United States v. Scott ( 2021 )


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  • Case: 20-30256     Document: 00515923030         Page: 1     Date Filed: 07/01/2021
    United States Court of Appeals
    for the Fifth Circuit                                 United States Court of Appeals
    Fifth Circuit
    FILED
    July 1, 2021
    No. 20-30256
    Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Sonny Scott,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    USDC No. 2:19-CV-9153
    Before Elrod, Willett, and Engelhardt, Circuit Judges.
    Don R. Willett, Circuit Judge:
    Following an investigatory stop, officers searched Sonny Scott, found
    a firearm and drugs on his person, and charged him with felony firearm
    possession, in violation of 
    18 U.S.C. §§ 922
    (g) and 924(a)(2). Scott
    contested the lawfulness of the stop and asked his counsel to file a motion to
    suppress; counsel did not. Scott pleaded guilty, and the district court
    sentenced him to 100 months’ imprisonment. Following an unsuccessful
    direct appeal, Scott filed this § 2255 motion, seeking to vacate his sentence
    on two grounds: (1) counsel provided ineffective assistance by failing to move
    to suppress the unlawfully obtained evidence; and (2) his conviction was
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    No. 20-30256
    unconstitutional under the Supreme Court’s decision in Rehaif v. United
    States. 1 The district court denied the motion but granted a certificate of
    appealability on Scott’s ineffective assistance claim and his Rehaif claim.
    Scott now concedes that his Rehaif claim is foreclosed by our decision in
    United States v. Lavalais, so we do not address this issue. 2 Because we
    conclude that counsel’s performance was constitutionally adequate, we
    affirm the denial of his ineffective assistance claim.
    I
    On January 12, 2017, Drug Enforcement Administration (DEA)
    agents planned a buy-bust operation of a suspected drug dealer. DEA agents
    received a tip that the drug dealer drove a black Audi SUV and frequently
    conducted drug transactions at the Stay Express Inn and Suite in New
    Orleans, which was in a “known . . . high crime and high drug trafficking
    area.” Around 10:00 p.m., DEA agents established surveillance in the hotel
    parking lot. About 15 minutes later, a black Audi SUV—the suspected drug
    dealer’s vehicle—parked in the parking lot. At approximately 10:30 p.m., a
    man, later identified as Sonny Scott, rode into the parking lot on a
    motorcycle. “Agents observed Scott meet with an individual and conduct,
    what experienced law enforcement officers believed to be, a ‘hand to hand’
    narcotics transaction.” Around 10:44 p.m., another individual entered the
    1
    
    139 S. Ct. 2191
     (2019). In Rehaif, the Court held that 
    18 U.S.C. §§ 922
    (g) and
    924(a)(2) require proof that the defendant knew he was a felon. 
    Id. at 2194
    .
    2
    
    960 F.3d 180
     (5th Cir. 2020). In Lavalais, we rejected the same argument that
    Scott made in his § 2255 motion; namely, that Rehaif errors are structural errors that
    warrant reversal, even in the absence of prejudice. Id. at 184. We instead held that
    defendants must show that any Rehaif error actually prejudiced the outcome. Id.; see also
    Greer v. United States, No. 19-8709 at 6, 
    141 S. Ct. 2090
     (2021) (“In sum, as the Fifth
    Circuit aptly stated, demonstrating prejudice under Rehaif ‘will be difficult for most
    convicted felons for one simple reason: Convicted felons typically know they’re convicted
    felons.’” (quoting Lavalais, 960 F.3d at 184)).
    2
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    black Audi SUV and left the hotel parking lot. “Just moments later,” one of
    the DEA agents observed Scott leaving the parking lot on his motorcycle.
    DEA agents then initiated and executed the planned buy-bust
    operation of the suspected drug dealer at a local Wal-Mart; Scott was not
    present at, or involved in, that buy-bust.
