USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12552
Non-Argument Calendar
____________________
STANLEY PRESENDIEU,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-21524-DPG
____________________
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 2 of 15
2 Opinion of the Court 21-12552
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Stanley Presendieu appeals the district court’s denial of his
motion to vacate under 28 U.S.C. § 2255. He asserts that a variance
waiver provision in his plea agreement violated his due process
right to present all materially accurate information at sentencing
and that his sentencing counsel was ineffective both for failing to
present evidence of his cooperation and for failing to challenge the
government’s loss calculation at sentencing.
We affirm. The district court did not err in finding that the
variance waiver provision did not violate Mr. Presendieu’s due pro-
cess rights because it did not prevent him from presenting evidence
of his cooperation. Mr. Presendieu’s ineffective assistance of coun-
sel claims likewise fail because the alleged evidence of deficient per-
formance and prejudice is either speculative or not supported by
the record. 1
I
In 2015, Mr. Presendieu signed a plea agreement commit-
ting to plead guilty to one count of conspiracy to commit bank
fraud and one count of aggravated identity theft. As part of that
1 We assume the parties’ familiarity with the facts and procedural history and
set out only what is necessary to explain our decision. As to issues not dis-
cussed, we summarily affirm.
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 3 of 15
21-12552 Opinion of the Court 3
agreement, Mr. Presendieu agreed to cooperate fully with the gov-
ernment by providing information on other defendants and poten-
tial targets. The government in turn “reserve[d] the right to eval-
uate the nature and extent of [his] cooperation and to make that
cooperation, or lack thereof, known to the Court.” D.E. 12 at 7-1.
In addition, because Mr. Presendieu agreed that the government
had “sole and unreviewable discretion to move for any sentencing
reduction based on his cooperation, [he] agree[d] that he [would]
not seek a variance from the guideline range . . . because of any
cooperation.” Id. Mr. Presendieu also agreed to entry of a money
judgment against him in the amount of $2,594,839.39, a figure
which “represent[ed] the proceeds of the offense to which he [pled]
guilty.” Id.
A
During the change of plea hearing, Mr. Presendieu was
sworn and testified that he was of sound mind and that he signed
the plea agreement after reading and discussing all of its terms with
his attorney. He further testified that he understood all of the
terms. Notably, he specifically confirmed that he understood that
the government had the right to evaluate the nature and extent of
his cooperation and that he was waiving the right to seek a variance
based on his cooperation.
The district court described the maximum penalties for the
relevant counts, including those connected to the amount of the
money judgment Mr. Presendieu agreed to pay. When the district
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 4 of 15
4 Opinion of the Court 21-12552
court asked Mr. Presendieu for a second time whether he under-
stood that he agreed to the entry of a money judgment of
$2,594,839.39, he said that he did. He also confirmed that he had
enough time to discuss everything in the plea agreement with his
attorney and that he entered the plea agreement of his own free
will. He also testified that his attorney had done everything that
was asked of him and that he was fully satisfied with his attorney’s
performance. The district court found that Mr. Presendieu know-
ingly and voluntarily entered his guilty plea and accepted it.
At the sentencing hearing, Mr. Presendieu’s attorney, Ar-
naldo Suri, argued for several downward variances, including the
application of an impending revision to the Sentencing Guidelines
that would reduce the total offense level by two levels. He did not,
however, describe Mr. Presendieu’s efforts to cooperate with the
government. The government acknowledged that Mr. Presendieu
had cooperated with the authorities “to a degree,” but did not
move for a departure or variance based on his cooperation.
As to the loss amount, Mr. Suri told the district court that he
had “work[ed] with [the government]” on coming to an agreement
on a figure. See D.E. 7-3 at 7–8. He then asked the district court to
sentence Mr. Presendieu “under the new guidelines” and moved
the court for a downward variance as to the loss amount. Id. At
the end of the sentencing hearing, when given the opportunity to
allocute, Mr. Presendieu’s sole comment was, “I think my lawyer
did a pretty good job for me.” Id. at 35.
