Dan Kenny Delva v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 25, 2021
• Docket: 20-10542
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10542 Non-Argument Calendar ________________________

D.C. Docket Nos. 0:20-cv-60106-WPD; 0:15-cr-60209-WPD-2

DAN KENNY DELVA,

Movant-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(March 25, 2021)

Before MARTIN, NEWSOM and BRANCH, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10542 Date Filed: 03/25/2021 Page: 2 of 14

Dan Delva, proceeding pro se, appeals the district court’s order denying his

motion to vacate his sentence and conviction under 28 U.S.C. § 2255. He raises

four issues on appeal. First, Delva argues that his trial counsel was ineffective for

failing to file a motion to sever his trial from that of his brother and co-defendant,

Bechir. Second, he asserts that his trial counsel was ineffective for failing to file a

motion to suppress evidence seized during a search of a residence and vehicle.

Third, he argues that his 84-month sentence is unreasonable and that his counsel

was ineffective for failing to object to his sentencing enhancement. Fourth, he

asserts that his counsel was ineffective for advising him to proceed to trial instead

of pleading guilty in exchange for 24 months’ imprisonment. For the reasons

explained below, we affirm.

I

A

The underlying facts and procedural history of this case are thoroughly

described in this Court’s previous opinion dealing with Delva’s direct appeal,

United States v. Delva, 922 F.3d 1228 (11th Cir. 2019). We will therefore only

briefly describe the events relevant to Delva’s § 2255 motion to vacate.

A Florida grand jury charged Delva and his brother Bechir with multiple

counts related to an identity-theft and tax-fraud scheme. Following an undercover

operation targeting Delva and Bechir, federal agents interviewed Bechir after

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giving him a Miranda warning. During that interview, Bechir told agents that (1)

he had obtained all of the personal identifying information (PII) of numerous

individuals found by law enforcement during the investigation; (2) he had used the

PII to file fraudulent tax returns; (3) he would receive the tax refunds from the

fraudulent returns on debit cards; (4) firearms found during a search of a residence

that Delva and Bechir were using to carry out their activities belonged to Delva;

and (5) the brothers kept the firearms for their own protection. To avoid

prejudicing Delva at trial, the government agreed to redact Bechir’s statement by

removing any reference to Delva from the statement. At trial, before Bechir’s

statements to law enforcement were introduced, Delva’s counsel said he didn’t

have any objection to the redaction.

Delva and Bechir were tried together. Prior to trial, there was a suppression

hearing based on Bechir’s motion to suppress physical evidence that had been

seized from Bechir’s car, including credit cards and the PII of numerous

individuals. The court concluded that there was sufficient probable cause to search

the car and denied the motion.

At trial, Bechir testified in his own defense. As relevant for our purposes,

Bechir testified that (1) the townhouse at which he and Delva were arrested didn’t

belong to either of them, but rather to an out-of-town relative; (2) all of the PII that

the agents found belonged to a confidential informant that police had used in the

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operation targeting him and Delva; (3) he and Delva didn’t own any of the PII; and

(4) Delva’s firearms were purchased for recreational use at a shooting range, not to

protect the PII or tax-fraud proceeds. Delva’s counsel was offered the opportunity

to cross-examine Bechir but chose not to, while the government did cross-examine

him. A jury found Delva and Bechir guilty of all charges.

At the sentencing phase, the court adopted the recommendations of Delva’s

presentence investigation report (PSI). The PSI recommended a 14-level

sentencing enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H) because the total

loss amount from Delva’s crimes was between $550,000 and $1,500,000. The

court adopted the PSI’s loss-enhancement calculation, considered the 18 U.S.C.

§ 3553(a) factors and the guidelines, and sentenced Delva to a total of 84 months’

imprisonment.

This Court affirmed Delva’s and Bechir’s convictions and sentences on

direct appeal. See United States v. Delva, 922 F.3d 1228, 1257 (11th Cir. 2019).

