NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 10-3278
_____________
VALENTIN CEDENO,
Appellant
v.
UNITED STATES OF AMERICA
_____________
On Appeal from the United States District Court
for the District of New Jersey
(No. 3:09-cv-06395)
District Judge: Honorable Garrett E. Brown, Jr.
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 18, 2011
____________
Before: FUENTES and CHAGARES, Circuit Judges and POGUE, Judge. 1
(Filed: December 15, 2011)
____________
OPINION
____________
CHAGARES, Circuit Judge.
Valentin Cedeno appeals the District Courts denial of his motion to vacate his
conviction of conspiracy to commit robbery. For the reasons that follow, we will affirm.
1

Honorable Donald C. Pogue, Chief Judge, United States Court of International Trade,
sitting by designation.

I.
We write solely for the parties benefit and recite only the facts essential to our
disposition.
In April 2005, Cedeno and several co-conspirators robbed a jewelry store in Boca
Raton, Florida. Cedeno was apprehended and charged with conspiracy to commit
robbery and robbery in violation of the Hobbs Act, 18 U.S.C. 1951 and 2. On August
12, 2005, he pleaded guilty to both charges in the United States District Court for the
Southern District of Florida. The District Court subsequently sentenced him to a 65month term of incarceration. After prevailing on direct appeal in the Court of Appeals
for the Eleventh Circuit, Cedeno was resentenced to 51 months in prison.
Meanwhile, investigators in New Jersey identified Cedeno as part of a Newarkbased group that committed smash-and-grab robberies of retail jewelry stores up and
down the East Coast. In July 2008, a federal grand jury sitting in the District of New
Jersey returned a superseding indictment that charged members of the group with
conspiracy to commit robbery from July 2003 to September 2005 in violation of 18
U.S.C. 1951(a); robbery in violation of 18 U.S.C. 1951 and 2; and receipt of stolen
goods in violation of 18 U.S.C. 2315 and 2. The indictment alleged that Cedeno
participated in the conspiracy (count 1); committed robberies in Sanford, Florida in
January 2004 and Buford, Georgia in March 2004 (counts 7 and 8); and received stolen
goods (count 9). Named as a co-conspirator in the New Jersey indictment, among others,
was Angel Concepcion, an individual also named as a co-conspirator in the Florida
indictment.
2

The Hobbs Act conspiracy and robbery charges each carried a statutory maximum
of 20 years in prison, while the receipt of stolen goods charge carried a statutory
maximum of 10 years in prison. Cedenos counsel and the Government entered into plea
negotiations and eventually arrived at an agreement under which Cedeno would plead
guilty to the conspiracy charge in exchange for dismissal of the remaining charges. The
parties also agreed to argue for a sentence within the range recommended for offense
level 24 of the United States Sentencing Guidelines. Included in the plea agreement was
the following waiver of certain appellate rights: Cedeno . . . voluntarily waives[] the
right to file any appeal, any collateral attack, or any other writ or motion . . . which
challenges the sentence imposed by the sentencing court if that sentence falls within or
below the Guidelines . . . offense level of 24. In accordance with the plea agreement,
Cedeno pleaded guilty in the United States District Court for the District of New Jersey
to conspiring to commit robbery and the court sentenced him to a 57-month term of
incarceration, within the parties agreed-upon range. Cedeno did not appeal the sentence.
In December 2009, Cedeno sought collateral relief in the District Court pursuant
to 28 U.S.C. 2255. He contended that he was deprived of his Sixth Amendment right to
the effective assistance of counsel because his attorney failed to challenge the New Jersey
indictment on double jeopardy grounds and advised him to plead guilty to a conspiracy
charge possibly barred by the Double Jeopardy Clause of the Fifth Amendment.
Cedenos theory was that the conspiracy alleged in the New Jersey indictment was the
same conspiracy for which he already stood convicted by his guilty plea in the Southern
District of Florida.
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The District Court denied the petition. It reasoned that Cedeno knowingly and
voluntarily entered into the plea agreement and that the waiver clause foreclosed review
of his conviction. Holding Cedeno to his waiver, the court concluded, would not result in
a miscarriage of justice because the Southern District of Florida and the New Jersey
indictments alleged two different conspiracies to commit robbery. 2 Absent a colorable
claim that the Double Jeopardy Clause would preclude prosecution under the second
indictment, the District Court held, Cedenos ineffective assistance of counsel claim was
without merit. The court did not hear argument or hold an evidentiary hearing.
Cedeno filed a timely appeal. We remanded to the District Court to determine
whether a certificate of appealability should issue pursuant to 28 U.S.C. 2253.
Concluding that Cedeno had failed to make a substantial showing of the denial of a
constitutional right, the District Court declined to issue the certificate of appealability.
Cedeno thereafter sought a certificate of appealability from this Court. We appointed
appellate counsel and granted a certificate of appealability on the following questions:
1) whether Cedenos counsel was constitutionally ineffective in advising him to
plead guilty to a charge that may have implicated double jeopardy concerns, and
whether any such ineffectiveness rendered the plea agreement, including its
waiver provision, invalid; and 2) if the plea was valid, whether there was a double
jeopardy violation and, if so, whether enforcing the waiver provision would result
in a miscarriage of justice . . . .
2

