Sentencing; 28 USC § 2255 motion; Ineffective assistance of counsel; Claim based on incorrect advice given while a defendant was considering a plea deal but recognized & rectified by counsel before sentencing; Strickland v Washington; Failure to try to negotiate a better plea deal or expedite the plea-through-sentencing process; Whether the district court erred in ruling that sentences imposed under the aggravated identity theft statute (18 USC § 1028A) run consecutively to all other federal & state sentences & are not subject to USSG § 5G1.3 adjustments; Michigan Department of Corrections (MDOC)

[This appeal was from the ED-MI.] The court held that even if petitioner-Gilbert could have shown his trial counsel’s performance was deficient under Strickland, his claim failed because he was unable to establish prejudice. It also held for the first time that sentences imposed under the aggravated identity theft statute run consecutively to all other sentences, including state sentences. Further, they are not subject to USSG § 5G1.3 adjustments. Gilbert was in the MDOC’s custody due to a parole violation when he was charged in a federal complaint. He pled guilty to possessing device-making equipment and aggravated identity theft. In his § 2255 motion, he claimed that his trial attorney (W) misled him to believe the time he had spent in federal detention would be credited against his federal sentence. W had noted this error in the sentencing memo, and advised him of the error and his right to withdraw from the Rule 11 plea agreement. He informed the district court of the error at the sentencing hearing, and Gilbert refused the district court’s offer to allow him to withdraw his plea. He was sentenced to 39 months, with his second count running “‘consecutive to Count 1 and all other terms of imprisonment.’” He also received two years of supervised release. The district court denied his § 2255 motion. On appeal, the court first concluded the case was not moot. Gilbert argued that W “revealed the error too late because the district court had already accepted the plea and the plea agreement.” But the court disagreed, noting that the district court had given him the opportunity to withdraw his guilty plea. The court also rejected his assertions that W’s performance was deficient for not trying to negotiate a better plea deal or expedite the plea-through-sentencing process in federal court, holding that this theory was “sheer speculation,” and that Gilbert again failed to establish prejudice. It also rejected his argument that trial counsel and appellate counsel were ineffective for not challenging the district court’s ruling that the plain language of § 1028A unambiguously required it “‘to run the aggravated identity theft statute consecutive to the state parole-violation sentence.’” The court noted that while it had “held that § 1028A requires an identity theft sentence to run consecutive to all other federal sentences,” it had not previously “considered whether a separate state sentence qualifies as ‘any other term of imprisonment.’” It now determined that, “read naturally, the term ‘any other term of imprisonment’ encompasses state sentences.” Affirmed.