    Later that night, DEA agents observed Scott in the drive-thru of a
    Taco Bell. The agents approached Scott to conduct an investigatory stop,
    handcuffed him for their safety, and performed a protective search, finding a
    loaded revolver, multiple clear plastic baggies containing heroin, and various
    colored tablets in a clear plastic bag. The agents arrested Scott and
    subsequently learned that Scott had three prior felony convictions, which
    prohibited him from possessing a firearm.
    Scott was charged with felony possession of a firearm, in violation of
    
    18 U.S.C. §§ 922
    (g)(1) and 924(a)(2). The district court appointed Rachel
    Yazbeck as Scott’s counsel.
    The prosecutor provided Yazbeck with 31 pages of discovery, which
    included a redacted version of the DEA agents’ report, Scott’s prior criminal
    history, and photographs of the weapon and drugs found on Scott. Yazbeck
    provided Scott with the DEA report. After reviewing it with Yazbeck, Scott
    contested its contents, denying that he engaged in the alleged drug
    transaction and explaining that he did not know the suspected drug dealer,
    the target of the buy-bust operation. Scott asked Yazbeck to file a motion to
    suppress the evidence. Yazbeck told Scott that she did not believe the motion
    would be successful. After their conversation, Scott “backed off” from
    seeking a suppression motion, and Yazbeck did not file one. Scott decided to
    plead guilty.
    Scott pleaded guilty, without a plea agreement, to the felony firearm
    possession charge and admitted to the facts set forth in the factual basis. That
    3
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    factual basis described the circumstances leading up to the discovery of the
    firearm on Scott as follows: DEA agents were conducting surveillance of
    suspected drug distributors in an area that they knew as a common location
    for drug trafficking when they “observed Scott meet with another individual
    and quickly depart the rear parking lot of the Stay Express Inn.” The factual
    basis also provided information about the items found on Scott’s person,
    including $250 cash, three grams of heroin, approximately three grams of
    cocaine, numerous unidentified pills in clear plastic bags, and a loaded
    revolver.
    The district court accepted Scott’s guilty plea and sentenced him to
    100 months’ imprisonment and 3 years’ supervised release. Scott directly
    appealed his sentence, and we affirmed. 3
    Scott, proceeding pro se, filed a motion to vacate his sentence under
    
    28 U.S.C. § 2255
    , asserting that he was subject to an unlawful search and
    seizure, in violation of the Fourth Amendment, and he received ineffective
    assistance of counsel, in violation of the Sixth Amendment. Scott claimed
    that Yazbeck rendered ineffective assistance because she did not file a motion
    to suppress the evidence that was the result of the DEA agents’ allegedly
    unlawful search.
    The district court held an evidentiary hearing on Scott’s ineffective
    assistance of counsel claim. Yazbeck testified at that hearing, and Scott was
    represented by other counsel. When asked why she did not file a suppression
    motion, Yazbeck cited two reasons: (1) based on her professional experience
    and review of the record, she believed the motion would not be successful;
    and (2) she was concerned that information about the hand-to-hand drug
    3
    United States v. Scott, 730 F. App’x 244 (5th Cir. 2018), cert. denied 
    139 S. Ct. 473
    (2018).
    4
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    transaction might come out at a suppression hearing, which could subject
    Scott to drug-related charges.
    After the hearing, the district court found that “a motion to suppress,
    had it been filed, may have been meritorious.” But the district court
    determined that Yazbeck made a strategic decision to forego a suppression
    motion. The district court credited Yazbeck with considering “the potential
    negative consequences for Scott if a suppression hearing w[ere] held,”
    including her concerns that Scott might be charged with drug offenses and
    that the motion might undermine her efforts to facilitate cooperation with the
    prosecution. The district court concluded that Scott had failed to show that
    Yazbeck’s performance was constitutionally inadequate and denied his
    ineffective assistance claim.
    Scott filed a motion to reconsider, which the district court denied. The
    district court granted a Certificate of Appealability on whether Scott was
    denied his Sixth Amendment right to effective assistance of counsel.