B

Delva filed a motion to vacate his conviction pursuant to 28 U.S.C. § 2255,

which the district court denied. A member of this Court granted Delva a certificate

of appealability on four issues:

1. Whether trial counsel was ineffective for failing to file a motion to sever

Delva’s trial from his brother Bechir’s trial;

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2. Whether trial counsel was ineffective for failing to file a motion to suppress

evidence seized during a search of a vehicle and residence;

3. Whether Delva’s 84-month sentence was unreasonable, and his trial counsel

was ineffective for failing to object to the sentencing enhancement for the

loss amount; and

4. Whether trial counsel was ineffective for advising Delva to proceed to trial

instead of pleading guilty in exchange for 24-months’ imprisonment.1

II

We’ll begin with Delva’s first ineffective-assistance-of-counsel claim.

Delva argues that his counsel was ineffective for failing to file a motion to sever

his trial from Bechir’s because Bechir made statements to law enforcement officers

directly implicating Delva in the tax-fraud scheme. In connection with his

ineffective-assistance claim, Delva also asserts that Bechir’s testimony violated his

Fifth and Sixth Amendment rights because Bruton v. United States, 391 U.S. 123

(1968), bars the admission of a co-defendant’s confession inculpating the

defendant unless that co-defendant is subject to cross-examination.

1 For § 2255 proceedings, we review a district court’s legal conclusions de novo and its factual findings for clear error. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir. 2009). Pro se pleadings are held to a less stringent standard than counseled pleadings and, consequently, must be construed liberally. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

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To succeed on an ineffective-assistance claim, a defendant must show both

that (1) his counsel’s performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Under the first prong, counsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment. Id. at 690. Counsel’s performance is deficient only if it

falls below the wide range of competence demanded of attorneys in criminal cases.

Id. at 687–89. As to the prejudice prong, the movant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. Id. at 694. A “reasonable probability” has

been defined as one sufficient to undermine confidence in the outcome. Id.

Further, “[t]he likelihood of a different result must be substantial, not just

conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). Failure to establish

either prong is fatal. Strickland, 466 U.S. at 697.

Here, Delva has failed to show that his counsel’s performance fell below an

objective standard of reasonableness or that prejudice resulted from his counsel’s

actions such that the outcome of his trial would have been different. Strickland,

466 U.S. at 694. First, on performance, to the extent that Delva argues that his

counsel was ineffective for failing to move to sever the trials because Bechir’s

statement caused a Bruton violation, this argument fails. No Bruton violation

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arose even though Bechir’s unredacted statement was introduced at trial during

Bechir’s testimony because Delva’s counsel was offered the opportunity to cross-

examine Bechir but chose not to do so. See Nelson v. O'Neil, 402 U.S. 622, 627

(1971) (“The Constitution as construed in Bruton, in other words, is violated only

where the out-of-court hearsay statement is that of a declarant who is unavailable

at the trial for ‘full and effective’ cross-examination.”); United States v. Clemons,

32 F.3d 1504, 1510 (11th Cir. 1994) (finding no Bruton violation where a

defendant had an opportunity to cross-examine a co-defendant). 2

Second, on prejudice, Delva has failed to show a reasonable probability that,

but for counsel’s alleged errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694. Here, for a motion to sever to have

succeeded, Delva’s trial counsel would have had to overcome the general

presumption that defendants indicted together will be tried together, particularly in

conspiracy cases. United States v. Francis, 131 F.3d 1452, 1459 (11th Cir. 1997);

United States v. Cassano, 132 F.3d 646, 651 (11th Cir. 1998). This would have

required showing that Delva wouldn’t receive a fair trial without severance.

Cassano, 132 F.3d at 651. It’s unlikely that his trial counsel would have been able

2 Delva also argues in his reply brief that his trial counsel was ineffective for failing to object to Bechir’s testimony at trial. However, our review is “limited to the issues specified in the [certificate of appealability].” Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). We cannot consider Delva’s claim that his trial counsel was ineffective for failing to object to Bechir’s testimony at trial because it was not an issue specified in the certificate of appealability.

