, 1208
(D.C. Cir. 1998) (en banc); cf. Cassell, 292 F.3d at 794-95 (“A
prior history of intentionally possessing guns, or for that matter
chattels of any sort, is certainly relevant to the determination of
whether a person in proximity to such a chattel on the occasion
under litigation knew what he was possessing and intended to do
so.”). The evidence of one or both of the defendant’s prior drug
convictions could also have been admitted for the same purpose
(depending on the district court’s balancing of prejudice and
probativeness under Rule 403, see Cassell, 292 F.3d at 791-96;
United States v. Watson, 171 F.3d 695, 702-03 (D.C. Cir.
1999)).

In sum, if the defendant had been represented by
knowledgeable counsel at the time he was presented with the
opportunity to plead guilty, counsel would have told him that he
faced the following choice: On the one hand, he could accept
the proffered plea agreement and receive a sentence in the range
of 262 to 327 months, with the possibility of a lower sentence if
he were able to provide substantial assistance to the government.
On the other hand, he could go to trial and face the
overwhelming likelihood that he would serve at least 360
months in prison (more than eight years longer than the sentence
he actually received), coupled with the substantial possibility
that he would face a mandatory life sentence. Under these
circumstances, we conclude that the defendant has failed to
 16

demonstrate “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill, 474 U.S. at 59. Because he has
therefore failed to satisfy the prejudice prong of the Strickland
test, we reject the defendant’s claim of ineffective assistance of
counsel.6

III

For the foregoing reasons, the judgment of the district court,
denying the defendant’s section 2255 motion, is

Affirmed.

6
In support of his claim of prejudice, the defendant cites two
cases in which, on direct appeal, we reversed district courts that had
refused to permit the withdrawal of guilty pleas where defendants
received higher-than-predicted sentences. Those cases are readily
distinguishable. In United States v. McCoy, unlike here, the defendant
asserted his innocence both to the charge to which he pled and to
another as to which he had also been indicted, and we found that he
had defenses to both. 215 F.3d at 106, 107. Moreover, as we
explained in Hanson, in McCoy the defendant did not have “the
opportunity for a reduced sentence if he pled guilty and cooperated
with the government,” and “the district court not only did not warn the
defendant against relying on sentencing predictions, it failed to advise
him of the maximum statutory penalty.” Hanson, 339 F.3d at 991 n.7
(citing McCoy, 215 F.3d at 105, 106, 108). The other case cited by the
defendant, United States v. Watley, is also distinguishable because not
only did the district court not tell the defendant that “‘he should not
rely upon any [sentencing] estimate made by his counsel or anyone
else,’” 987 F.2d 841, 847 n.10 (D.C. Cir. 1993) (quoting Horne, 987
F.2d at 836), but the court itself “reinforced” the defendant’s
misunderstanding of the sentence he “would likely” receive, id. at 847.
See also Hanson, 339 F.3d at 990 n.5 (distinguishing Watley).