Shryock v. USA
ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Copy sent to movant via first class mail (Schroeppel, Kerry).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
DAVID BRUCE SHYROCK,
UNITED STATES OF AMERICA,
Case No. 12-5064-CV-SW-RED
Crim No. 11-5005-01-CR-SW-RED
Before the Court is Movant David Bruce Shyrock’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 1). For the following reasons, the Court
DENIES Petitioner’s Motion.
Movant pled guilty, pursuant to a written plea agreement, on October 03, 2011, to
Counts One and Two of the Superceding Information. As to Count One, Movant pled guilty to
possessing a firearm while being a convicted felon, in violation of 18 U.S.C. §§ 922(g) and
924(a)(2). As to Count Two, Movant pled guilty to committing wire fraud, in violation of 18
U.S.C. § 1343. The final PSR was filed with the Court on March 27, 2012, and Movant was
sentenced to 100 months imprisonment on Counts One and Two, to be served concurrently.
Movant did not file a direct appeal but instead filed the instant § 2255 motion. In
addition, Movant motioned to amend his Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Doc. 5) on July 25, 2012. On August 1, 2012, this Court ordered
that Movant’s Motion to amend his Section 2255 Motion to add Ground Four was granted and
that Respondent was to respond to all grounds in its Response (Doc. 6). Accordingly, this Order
takes into account all four grounds asserted by Movant in his Section 2255 Motion (Doc. 1) and
his subsequent Motion to Amend (Doc. 5).
Movant raises four (4) grounds for relief in his Section 2255 Motion. Movant claims: (1)
the Court’s calculation of his criminal history category under the guidelines was incorrect
because the PSR incorrectly added two criminal history points for criminal activity occurring
after August 4, 2012; (2) the Court was incorrect in assessing a two-level enhancement for a
“sophisticated scheme”; (3) the government violated the terms of the plea agreement when it
sought a sentence in excess of 71 to 84 months incarceration; and (4) Movant received
ineffective assistance of counsel during sentencing because his attorney failed to object to the
government’s violation of the plea agreement and then failed to advise him of his right to appeal
based on the government’s purported violation.
Movant’s arguments that the Court incorrectly assessed his criminal history
category and incorrectly assessed a two-level enhancement for a “sophisticated
scheme” have been procedurally defaulted and are not cognizable under Movant’s
Section 2255 Motion.
Claims brought under § 2255 may be limited by procedural default. A movant “cannot
raise a nonconstitutional or nonjurisdictional 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). Furthermore, even constitutional or jurisdictional claims not raised on direct appeal
cannot be raised in a §2255 motion unless the movant can establish “(1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993, 1001 (8th Cir.
Here, Movant did not appeal his sentence. In addition, Movant’s first two arguments are
not constitutional or jurisdictional issues. Instead, Movant argues that a nonconstitutional or
nonjurisdictional issue in a section 2255 motion. Even if the Court were to conclude that the
alleged errors contained in arguments one and two were constitutional issues, Movant has not
established the cause and prejudice to excuse his procedural default. Movant’s only potential
argument to show cause for his procedural default is contained in his ineffective assistance of
counsel claim. As discussed below, this claim must fail because at sentencing Movant was
advised of his right to appeal and indicated that he understood this right. Aside, from the
assertion that Counsel did not advise him of his right to appeal, Movant has not shown any
additional cause for his procedural default. Accordingly, the Court DENIES Movant’s Motion
insofar as it relies on the above stated grounds.
As the grounds discussed above are procedurally defaulted, the Court will deny the above
stated grounds without holding an evidentiary hearing as “the motion and the files and records of
the case conclusively show that [Movant] is entitled to no relief.” 28 U.S.C. 2255(b); See also
Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)(“No [evidentiary] hearing is required
where the claim is inadequate on its face or if the record affirmatively refuses the factual
assertions upon which it is based.”).
Movant has not shown that the government violated the terms of the plea agreement
in seeking a sentence in excess of 71 to 84 months incarceration.
The third ground Movant raises for vacating, setting aside, or correcting his sentence
under section 2255 is that the government violated the terms of the plea agreement by seeking a
sentence in excess of 71 to 84 months. Movant’s argument is unsupported by the record and the
facts of this case.