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 5 of 15
21-12552 Opinion of the Court 5
Ultimately, the district court sentenced Mr. Presendieu to
212-months’ imprisonment and five years of supervised release.
The sentence was 188 months for the conspiracy charge—at the
bottom of the advisory guidelines range—and a consecutive 24
months for the aggravated identity theft charge. The district court
further found that Mr. Presendieu agreed to a loss of more than
$2.5 million in connection with his crimes and ordered restitution
in that amount. Mr. Presendieu appealed his sentence to this
Court, raising several arguments unrelated to the instant appeal.
We held that Mr. Presendieu’s plea was knowing and voluntary
and that he understood the nature of the charges against him. See
United States v. Presendieu, 880 F.3d 1228, 1240 (11th Cir. 2018).
B
In 2019, Mr. Presendieu filed a motion under 28 U.S.C.
§ 2255 seeking to vacate his sentence. As relevant here, Mr. Pres-
endieu raised the following grounds for relief: (1) unconstitutional
provisions in his plea agreement prevented him from presenting all
materially accurate information at sentencing; and (2) his sentenc-
ing counsel provided ineffective assistance in failing to present evi-
dence of his cooperation with the government and failing to advise
him that by agreeing to restitution and forfeiture amounts in the
plea agreement, he would be liable for a loss amount between
$2.5 million and $7 million under the Sentencing Guidelines.
After briefing from both parties, the magistrate judge held a
hearing on Mr. Presendieu’s § 2255 motion. Mr. Suri was present
at the hearing, but Mr. Presendieu did not call him as a witness.
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 6 of 15
6 Opinion of the Court 21-12552
Instead, Mr. Presendieu was the only witness at the hearing. He
testified that Mr. Suri assisted him in his cooperation with the gov-
ernment and that over the course of five or six debriefings he
turned over a laptop, two iPhones, an iPad, and two other phones.
He further testified that he identified or aided in the identification
of several other government targets. As to the plea agreement and
change of plea hearing, Mr. Presendieu testified that he did not un-
derstand that he was waiving his right to pursue a variance based
on cooperation efforts and that Mr. Suri told him that the govern-
ment would move for a downward departure or a variance based
on his cooperation. Mr. Presendieu further testified that he did not
agree with the calculation of the loss amount reflected in his plea
agreement, but that Mr. Suri encouraged him to sign the plea
agreement anyway.
During cross-examination, Mr. Presendieu alternated be-
tween giving evasive responses and stating that he did not under-
stand the government’s questions. This prompted the magistrate
judge to note that Mr. Presendieu had no trouble understanding
his own counsel’s questions but “all of a sudden he [did] not under-
stand the prosecutor’s questions.” D.E. 19 at 49.
When asked whether he understood the Sentencing Guide-
lines, Mr. Presendieu responded, “[n]ow I do, yes,” but at the time
he agreed to the plea agreement he was “just going by what [his]
lawyer was telling [him].” Id. at 57. Regarding the loss amount,
Mr. Presendieu acknowledged that Mr. Suri was able to secure a
plea agreement that did not require him to stipulate to a loss
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 7 of 15
21-12552 Opinion of the Court 7
amount but stated that he argued with Mr. Suri about the amount
and “never got proof of the money amount.” Id. at 58–59.
Mr. Presendieu further testified that he never discussed the lan-
guage in his plea agreement with his attorney and did not under-
stand the terms of his plea agreement but did know that the
amount of restitution agreed to was incorrect. When asked if he
was lying when he told the district court during his change of plea
hearing that he discussed everything in the plea agreement with his
attorney, Mr. Presendieu responded that he “went along with eve-
rything [Mr. Suri] told him to say yes to.” Id. at 63–64.
