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
