Strauther v. USA

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioner Deven Strauther's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right as required by 28 U.S.C. § 2253(c)(2). A separate Judgment shall accompany this Memorandum and Order. Signed by Sr. District Judge Audrey G. Fleissig on 3/10/25. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEVEN STRAUTHER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:23-cv-00440-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Deven Strauther’s motion filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On January 26, 2022,
Petitioner pleaded guilty to one count of attempted Hobbs Act robbery in violation of 18
U.S.C. § 1951. The Court accepted Petitioner’s plea, and on May 19, 2022, sentenced
Petitioner to 100 months’ imprisonment.
In his pro se motion under § 2255, Petitioner argues that he is entitled to relief on
five grounds: (1) ineffective assistance of counsel; (2) breach of his plea agreement; (3)
illegal sentence; (4) lack of subject matter jurisdiction; and (5) failure to properly
calculate his offense level and sentencing guidelines range. As the record conclusively
demonstrates that Petitioner is not entitled to relief, the Court will deny Petitioner’s
motion without a hearing.

Background
Criminal Proceedings
A.

Indictment and Pretrial Proceedings

On May 25, 2019, Petitioner was indicted and charged with Attempted Hobbs Act
robbery in violation of 18 U.S.C. § 1951 (“Count One”) and Discharging a Firearm in
Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c) (“Count Two”).
United States v. Strauther, 4:19-cr-00546-AGF-1 (E.D. Mo.), ECF No. 22. 1 On May 12,
2021, Petitioner, after discussion with counsel, waived his right to raise pretrial motions.
Crim. ECF No. 56.
B.

Change of Plea

On January 26, 2022, Petitioner pleaded guilty to Count One. As part of the plea
agreement, the Government agreed to dismiss Count Two at the time of sentencing.
Crim. ECF No. 73 at 1. Additionally, both parties agreed that neither party would request
a sentence less than ninety-six (96) months or greater than 120 months. Id. at 7–8. The
plea agreement reflected the parties’ agreement, pursuant to United States Sentencing
Guidelines (“USSG”) § 2B3.1(a), that the Base Offense Level was twenty (20) and,
pursuant to § 2B3.1(b)(2)(A), seven (7) levels would be added because a firearm was
discharged. The parties also agreed that three (3) levels should be deducted because
Petitioner demonstrated acceptance of responsibility. Thus, the parties agreed that the
Total Offense Level was twenty-four (24). Petitioner also agreed to “waive all rights to

References to docket materials from Petitioner’s underlying criminal case are cited
as “Crim. ECF No. _” throughout.
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contest the conviction or sentence in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, except for claims of prosecutorial misconduct or
ineffective assistance of counsel.” Crim. ECF No. 73 at 8.
As part of the guilty plea agreement signed by both parties, Petitioner also
stipulated to the following facts. On May 25, 2019, the St. Louis Metropolitan Police
Department received a call for "shots fired” at Robinson’s Jewelry, located at 6497
Chippewa Street, St. Louis, Missouri 63109. Upon arriving, officers learned that
individuals attempted to rob Robinson’s Jewelry. Investigation revealed that Strauther
and at least two others drove to Robinson’s Jewelry with the intent to commit an armed
robbery to obtain jewelry and other property within the business. Strauther and at least
one other individual were armed. The men arrived in a gray Infiniti sedan.
Upon arrival, Strauther and another individual exited the Infiniti and approached
the business wearing face coverings and armed with semi-automatic weapons. The
business is equipped with two entry doors that allow entry into the business. As a
security measure, the second door must be opened electronically by the staff. Strauther
entered the first door of the business but was not able to gain complete entry into the
business because staff did not electronically open the second door. When Strauther was
unable to gain entry through the second door, he kicked out the lower portion of the glass
on the door to gain entry. Fearing for their safety, the business owner and an off-duty
police officer, who were both armed with firearms, fired at Strauther. In response,
Strauther discharged his weapon as he and the other individual ran from the business.
The men re-entered the Infiniti and fled the area.
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Approximately thirty (30) minutes after the attempted robbery, Strauther arrived at
St. Louis University Hospital, suffering from two (2) gunshot wounds to the abdomen.
At that time, Strauther did not make any admissions regarding his involvement in the
attempted robbery. A few days later, officers recovered and processed the Infiniti used in
the attempted robbery. DNA analysis of blood found in the Infiniti identified Strauther as
the source of the blood. An analysis of the Infiniti’s hard drive indicated it was present at
Robinson’s Jewelry on the date and time of the attempted robbery. In a subsequent
interview with detectives, Strauther admitted his involvement in the attempted robbery of
Robinson’s Jewelry.
At the change-of-plea hearing held on January 26, 2022, the same day the plea
agreement was executed, Petitioner represented that he was satisfied with his attorney’s
performance, that his attorney did everything Petitioner asked him to do, and that there
was nothing that Petitioner could think of that his attorney should have done but did not
do. Petitioner confirmed that he understood the terms of the indictment and plea
agreement; that he understood the rights he was giving up by pleading guilty, including
all of his rights associated with his right to a trial; that he was guilty of the crime to which
he was pleading guilty; that if his plea was accepted by the Court, he would be adjudged
guilty of those offenses; and that no one had represented any other facts that he was
relying on in pleading guilty that he had not discussed with the Court at the hearing. The
Court also discussed the terms of the plea agreement, and Petitioner acknowledged that
he agreed to them. Crim. ECF No. 94 at 10:3–15:19. The Court found that Petitioner’s

