Suarez v. USA

Filing 10

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED, ADJUDGED and DECREED that Petitioner's Motion for Relation Back Amendment Pursuant to Fed R. Civ. P. 15(c) for Clarification 8 is GRANTED. IT IS FURTHER ORDERED that Petitioner Suare z's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 1 is DENIED, with prejudice. Finding the petition, files, and record of this case refute each of Suarez's claims, this Court holds no evidentiary hearing is required. The Court shall not issue a certificate of appealability as to any claim raised in Petitioner's § 2255 Motion. Signed by District Judge E. Richard Webber on 12/28/17. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EMMANUEL SUAREZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:17CV1566 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Emmanuel Suarez’s Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1] and Motion
for Relation Back Amendment Pursuant to Fed R. Civ. P. 15(c) for Clarification [8].
I.

BACKGROUND
Petitioner Emmanuel Suarez and the U.S. Government agreed the following facts could

be proven beyond a reasonable doubt by the U.S. Government in trial. 1 On February 13, 2015, an
undercover detective agreed to meet D.P. at a retail shopping center in Hazelwood, Missouri.
D.P. arrived in a vehicle driven by Emmanuel Suarez. The detective exited his vehicle and
entered the vehicle driven by Suarez. While inside the vehicle, the detective purchased heroin
and cocaine from D.P. in exchange for $1320. D.P. asked Suarez to act as lookout while the
detective counted out the money. During the transaction, the detective noted Suarez was in
possession of a semi-automatic pistol. D.P. discussed selling the pistol to the detective, showing

1 These facts

are contained as part of the parties’ Guilty Plea Agreement in Suarez’s underlying
criminal case, 4:15-CR-00099-ERW-2.
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the detective the magazine was fully loaded and that there was a round in the chamber. The
detective then exited the vehicle.
At the time of this transaction, Suarez was a previously-convicted felon. He had entered a
guilty plea on November 17, 2006 for one count of Burglary in the First Degree, one count of
Stealing a Motor Vehicle, and one count of Theft of a Credit Card. 2 All three offenses are felony
offenses, each punishable by a term of imprisonment exceeding one year.
II.

PROCEDURAL HISTORY
Suarez was arrested on February 27, 2015 following the issuance of a Criminal

Complaint. On March 4, 2015, a grand jury charged him with seven counts alongside D.P.:
Count I, Conspiracy to Possess with the Intent to Distribute Heroin; Count II, Conspiracy to
Possess with the Intent to Distribute Cocaine; Count III, Distribution of Heroin; Count IV,
Distribution of Cocaine; Count VI, Possession of a Firearm in Furtherance of a Drug Trafficking
Crime; Count VIII, Felon in Possession of a Firearm; and Count XII, Felon in Possession of a
Firearm. The U.S. Government moved Suarez be detained without bail pending trial, arguing he
was a danger to the community. U.S. Judge Shirley Mensah held a detention hearing, whereby a
police detective with the St. Louis County Police Department testified regarding an incident in
which Suarez shot and injured his sister’s boyfriend on March 1, 2014. Judge Mensah found
there was probable cause to believe the incident had occurred and that at the time of the shooting,
Suarez had been on parole. Judge Mensah ordered Suarez be detained without bail pending trial.
On July 29, 2015, Suarez appeared before this Court and entered a plea of guilty to three
of the charges against him in accordance with the parties’ Guilty Plea Agreement: Count III, a
2 This plea occurred in the 21st Judicial Circuit Court for St. Louis County, Missouri as part of
06-CR-003322.
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lesser offense necessarily included in Count VI, 3 and Count VIII. In exchange, the U.S.
Government agreed to move to dismiss Counts I, II, IV, and XII at the time of sentencing. The
Agreement also stated the U.S. Government agreed that:
no further federal prosecution will be brought in this District relative to the
defendant’s participation in a conspiracy to distribute heroin and/or cocaine
between August 2014 and the date of entry of this plea; nor as to his actual
distribution of heroin and/or cocaine on any date between August 2014 and the
date of entry of this plea; nor as to his possession or use of any firearm, either in
conjunction with any drug trafficking offense or otherwise, on February 13, 2015,
of which the government is aware at this time.
The parties further stipulated they had reached an agreement as to the U.S. Sentencing
Guidelines Total Offense Level analysis as a result of negotiation, which led to Suarez’s guilty
plea. The parties agreed either party could request a sentence above or below the sentence
calculated by the U.S. Sentencing Guideline Range. However, ultimately, the parties agreed to
make a non-binding sentencing recommendation of 120 months imprisonment, a sentence greater
than the sentence provided by the U.S. Sentencing Guidelines and ultimately recommended by
the Probation Office’s presentence report in this case.
On October 26, 2015, this Court sentenced Suarez to 120 months imprisonment.
Following sentencing, counsel for Suarez filed a Notice of Appeal and a brief pursuant to
Anders, in which counsel argued Suarez’s plea was not knowing and voluntary. See Anders v.
California, 386 U.S. 738 (1967). On June 17, 2016, the Eighth Circuit affirmed this Court,