The magistrate judge issued a report recommending denial
of Mr. Presendieu’s motion to vacate. As relevant here, the magis-
trate judge found that Mr. Presendieu was not credible at the evi-
dentiary hearing because he was evasive and self-contradictory
throughout his cross-examination. The magistrate judge further
found that Mr. Presendieu’s attempt to establish a lack of
knowledge and understanding of the change of plea and sentencing
processes to be self-serving and “wholly unworthy of belief.” D.E.
17 at 13.
The district court adopted the report and denied Mr. Pres-
endieu’s motion. It later granted a certificate of appealability
(“COA”) on the following issues: “whether [Mr. Presendieu] estab-
lished a basis for 28 U.S.C. § 2255 relief on his claims that sentenc-
ing counsel provided ineffective assistance and that a waiver provi-
sion in his plea agreement violated his due process right to the
presentation of materially accurate information at sentencing.”
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 8 of 15
8 Opinion of the Court 21-12552
II
In reviewing a district court’s denial of a § 2255 motion, we
review legal conclusions de novo and findings of fact for clear error.
See Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014).
On appeal, we must give substantial deference to the factfinder’s
credibility determinations with respect to witness testimony. See
Rivers v. United States, 777 F.3d 1306, 1316–17 (11th Cir. 2015).
We generally refuse “to disturb a credibility determination unless
it is so inconsistent or improbable on its face that no reasonable
factfinder could accept it.” Id. at 1317 (quotation marks omitted).
We may affirm the denial of a § 2255 motion on any basis
supported by the record. See Beeman v. United States, 871 F.3d
1215, 1221 (11th Cir. 2017).
A
We first address Mr. Presendieu’s assertion that his plea
agreement unconstitutionally barred him from presenting infor-
mation about his cooperation with the authorities. In essence, Mr.
Presendieu argues that the variance waiver provision in his plea
agreement infringed on his due process rights because it prevented
him from providing complete and accurate information for use in
determining his sentence.
The degree of due process protection required at sentencing
is “only that which is necessary ‘to ensure that the district court is
sufficiently informed to enable it to exercise its sentencing discre-
tion in an enlightened manner.’” United States v. Plasencia, 886
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 9 of 15
21-12552 Opinion of the Court 9
F.3d 1336, 1343 (11th Cir. 2018) (quoting United States v. Stephens,
699 F.2d 534, 537 (11th Cir. 1983)). Criminal defendants have the
due process right not to be sentenced on the basis of inaccurate in-
formation. See id. “No limitation shall be placed on the infor-
mation concerning the background, character, and conduct of a
person convicted of an offense which a court of the United States
may receive and consider for the purpose of imposing an appropri-
ate sentence.” 18 U.S.C. § 3661.
Nothing in the record reflects that the variance waiver pro-
vision prevented Mr. Presendieu from providing the district court
with information regarding the extent of his cooperation with the
government, nor that he was sentenced on the basis of inaccurate
information. Instead, the waiver only restricted him from moving
for a downward variance on the basis of cooperation. As a practical
matter, both the government and the presentence investigation re-
port informed the district court of Mr. Presendieu’s attempts to co-
operate with law enforcement. See PSIR ¶ 5 (noting that Mr. Pres-
endieu “agreed to cooperate with the United States Attorney’s Of-
fice”). As such, the district court was apprised of Mr. Presendieu’s
efforts to cooperate, and the variance waiver provision did not re-
strict his attorney from expanding on the government’s character-
ization of those efforts.
As to Mr. Presendieu’s claim that the variance waiver provi-
sion unconstitutionally barred him from moving for a variance
based on his cooperation, he fails to point to any legal authority to
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 10 of 15
10 Opinion of the Court 21-12552
support that proposition. We have repeatedly upheld plea provi-
sions giving the government total discretion with respect to mov-
ing for such reductions. See United States v. Forney, 9 F.3d 1492,
1501 (11th Cir. 1993) (holding that language granting government
“sole and unreviewable” discretion regarding cooperation-based
variances precludes courts “from intruding into prosecutorial dis-
cretion”) (citing Wade v. United States, 504 U.S. 181, 184 (1992)).