    II
    When evaluating the denial of a § 2255 motion, we review the district
    court’s factual findings for clear error and its legal conclusions de novo. 4 We
    review the district court’s determinations concerning ineffective assistance
    of counsel claims de novo. 5
    III
    A defendant seeking relief for ineffective assistance must satisfy the
    Strickland v. Washington test, which requires the defendant to show that
    4
    United States v. Phea, 
    953 F.3d 838
    , 841 (5th Cir. 2020).
    5
    United States v. Shepherd, 
    880 F.3d 734
    , 740 (5th Cir. 2018).
    5
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    (1) “counsel’s performance was deficient” and (2) “the deficiency
    prejudiced the defense.” 6
    To satisfy Strickland’s performance prong, a defendant must
    demonstrate that “counsel’s representation fell below an objective standard
    of reasonableness.” 7 We assess reasonableness “from counsel’s perspective
    at the time of the alleged error and in light of all the circumstances.” 8 Our
    review of counsel’s performance is “highly deferential,” and we “indulge a
    strong presumption that counsel’s conduct falls within the wide range of
    reasonable professional assistance.” 9 A defendant must overcome that
    presumption by proving “that counsel’s representation was unreasonable
    under prevailing professional norms and that the challenged action was not
    sound strategy.” 10
    Scott argues that Yazbeck’s decision to forego a suppression motion
    was not strategic because she incorporated legal and factual errors into her
    analysis of the relative costs and benefits of filing a suppression motion. Scott
    argues that Yazbeck misunderstood controlling Fourth Amendment law on
    the legality of Terry stops. However, Yazbeck’s testimony demonstrates she
    was familiar with controlling law. Scott’s argument is better understood as a
    challenge to the correctness of Yazbeck’s application of Fourth Amendment
    6
    Wiggins v. Smith, 
    539 U.S. 510
    , 521 (2003) (citing Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984)); see also United States v. Dowling, 458 F. App’x 396, 397–98 (5th Cir.
    2012) (noting that Strickland governs ineffective assistance claims based on counsel’s
    failure to raise a motion to suppress).
    7
    Garza v. Idaho, 
    139 S. Ct. 738
    , 744 (2019) (quoting Strickland, 
    466 U.S. at
    687–
    88).
    8
    Kimmelman v. Morrison, 
    477 U.S. 365
    , 381 (1986) (citing Strickland, 
    466 U.S. at 689
    ).
    9
    Strickland, 
    466 U.S. at 689
    .
    10
    Kimmelman, 
    477 U.S. at
    381 (citing Strickland, 
    466 U.S. at
    688–89).
    6
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    law; he argues that Yazbeck erred in concluding that the agents had
    reasonable suspicion to stop him. 11 Yazbeck testified that she considered the
    totality of the circumstances when determining whether the DEA agents had
    reasonable suspicion, including their surveillance of Scott in a high-crime
    area, their observation of Scott’s presence (spatially and temporally) in the
    hotel parking lot near the suspected drug dealer’s vehicle, and their
    observation of Scott engaging in what they believed to be a narcotics
    transaction. 12 Scott fails to demonstrate that it was unreasonable for Yazbeck
    to conclude, based on the information known to her at the time, that the
    agents had reasonable suspicion to stop Scott. 13 And he fails to identify any
    prevailing professional norm that Yazbeck violated. 14
    Scott argues that Yazbeck’s decision was unsound because her
    analysis incorporated factual errors about the contents of the DEA report.
    Scott points to portions of Yazbeck’s testimony at the evidentiary hearing to
    11
    Because an officer’s “temporary, warrantless detention of an individual
    constitutes a seizure for Fourth Amendment purposes,” United States v. Garza, 
    727 F.3d 436
    , 440 (5th Cir. 2013), an officer may “conduct a brief, investigatory stop”—without
    violating the Fourth Amendment—“when the officer has a reasonable, articulable
    suspicion that criminal activity is afoot,” Illinois v. Wardlow, 
    528 U.S. 119
    , 123 (2000)
    (citing Terry v. Ohio, 
    392 U.S. 1
    , 30 (1968)).
