USCA11 Case: 21-10908 Date Filed: 11/24/2021 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10908
Non-Argument Calendar
____________________
MIGUEL MESA,
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. 1:18-cv-21836-MGC
____________________
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2 Opinion of the Court 21-10908
Before ROSENBAUM, BRASHER, and HULL, Circuit Judges.
PER CURIAM:
After a guilty plea, Miguel Mesa is serving a 100-month
sentence for conspiracy to commit mail and wire fraud, in violation
of
18 U.S.C. § 1349. Mesa appeals the district court’s denial of his
28 U.S.C. § 2255 motion to vacate his sentence based on ineffective
assistance of counsel.
At sentencing, the district court granted the government’s
U.S.S.G. § 5K1.1 motion for a downward departure based on
Mesa’s substantial assistance to the government. Mesa contends
that the government would have filed a stronger § 5K1.1 motion
but for his defense counsel’s incorrect advice, which led Mesa to
take a sales job that the government alleged violated his pretrial
release bond conditions and caused the government to stop Mesa’s
cooperation.
As explained below, the district court was fully aware of
defense counsel’s faulty advice to Mesa; the district court did not
revoke Mesa’s bond; the government had additional reasons for
stopping Mesa’s cooperation; the district court’s ultimate
departure was more than the government requested; and, in
sentencing Mesa, the district court emphasized the impact of his
crimes on the victims. After careful review, we conclude that, even
assuming defense counsel was ineffective, Mesa has failed to carry
his burden to establish prejudice at his sentencing.
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21-10908 Opinion of the Court 3
I. CRIMINAL PROCEEDINGS
A. Offense Conduct
In September 2009, Craig Sizer hired Mesa to sell shares of
stock in Sanomedics International Holdings, Inc. (“Sanomedics”),
which claimed to develop and market a line of non-contact infrared
thermometers. Mesa hired sales agents to solicit investors via
telemarketing. Mesa also hired Anita Sgarro, who operated a
similar telemarketing group to sell the stock.
In 2014, Mesa and his co-conspirators began to sell stock in
another corporation, Fun Cool Free, which claimed to hold a
smartphone gaming portfolio with more than 500 gaming
applications. Mesa and his co-conspirators knowingly made false
statements to potential investors to sell stock in Sanomedics and
Fun Cool Free.
From September 2009 to December 2015, the scheme raised
approximately $23 million from the sale of stock to more than 700
individuals. Sizer paid Mesa a commission of 50% of all money
raised by Mesa and his salespeople. Mesa used this money to pay
himself and his salespeople a commission on sales of stock.
B. Initial Proceedings
On September 22, 2016, an indictment charged Mesa with
two counts of conspiracy to commit mail and wire fraud, in
violation of
18 U.S.C. § 1349 (Counts 1 and 11); ten counts of mail
fraud, in violation of
18 U.S.C. § 1341 (Counts 2-9, 12-13); and
one count of wire fraud, in violation of
18 U.S.C. § 1343 (Count 10).
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The indictment also charged twelve other individuals, including
Sizer and Sgarro, for their involvement in the Sanomedics and Fun
Cool Free schemes.1 On September 27, 2016, a magistrate judge
granted Mesa pretrial release subject to certain bond conditions,
including that Mesa have “no employment [in] telemarketing
or/and securities.”
After the bond hearing, Mesa asked his attorney if it would
violate the telemarketing condition for him to continue working at
Vacaciones Holiday, LLC (“Vacaciones”), a travel agency his wife
had founded. Vacaciones advertised vacation packages and
provided a toll-free number for consumers to call to purchase the
vacations. Defense counsel told Mesa that working at Vacaciones
would not violate the bond condition. Defense counsel did not
consider Vacaciones’s business model to be “telemarketing”
because it did not involve cold-calling clients, using lead lists, or
proposing any type of financial services. Based on defense
counsel’s advice, Mesa continued to work at Vacaciones.
C. Guilty Plea
Pursuant to a January 2017 plea agreement, Mesa pled guilty
to Count 1, conspiracy to commit mail and wire fraud, and
stipulated to a restitution amount of $22,456,186. In a factual
1 Sizer, like Mesa, pled guilty before trial. Sgarro did not plead guilty and was
tried with four other co-conspirators. After an eight-week trial, a jury found
Sgarro guilty on all counts. This Court affirmed Sgarro’s convictions. See
United States v. Wheeler,
16 F.4th 805, 811, 812 n.1 (11th Cir. 2021).
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21-10908 Opinion of the Court 5
proffer, Mesa agreed that the government would be able to prove
his offense conduct recounted above at a trial.
