USCA11 Case: 21-14510 Document: 29-1 Date Filed: 12/27/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14510
Non-Argument Calendar
____________________
LENDEN PENDERGRASS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-61637-FAM
____________________
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2 Opinion of the Court 21-14510
Before WILLIAM PRYOR, Chief Judge, JORDAN, and NEWSOM, Circuit
Judges.
PER CURIAM:
Lenden Pendergrass appeals the denial of his motion to va-
cate his convictions for conspiracy to possess with intent to distrib-
ute fentanyl and possessing with intent to fentanyl and cocaine
base,
21 U.S.C. §§ 841(a)(1), 846, and possessing a firearm and am-
munition as a convicted felon,
18 U.S.C. § 922(g)(1). Pendergrass
argues that his defense counsel was ineffective because he failed to
follow Pendergrass’s instructions to appeal his sentence and alter-
natively failed to adequately consult with Pendergrass about an ap-
peal. We affirm.
I. BACKGROUND
Pendergrass pleaded guilty to three counts of conviction in
exchange for the dismissal of eight counts of possessing with intent
to distribute a controlled substance,
21 U.S.C. § 841(b)(1)(C), and
one count of possessing a firearm in furtherance of a drug traffick-
ing conspiracy,
18 U.S.C. § 924(c). His written plea agreement con-
tained an appeal waiver and provided that the government would
recommend a sentence at the low end of his advisory-guideline
range. The government also agreed to evaluate his cooperation
and, if warranted, to “make a motion prior to sentencing pursuant
to Section 5K1.1 of the Sentencing Guidelines and/or Title 18,
United States Code, Section 3553(e), or subsequent to sentencing
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21-14510 Opinion of the Court 3
pursuant to Rule 35 of the Federal Rules of Criminal Procedure.”
After reviewing the appeal waiver and confirming that Pendergrass
understood that he faced a mandatory-minimum sentence of 15
years and a maximum sentence of life imprisonment, the district
court accepted Pendergrass’s plea of guilty.
Pendergrass’s presentence investigation report initially pro-
vided an advisory guideline range of life imprisonment. But Pen-
dergrass, through counsel H. Scott Hecker, made several successful
objections to the report before sentencing. His revised report pro-
vided an advisory guideline range of 360 months to life imprison-
ment.
At his sentencing hearing, Pendergrass successfully objected
to a role enhancement, which the district court stated it “could
have gone either way on.” As a result, his advisory guideline range
was reduced to 292 months to 365 months. The government ar-
gued for 292 months, and Pendergrass requested a sentence of 15
years. The district court sentenced Pendergrass to 292 months of
imprisonment. The district court reminded Pendergrass of his ap-
peal waiver but advised him that any notice of appeal must be filed
within 14 days. Pendergrass confirmed that he understood. Pender-
grass did not appeal.
A year later, Pendergrass timely moved pro se to vacate his
conviction.
28 U.S.C. § 2255. Pendergrass argued that Hecker was
ineffective for failing to file a notice of appeal “upon request.” The
government requested an evidentiary hearing, and the magistrate
judge appointed Pendergrass counsel.
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At the evidentiary hearing, Hecker testified that he had prac-
ticed criminal law in federal court for 35 years. He was retained by
Pendergrass’s nephew, Tavaris Welch, and agreed to represent
Pendergrass in entering a change of plea for $10,000. Hecker pro-
duced an invoice showing that he received payments of $6,900,
$2,100, and $500. Although Pendergrass still owed $500, Hecker
“just let it go at that point.” The goal of the representation was to
avoid a life sentence because it was “a very severe case” in which
several deaths were connected to Pendergrass’s acts.
Hecker testified that, after the sentencing hearing, Pender-
grass asked, “Can we appeal?” Hecker responded, “Appeal what?”
and Pendergrass said, “The motherf*****g 24 years the judge just
gave me.” Hecker advised, “We have an appeal waiver. The judge
just granted every one of our objections. And, if you appeal, the
[g]overnment can argue that the objections that we just won were
improper, and you could end up with a larger sentence.” Hecker
also cautioned, “[Y]ou have a Rule 35, and I don’t know how your
appeal would affect your Rule 35.” Hecker said that the discussion
lasted “a few minutes, we talked at that point. And that was it. That
was the only time I heard about an appeal.”
On cross-examination, Hecker explained that the process of
getting the balance of his fee paid “had been going on for a couple
of weeks with [Welch],” so the $2,100 payment he received from
Welch the day after the sentencing hearing “was just a payment
that came in” and “had nothing to do with an appeal.”
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21-14510 Opinion of the Court 5
On redirect, Hecker said that if the district court had over-
ruled his role enhancement objection or attributed a death to Pen-
dergrass, then “the case had to go up on appeal.” But because the
district court sided with Pendergrass on all of his objections,
Hecker could not think of any nonfrivolous reason to appeal. But
even then, Hecker would have filed the notice of appeal if Pender-
grass had asked him to because “[i]t is not an effort to go do a notice
of appeal.” Hecker also explained that, in his view, there was a dif-
ference between asking whether one “can appeal” and “directing
someone to appeal.” And Hecker “didn’t take that as an order to
appeal. That was a question.”
Pendergrass recalled the discussion differently. Pendergrass
testified that, while in the courtroom after sentencing, he asked
Hecker, “What can we do now?” and Hecker said, “We can try to
do an appeal.” Pendergrass said, “Okay. No problem. The money
will be no problem. I will have my brother and my nephew bring
you the money you tell them you need.” Later that day, Pender-
grass called his brother to confirm that he would pay for the appeal.