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plea was knowing, intelligent, and voluntary, and thus accepted Petitioner’s guilty plea.
Id. at 38:8–15.
Relevant to this matter, Petitioner’s plea agreement states that he waives “all rights
to contest the conviction or sentence in any post-conviction proceeding, including one
pursuant to [§ 2255], expect for claims of prosecutorial misconduct or ineffective
assistance of counsel.” Crim. ECF No. 73 at 8. At his change-of-plea hearing, Petitioner
further acknowledged that he was giving up his rights under the plea agreement to contest
via habeas proceeding either his conviction or sentence, except for claims of
prosecutorial misconduct or ineffective assistance of counsel. Crim. ECF No. 94 at 35:1–
9.
On April 29, 2022, the final presentence investigation report (“PSR”) was filed,
and it reiterated the parties’ agreement regarding a sentencing recommendation under the
USSG. The PSR determined that Petitioner’s Base Offense Level was twenty (20) and
seven (7) levels should be added, pursuant to § 2B3.1(b)(2)(A), because a firearm was
discharged. It also included the Government’s recommendation of a three-level reduction
for Petitioner’s acceptance of responsibility, pursuant to § 3E1.1(a). The PSR concluded
that the guideline range was 100 months to 125 months, but the parties would seek a term
of imprisonment between ninety-six (96) and 120 months. Crim. ECF No. 81 at ¶¶ 9, 79.
C.

Sentencing

On May 19, 2022, the Court held a sentencing hearing at which Petitioner
appeared through counsel. Petitioner confirmed at the hearing that he had reviewed the
PSR with counsel. Crim. ECF No. 96 at 5:5–12. Neither party made objections
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concerning the PSR, and the Court granted the Government’s motion to dismiss Count
Two pursuant to the plea agreement. The Court sentenced Petitioner to 100 months’
imprisonment, which was within the sentencing guidelines range and the agreed-upon
terms of the plea agreement.
Motion to Vacate
As noted above, Petitioner raises five grounds for relief in his motion under
§ 2255, though the exact positions that Petitioner takes are hard to discern. Petitioner
generally states that his guilty plea was involuntary because his counsel was deficient and
because the prosecution threatened him with additional charges. He then separately
asserts: (1) ineffective assistance of counsel (“Ground One”); (2) breach of the plea
agreement (“Ground Two”); (3) illegal sentence (“Ground Three”); (4) lack of subject
matter jurisdiction (“Ground Four”); and (5) inaccurate calculation of his offense level
under the USSG (“Ground Five”). Petitioner asks the court to “apply the Davis case
retroactively and vacate his 924(c) conviction and sentence.” Civil ECF No. 1-1. 2
In response, the Government argues that all of Petitioner’s claims are refuted by
the record and fail as a matter of law. With respect to Ground One, the Government
contends that Petitioner mistakenly relies on the holdings in United States v. Davis, 588
U.S. 445 (2019) and United States v. Taylor, 596 U.S. 845 (2022) for the contention that
they preclude the alleged offense level enhancement he ultimately received under
§ 2B3.1(b)(2)(A) of the USSG. Respondent argues that because Davis and Taylor do not