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to show that Delva wouldn’t be able to receive a fair trial because the government

would have introduced the same evidence whether or not Bechir and Delva were

tried together. Even if the trials had been severed, the government likely would

have called Bechir to testify, and the same testimony and evidence regarding

Delva’s ownership of the firearms likely would have been introduced.

Delva next claims that his trial counsel was ineffective for failing to move to

suppress evidence found during the search of a residence and vehicle. He argues

that law enforcement used a confidential source to gain access to the residence and

that doing so violated his Fourth Amendment rights because the officers did not

first receive authorization for a recording that the confidential informant took

inside the residence that showed signs of tax-fraud activities and that was later

used as the basis for a search warrant for the residence.

Again, under Strickland, Delva has failed to show either deficient

performance or prejudice. First, counsel was not ineffective for failing to

challenge the search of the residence because Delva had no reasonable expectation

of privacy in it. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where

defense counsel’s failure to litigate a Fourth Amendment claim competently is the

principal allegation of ineffectiveness, the defendant must also prove that his

Fourth Amendment claim is meritorious[.]”). Bechir testified that the residence

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was not Delva’s but a relative’s and that the confidential source was staying there.

Because Delva had no reasonable expectation of privacy in someone else’s home,

he could not successfully challenge the search of the residence. Minnesota v.

Carter, 525 U.S. 83, 90 (1998) (“Thus, an overnight guest in a home may claim the

protection of the Fourth Amendment, but one who is merely present with the

consent of the householder may not.”).

Second, counsel was not deficient for not challenging the search of the

vehicle. As Delva admitted in his original § 2255 motion, the court denied his co-

defendant Bechir’s motion to suppress evidence obtained from the vehicle,

determining that officers had probable cause to search it. Delva’s counsel could

not have been ineffective for failing to file a motion to suppress evidence when his

co-defendant’s counsel’s motion challenging the same search was determined to be

meritless, and, for the same reason, there is no reasonable probability that, in the

absence of the alleged error, the result would have been different.

Consequently, Delva hasn’t shown that his counsel’s performance fell below

an objective standard of reasonableness or that there was a substantial probability

that a motion to suppress the evidence obtained from either the residence or vehicle

would have been granted.

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C

Next, Delva argues that his total 84-month sentence is procedurally and

substantively unreasonable and that his counsel was ineffective because he failed

to object to a 14-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(H). He

also contends that when the district court enhanced his sentence on the ground that

a weapon was found in the residence, it violated his constitutional right to have a

jury determine all facts essential to his sentence.

As an initial matter, Delva’s challenge to his 84-month sentence isn’t

cognizable on collateral review. Section 2255 does not provide a remedy for every

alleged sentencing error. Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir.

2014). When a movant claims that his “sentence was imposed in violation of the

Constitution or laws of the United States … or is otherwise subject to collateral

attack,” 28 U.S.C. § 2255(a), he must show that the alleged error “constituted a

fundamental defect which inherently results in a complete miscarriage of justice,”

United States v. Addonizio, 442 U.S. 178, 185 (1979) (quotation marks omitted).

Here, Delva has failed to allege an error other than a guidelines miscalculation,

which is not an error resulting in a “complete miscarriage of justice.” Spencer, 773

F.3d at 1139 (noting that “[a] prisoner may challenge a sentencing error as a

‘fundamental defect’ on collateral review when he can prove that he is either

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actually innocent of his crime or that a prior conviction used to enhance his

sentence has been vacated”).