As a preliminary matter, it seems as though Movant is mistaken as to the guideline range
that was agreed to when he entered the plea agreement with the government. In the plea
agreement, and as Movant asserts, the agreed upon offense level was to be 26 before the three
point reduction Movant was to receive for taking responsibility for his actions.1 With a criminal
history of five, Movant’s sentencing range would have been 84-105 months imprisonment. This
number seems to be consistent with what the parties had in mind when the plea agreement was
entered into, as is evidenced by Movant’s Counsel’s arguments at sentencing. Transcript of
Sentencing at 5, United States of America v. Shyrock, No. 11-5005-RED (W.D. Mo. Apr. 18,
2012) (Movant’s Counsel explains that they anticipated that the low-end of the guideline range
was 84-months incarceration when entering into the plea agreement.)2. Therefore, even if the
contemplated guidelines were applied, Movant was still sentenced to a term of incarceration
within the guideline range agreed to by Movant and the government.
Next, it is clear from the terms of the agreement that the government did not violate the
plea agreement when it sought a sentence in excess of 71 to 84 months incarceration. There are
several reasons that the government did not violate the plea agreement in recommending its
sentence. First, it was the Probation Office, an entity that was not a party to or bound the plea
agreement, that found additional circumstances that supported a change to the guideline range,
not the government. Specifically, the Probation Office determined that Movant should receive a
two-level increase as his role in the offense under the leader-organizer offense level increase.
The plea agreement did contemplate that the Probation Office or Court may come to a
different offense level and that their agreement would not bind the Court.
If the low-end of the guideline was 84-months incarceration, the upper-end of the
guideline would be 105-months incarceration. See United States Sentencing Guidelines,
Sentencing Table (2011).
Such a situation was contemplated in Paragraph 8 of the plea agreement which was agreed to by
Movant. In addition, the plea agreement states that neither the Court or the Probation Office will
be bound by the guideline range contained in the plea agreement. See Plea Agreement ¶ 10(h).
Since the plea agreement merely set forth the guideline range the parties agreed to and the
government did not attempt to change the guideline range, it cannot be said that the government
violated the plea agreement by advocating a sentence in the guideline range established by the
PSR and agreed to by the Court.
Second, paragraph 10-I of the plea agreement provides that either party is free to
advocate for a departure from the guideline range. By including this language in the plea
agreement, the government provided itself some flexibility at sentencing to ask for a harsher
sentence than what was provided in the guideline without violating the plea agreement. The
testimony at sentencing shows, however, that the government did not even need to rely on this
provision as it advocated a sentence at the high-end of the sentencing guidelines, not a sentence
in excess of the guidelines. In the event the guideline range had not changed, the government
still would have been able to advocate for a 125 month sentence because the plea agreement
provided for such a scenario. The effect of the parties agreeing to a sentencing range served to
prohibit either party from advocating for a lower or higher guideline range, not to prohibit them
from advocating for a different sentence.
Since the facts and evidence clearly indicate that the government did not violate it plea
agreement with Movant in seeking a sentence in excess of 71-84 months incarceration, the Court
DENIES the above stated grounds and does so without holding an evidentiary hearing as “the
motion and the files and records of the case conclusively show that [Movant] is entitled to no
relief.” 28 U.S.C. 2255(b); See also Watson v. United States, 493 F.3d 960, 963 (8th Cir.
2007)(“No [evidentiary] hearing is required where the claim is inadequate on its face or if the
record affirmatively refuses the factual assertions upon which it is based.”).
Movant did not meet his burden of showing that any deficiency in his counsel’s
representation rendered his counsel’s representation ineffective.
The remainder of Movant’s § 2255 Motion is an ineffective assistance of counsel claim.
An ineffective assistance of counsel claim requires a petitioner prove his or her counsel’s
“performance was deficient and that the deficiency prejudiced his defense.” Deltoro-Aguilera v.
United States, 625 F.3d 434, 437 (8th Cir. 2010). Deficient performance is defined as
performance that “falls below the ‘range of competence demanded of attorneys in criminal
cases.’ ” Theus v. United States, 611 F.3d 441, 446 (8th Cir. 2010) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Prejudice requires the petitioner “demonstrate that there
is a reasonable probability that the outcome would have been different but for counsel’s deficient
performance.” Theus, 611 F.3d at 447.