Mesa also agreed to cooperate fully with the government,
which reserved the right to move for a downward departure. Mesa
confirmed that he understood
that nothing in this agreement requires [the
government] to file any such motions, and that [the
government’s] assessment of the quality and
significance of the defendant’s cooperation shall be
binding as it relates to the appropriateness of [the
government’s] filing or non-filing of a motion to
reduce sentence.
Mesa also agreed that the district court was “under no obligation
of any type to grant a motion for reduction of sentence.”
The district court set Mesa’s sentencing hearing for June
2017. At his interview on February 22, 2017, Mesa told the
probation officer about his employment at Vacaciones.
D. May 25 Hearing on Vacaciones Dispute
On February 27, 2017, Mesa moved for leave to travel
internationally because his stepdaughter was seriously ill. The
government did not oppose his motion, which the district court
granted. The trip was delayed, however, and Mesa filed a second
motion to travel in May 2017. This time, the government opposed
Mesa’s motion to travel, explaining that, now, it had obtained
information that Mesa was violating his bond by working at
Vacaciones.
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On May 25, 2017, the district court held a hearing on Mesa’s
motion to travel and addressed the government’s allegation that
Mesa’s Vacaciones employment violated a bond condition. The
district court expressed concern that Mesa was in another “selling
job.” Defense counsel stressed (1) Mesa’s job at Vacaciones was
not telemarketing because its salespeople did not make cold calls
or use lead lists; (2) Vacaciones was a legitimate company; and
(3) although Mesa paid his salespeople through commissions,
legitimate sales businesses used that compensation structure.
The government called FBI Special Agent Jonathan
Schwerer, who testified that he and other agents visited Vacaciones
and interviewed Mesa and three employees. At that time, Mesa
was still cooperating with the government. Agent Schwerer
acknowledged that (1) Mesa provided him information about a
business run by a criminal organization in Hollywood, Florida;
(2) an investigation was later opened based on Mesa’s cooperation;
(3) another investigation was opened in Los Angeles based on
Mesa’s information; and (4) Mesa was doing the best he could to
cooperate and was providing truthful, accurate information. Agent
Schwerer admitted that he had not interviewed any individuals
who purchased vacation packages from Vacaciones.
Ultimately, the district court declined to revoke Mesa’s
bond. The court gave Mesa “the benefit of the doubt” about
Vacaciones. The court did indicate that Mesa needed to find a new
job that was not in direct sales. The district court denied Mesa’s
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request for international travel. Mesa then stopped working at
Vacaciones.
E. Mesa’s Sentencing Memo Dated June 20, 2017
In his sentencing memorandum, Mesa contended that the
government’s “belief that a bond condition has been violated has
led to the termination by the Government of [Mesa’s] cooperation
and its current antagonistic position as to crediting [Mesa] for his
cooperation.”
With his sentencing memorandum, Mesa attached two
e-mails between his counsel and the same prosecutor, in which the
prosecutor stated that (1) the government had stopped using Mesa
as a cooperator because of Mesa’s “current room activities,
violation of bond, and lack of candor with me and agents in [earlier
proffer] meetings”; and (2) Mesa’s information about Sizer and
Sgarro was substantial, while the rest of Mesa’s information about
the instant case was “extra but alone would not rise to the level of
substantial assistance.” In one of the e-mail conversations, defense
counsel listed twelve items that Mesa had provided information
about, including two that had open investigations.
F. Sentencing
On July 10, 2017, prior to sentencing, the government filed
a U.S.S.G. § 5K1.1 motion for a downward departure based on
Mesa’s cooperation. It stated that Mesa’s cooperation was a factor
in Sizer’s guilty plea. It requested that the court reduce Mesa’s
sentence by twenty percent from the advisory guidelines range.
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8 Opinion of the Court 21-10908
At sentencing on July 12, 2017, the district court found that
Mesa’s offense level was 33 and his criminal history category was I,
resulting in an advisory guidelines range of 135 to 168 months’
imprisonment. The government then recommended a sentence of
108 months’ imprisonment, which was 27 months, or twenty
percent, below the low end of the guidelines range.
Mesa argued that a twenty percent reduction did not
represent the quality and persistence of his cooperation. As to the
instant case, Mesa explained that he met with agents fifteen to
twenty times, gave them the names of salespeople, identified
documents found in his “boiler room,” and helped them identify
and locate Anita Sgarro. Mesa argued that he actively cooperated
on numerous new cases until May 2017, when the government cut
off cooperation based on its belief that Mesa was violating his bond
condition.