And the next day, Pendergrass emailed Hecker and “asked him
what I was going to do that—my appeal, he says yes.” But Pender-
grass said Hecker did not respond to his email, and they had no
other communication during the following two weeks.
On cross-examination, Pendergrass said he requested the
emails with Hecker six or seven months later, but “they were
gone.” And although Hecker had explained to him that he faced a
minimum sentence of 15 years and a maximum sentence of life and
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6 Opinion of the Court 21-14510
the district court confirmed the same at the change of plea hearing,
Pendergrass had hoped to get 10 years in exchange for cooperating
with the government. Pendergrass acknowledged that Hecker had
communicated with him on one occasion after sentencing to ap-
prise him of discussions with the government about filing a motion
to reduce his sentence based on his substantial assistance.
Although Welch was called to testify, he did not appear. But
Pendergrass’s brother, Jackie Williams, testified that he and Welch
met Hecker on two or three occasions to pay him. About one week
after sentencing, Pendergrass called Williams about needing
money for an appeal. Williams and Welch met Hecker at his law
office. Welch “did most of the talking.” When Welch gave Hecker
$2,500, Hecker said, “That is what, for the appeal.” Welch gave the
receipt to his mother for safekeeping, so Williams did not have it.
And Williams relayed to Pendergrass “what we [] did.” On cross-ex-
amination, Williams acknowledged that he had been convicted of
at least 15 felonies and said that he did not know that Pendergrass
had been cooperating with the government.
The magistrate judge found Hecker’s testimony credible
and supported by the record. The magistrate judge found that Pen-
dergrass did not direct Hecker to appeal, but instead asked whether
he could appeal and, based on Hecker’s advice, was dissuaded from
doing so. The district court adopted the magistrate judge’s finding
that Hecker adequately consulted with Pendergrass and denied
Pendergrass’s motion.
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II. STANDARD OF REVIEW
“In a
28 U.S.C. § 2255 proceeding, we review a district
court’s legal conclusions de novo and factual findings for clear er-
ror.” Devine v. United States,
520 F.3d 1286, 1287 (11th Cir. 2008).
III. DISCUSSION
Pendergrass makes two arguments. First, Pendergrass ar-
gues that the magistrate judge clearly erred in finding that he did
not instruct Hecker to file a notice of appeal. Second, Pendergrass
argues that Hecker’s discussion with him about an appeal was in-
adequate under Roe v. Flores-Ortega,
528 U.S. 470 (2000). These
arguments fail.
The magistrate judge did not clearly err in finding that Pen-
dergrass did not instruct Hecker to file a notice of appeal. The rec-
ord supports the finding that Hecker’s account was more credible
based on his lengthy experience as a criminal defense attorney, pro-
fessional practices, and coherent testimony, and we “allot substan-
tial deference to the factfinder in reaching credibility determina-
tions with respect to witness testimony.” Devine,
520 F.3d at 1287
(internal quotation marks and alteration omitted).
The record also supports the finding that Hecker adequately
consulted with Pendergrass about appealing. The Supreme Court
explained in Roe v. Flores-Ortega that counsel has a constitution-
ally imposed duty to consult” with his client about an appeal “when
there is reason to think either . . . that a rational defendant would
want to appeal” or the client “reasonably demonstrated” an interest
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8 Opinion of the Court 21-14510
in an appeal.
528 U.S. at 480. This duty to consult requires counsel
to advise the client “about the advantages and disadvantages of tak-
ing an appeal,” and make a “reasonable effort to discover” whether
the client wants to appeal, to ensure that any waiver of the right to
an appeal is knowing and voluntary.
Id. at 478. If counsel has con-
sulted with the client, “the question of deficient performance is eas-
ily answered: Counsel performs in a professionally unreasonable
manner only by failing to follow the [client’s] express instructions
with respect to an appeal.”
Id.
Hecker responded to Pendergrass’s question about whether
an appeal was possible with specific, practical information about
how he believed an appeal would affect Pendergrass. Hecker ad-
vised Pendergrass of several significant disadvantages of appealing,
including that an appeal might compromise Pendergrass’s chance
of the government filing a motion to reduce his sentence based on
his cooperation and that a successful cross-appeal by the govern-
ment might leave Pendergrass with a longer sentence. And Hecker
could not describe any advantages of an appeal because he knew of
none. Hecker succeeded in his objections at sentencing, reducing
Pendergrass’s advisory guideline range from life imprisonment
down to a range of 292 to 365 months and leaving no nonfrivolous
issues to appeal. We are satisfied that Pendergrass received the in-
formation necessary to knowingly and voluntarily assert or waive
his right to appeal.
Pendergrass argues that Hecker failed to make a reasonable
effort to discover what he wanted to do because Hecker did not
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21-14510 Opinion of the Court 9
recall directly asking Pendergrass if he wanted to appeal regardless
of the risks. But the Supreme Court explained in Flores-Ortega that
“imposing ‘specific guidelines’ on counsel is ‘not appropriate.’”
Id.
at 479 (quoting Strickland v. Washington,
466 U.S. 668, 688 (1984)).
Pendergrass’s lack of renewed interest in an appeal after receiving
the necessary information to guide his decision reasonably evi-
denced to Hecker that Pendergrass no longer wanted to file an ap-
peal.
We AFFIRM the denial of Pendergrass’s motion to vacate
his conviction.