Moreover, Delva’s counsel was not ineffective for failing to object to the

loss amount that led to his sentencing enhancement. Delva can’t show a

substantial probability that an objection to the sentencing enhancement for the loss

amount would have been successful. Harrington, 562 U.S. at 111–12. The

government produced evidence that Delva received $186,997 from fraudulent tax

returns and that Delva possessed the social security numbers of 1,656 other

individuals. In cases involving “unauthorized access devices” such as social

security numbers, the commentary to the guidelines says that the loss amount

calculated shall be not less than $500 per access device. U.S.S.G. § 2B1.1 cmt.

n.3(F)(i).3 Therefore, the loss amount for the social security numbers was

calculated to be $828,000, bringing the total loss amount, along with the $186,997

from fraudulent tax returns, to $1,014,697. That loss amount fell well within the

range for the § 2B1.1(b)(1)(H) enhancement. Delva has failed to explain how that

loss amount was incorrectly calculated, such that his attorney should have objected

or that such an objection would have been successful.

3 An “access device” is “any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used … to obtain money, goods, services, or any other thing of value[.]” 18 U.S.C. § 1029(e)(1).

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Finally, to the extent that Delva challenges the firearm-possession

enhancement to his sentence, this Court can’t review the claim because it is beyond

the issues specified in the certificate of appealability granted by this Court. See

Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that the

scope of review in a § 2255 motion is limited to the issues specified in the

certificate of appealability).

D

Finally, Delva claims that his counsel was ineffective for advising him to go

to trial instead of accepting a plea agreement for a 24-month sentence. He argues

that the counsel advised him to go to trial because his brother would testify that he

had nothing to do with the crime and, more generally, that his counsel pushed him

into going to trial.

To establish the prejudice prong of the Strickland test for ineffective

assistance of counsel for the allegedly improvident rejection of a guilty plea, the

movant must show that (1) but for the ineffective advice of counsel, there is a

reasonable probability that the plea offer would have been presented to the court;

(2) the court would have accepted its terms; and (3) that the conviction or sentence,

or both, under the offer’s terms would have been less severe than under the

judgment and sentence that in fact were imposed. Lafler v. Cooper, 566 U.S. 156,

164 (2012). A defendant’s “wholly speculative” claims about what might have

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happened are insufficient to satisfy Lafler’s three-pronged test. See Osley v.

United States, 751 F.3d 1214, 1225 (11th Cir. 2014) (rejecting § 2255 movant’s

argument on Lafler’s second prong because his counterfactual claim was “wholly

speculative”); id. at 1224 (“Osley’s declaration that his plea deal would have

resulted in a fifteen-year sentence is wholly speculative since it is unclear what

plea terms the prosecution would have offered . . ..”). Conclusory allegations

unsupported by specifics regarding ineffective-assistance-of-counsel claims are

insufficient to warrant § 2255 relief. Rosin v. United States, 786 F.3d 873, 879

(11th Cir. 2015) (rejecting a movant’s “conclusory assertion” that his failure to

accept a guilty plea and his insistence on going to trial were caused by his trial

counsel’s ineffective assistance).

Here, Delva’s allegations about the supposed plea deal were conclusory

because they did not (1) state when the plea deal was offered, (2) allege that the

court would have accepted the plea deal, and (3) assert what the exact terms of the

plea deal would have been. Consequently, Delva failed to show prejudice for this

claim, as he did not show that there was a reasonable probability that the court

would have accepted his plea deal. See Strickland, 466 U.S. at 694.

III

To recap—we affirm the district court’s denial of Delva’s § 2255 motion

because (1) Delva’s counsel was not ineffective for failing to move to sever his

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trial from that of his co-defendant’s; (2) Delva’s counsel was not ineffective for

failing to move to suppress evidence from the search of the residence or vehicle;

(3) Delva can’t collaterally challenge his sentence in his § 2255 motion and his

trial counsel wasn’t ineffective for failing to object to the 14-level sentencing

enhancement; and (4) Delva can’t show that his counsel’s advice led to the

improvident rejection of a guilty plea. Accordingly, we affirm.

AFFIRMED.