United States v. Scott

3 F.4th 189

UNITED STATES of America, Plaintiff—Appellee,

v.Sonny SCOTT, Defendant—Appellant.

No. 20-30256

United States Court of Appeals, Fifth Circuit.

FILED July 1, 2021

Kyle Daly, Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Shirin Hakimzadeh, Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff—Appellee.

Celia Clary Rhoads, Esq., Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant—Appellant.

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 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 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 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 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 (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 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 support this claim, but that hearing occurred three years after Yazbeck represented Scott....