To support his claim of ineffective assistance of
counsel, Movant claims that his attorney’s counsel was ineffective because his attorney did not
object to the government’s violation of the plea agreement and did not advise him of his right to
appeal based on the government’s violation of the plea agreement. In this case, the facts do not
support Movant’s claims. In addition, Defendant has not met his burden to be granted relief
based on the theory of ineffective assistance of counsel.
The facts of this case do not support Movant’s claim that his counsel was deficient. As
discussed above, the facts fail to establish that the government violated the plea agreement by
recommending a sentence in excess of 71-84 months incarceration. Since the government did
not breach the plea agreement it reached with Movant in recommending the above sentence, it
follows that Movant’s Counsel could not have provided ineffective assistance of counsel by not
objecting to the government’s recommended sentence. In addition, even if Counsel was
ineffective by failing to object, the record shows that not only did Counsel discuss the sentencing
issues with the Court but the record also clearly reflects that the Court apprised Movant of his
right to appeal, which Movant affirmed that he understood. Transcript of Sentencing at 19,
United States of America v. Shyrock, No. 11-5005-RED (W.D. Mo. Apr. 18, 2012). Thus,
regardless of Movant’s current feelings regarding his Counsel’s performance, the record reflects
that Movant’s Counsel’s performance did not fall below the range of competence demanded in
defending criminal cases nor did any supposed deficiency prejudice Movant because the Court
advised Movant of the right to appeal which Movant claims Counsel neglected to advise him.
Second, Movant has not demonstrated that the outcome would have been any different if
Counsel would have taken the additional action Movant claims was required. For instance,
Movant has not shown how an objection regarding the government’s sentencing
recommendation would have changed Movant’s sentence. As discussed above, it was the
Probation Office, not the government that advised the Court that Movant’s guideline range
should be higher than initially expected or anticipated in the plea agreement. Undoubtedly, this
increased sentencing role played a factor in the Court’s decision to sentence Movant to a 100month sentence. In addition, Counsel for Movant even advocated for a sentence at the low end
of the guideline, which was 100-months incarceration, the same sentence Movant received.
Movant has not shown or even attempted to show how his sentence would have been any
different if Counsel would have objected to the government’s recommendation. Accordingly, it
is clear that Movant has not met the burden of showing a reasonable probability that the outcome
would have been different absent the deficient performance.
For the above stated reasons, Movant has not met his burden of showing ineffective
assistance of counsel and the Court DENIES Movant’s request for relief regarding the same.
Furthermore, the Court will not conduct an evidentiary hearing on Movant’s ineffective
assistance of counsel claims, as “the motion and the files and records of the case conclusively
show that [Movant] is entitled to no relief.” 28 U.S.C. 2255(b); See also Watson v. United
States, 493 F.3d 960, 963 (8th Cir. 2007)(“No [evidentiary] hearing is required where the claim is
inadequate on its face or if the record affirmatively refuses the factual assertions upon which it is
The Court will not grant a certificate of appealability on any claim.
The final issue is whether the Court should grant or deny a certificate of appealability. If
a § 2255 Motion is denied on procedural grounds, a certificate of appealability should be granted
only if the petitioner can show both “ ‘that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional rights and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.’ ” Jimenez
v. Quarterman, 555 U.S. 113, 118 n.3 (2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). See also Nelson v. United States, 297 F. App’x 563, 566 (8th Cir. 2008) (applying this
standard in a § 2255 action). In this case, Movant has not shown a denial of a Constitutional
right or that any issue raised is debatable among jurists of reason. Therefore, the Court will not
issue a certificate of appealability on any ground.
For the above reasons, Movant’s Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED.
The Clerk of the Court is directed to mail a copy of this Order via certified mail to, return
receipt requested, David Bruce Shyrock, #23126-045, Forrest City Low, Inmate Mail/Parcels,
P.O. Box. 9000, Forrest City, AR 72336.
IT IS SO ORDERED.
October 12, 2012
/s/ Richard E. Dorr
RICHARD E. DORR, JUDGE
UNITED STATES DISTRICT COURT
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