Viera v. United States of America

Filing 9

ORDER denying 1 Motion to Vacate / Set Aside / Correct Sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to enter a judgment against Viera and to close the case. Signed by Judge Steven D. Merryday on 9/7/2021. (LSC)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:17-cr-152-SDM-TGW
8:18-cv-2307-SDM-TGW

SERGIO VIERA
____________________________________/
ORDER

Sergio Viera moves under 28 U.S.C. § 2255 to vacate his conviction and
sentence for being a felon in possession of a firearm, for which he serves 73 months’
imprisonment. Viera raises eight grounds of ineffective assistance of counsel, each of
which is premised on his assertion that he was promised a shorter sentence and that
counsel failed to enforce that promise.
I. BACKGROUND
Under the terms of a plea agreement Viera pleaded guilty to possession of a
firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
The United States agreed both to recommend a sentence within the advisory
guidelines range and to consider any substantial assistance by Viera. Viera faced a
maximum of 120 months’ imprisonment.
The presentence report (“PSR”) recommends an offense level of 17, a criminal
history category of IV, and an advisory guideline range of 37 to 46 months’
imprisonment. The PSR applies a four-level enhancement under U.S. Sentencing

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Guideline § 2K2.1(b)(6)(B) for possession of a firearm in connection with possession
of narcotics. Viera initially objected to the enhancement and argued that insufficient
evidence existed to connect the firearm and the narcotics. Viera later withdrew the
objection.
Also, the PSR applies a two-level enhancement under § 2K2.1(b)(4) because
the firearm Viera possessed was stolen. Viera raised no objection to this
enhancement.
In accord with the plea agreement the United States recommended a sentence
of 46 months’ imprisonment, the upper end of the guidelines range. However, the
district court varied upward and imposed a sentence of 73 months’ imprisonment.
The district court explained the upward variance (Crim. Doc. 48 at 18–20):
First, the offense here is troubling for a number of reasons. It’s
. . . blatantly defiant of the law, well known to the defendant
that he was disabled from possessing a firearm and he
nonetheless did, secreting in the trunk of his car a loaded
.40-caliber with a full magazine, a weapon that is a powerful,
deadly, and blunt-force handgun, and he decorated the home
with drugs and firearms. It’s essentially a form of continuation
of behavior since his early teen years.
So the offense is disturbing and serious and, if counsel will
allow me, suggestive of conduct other than what we have here,
although . . . that suggestion plays no particular role in the
sentence. Anyway, a most disturbing trend in his conduct.
He, of course, has a miserable criminal history that is replete
with both organized and individual violence and a constant
resort to possession of weapons and ammunition. His conduct
makes him a stark threat to himself, to others, and to the
community. And those others include his family, friends.
It’s palpable that he has little, if any, respect for the law. That
60-month sentence that he received earlier in his life he’s long
since forgotten or dismissed and that there is a need here to

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protect the community and to sentence this man in a way that
creates no unwarranted disparities. . . .
This defendant’s extremely fortunate to be a Criminal History
Category IV offender rather than a VI. I suspect that IV may
not do justice to his efforts as a criminal thus far in his life and
neither perhaps does the Offense Level 17 quite do justice to
this one, but we’ve agreed that they’ve properly scored at that
rate. But the sentence seems to me, in order to serve the
statutory purposes and in order to have any change of being
sufficient, needs to represent an increment above earlier
sentences.
So considering all, I’m convinced that the sentence is not
greater than necessary to comply with the statutory purposes of
sentencing, even though it is a variance mostly above the range
recommended by the Guidelines.

Viera appealed his sentence, arguing that it was procedurally and substantively
unreasonable. The circuit court affirmed. Viera now moves to vacate his conviction
and sentence by raising eight grounds of ineffective assistance of counsel.
II. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains,
Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that

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counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There 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.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Viera must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691–92. To meet this burden, Viera must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Viera cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)); see also Jones v. Barnes, 463 U.S. 745, 751
(1983) (counsel has no duty to raise a frivolous claim).
III. GROUND ONE
In Ground One Viera claims that counsel was ineffective during plea
negotiations because counsel convinced him to plead guilty in exchange for a