To determine whether the two conspiracies were in fact the same offense for double
jeopardy purposes, the District Court applied the totality of the circumstances test set
forth in United States v. Liotard, 817 F.2d 1074, 1078 (3d Cir. 1987). It considered
whether the two conspiracies shared overlapping locations, dates of commission,
personnel, and overt acts. Appendix 8-11 (citing Liotard, 817 F.2d at 1078). Concluding
that three of the four factors indicated that Cedeno was charged with participating in two
distinct conspiracies, the District Court found that the second conspiracy charge did not
raise double jeopardy concerns.
4

II.
The District Court had jurisdiction over Cedenos 2255 petition pursuant to 28
U.S.C. 1331. It issued final judgment on July 2, 2010. We granted a certificate of
appealability on January 13, 2011, and have jurisdiction over the appeal pursuant to 28
U.S.C. 1291, 2253 and 2255(d). In a federal habeas corpus proceeding, we exercise
plenary review of the district courts legal conclusions and apply a clearly erroneous
standard to the courts factual findings. United States v. Lilly, 536 F.3d 190, 195 (3d
Cir. 2008).
III.
In its memorandum urging the District Court to deny Cedenos 2255 petition, the
Government argued that Cedeno waived his right to seek collateral review. The District
Court agreed and construed the waiver provision in Cedenos plea agreement to preclude
his 2255 motion. On appeal, the Government candidly concedes that its construction of
the waiver provision, accepted by the District Court, was mistaken. By the plain terms of
the agreement, Cedeno waived certain rights to seek collateral review of the sentence
imposed by the sentencing court, but he did not waive the right to challenge the legal
basis of the conviction itself. Cf. United States v. Khattak, 273 F.3d 557, 562 (3d Cir.
2001) ([W]aivers of appeals should be strictly construed.).
The Government also concedes that, had Cedeno timely raised a double jeopardy
defense, he would have been entitled to a hearing on whether the two conspiracies
charged were in fact the same offense. United States v. Inmon, 594 F.2d 352, 353 (3d
Cir. 1979) (per curiam). In the hearing, the Government would have borne the burden of
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establishing by a preponderance of the evidence that the Double Jeopardy Clause did not
require dismissal of the second conspiracy charge. United States v. Inmon, 568 F.2d 326,
331-32 (3d Cir. 1977). In light of this concession, the parties now agree that the District
Court was mistaken in concluding that Cedeno lacked a colorable double jeopardy claim
prior to his second guilty plea.
The upshot of the Governments position is that we must consider Cedenos
2255 petition on the merits. Accordingly, we turn to the question whether defense
counsels advice to Cedeno to plead guilty to a conspiracy charge possibly barred by the
Double Jeopardy Clause constitutes ineffective assistance of counsel.
IV.
The Supreme Court announced the standard for judging ineffective assistance of
counsel claims in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, a
defendant must show (1) that his counsels performance fell below an objective standard
of reasonableness and (2) that his counsels deficiencies caused prejudice such that
there is a reasonable probability that, but for counsels unprofessional errors, the result
of the proceeding would have been different. Id. at 688, 694. A slightly modified
version of Stricklands two-part test applies to ineffective assistance of counsel claims
arising out of the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985); United States v.
Orocio, 645 F.3d 630, 638 (3d Cir. 2011). To establish prejudice, the defendant must
show that there is a reasonable probability that, but for counsels errors, he would not
have pleaded guilty and would have insisted on going to trial. Lockhart, 474 U.S. at 59.