    12
    See United States v. Jordan, 
    232 F.3d 447
    , 449 (5th Cir. 2000) (“Reasonable
    suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking
    to ‘the totality of the circumstances—the whole picture.’” (quoting United States v.
    Sokolow, 
    490 U.S. 1
    , 7–8 (1989))).
    13
    Although the Government later proffered that the agents did not see drugs
    change hands between Scott and the individual in the parking lot, this information was not
    available to Yazbeck when she evaluated the suppression issue. We do not consider this
    information in evaluating the reasonableness of Yazbeck’s decision, and we make “every
    effort . . . to eliminate the distorting effects of hindsight.” Strickland, 
    466 U.S. at 689
    .
    14
    See Kimmelman, 
    477 U.S. at
    381 (citing Strickland, 
    466 U.S. at
    688–89) (noting
    that defendant bears the burden of showing counsel’s decision “was unreasonable under
    prevailing professional norms”).
    7
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    support this claim, but that hearing occurred three years after Yazbeck
    represented Scott. And, more importantly, the relevant inquiry is whether
    Yazbeck knew the facts at the time she represented Scott, and Scott does not
    make any argument to that effect. 15
    Scott also argues that Yazbeck’s decision to forego a suppression
    motion was not sound strategy because she made her decision on
    “incomplete information” without “vet[ting] or even mak[ing] a cursory
    effort to look into the applicable facts” concerning the legality of the agents’
    stop. This argument boils down to whether the scope of Yazbeck’s
    investigation was reasonable.
    In general, “counsel has a duty to make reasonable investigations or
    to make a reasonable decision that makes particular investigations
    unnecessary.” 16 While “strategic choices made after thorough investigation
    of law and facts . . . are virtually unchallengeable,” those “made after less
    than complete investigation are reasonable precisely to the extent that
    reasonable         professional      judgments     support        the   limitations     on
    investigation.” 17
    Before she decided not to file a suppression motion, Yazbeck’s
    investigation included: reviewing the 31 pages of discovery from the
    15
    See Wiggins, 
    539 U.S. at 523
     (providing that courts’ objective review of counsel’s
    performance “includes a context-dependent consideration of the challenged conduct as
    seen ‘from counsel’s perspective at the time’” (quoting Strickland, 
    466 U.S. at 689
    )).
    16
    Adekeye v. Davis, 
    938 F.3d 678
    , 682–83 (5th Cir. 2019) (quoting Strickland, 
    466 U.S. at 691
    ); see ABA Criminal Justice Standards for the Defense Function, Standard 4-4.1
    Duty to Investigate and Engage Investigators (4th ed. 2017).
    The Supreme Court has recognized the ABA standards as “prevailing norms of
    practice” that may function as “guides to determining what is reasonable” performance.
    Strickland, 
    466 U.S. at 688
    .
    17
    Strickland, 
    466 U.S. at
    690–91.
    8
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    prosecutor, which included the DEA report; discussing the DEA report with
    Scott, who denied conducting a drug transaction; and conducting legal
    research to see if there were similar factual scenarios that would support the
    filing of a suppression motion. Yazbeck admitted that she did not conduct
    any independent investigation before making that decision.
    Scott argues that Yazbeck should have conducted an independent
    investigation because the DEA report was facially inadequate to prove the
    legality of the agents’ stop, and he denied that a drug transaction had
    occurred. Admittedly, the DEA report is partially redacted, with some gaps
    in information, and it does not specify the facts that informed the agents’
    belief that a drug transaction had occurred. But Scott does not explain why
    those deficiencies would have prompted a reasonable attorney to investigate
    further or file a motion to suppress, and he does not point to any authority to
    support this argument. 18 And, although Scott denied that the drug
    transaction occurred, he did not identify any specific information that would
    have required a reasonable attorney to move to suppress.
    To support his argument that Yazbeck could not have made an
    informed tactical decision without investigating the circumstances of the
    stop, Scott relies on the Eleventh Circuit’s decision in Holsomback v. White,
    18
    Scott cites Hinton v. Alabama where the Supreme Court noted that counsel’s
    “ignorance of a point of law that is fundamental to his case combined with his failure to
    perform basic research on that point is a quintessential example of unreasonable
    performance under Strickland.” 