The district court then asked: “If I use the information that
you’re giving me, the level of cooperation, the ability to continue
to possibly work, what would you say would be an appropriate
sentence?” In response, Mesa’s counsel asked for a one-third
reduction for Mesa’s cooperation, to 90 months, or 45 months
below the low end of the guidelines range.
Later on, Mesa’s counsel argued for a downward variance to
three to four years’ imprisonment. Defense counsel emphasized
that: (1) Vacaciones was a legitimate travel business; (2) if there was
a bond violation, the fault was “not my client’s; the fault is mine”;
(3) the way defense counsel read the bond restriction was that Mesa
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21-10908 Opinion of the Court 9
could not be involved in any enterprise that would raise money;
(4) defense counsel did not read the bond condition as prohibiting
Mesa from selling travel packages or having salesmen on
telephones; and (5) again, “So that fault is mine.”
In response, the government stated first that Mesa had met
with the government for seven to ten proffer meetings, not fifteen
to twenty. Next, it noted that (1) Mesa had not been “completely
forthcoming” in at least one of the early proffer meetings, as he told
the agents that his salespeople did not use sales scripts and then
changed his story after being confronted with a sales script seized
from his boiler room, and (2) even though defense counsel said it
was his fault, Mesa’s post-bond conduct—operation of a boiler
room selling a different product—“adversely affected the level of
cooperation credit that we think he should get.”
Next, the government explained that: (1) Mesa assisted it in
identifying Sizer, who was above him in the conspiracy; (2) it
probably would have called Mesa to testify if Sizer had not pled
guilty; (3) Mesa gave it information on Sgarro that was only
somewhat useful because he provided her pseudonym; (4) it would
not have called Mesa to testify in the trial of the salesmen below
him; and (5) Mesa should not get credit for any charged defendants
other than Sizer and Sgarro.
In reply, Mesa argued that the court also had heard Agent
Schwerer’s testimony about his cooperation relating to matters
outside of the instant case, including the ongoing investigation in
Los Angeles that was opened based on Mesa’s information.
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10 Opinion of the Court 21-10908
After Mesa’s allocution, the district court granted the
government’s § 5K1.1 motion based on Mesa’s cooperation. The
district court then discussed the impact the fraud scheme had on
individual victims, noting that Mesa’s cooperation and payment of
restitution could not “unring that bell.” It sentenced Mesa to 100
months’ imprisonment.
Mesa did not file a direct appeal.
II. § 2255 PROCEEDINGS
Mesa, represented by new counsel, timely filed a
28 U.S.C.
§ 2255 motion to vacate his sentence. As relevant here, Mesa
argued that: (1) defense counsel was ineffective for advising Mesa
that he could continue to work at Vacaciones without violating his
bond condition; and (2) this error prejudiced him because the
government ultimately suspended his cooperation efforts after the
Vacaciones issue was raised. Mesa asserted that there was a
reasonable probability that, but for counsel’s error, the
government would have permitted him to cooperate longer and
would have filed a stronger U.S.S.G. § 5K1.1 motion for a
downward departure.
A magistrate judge issued a report and recommendation
(“R&R”) recommending denial of Mesa’s § 2255 motion. The
magistrate judge found that defense counsel’s incorrect advice was
deficient performance, but that Mesa had not shown prejudice.
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21-10908 Opinion of the Court 11
Overruling Mesa’s objections, the district court adopted the
R&R and denied Mesa’s § 2255 motion. 2 The court concluded that
although defense counsel provided ineffective assistance, Mesa did
not establish prejudice. The district court granted this COA:
The Court also finds that reasonable jurists
could disagree with the Court’s disposition of the
issues concerning the potential consequences of
Defendant’s continued employment at the travel
agency due to his lawyer’s incorrect advice.
Accordingly, this Court GRANTS a Certificate of
Appealability. 3
2The district court judge who ruled on Mesa’s § 2255 motion was the same
district court judge who imposed his sentence.
3 In his opening brief, Mesa raises issues outside the scope of the COA. Mesa,
who was represented by counsel throughout these § 2255 proceedings, did not
move this Court to expand the COA. Therefore, we do not address these
issues. See Dell v. United States,
710 F.3d 1267, 1272 (11th Cir. 2013)
(explaining that “an appellant granted a COA on one issue cannot simply brief
other issues as he desires in an attempt to force both the Court and his
opponent to address them”). We also decline Mesa’s suggestion, raised in his
reply brief, to treat his opening brief as a motion to expand the COA. See
Tompkins v. Moore,
193 F.3d 1327, 1332 (11th Cir. 1999) (“An application to
expand the [COA] must be filed promptly, well before the opening brief is due.
