     Case: 13-20505      Document: 00512703722         Page: 1    Date Filed: 07/18/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                      No. 13-20505                                 FILED
                                                                               July 18, 2014
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee

v.

SYBIL SUAREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:13-CV-111


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Sybil Suarez, federal prisoner # 75471-279, seeks a Certificate of
Appealability (COA) to appeal the denial of her 28 U.S.C. § 2255 motion
challenging her conviction and sentence for filing a false claim for a tax refund.
She raises the following claims relating to her sentence and her guidelines
sentence range: (1) the upward variance applied by the district court was
unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013); (2) the
enhancement for her being an organizer, leader, supervisor, or manager of the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-20505

criminal activity was inappropriate; and (3) the inclusion of relevant conduct
in the loss amount calculation was improper. She asserts that her indictment
and conviction were illegal because she was charged with aiding and abetting
and the law requires that the taxpayer be charged along with the tax preparer
in such cases.    She maintains that her trial counsel provided ineffective
assistance of counsel in connection with the guilty plea and because trial
counsel was disciplined by this court. Suarez contends the AUSA prosecuting
her case committed prosecutorial misconduct by conferring with trial counsel
to obtain a guilty plea.
      Suarez did not raise her claims that her indictment and conviction were
illegal because the indictment charged aiding and abetting and the taxpayers
were not charged, that her trial counsel provided ineffective assistance because
she was disciplined by this court, and that the AUSA committed prosecutorial
misconduct in the district court. Accordingly, we do not consider these claims.
See Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
      The district court rejected Suarez’s claims concerning the calculation of
her guidelines sentence range on the ground that such claims are not
cognizable in § 2255 motions. Suarez does not address this issue; instead she
argues the merits of her challenges to the role enhancement and the use of
relevant conduct to increase her guidelines sentence range. As Suarez has not
addressed the reasoning supporting the district court’s denial of these claims,
she has waived any challenge she could have brought to the denial of these
claims. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987).
      Suarez’s Alleyne claim is without merit. Even assuming arguendo that
Alleyne is retroactively applicable, the record shows that there was not an
Alleyne violation in this case. In Alleyne, the Supreme Court held that any fact



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                                 No. 13-20505

that increases a defendant’s mandatory minimum sentence must be submitted
to a jury to be proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2163.
If a defendant is not exposed to a statutory minimum sentence, Alleyne is
inapplicable. United States v. Tuma, 738 F.3d 681, 693 (5th Cir. 2013). In the
present case, the sentencing court did not apply a statutory minimum
sentence. Accordingly, Alleyne is inapplicable, and Suarez’s claim is without
merit. See Tuma, 738 F.3d at 693.
      With regard to Suarez’s various claims that trial counsel provided
ineffective assistance of counsel, the district court denied each claim as either
conclusory, unsupported by the record, or inadequate to establish she was
prejudiced by counsel’s alleged deficiencies under Strickland v. Washington,
466 U.S. 668 (1984). To obtain a COA on these claims, Suarez must make “a
substantial showing of the denial of a constitutional right.”       28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). For COA purposes,
“[t]he question is the debatability of the underlying constitutional claim, not
the resolution of that debate.” Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
“[A] claim can be debatable even though every jurist of reason might agree,
after the COA has been granted and the case has received full consideration,
that petitioner will not prevail.” Id. at 338. However, for the reasons that
follow, we conclude that Suarez has not shown that reasonable jurists would
find it debatable whether she has established a cognizable ineffective-
assistance-of-counsel claim. See Slack, 529 U.S. at 484.
      First, the district court found that Suarez’s claims against trial counsel
for allegedly poor preparation were conclusory and without any evidentiary
support. In light of trial counsel’s affidavit detailing her preparation and
investigatory efforts throughout the pre-plea proceedings, and the absence of




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any evidence supporting Suarez’s claims, we conclude that jurists of reason
would not debate that the district court properly denied this claim.
      With regard to Suarez’s ineffective-assistance-of-counsel claim that trial
counsel misinformed her regarding the likely sentencing range that would
result from her plea, Suarez does not contend that if she had accurate
information from counsel regarding her potential sentence, she would not have
pled guilty or would have insisted on going to trial. Accordingly, the district
court properly concluded that she failed to plead or establish any facts to
demonstrate that she was prejudiced by her trial counsel’s alleged deficiency.
Lastly, the district court rejected Suarez’s claim that trial counsel ineffectively
negotiated a plea bargain because the record establishes that counsel
negotiated with the government attorney and arranged for a plea agreement
in which eight of the nine charges against Suarez were dismissed in exchange
for her guilty plea. Suarez has not shown “that jurists of reason could disagree
with the district court’s resolution of her constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327.     Accordingly, IT IS ORDERED
that Suarez’s request for a COA is DENIED.
      In addition to seeking a COA, Suarez moves for authorization to file a
successive § 2255 motion. She asserts that she seeks to file a successive § 2255
motion based upon newly discovered evidence consisting of an April 1, 2011, e-
mail from trial counsel to the prosecuting AUSA. She maintains that counsel
did not inform her of this correspondence and that she discovered it sometime
in 2013 after she filed a bar grievance against trial counsel. Suarez also
appears to assert that this court’s order removing her trial counsel as her
appointed counsel during her direct appeal constitutes newly discovered
evidence sufficient to warrant a successive § 2255 petitioner. Neither the email



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                                 No. 13-20505

correspondence, revealing the professional communication between trial
counsel and the government attorney, nor the court order disciplining trial
counsel for her performance on unrelated appeals establishes any deficiency in
trial counsel’s representation of Suarez, nor bear upon Suarez’s offense of
conviction and thus do not constitute “newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense.” 28 U.S.C. §§ 2244(b)(3), 2255(h).
Accordingly, IT IS ORDERED that Suarez’s motion for authorization to file a
successive § 2255 motion is DENIED.




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