IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2009
No. 07-10477
Summary Calendar Charles R. Fulbruge III
Clerk
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
*
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should not be published and is not precedent except under the limited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.
No. 07-10477
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
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No. 07-10477
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.
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