3 Suarez

was charged and pled guilty to knowingly and intentionally using, carrying, and
possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.
§ 924(c)(1)(A). However, he was charged with knowingly and intentionally brandishing the
same firearm, which is punishable under 18 U.S.C. § 924(c)(1)(A)(ii) for a term of imprisonment
not less than seven years. Pursuant to the terms of the Guilty Plea Agreement, he pled guilty to
the lesser included offense punishable under 18 U.S.C. § 924(c)(1)(A)(i) for a term of
imprisonment not less than five years.
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stating there were “no non-frivolous issues for appeal.” U.S. v. Suarez, No. 15-3620, (June 20,
2016). On May 23, 2017, Suarez filed this Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody [1], arguing ineffective assistance of
counsel.
III.

STANDARD
A federal prisoner who seeks relief under 28 U.S.C. ' 2255 on grounds “the sentence was

imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. ' 2255(a). In order
to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory
violation constituting “a fundamental defect which inherently results in a complete miscarriage
of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v.
Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may be limited by procedural default. Generally, a
petitioner “cannot raise a non-constitutional or non-jurisdictional issue in a § 2255 motion if the
issue could have been raised on direct appeal but was not.” Anderson v. United States, 25 F.3d
704, 706 (8th Cir. 1994). It is also well-established a petitioner’s ineffective assistance of
counsel claim is properly raised under § 2255, rather than on direct appeal. United States v.
Davis, 452 F.3d 991, 994 (8th Cir. 2006); United States v. Cordy, 560 F.3d 808, 817 (8th Cir.
2009). The burden of demonstrating ineffective assistance of counsel is on a defendant. United
States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.

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2003). To prevail on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The defendant must also establish prejudice by
showing “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694.
Both parts of the Strickland test must be met in order for an ineffective assistance of
counsel claim to succeed. Anderson v. United States, 393 F.3d 749, 753 (8th Cir.), cert. denied,
546 U.S. 882 (2005). The first part of the test requires a “showing that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. Review of counsel’s performance by the court is “highly deferential,” and the
Court presumes “counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. The court does not “second-guess” trial strategy or rely on the benefit of
hindsight, id., and the attorney’s conduct must fall below an objective standard of reasonableness
to be found ineffective. United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the
underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel’s
performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance from
counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he was
prejudiced by counsel’s error and “that ‘there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Anderson, 393
F.3d at 753-54 (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability

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sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. When
determining if prejudice exists, the court “must consider the totality of the evidence before the
judge or jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
The first prong of the Strickland test, that of attorney competence, is applied in the same
manner to guilty pleas as it is to trial convictions. The prejudice prong, however, is different in
the context of guilty pleas. Instead of merely showing that the result would be different, the
defendant who has pleaded guilty must establish that “there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
IV.