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References to the docket in this action are cited as “Civil ECF No. __” throughout.
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address enhancements pursuant to § 2B3.1(b)(2)(A), Petitioner’s arguments that his
counsel should have raised objections to its use in his sentencing calculation must fail.
As to Ground Two, the Government argues that Petitioner’s plea agreement was not
breached because the sentence he received was within the agreed-upon range of ninetysix (96) to 120 months, and the record refutes his claim that the parties instead agreed to
recommend a sentence of seventy (70) to eighty-seven (87) months. Additionally, the
Government contends that Petitioner is barred by the plea agreement’s post-conviction
waiver from raising Grounds Three, Four, and Five, as they pertain to matters other than
ineffective assistance of counsel and prosecutorial misconduct.
Discussion
Under 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence
imposed against him on the ground that “the sentence was imposed in violation of the
Constitution or law 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.” 28 U.S.C. § 2255. Section 2255 rights
can be waived in a plea agreement if a defendant knowingly and voluntarily makes the
“decision to be bound by the provisions of the plea agreement, including the waiver
provisions.” DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000).
Here, Petitioner knowingly and voluntarily entered into a plea agreement where he
agreed to waive his rights to bring challenges to his conviction or sentence except as to
claims of ineffective assistance of counsel and prosecutorial misconduct. In liberally

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construing Petitioner’s motion, 3 the Court finds that Ground One raises a claim of
ineffective assistance of counsel and Ground Two raises a claim of prosecutorial
misconduct for breach of the plea agreement. Petitioner’s Grounds Three, Four, and
Five, even when liberally construed, are attacks on Petitioner’s conviction and sentence
and Petitioner has therefore waived his rights to bring such challenges. To the extent that
Petitioner’s claims in Grounds Three, Four, and Five relate to his arguments raised by
Grounds One and Two, the Court will address those arguments below. But the Court will
not separately address Petitioner’s claims under Grounds Three, Four, 4 and Five as
Petitioner has waived his rights to raise those challenges, and he is therefore not entitled
to relief on any of those grounds.
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, “the petitioner must show ‘counsel’s
representation fell below an objective standard of reasonableness’ and ‘that such deficient
performance prejudiced’ the defense.” Davis v. United States, 858 F.3d 529, 532 (8th
Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Prejudice in

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See United States v. Sandell, 27 F.4th 625, 630 (8th Cir. 2022).