See also United States v. Rodriguez, 846 F. App’x 868, 870 (11th Cir.
2021) (court lacked jurisdiction to compel government to file coop-
eration-based sentencing reduction, where plea agreement granted
sole discretion over such motions to the prosecution); United
States v. Perez-Morales, 322 F. App’x 713, 716 (11th Cir. 2009)
(same). In essence, Mr. Presendieu and the government agreed not
to permit a motion for a downward variance based on cooperation
but allowed for the possibility of using cooperation as a factor in
where to sentence within the advisory guideline range. That func-
tioned like a stipulation agreeing to a sentence within the advisory
guidelines, and Mr. Presendieu has not explained why such an
agreement is problematic. We note, as well, that the district court
imposed a sentence at the bottom of the applicable guideline range.
To the extent that Mr. Presendieu now seeks to argue that
his plea was involuntary because he did not understand the “nu-
ances” of the variance waiver provision, we review that argument
for plain error because he did not challenge the voluntariness of his
guilty plea below. See United States v. Rodriguez, 751 F.3d 1244,
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 11 of 15
21-12552 Opinion of the Court 11
1251 (11th Cir. 2014). Plain error occurs where: (1) there is an er-
ror; (2) that is plain; (3) that affects the defendant’s substantial
rights; and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See United States v. Moriarty,
429 F.3d 1012, 1019 (11th Cir. 2005).
There was no plain error. Mr. Presendieu cannot show that
the district court erred in accepting his guilty plea because it en-
sured that his plea was free from coercion, that he understood the
nature of the charges against him, and he understood the direct
consequences of the guilty plea. See D.E. 7-2 at 3–12. See also Mo-
riarty, 429 F.3d at 1019 (holding that a guilty plea complies with
Rule 11 where the district court ensures that these three “core prin-
ciples” have been established). In fact, during the change of plea
hearing, Mr. Presendieu twice confirmed that he understood the
variance waiver provision in particular: once when he was asked
whether he understood that the government would retain the right
to evaluate the nature and extent of his cooperation, and a second
time when asked whether he understood that he would be relin-
quishing the right to seek a variance from the guidelines range
based on cooperation. Both times, he replied, “Yes, sir.” D.E. 7-2
at 7. And though Mr. Presendieu testified that he did not under-
stand the change of plea process during the § 2255 hearing, the
magistrate judge (and the district court) reasonably found that tes-
timony self-serving and uncredible, and we defer to that finding.
See Rivers, 777 F.3d at 1316–17.
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 12 of 15
12 Opinion of the Court 21-12552
B
Next, we consider Mr. Presendieu’s ineffective assistance of
counsel claims. The Constitution provides criminal defendants the
right to effective assistance of counsel. See U.S. Const., amend. VI;
Strickland v. Washington, 466 U.S. 668, 684-86 (1984). To succeed
on an ineffective assistance of counsel claim, a movant must show
that (1) his counsel’s performance was deficient and (2) the defi-
cient performance prejudiced his defense. See Strickland, 466 U.S.
at 687.
Counsel’s performance is deficient where it falls “below an
objective standard of reasonableness.” Id. at 688. Judicial scrutiny
of an attorney’s performance is highly deferential. See id. at 689.
A court considering an ineffective assistance claim must apply a
“strong presumption” that counsel’s representation was within the
“wide range” of reasonable professional assistance. Id. at 689. The
movant bears the burden of showing “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaran-
teed the defendant by the Sixth Amendment.” Id. at 687.
To prove the prejudice prong under Strickland, the movant
must show a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been differ-
ent. See id. at 694. A reasonable probability is one sufficient to
undermine confidence in the outcome of the trial. See id. It is not
enough for the movant to show that the error had some conceiva-
ble effect on the outcome of the proceeding. See id. at 693. Rather,
counsel’s errors must be “so serious as to deprive the defendant of
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 13 of 15
21-12552 Opinion of the Court 13
a fair trial, a trial whose result is reliable.” Harrington v. Richter,
562 U.S. 86, 104 (2011) (quotation marks omitted). A movant is not
entitled to relief when his claims are merely “conclusory allega-
tions unsupported by specifics or contentions that in the face of the
record are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551,
1559 (11th Cir. 1991) (quotation marks omitted).