    571 U.S. 263
    , 274 (2014). But Hinton is distinguishable
    because Scott is arguing that the contents of the DEA report should have prompted
    Yazbeck to investigate further, not that Yazbeck was ignorant of Fourth Amendment law.
    See also Wiggins, 
    539 U.S. at 527
     (“In assessing the reasonableness of an attorney’s
    investigation, . . . a court must consider not only the quantum of evidence already known
    to counsel, but also whether the known evidence would lead a reasonable attorney to
    investigate further. . . . [A] reviewing court must consider the reasonableness of the
    investigation said to support that strategy.” (citing Strickland, 
    466 U.S. at 691
    )).
    9
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    which involved a sexual abuse case where counsel failed to conduct any
    investigation into the conceded lack of medical evidence. 19 Specifically,
    counsel decided not to contact the examining physician or to subpoena
    medical records that would disprove the alleged abuse because he was
    concerned about harmful testimony from the doctor or harmful medical
    evidence that could be used against the defendant. 20 The Eleventh Circuit
    held that counsel’s asserted fear was unreasonable. 21 Holsomback is
    distinguishable from this case. In Holsomback, counsel knew that there was
    no medical expert evidence of sexual abuse to corroborate the victim’s
    testimony; this lack of evidence would have prompted a reasonable attorney
    to make inquiries. Here, by contrast, Scott asserts that he denied the hand-
    to-hand transaction that conflicted with the DEA report, but this bare
    assertion, without more, fails to demonstrate that Yazbeck had specific
    information that would have put a reasonable attorney on notice that it was
    necessary to question and investigate the contents of the DEA report. 22
    19
    
    133 F.3d 1382
     (11th Cir. 1998).
    20
    
    Id. at 1388
    .
    21
    
    Id.
    22
    This case is more analogous to Strickland and Bobby v. Van Hook, 
    558 U.S. 4
    (2009). As the Court in Van Hook noted, both were cases “in which defense counsel’s
    ‘decision not to seek more’ mitigating evidence from the defendant’s background ‘than
    was already in hand’ fell ‘well within the range of professionally reasonable judgments.’”
    
    558 U.S. at
    11–12 (quoting Strickland, 
    466 U.S. at 699
    ).
    In contrast, this case is distinguishable from Wiggins v. Smith, 
    539 U.S. 510
    , 525
    (2003), where the “defendant’s attorneys failed to act while potentially powerful
    mitigating evidence stared them in the face.” Van Hook, 
    558 U.S. at 11
    . It is also
    distinguishable from Rompilla v. Beard, 
    545 U.S. 374
    , 389–93 (2005), where defendant’s
    attorneys failed to act while potentially powerful mitigating evidence “would have been
    apparent from documents any reasonable attorney would have obtained.” Van Hook, 
    558 U.S. at 11
    .
    10
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    Even if we assume Yazbeck should have conducted a more extensive
    investigation, we have recognized that, “despite lackluster investigation,”
    defense counsel can provide constitutionally adequate assistance where the
    “decision not to investigate was part of a clearly developed defensive
    strategy.” 23
    Yazbeck’s decision to limit her investigation and forego a suppression
    motion was part of her defensive strategy to proceed with the plea process
    and limit Scott’s exposure to enhanced sentencing or additional drug-related
    charges. 24 Yazbeck was concerned that, if agents testified that they observed
    Scott engage in a drug transaction and provided more information at a
    suppression hearing, the district court might consider Scott a drug dealer or
    drug user, and the prosecution might bring additional drug-related charges
    against Scott. 25 Before Scott pleaded guilty and during the time that she was
    considering the merits of a suppression motion, Yazbeck took other actions
    that were consistent with this defensive strategy. For example, Yazbeck
    objected to the PSR’s inclusion of a hand-to-hand drug transaction, and she
    worked with the prosecutor to eliminate any mention of the hand-to-hand
    drug transaction from the factual basis.