Though Petitioner frames Ground Four as a challenge to the Court’s subject matter
jurisdiction, a review of his argument reveals it is simply another attempt to call into
question his sentence using the logic from the Davis and Taylor cases. To the extent that
Petitioner is raising a challenge to the Court’s subject matter jurisdiction, this challenge is
rejected. The Court had original jurisdiction over his case because the indictment
sufficiently alleged a violation of a federal statute. United States v. Foster, 443 F.3d 978,
981 (8th Cir. 2006) (finding that “[c]harging [defendant] with offenses against the laws of
the United States provided the district court with statutory jurisdiction.”); see also 18
U.S.C. § 3231 (“The district courts of the United States shall have original jurisdiction
. . . of all offenses against the laws of the United States.”); Crim. ECF No. 21.
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the context of a guilty plea requires the petitioner to show “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). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome
or a substantial, not just conceivable, likelihood of a different result.” Meza-Lopez v.
United States, 929 F.3d 1041, 1044–45 (8th Cir. 2019) (citation omitted).
“Courts should not upset a plea solely because of post hoc assertions from a
defendant about how he would have pleaded but for his attorney’s deficiencies.” Id. at
1045 (citing Lee v. United States, 582 U.S. 357, 358 (2017)). “Instead, judges should
look to contemporaneous evidence to substantiate a defendant’s expressed
preferences.” Id. In particular, a “defendant’s representations during the plea-taking
carry a strong presumption of verity and pose a formidable barrier in any subsequent
collateral proceedings.” Adams v. United States, 869 F.3d 633, 635 (8th Cir. 2017)
(citation omitted).
Petitioner claims that his counsel was ineffective by failing to “look into the
information of [Davis] [w]hich [Petitioner] was trying to raise.” Civil ECF No. 1-1.
Petitioner contends that he informed his trial counsel that the Davis case would preclude
a sentencing enhancement under 18 U.S.C. § 924(c). Petitioner argues that had his
counsel raised a challenge to his charge related to § 924(c) under Davis and Taylor,
Petitioner would not have pleaded guilty but instead would have proceeded to trial.
These arguments stem from Petitioner’s mistaken understanding that his sentence was
enhanced under § 924(c).
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Petitioner’s sentence was not enhanced under § 924(c). Instead, the Court used
§ 2B3.1(b)(2)(A) of the USSG to add seven (7) levels to Petitioner’s base offense level
for his discharge of a firearm during the attempted Hobbs Act robbery. Section
2B3.1(b)(2)(A) is applied in instances where a firearm is discharged during the
commission of a robbery regardless of whether the firearm was used to commit an act of
violence. Petitioner stipulated to the fact that he discharged a firearm and that he
understood the application of § 2B3.1(b)(2)(A) to the charge of attempted Hobbs Act
robbery:
The Court: And in connection with that, did you, in fact, break out the lower
panel of the door, and when shots were fired at you, did you also discharge
your firearm?
The Defendant: Yes, ma'am.
...
The Court: Now, there are certain paragraphs in this plea agreement with
respect to the sentencing guidelines. . . . And in this, the parties are agreeing
that the base offense level, where the counting should start, would be at level
20, that seven levels should be added because a firearm was discharged, and
the parties are also recommending that two levels be deducted for your
acceptance of responsibility, and if you otherwise qualify for it, that a third
level be deducted for timely notifying the Government of your intent to enter
into a plea. You understand?
The Defendant: Yes, ma’am.
Crim. ECF No. 94 at 21:5–8, 25:20–26:6. Petitioner pleaded guilty to the charges under
Count One and the Government dismissed the additional charge under Count Two, the
only count invoking § 924(c). Therefore, Petitioner’s premise that § 924(c) was used to
illegally enhance his sentence is contradicted by the record.
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For this same reason, Davis and Taylor are inapplicable in the instant matter. In
Davis, the United States Supreme Court held that 18 U.S.C. § 924(c)’s residual clause
was unconstitutionally vague. 588 U.S. at 470. In Taylor—which was decided after
Petitioner’s sentencing—the Supreme Court determined that attempted Hobbs Act
robberies are not crimes of violence and thus could not be enhanced with charges
pursuant to § 924(c)’s elements clause. 596 U.S. at 860. Neither case is relevant here
because Petitioner ultimately did not plead guilty to, nor was he convicted under or
sentenced pursuant to, § 924(c). Petitioner’s trial counsel was under no obligation to
advance arguments under the Davis case because the charge against Petitioner for an
alleged violation of § 924(c) was ultimately dismissed as a condition of Petitioner’s plea
agreement. In fact, the Government’s dismissal of Count Two indicates that, contrary to
Petitioner’s assertion, his trial counsel may very well have objected to the charge under
§ 924(c) in light of Davis. Given that the Government dismissed Count Two per the plea
agreement negotiated by his trial counsel, the Court is unsure what else Petitioner
believes his counsel should have done.
Petitioner has not established that it was reasonably likely that he would not have
pleaded guilty to a single count of attempted Hobbs Act robbery had his trial counsel
raised some other challenge to the charge in Count Two under § 924(c). This finding is
supported by Petitioner’s statements at the change-of-plea hearing that he understood the
implication of admitting to discharging the firearm during the robbery, the application of
§ 2B3.1(b)(2)(A) of the USSG, and his admission that his counsel had done everything
that Petitioner had asked him to do. Petitioner has therefore failed to establish that his
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trial counsel’s actions were deficient or prejudiced him in the context of the plea
agreement, and the Court will deny him relief as to his ineffective assistance claim in
Ground One.
Prosecutorial Misconduct for Breach of Plea Agreement
The plea agreement was not breached. The record shows that Petitioner entered
into the plea agreement knowingly and voluntarily. The plea agreement clearly states
that Petitioner and the Government agreed “to recommend a sentence not less than 96
months nor more than 120 months . . . .” Crim. ECF No. 73 at 7. Petitioner
acknowledged this range was part of the plea agreement during his change-of-plea
hearing. Crim. ECF No. 94 at 15:14–19. Petitioner stated that no one had promised him
a particular sentence, and he further agreed that he understood that if anyone had
promised him a particular sentence, that was a promise that they could not keep. Id. at
25:1–19. Nothing in the record indicates that Petitioner or the Government agreed to
recommend a sentencing range between seventy (70) to eighty-seven (87) months, as
Petitioner contends in his motion. Petitioner’s sentence of 100 months’ imprisonment is
both within the guidelines range based on his calculated offense level and within the
range of the recommended sentence reflected in his plea agreement. Petitioner’s
argument that his plea agreement was breached therefore fails, and the Court will deny
Petitioner relief on the basis of Ground Two.

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Evidentiary Hearing
An evidentiary hearing is not warranted in this case as “the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief.” See
28 U.S.C. § 2255(b); see also Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th Cir.
2017) (holding that a district court may forego an evidentiary hearing before dismissing a
§ 2255 motion where “accepting the petitioner’s allegations as true, the petitioner is not
entitled to relief”) (citation omitted).
Conclusion
Accordingly,
IT IS HEREBY ORDERED that Petitioner Deven Strauther’s motion filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a federal
constitutional right as required by 28 U.S.C. § 2253(c)(2).
A separate Judgment shall accompany this Memorandum and Order.

Dated this 10th day of March, 2025.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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