Arguments in a brief addressing issues not covered in the certificate . . . will
not be considered as a timely application for expansion of the certificate; those
issues simply will not be reviewed.”).
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12 Opinion of the Court 21-10908
III. DISCUSSION
To prevail on a Sixth Amendment claim of ineffective
assistance of counsel, a movant must demonstrate that: (1) his
counsel’s performance was deficient, i.e., the performance fell
below an objective standard of reasonableness; and (2) he suffered
prejudice because of that deficiency. Strickland v. Washington,
466
U.S. 668, 687-88,
104 S. Ct. 2052, 2064 (1984). 4 On appeal, the
parties do not dispute that Mesa’s attorney’s advice constituted
deficient performance.
To show prejudice, the movant “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
Id. at 694,
104 S. Ct. at 2068. “A reasonable probability is one sufficient to
undermine confidence in the outcome.”
Id. It is not enough for the
movant to show that the error had some conceivable effect on the
outcome of the proceeding, but rather, he must show that the
result would have been different.
Id. at 693,
104 S. Ct. at 2067-68.
Mesa’s alleged prejudice is that his attorney’s deficient
advice deprived him of the opportunity to earn a stronger § 5K1.1
motion from the government and in turn a lower sentence from
the district court. Mesa’s arguments ignore, however, that before
issuing Mesa’s sentence, the district court knew:
4 Whether counsel was ineffective is a mixed question of law and fact and is
reviewed de novo. Thompson v. United States,
504 F.3d 1203, 1206 n.4 (11th
Cir. 2007).
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• Defense counsel gave Mesa the incorrect advice that
working at Vacaciones would not violate his bond; the
Vacaciones issue was fully aired at the May 25 hearing;
and the district court declined to revoke Mesa’s bond;
• The government did not have any evidence that
Vacaciones was an illegal operation, while Mesa
provided documentation showing its legitimacy;
• Mesa cooperated with the government and provided
truthful information, both about the instant case and
several other federal investigations, at least through May
of 2017;
• The government admitted that Mesa’s Vacaciones
employment affected its departure recommendation;
nonetheless, in making its recommendation, the
government also considered lies that Mesa had told at an
early proffer session and that he should not be credited
for aiding in the conviction of his subordinates in the
conspiracy;
• Mesa’s plea agreement expressly provided that the
government was not required to make a § 5K1.1
recommendation at all, much less one that suited Mesa’s
sense of the value of his cooperation; and
• The government made a § 5K1.1 motion requesting a
sentence 27 months below the low end of the sentencing
guidelines—it did not refuse to make a § 5K1.1 motion at
all.
The district court directly asked defense counsel what he
proposed an appropriate departure would be if the court
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14 Opinion of the Court 21-10908
considered all of Mesa’s cooperation and his “ability to continue to
possibly work,” rather than just considering the cooperation that
the government believed should be credited. The court carefully
and fully considered the issue. After the court granted the
government’s § 5K1.1 motion, it varied downward another eight
months from the government’s proposed sentence of 108 months,
settling on a sentence of 100 months’ imprisonment. In choosing
this sentence, the court expressly stated that it weighed Mesa’s
cooperation against his crime’s impact on the 700 victims.
Given all of these facts and circumstances, Mesa has not
shown that there is a reasonable probability that the outcome of
the proceedings would be different if the Vacaciones issue had
never been raised at all.
Mesa argues that our prejudice inquiry is faulty because it
should be premised on the decision of a hypothetical reasonable
court, not on the “idiosyncracies of the particular decisionmaker.”
See Strickland,
466 U.S. at 695,
104 S. Ct. at 2068. He is incorrect.
The section of Strickland that Mesa relies on here instructs courts
not to consider evidence “about a particular judge’s sentencing
practices” or “about the actual process of decision, if not part of the
record of the proceeding under review.”
Id. (emphasis added). In
other words, it restricts courts conducting a prejudice inquiry from
using extra-record evidence about a court’s general decision-
making tendencies. See
id. It does not bar courts from considering
record evidence of how the court made its decision in a particular
case. And here, that record evidence clearly shows that, at
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sentencing, the district court had all of the information necessary
to understand and consider the effect of the Vacaciones issue on
the government’s departure recommendation and the sentence it
would impose. Mesa has not shown a reasonable probability that,
absent defense counsel’s incorrect advice, the result would have
been different.
Because Mesa has not shown that his counsel’s incorrect
advice prejudiced him, we affirm the district court’s denial of his
§ 2255 motion to vacate his sentence.
AFFIRMED.
