[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-12206 ____________________ MICHAEL RIOLO, Petitioner-Appellant, versus UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket Nos. 9:11-cv-81028-KAM, 9:09-cr-80058-KAM-1 ____________________ USCA11 Case: 20-12206 Date Filed: 06/29/2022 Page: 2 of 39

2 Opinion of the Court 20-12206

Before JORDAN, JILL PRYOR, and MARCUS, Circuit Judges. JILL PRYOR, Circuit Judge: Michael Riolo appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his 293-month prison sentence and convictions.1 Riolo argued to the district court that his trial coun- sel, Theresa Van Vliet, provided ineffective assistance of counsel. Specifically, Riolo asserted that Van Vliet told him if he pled guilty to five counts of mail fraud, he would serve no more than 10 years in prison because she had a deal with the government that his sen- tencing range would be 97–121 months’ imprisonment under the Sentencing Guidelines. Based on Van Vliet’s representations, Riolo maintained, he pled guilty when he otherwise would have pro- ceeded to trial. The district court held an evidentiary hearing on Riolo’s § 2255 motion. After reviewing the evidence, the district court found that Van Vliet never represented to Riolo that she had a deal with the government about his guideline range. More than that, the district court found that before the change-of-plea hearing, Van Vliet thoroughly apprised Riolo of the federal sentencing process, explaining that the United States Probation Office would make a recommendation to the district court about his guideline range and

1 Riolo’s 293-month sentence is an amalgam of five sentences, all for mail fraud convictions pursuant to 18 U.S.C. § 1341. For clarity, we refer to the five sentences as a single “sentence” like the parties do. USCA11 Case: 20-12206 Date Filed: 06/29/2022 Page: 3 of 39

20-12206 Opinion of the Court 3 that the district court would ultimately determine his guideline range for itself. Based on its factual findings, the district court de- nied Riolo’s § 2255 motion. On appeal, Riolo urges us to take another look at the evi- dence. If we do, he argues, we will find that several of the district court’s factual findings are clearly erroneous. In the light of his ver- sion of the facts—that Van Vliet assured him she had a deal with the government about his guideline range—Riolo urges us to con- clude that she provided ineffective assistance of counsel. Even leav- ing aside the disputed facts, he adds, Van Vliet underestimated his guideline range by more than 100 months. That alone, he argues, constitutes ineffective assistance. After careful review, and with the benefit of oral argument, we find no clear error in the district court’s factual findings. We therefore conclude that Van Vliet did not provide Riolo with inef- fective assistance by telling him she had an agreement with the government about his guideline range. We also conclude that Van Vliet did not provide ineffective assistance by underestimating Ri- olo’s guideline range. The district court’s judgment is affirmed. I. BACKGROUND We begin by summarizing Riolo’s offense conduct, Van Vliet’s representation of him, the change-of-plea hearing, the sen- tencing hearing, and Riolo’s direct appeal. Next, we review the