The Government argues that notwithstanding the District Courts erroneous

reasoning, we should affirm the denial of the motion to vacate because Cedeno cannot
demonstrate that his counsels performance was deficient or caused him to suffer
prejudice. Even if Cedeno had a colorable double jeopardy defense, the Government
maintains, defense counsel was not constitutionally deficient because he secured Cedeno
a favorable plea deal. Nor, in the Governments view, can Cedeno establish prejudice
because even if he prevailed on a double jeopardy challenge to the conspiracy charge, he
was nonetheless subject to the two Hobbs Act robbery charges and the receipt of stolen
goods charge.
Our Court has endorsed the practical suggestion in Strickland [that we may]
consider the prejudice prong before examining the performance of counsel prong because
this course of action is less burdensome to defense counsel. Lilly, 536 F.3d at 196
(quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005) (quotation marks
omitted)); see also Strickland, 466 U.S. at 697 (If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.). We opt to follow that approach here.
Had defense counsel secured dismissal of the conspiracy charge, the Hobbs Act
charges arising out of the Sanford, Florida and Buford, Georgia robberies and the receipt
of stolen goods charge would have remained. See United States v. Felix, 503 U.S. 378,
389 (1992) ([A] substantive crime and a conspiracy to commit that crime are not the
same offence for double jeopardy purposes.). If Cedeno had gone to trial and been
convicted of those charges, his maximum statutory sentencing exposure was 50 years in
7

prison. Following Cedenos guilty plea, however, the District Court imposed a 57-month
term of incarceration, a favorable sentence given the gravity of the charges.
Cedeno does not deny his involvement in the robberies or his receipt of stolen
goods. The failure to disavow those charges supports the Governments contention that
he would have been convicted had the case gone to trial. See Premo v. Moore, 562 U.S.
, 131 S. Ct. 733, 745 (2011) (suggesting that a defendants failure to deny involvement
in the underlying crime counsels against a finding of prejudice). Nor does he contest the
strength of the Governments evidence on the three remaining charges or represent that
he would have opted to go to trial on those charges had the District Court dismissed the
conspiracy charge. 3
Cedeno has not established a reasonable probability that, had he known that the
conspiracy charge was susceptible to a double jeopardy challenge, he would not have
pleaded guilty to one of the three remaining charges and would have insisted on going to
trial. See Lockhart, 474 U.S. at 59. Consequently, the errors made by defense counsel, if
any, were not prejudicial. Absent a showing that defense counsels advice prejudiced the
outcome of the case, Cedenos ineffective assistance of counsel claim must fail. 4 We

Cedenos brief asserts that had he been advised on the significant meritorious defense
of double jeopardy . . . he would have insisted that counsel zealously challenge the New
Jersey indictment, and certainly would not have pled guilty to Count One of the New
Jersey Indictment. Cedeno Br. 11. Nowhere does he insist that he would not have
pleaded guilty to any of the three remaining charges.

We have not considered whether defense counsel renders deficient performance by

advising a defendant to plead guilty to a charge possibly barred by the Double Jeopardy
Clause in order to secure a favorable plea agreement. In view of Cedenos inability to
establish prejudice, we reserve the question for another day.
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therefore will affirm the District Courts denial of the 2255 motion on the alternative
basis that Cedeno was not deprived of his right to the effective assistance of counsel. See
United States v. Sanchez, 562 F.3d 275, 279 (3d Cir. 2009) (An appellate court may
affirm a result reached by the District Court on different reasons, as long as the record
supports the judgment.). 5 In light of this conclusion, we need not address the remaining
questions certified in the certificate of appealability.
V.
For the foregoing reasons, we will affirm the judgment of the District Court.

Because Cedeno cannot prevail on his ineffective assistance of counsel claim, we need
not consider his cursory request for an evidentiary hearing to explore trial counsels
strategy in not raising the double jeopardy defense. Cedeno Br. 11. An ineffective
assistance of counsel claim that clearly fails to establish prejudice does not merit an
evidentiary hearing. See Lilly, 536 F.3d at 197 (Because [the defendant] has failed to
establish that [defense counsels] advice prejudiced him in any way . . . , we conclude
that the District Court did not abuse its discretion in declining to hold an evidentiary
hearing before denying his claim.).
9