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three-year sentence. He argues that counsel’s performance was deficient because he
received a much longer, 73-month sentence.
The record does not support Viera’s claim. Containing no promise of a
specific sentence, the plea agreement states that Viera faces a maximum sentence of
120 months. At the plea hearing Viera confirmed that counsel reviewed each page
of the plea agreement with him, that he understood the agreement, and that he was
satisfied with counsel’s representation. He understood that he faced a maximum
sentence of 120 months, that the sentencing guidelines were advisory, and that he
could not withdraw his guilty plea if his sentence was longer than expected. Viera
stated that he was pleading guilty freely and voluntarily and that no one coerced him
to plead guilty. Viera confirmed that no one had promised him anything, other than
the terms of the plea agreement, in exchange for his guilty plea. Finally, Viera
understood that the district court was not a party to the plea agreement and could
reject the plea agreement, in which case Viera could not withdraw his guilty plea.
“A guilty plea, if induced by promises or threats which deprive it of the
character of a voluntary act, is void. A conviction based upon such a plea is open to
collateral attack.” Machibroda v. United States, 368 U.S. 487, 493 (1962). However, a
defendant’s statements at the plea hearing “constitute a formidable barrier in any
subsequent collateral proceedings” because “[s]olemn declarations in open court
carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).
See also United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong
presumption that the statements made during the [plea] colloquy are true.”).

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“[W]hen a defendant makes statements under oath at a plea colloquy, he bears a
heavy burden to show his statements were false.” United States v. Rogers,
848 F.2d 166, 168 (11th Cir. 1988). “[C]onclusory allegations unsupported by
specifics [are] subject to summary dismissal, as are contentions that in the face of the
record are wholly incredible.” Blackledge, 431 U.S. at 74.
Other than his own conclusory assertions, Viera presents no argument or
evidence to rebut his affirmations under oath at the plea hearing. Also, the plea
agreement contains no promise of a specific sentence. Viera establishes neither that
counsel’s performance was deficient nor that there is a reasonable probability that,
but for counsel’s performance, he would not have pleaded guilty and would have
proceeded to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Viera is entitled to no
relief on Ground One.
IV. GROUND TWO
In Ground Two Viera claims that counsel was ineffective for not moving to
withdraw his guilty plea after the United States broke its promise in the plea
agreement of a twenty-four-to-thirty months’ sentence. “The government is bound
by any material promises it makes to a defendant as part of a plea agreement that
induces the defendant to plead guilty.” United States v. Taylor, 77 F.3d 368, 370 (11th
Cir. 1996).
The plea agreement directly contradicts Viera’s claim. Again, the plea
agreement contains no promise of a specific sentence. Rather, it states that Viera
faces a maximum sentence of 120 months’ imprisonment and that the United States

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agrees to recommend a sentence within the guidelines range. At sentencing the
United States fulfilled that promise; however, the district court varied upward from
the guidelines range. Viera acknowledged that he could not withdraw his guilty plea
under these circumstances. Viera cannot show that counsel was ineffective for not
moving to withdraw his guilty plea because the United States broke no promise in
the plea agreement. He is entitled to no relief on Ground Two.
V. GROUND THREE
In Ground Three Viera claims that counsel was ineffective for withdrawing his
objection to the four-level-enhancement under § 2K2.1(b)(6)(B) for Viera’s possession
of a firearm in connection with possession of narcotics. He vaguely argues that
counsel should have determined first whether the district court and the United States
would comply with the plea agreement before withdrawing the objection.
Section 2K2.1(b)(6)(B) permits a four-level enhancement when the defendant
possesses a firearm “in connection with another felony offense,” including
possession of narcotics. The enhancement applies when “a firearm is found in close
proximity to drugs.” U.S.S.G. § 2K2.1(b)(6)(B), cmt. n.14. Law enforcement
discovered in Viera’s bedroom “a 12-gauge Mossberg shotgun in plain view[,]” “a
black bag containing several plastic baggies holding [a] total of 267.9 grams of
marijuana[,]” “two empty magazines[,]” “a box of 20 rounds of 9mm ammunition, a
Glock magazine containing 11 rounds of 9mm ammunition, a jar with marijuana
residue in it, and an M&M container containing approximately 19 grams of
methamphetamine.” Crim. Doc. 13 at 18–19.