1
The district court did not err in denying Mr. Presendieu’s
claim that Mr. Suri was ineffective for failing to present evidence of
his cooperation despite the variance waiver provision because,
among other things, it reasonably found that Mr. Presendieu’s tes-
timony at the evidentiary hearing was not credible, and the remain-
ing evidence of deficient performance is either speculative or not
supported by the record. See Tejada, 941 F.2d at 1559. Mr. Pres-
endieu did not call Mr. Suri to testify at the § 2255 hearing. Instead,
the only evidence he presented as to Mr. Suri’s reasoning for not
discussing his cooperation was his own self-serving speculation,
which the magistrate judge and the district court reasonably did
not credit and is, therefore, insufficient to satisfy deficient perfor-
mance. See Tejada, 941 F.2d at 1559. As such, Mr. Presendieu did
not rebut the presumption that Mr. Suri’s representation fell within
the wide range of reasonable professional assistance. See Strick-
land, 466 U.S. at 689.
As for the prejudice prong, Mr. Presendieu likewise fails be-
cause he did not show a reasonable probability that he would have
received a shorter sentence had Mr. Suri provided additional details
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 14 of 15
14 Opinion of the Court 21-12552
regarding his cooperation. See Strickland, 466 U.S. at 693. At sen-
tencing, the district court was already aware that Mr. Presendieu
did in fact cooperate with the government. And because Mr. Pres-
endieu’s own testimony was found to be not credible by the mag-
istrate judge and the district court, there is nothing else in the rec-
ord to suggest that Mr. Presendieu would have fared better had Mr.
Suri expounded on the government’s characterization of his ef-
forts. Accordingly, Mr. Presendieu’s claim fails.
2
The district court properly denied Mr. Presendieu’s claim
that Mr. Suri was ineffective for failing to object to the govern-
ment’s loss amount calculation because, among other things, it rea-
sonably determined that Mr. Presendieu’s testimony at the eviden-
tiary hearing was not credible. See Tejada, 941 F.2d at 1559.
Mr. Suri’s decision to accept the government’s loss amount after
negotiations with the government is entitled to a strong presump-
tion that it “falls within the wide range of reasonable professional
assistance.” See Strickland, 466 U.S. at 689. The only evidence
Mr. Presendieu relies upon to rebut that presumption, aside from
his own uncredited testimony, is that several of his codefendants
were resentenced with significantly lower loss amounts years after
his own sentencing. But that information was not available to Mr.
Suri at the time of his sentencing. As such, it does not bear on our
evaluation of Mr. Suri’s performance. See Chandler v. United
States, 218 F.3d 1305, 1316 (11th Cir. 2000) (holding that we must
evaluate the reasonableness of counsel’s performance based on
USCA11 Case: 21-12552 Date Filed: 09/09/2022 Page: 15 of 15
21-12552 Opinion of the Court 15
their perspective at the time and avoid the “distorting effects of
hindsight”). In sum, Mr. Presendieu’s claim that he would have
received a shorter sentence had Mr. Suri independently calculated
the loss amount is speculative and does not warrant relief. See
Tejada, 941 F.2d at 1559. 2
III
Accordingly, we affirm the district court’s denial of Mr. Pres-
endieu’s § 2255 motion.
AFFIRMED.
2 The government asserts that this claim is beyond the scope of the COA. See
McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011) (holding that the
scope of our review of an unsuccessful § 2255 motion is limited to the issues
enumerated in the COA). We conclude that the COA covers this issue be-
cause the district court granted the COA on whether sentencing counsel was
ineffective and this issue concerns counsel’s performance at the sentencing
hearing.