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[DO NOT PUBLISH]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:
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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
A
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.
B
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.
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