## Facts

- Efraim Diveroli was president and owner of AEY, Inc., a Florida arms procurement company.
- The U.S. Army awarded AEY a $298 million contract to supply ammunition to Afghanistan; the contract barred ammunition obtained “directly or indirectly” from Communist Chinese military companies.
- AEY’s supplier provided ammunition originally manufactured in China; after learning of the Chinese origin, Diveroli and others concealed it by repackaging and falsely certifying the ammunition as originating from Albania.
- A grand jury charged Diveroli, AEY, and others in an 85-count indictment including major fraud, wire fraud, and conspiracy.
- After counsel advised that a trial conviction could yield a Sentencing Guidelines range of about 168–210 months, Diveroli pleaded guilty to one conspiracy count and received a 48-month sentence.
- Diveroli sought postconviction relief under 28 U.S.C. § 2255, claiming counsel provided ineffective assistance by overstating his sentencing exposure; he asserted the proper range was 70–87 months and alleged he would have gone to trial with correct advice.
- The district court denied the § 2255 motion without an evidentiary hearing.

## Issues

1. Whether Diveroli showed prejudice under *Strickland*/*Hill* by establishing a reasonable probability that, but for counsel’s alleged Guidelines miscalculation, he would have rejected the plea and gone to trial, and that doing so would have been rational.
2. Whether the district court erred in denying the § 2255 motion without an evidentiary hearing.

## Decision

- The Eleventh Circuit affirmed the denial of § 2255 relief.
- Assuming arguendo counsel’s estimate was deficient, the court held Diveroli failed to prove prejudice because the evidence of guilt was overwhelming and he lacked viable defenses; rejecting the plea would not have been rational.
- The court affirmed denial of an evidentiary hearing because the motion and record conclusively showed Diveroli was not entitled to relief even if his factual allegations were accepted.

## Legal Principles

- Ineffective-assistance challenges to guilty pleas require showing deficient performance and prejudice under *Strickland v. Washington* as applied in *Hill v. Lockhart*.
- In the plea context, prejudice requires a reasonable probability the defendant would have insisted on trial and that choosing trial would have been objectively rational under the circumstances.
- An inaccurate sentencing prediction, standing alone, generally does not establish prejudice, particularly where the plea yields substantial charge reduction and the actual sentence is below the predicted ranges.
- A § 2255 movant is entitled to an evidentiary hearing only if alleged facts, if true, would entitle the movant to relief; a hearing may be denied when the record conclusively forecloses relief.

## Conclusion

The Eleventh Circuit held that Diveroli could not invalidate his guilty plea through § 2255 based on counsel’s alleged overestimation of sentencing exposure because, given the strong evidence and lack of defenses, it would not have been rational to reject a plea that reduced extensive charges to a single count and resulted in a 48-month sentence; accordingly, no evidentiary hearing was required.


Diveroli v. United States, 803 F.3d 1258 (11th Cir. 2015)