    Yazbeck’s decision to forego a suppression motion was also part of her
    strategy to facilitate cooperation with the prosecution on the sole charge of
    felony firearm possession. Before Scott pleaded guilty, Yazbeck arranged a
    23
    Shepherd, 880 F.3d at 742 (quoting Nealy v. Cabana, 
    764 F.2d 1173
    , 1178 (5th Cir.
    1985)).
    24
    See United States v. Molina-Uribe, 
    429 F.3d 514
    , 519–20 (5th Cir. 2005) (noting
    that counsel chose a particular defense strategy, albeit an unusual one, because the
    alternatives exposed the defendant and counsel to other legal risks).
    25
    Compare United States v. Cavitt, 
    550 F.3d 430
    , 441 (5th Cir. 2008) (counsel
    provided no sworn record testimony to explain the strategy behind his decision not to file a
    motion to suppress).
    11
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    cooperation meeting with the prosecutor. Although that cooperation meeting
    was ultimately unsuccessful because Scott “shut down” and did not want to
    answer agents’ questions about the events leading to his arrest, Yazbeck did
    not know that the meeting would prove unsuccessful. 26
    Yazbeck “was entitled to formulate a strategy that was reasonable at
    the time and to balance limited resources in accord with effective trial tactics
    and strategies.” 27 At the time of her decision regarding the suppression
    motion, Yazbeck knew that agents had found drugs on Scott and observed
    what they believed to be a drug transaction between Scott and another
    individual, and the prosecutor had only charged Scott with felony firearm
    possession, despite this additional information. It was not unreasonable for
    Yazbeck to worry that the prosecutor might attempt to bring additional
    charges against Scott, and it was not unreasonable for Yazbeck to focus her
    efforts on reducing Scott’s felony firearm possession through cooperative
    efforts, rather than challenging the legality of the stop with the potential risk
    that additional charges would be brought against Scott. 28
    In sum, Scott has not met his burden to show that Yazbeck’s decision
    to forego a suppression motion “was unreasonable under prevailing
    professional norms and that [her decision] was not sound strategy.” 29 Scott
    26
    See Strickland, 
    466 U.S. at 689
     (requiring courts to make “every effort . . . to
    eliminate the distorting effects of hindsight”).
    27
    Harrington v. Richter, 
    562 U.S. 86
    , 107 (2011).
    28
    See Premo v. Moore, 
    562 U.S. 115
    , 126 (2011) (“In the case of an early plea, neither
    the prosecution nor the defense may know with much certainty what course the case may
    take.”).
    29
    Kimmelman, 
    477 U.S. at
    381 (citing Strickland, 
    466 U.S. at
    688–89).
    12
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    thus fails under Strickland’s first prong, and we do not need to address
    whether Scott has satisfied Strickland’s prejudice prong. 30
    IV
    There are “countless ways to provide effective assistance in any given
    case,” 31 and this case is not one of the “rare” “situations in which the ‘wide
    latitude counsel [has] in making tactical decisions’ will be limited to any one
    technique or approach”—here, the filing of a motion to suppress. 32 Scott’s
    counsel provided constitutionally adequate representation when she decided
    to forego a suppression motion to follow her strategy of preventing additional
    charges from being brought against Scott.
    Because Scott has failed to show that his counsel’s performance was
    constitutionally deficient, we AFFIRM the denial of Scott’s ineffective
    assistance claim.
    30
    See Strickland, 
    466 U.S. at 697
     (“[T]here is no reason for a court deciding an
    ineffective assistance claim . . . to address both components of the inquiry if the defendant
    makes an insufficient showing on one.”).
    31
    Strickland, 
    466 U.S. at 689
    .
    
    32 Harrington, 562
     U.S. at 106 (quoting Strickland, 
    466 U.S. at 689
    ); see also Yohey
    v. Collins, 
    985 F.2d 222
    , 228 (5th Cir. 1993) (“Given the almost infinite variety of possible
    trial techniques and tactics available to counsel, this Circuit is careful not to second guess
    legitimate strategic choices.”).
    13