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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15639
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D.C. Docket Nos. 4:13-cv-00195-RH-CAS,
4:10-cr-00070-RH-CAS-1
SHANE JONES, Petitioner-Appellant,
versus
UNITED STATES OF AMERICA, Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 27, 2018)
Before WILSON and NEWSOM, Circuit Judges, and WRIGHT, * District Judge.
PER CURIAM:
*
Honorable Susan Webber Wright, United States District Judge for the Eastern District of
Arkansas, sitting by designation.
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Shane Jones, a federal prisoner, appeals the district court’s decision denying
his motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. After review and
oral argument, we affirm.
I.
Jones pleaded guilty to possession with intent to distribute more than five
grams of cocaine base in violation of 21 U.S.C. § 841(b)(1)(B)(iii). At the time of
sentencing on July 14, 2011, Jones was serving a three-year sentence in the Florida
Department of Corrections for violating conditions of probation imposed in
connection with convictions for possession of a firearm by a convicted felon and
violation of driver’s license restrictions.
After a three-level adjustment for acceptance of responsibility, Jones’s total
offense level was 34, and with a level VI criminal history category, the advisory
guidelines range was 262 to 327 months. Jones’s sentencing attorney argued that
his criminal history category was “grossly overstated” because several of the
violations factored in occurred within a short period of time, when Jones was only
nineteen years old. Jones’s attorney also noted that Jones “picked up three
[criminal history category] points” for the violations that resulted in his
undischarged state prison sentence.
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The district court found that Jones’s level VI criminal history category was
proper but that treating him as a career offender would overstate the seriousness of
his crimes. On the other hand, the district court found it “very troublesome” that
Jones had a pattern of re-offending when given a chance to rehabilitate.
Ultimately, the district court imposed a 120-month sentence, the statutory
mandatory minimum. Speaking directly to Jones, the district court stated, “I have
to tell you, Mr. Jones, I think this is the right sentence under all of the
circumstances, and so that's why this is the sentence I'm going to impose.”
Jones appealed his conviction and sentence, and this Court affirmed. Jones
then filed a motion pursuant to 28 U.S.C. § 2255, asserting several ineffective
assistance of counsel claims, including that his sentencing attorney failed to
request that his federal sentence run concurrently with his undischarged state
sentence. Jones alleged that his attorney had agreed to request that his federal
sentence run concurrently with his state sentence, but when Jones reminded him to
do so at sentencing, counsel misinformed him that he could address the issue on
appeal. The district court adopted a magistrate judge’s report and
recommendation, finding that Jones’s § 2255 motion should be denied in its
entirety, without an evidentiary hearing. The district court denied a certificate of
appealability but granted leave to proceed on appeal in forma pauperis.
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This Court granted a certificate of appealability on the single issue of
whether the district court erred in denying, without an evidentiary hearing, Jones’s
claim that counsel rendered ineffective assistance by failing to request that Jones’s
federal sentence run concurrently with his undischarged state sentence.
II.
“In a 28 U.S.C. § 2255 proceeding, we review a district court's legal
conclusions de novo and factual findings for clear error. A claim of ineffective
assistance of counsel is a mixed question of law and fact that we review de novo.”
Devine v. United States,
520 F.3d 1286, 1287 (11th Cir. 2008). We review the
denial of an evidentiary hearing for abuse of discretion. Diveroli v. United States,
803 F.3d 1258, 1262 (11th Cir. 2015) (citing Aron v. United States,
291 F.3d 708,
714 n.5 (11th Cir. 2002)).
III.
An evidentiary hearing is not required where an ineffective assistance of
counsel claim can be resolved on the existing record. Schultz v. Wainwright,
701
F.2d 900, 901 (11th Cir. 1983). To prevail with an ineffective assistance of
counsel claim, Jones has the burden to establish both deficient performance and
prejudice--that “counsel's representation fell below an objective standard of
reasonableness,” and that “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington,
466 U.S. 668, 688, 694,
104 S. Ct. 2052,
80 L. Ed. 2d 674
(1984).
The Government concedes that if Strickland’s deficient performance prong
were dispositive, Jones would be entitled to an evidentiary hearing, and we assume
without deciding that Jones’s allegations are sufficient to establish deficient
performance. To establish prejudice, Jones must establish a reasonable probability
that had his sentencing counsel made an explicit request, the district court would
have ordered his federal sentence to run concurrently with his undischarged state
sentence. United States v. Alvarez, 184 Fed. Appx. 876, 881 (11th Cir. 2006); see
also Peoples v. Campbell,
377 F.3d 1208, 1244 (11th Cir. 2004). A review of the
record confirms that Jones is unable to make this showing. The district court
pronounced Jones’s sentence as follows: “Based on the Sentencing Reform Act of
1984, as amended, the court's judgment is that the defendant, Shane Jones, is
committed to the Bureau of Prisons for 120 months.” Under the Sentencing
Reform Act, multiple terms of imprisonment imposed at different times run
consecutively unless the court orders otherwise, and the decision is left to the
discretion of the sentencing court. See 18 U.S.C. § 3584(a). The possibility that
the district court might have exercised its discretion to run Jones’s federal sentence
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concurrently with the remaining term of his state court sentence is insufficient to
show prejudice, and the record indicates that a request to structure Jones’s sentence
in that way would have been denied. The district court, aware that Jones was
serving a state sentence for parole violations, plainly stated that the sentence
imposed was “the right sentence under all of the circumstances.”
Finally, because Jones is unable to show prejudice, an evidentiary hearing is
unnecessary. Alvarez, 184 Fed. Appx. at 881(citing Breedlove v. Moore,
279 F.3d
952, 960 (11th Cir. 2002) (explaining that an evidentiary hearing is not necessary if
it would not assist in the resolution of the claim under § 2255).
IV.
For the reasons stated, we affirm the district court’s denial of Jones’s claim
asserting ineffective assistance of counsel.
AFFIRMED.
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