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Viera does not dispute that both the shotgun and the narcotics were discovered
in his bedroom. He presents no argument or evidence to explain why the four-level
enhancement is unlawful. Counsel is not ineffective for withdrawing a meritless
objection to the enhancement. Brewster v. Hetzel, 913 F.3d 1042, 1056
(11th Cir. 2019) (“Defense counsel . . . need not make meritless motions or lodge
futile objections.”); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (“[I]t is
axiomatic that the failure to raise non-meritorious issues does not constitute
ineffective assistance.”). Viera is entitled to no relief on Ground Three.
VI. GROUND FOUR
In Ground Four Viera claims that counsel was ineffective for not moving to
withdraw his guilty plea after the district court overruled his objections to both the
four- and two-level enhancements for possessing a stolen firearm. Viera presents no
relevant argument to support this claim. Counsel represents that she did not object
to the two-level enhancement because the United States provided discovery that
established the firearm was stolen.
Viera does not dispute that the firearm he possessed was stolen. He presents
no argument or evidence to explain why the two-level enhancement was improper.
Counsel is not ineffective for not asserting meritless objections to the enhancements.
Viera is entitled to no relief on Ground Four.
V. GROUND FIVE
In Ground Five Viera claims that counsel was ineffective for not terminating
the plea agreement after the district court refused to honor its terms. He argues that

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Section 6B1.2(a) requires termination of the plea agreement.
Section 6B1.2(a) does not require termination of the plea agreement and
provides no support for Viera’s claim. This provision permits the district court to
accept plea agreements in which the United States agrees either to dismiss a charge
or not to pursue potential charges.
The plea agreement expressly states that the district court is neither a party to
the agreement nor required to follow the United States’ recommendation of a
sentence within the guidelines range. Viera consented to these terms and
acknowledged his understanding of these terms at the plea hearing. Viera fails to
demonstrate that counsel was ineffective for not terminating the plea agreement. He
is entitled to no relief on Ground Five.
VII. GROUND SIX
In Ground Six Viera claims that counsel was ineffective for not withdrawing
his guilty plea after his sentence was enhanced for a suspected but uncharged offense.
He vaguely claims that the parties stipulated that such conduct could not form the
basis of an enhancement.
Viera identifies neither a stipulation in the plea agreement to support his claim
nor an offense that formed the basis of an improper enhancement. At the plea
hearing Viera confirmed that he received no promises beyond those in the plea
agreement in exchange for his guilty plea. Vague, conclusory, or unsupported claims
cannot support an ineffective assistance of counsel claim. Tejada v. Dugger,

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941 F.2d 1551, 1559 (11th Cir. 1991). Viera cannot demonstrate that counsel was
ineffective for not withdrawing his guilty plea after an unidentified, improper
enhancement. He is entitled to no relief on Ground Six.
VIII. GROUND SEVEN
In Ground Seven Viera claims that counsel was ineffective for not
withdrawing his guilty plea after the district court determined that his racketeering
conviction constituted a crime of violence. The record does not support Viera’s
claim.
The initial PSR assigned Viera a base offense level of 20 for possessing a
firearm after a conviction for a crime of violence, namely racketeering. Counsel
successfully objected to the categorization of racketeering as a crime of violence to
support the base offense level. The final PSR assigns a base offense level of 14.
Viera cannot demonstrate counsel was ineffective because the successful objection
resulted in a lower base offense level. Viera is entitled to no relief on Ground Seven.
IX. GROUND EIGHT
In Ground Eight Viera claims that counsel was ineffective for not withdrawing
his guilty plea after the district court imposed a procedurally and substantively
unreasonable sentence. Viera cannot demonstrate that counsel was ineffective
because counsel, in fact, objected to the sentence as substantively and procedurally
unreasonable. Also, the circuit court affirmed Viera’s sentence on appeal, reasoning
that in light of “Viera’s considerable and violent criminal history,” the sentence was

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not “outside the ‘ballpark’ of permissible outcomes.” Crim. Doc. 54 at 7. Viera is
entitled to no relief on Ground Eight.
Viera’s motion under Section 2255 to vacate, set aside, or correct his sentence
is DENIED. The clerk is directed to enter a judgment against Viera, close this case,
and enter a copy of this order in 8:17-cr-152-SDM-TGW.
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Viera is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Viera must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues
he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show
that reasonable jurists would debate either the merits of the claims or the procedural
issues, Viera is entitled to neither a certificate of appealability nor an appeal in forma
pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Viera must obtain permission from the circuit court to appeal in forma
pauperis.

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ORDERED in Tampa, Florida, on September 7, 2021.

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