DISCUSSION
A. Motion for Relation Back Amendment Pursuant to Fed. R. Civ. P. 15(C) for
Clarifying Relief Requested in Initial § 2255 Motion
Suarez has moved this Court allow him to include an amendment to his original § 2255

Motion. In his proposed amendment, Suarez expressly argues he is entitled to withdraw his
guilty plea and requests this Court hold an evidentiary hearing to determine if his counsel was
sufficiently ineffective to render his guilty plea involuntary and invalid. That motion is granted.
However, this Court finds it is able to rule on Suarez’s amended § 2255 Motion without further
briefing by the U.S. Government. Accordingly, the Government is not required to respond to this
motion [8].
B. Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody
Suarez provides two grounds for his claim of ineffective assistance of counsel, both of
which are fundamentally similar. First, he alleges his counsel was ineffective during plea

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agreement negotiations because his counsel did not calculate the sentence in accordance with the
U.S. Sentencing Guidelines, which resulted in Suarez getting a higher sentence than that
recommended by the pre-sentence investigation report. Likewise, Suarez argues his counsel was
ineffective for failing to “move[] for the benefit of a minor role/or minimum participant
reduction” pursuant to the United States Sentencing Guidelines Section 3B1.2.
The U.S. Sentencing Guidelines are advisory, not mandatory. See U.S. v. Booker, 543
U.S. 220 (2005). The sentencing court should first determine the proper guidelines range, and
then it must “consider all of the factors enumerated in 18 U.S.C. § 3553(a) to determine whether
to impose the sentence under the guidelines or a non-guidelines sentence.” U.S. v. Bueno, 443
F.3d 1017, 1022 (8th Cir. 2006) (citing U.S. v. Haack, 403 F.3d 997, 1002-03 (8th Cir. 2005)).
Suarez has not shown he was prejudiced by any alleged error by his counsel during
sentencing. At the sentencing hearing, this Court expressly applied the 18 U.S.C. § 3533(a)
factors when issuing Suarez’s final sentence. It found the defendant had an extensive criminal
history that was not reflected by the U.S. Guidelines calculation. See 18 U.S.C. § 3553(a)(1)
(“The court, in determining the particular sentence to be imposed shall consider the nature and
circumstances of the offense and the history and characteristics of the defendant.”). Further, at
the sentencing hearing, this Court found the terms of the parties’ Guilty Plea Agreement were not
only reasonable, but were favorable to Suarez. Indeed, four of the charges against Suarez were
dismissed by the U.S. Government as a result of the Guilty Plea Agreement. 4 As both parties
indicated, there was ample evidence against Suarez with respect to all charges initially brought.
Taking these facts into consideration, this Court would have thus rejected any motion by

4 If Suarez had been convicted of these charges, he would have faced four statutory sentences
totaling to a maximum of 840 months, as is noted in the pre-sentence investigative report.
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Suarez’s counsel for a reduction based on the U.S. Guidelines and would have instead imposed
the 120-month sentence based on the 18 U.S.C.A. § 3553(a) factors.
Accordingly, this Court finds Suarez has not met either requirement of the two-prong
Strickland test. Suarez has not shown counsel committed any error that fell beyond the range of
reasonable professional assistance required by the first prong. Strickland, 393 F.3d at 753. This
Court will not hold counsel was ineffective for declining to file a motion that would have proven
unsuccessful. See Carter, 92 F.3d at 671. Likewise, Suarez has not met the second prong, as he
has not shown there is a reasonable probability that the result of the proceeding would have been
different had counsel for Suarez advocated for a sentence at or below the U.S. Sentencing
Guidelines calculation. Strickland, 393 F.3d at 753. This Court applied an upward variance to
Suarez’s sentence in consideration of the factors enumerated in 18 U.S.C. § 3553(a)(1), rather
than in reliance on any agreement or request by the parties. As such, even had counsel requested
a sentence at or below the U.S. Sentencing Guidelines calculation, it would have been denied.
V.

CERTIFICATE OF APPEALABILITY
The Court finds Suarez has not made a substantial showing of the denial of a

constitutional right, as is required before a certificate of appealability can issue. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a Asubstantial showing@ is a showing
the Aissues are debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings@). Therefore, the Court shall not issue a certificate of
appealability as to any claims raised in Suarez’s § 2255 Motion.
Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED and DECREED that Petitioner’s Motion
for Relation Back Amendment Pursuant to Fed R. Civ. P. 15(c) for Clarification [8] is
GRANTED.
IT IS FURTHER ORDERED that Petitioner Suarez’s Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1] is DENIED, with
prejudice. Finding the petition, files, and record of this case refute each of Suarez’s claims, this
Court holds no evidentiary hearing is required. The Court shall not issue a certificate of
appealability as to any claim raised in Petitioner=s § 2255 Motion.
So Ordered this 28th day of December, 2017.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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