# Andre v. United States

> District Court, S.D. Florida · October 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10121088

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** October 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

United States District Court
for the
Southern District of Florida

Alvin Celius Andre, Movant, )
)
v. ) Civil Action No. 21-62293-Civ-Scola
) (Criminal Case No. 18-60271-CR-Scola)
United States of America, )
Respondent. )
Order Denying Motion to Vacate Sentence
Before the Court is Movant Alvin Celius Andre’s Motion to Vacate Sentence
Under 28 U.S.C. § 2255. Therein, Andre moves to vacate his sentence in Case
No. 18-60271-CR-Scola. The Court has considered Andre’s motion and
supporting memorandum of law (ECF No. 1), the government’s response (ECF
No. 7), Andre’s reply (ECF No. 9), the entire record, and is otherwise fully advised.
For the reasons explained below, the Motion is denied on all grounds.
1. Background
The underlying facts and procedural history in this case are not in dispute.
Andre indicates in his reply that he “attacks the legitimacy of his conviction, not
the sufficiency of the evidence.” (ECF No. 9 at 5). The Court therefore adopts the
procedural history and factual background1 provided in the response (see ECF
No. 7 at 1-3) and sets forth the facts relevant to its analysis of the instant motion.
Andre raises eight claims of ineffective assistance of trial and appellate
counsel. (See generally ECF No. 1). Grounds one through five allege ineffective
assistance of trial counsel. (See id. at 4-13). Grounds six through eight pertain
to appellate counsel. (See id. at 14-16).
In Ground One, Andre asserts counsel’s ineffectiveness in failing to object
to “the prosecutor’s statements during closing which constituted a constructive
amendment.” (Id. at 4). This ground relates to the prosecutor’s statements

1 The factual background section of the Response is taken from the Eleventh Circuit Court of
Appeals’ opinion affirming the convictions and sentences. See United States v. Andre, 813 F.
App’x 409, 410-11 (11th Cir. 2020).
concerning the charges in Count One of the indictment. (See id.). In Ground Two,
he alleges ineffective assistance in counsel “failing to object to an obvious fatal
variance when the government presented evidence not contained in the
indictment.” (Id. at 5). In Ground Three, he alleges that counsel rendered
ineffective assistance in failing “to object to the government’s misstatements
rising to the level of prosecutorial misconduct during closing arguments.” (Id. at
7). In Ground Four, he asserts counsel was ineffective for “failing to object to the
prosecutor’s statement during closing which constituted a constructive
amendment.” (Id. at 8). This ground relates to the prosecutor’s statements
concerning the charges in Count Two of the indictment. (See id.). In Ground Five,
Andre alleges that the “cumulative effect of counsel’s errors” rises to the level of
ineffective assistance. (Id. at 13).
Grounds Six through Eight pertain to appellate counsel. In Ground Six,
he asserts that counsel was ineffective for failing to raise the constructive
amendment issue set out in Ground One of the motion. (Id. at 14). In Ground
Seven, he asserts that counsel was ineffective for failing to raise the constructive
amendment issue set out in Ground Two of the motion. (Id. at 15). Finally, in
Ground Eight, he asserts that counsel was ineffective for failing to raise the
prosecutorial misconduct issue raised in Count Three of the motion. (Id. at 16).
2. Legal Standard
A. Section 2255 Motions
Under section 2255, “[a] prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution . . . may move the
court which imposed the sentence to vacate, set aside, or correct the sentence.”
28 U.S.C. § 2255(a) (alterations added). Because collateral review is not a
substitute for direct appeal, the grounds for collateral attack on final judgments
under section 2255 are extremely limited. See United States v. Frady, 456 U.S.
152, 165 (1982) A prisoner is entitled to relief under section 2255 if the court
imposed a sentence that (1) violated the Constitution or laws of the United States;
(2) exceeded its jurisdiction; (3) exceeded the maximum authorized by law; or (4)
is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United
States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “[R]elief under 28 U.S.C.
[section] 2255 is reserved for transgressions of constitutional rights and for that
narrow compass of other injury that could not have been raised in direct appeal
and would, if condoned, result in a complete miscarriage of justice.” Lynn v.
United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (cleaned up).
B. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution guarantees
criminal defendants the right to assistance of counsel during criminal
proceedings. See Strickland v. Washington, 466 U.S. 668, 684-85 (1984). When
assessing counsel’s performance under Strickland, the Court employs a strong
presumption that counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Id. at
690. “[T]he Sixth Amendment does not guarantee the right to perfect counsel; it
promises only the right to effective assistance[.]” Burt v. Titlow, 571 U.S. 12, 20
(2013).
To prevail on a claim of ineffective assistance of counsel, a petitioner must
demonstrate both (1) that counsel’s performance was deficient, and (2) a
reasonable probability that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687-88.
To establish deficient performance, the petitioner must show that
“counsel’s conduct fell ‘outside the wide range of professionally competent
assistance.’” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir.
2009) (quoting Strickland, 466 U.S. at 690). Strategic choices made after
thorough investigation of the law and facts relevant to plausible options are
virtually unchallengeable. Strickland, 466 U.S. at 690-91. The court’s review of
counsel’s performance should focus on “not what is possible or what is prudent
or appropriate, but only [on] what is constitutionally compelled.” Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (cleaned up).
To establish prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.
A court need not address both prongs of Strickland if the defendant makes
an insufficient showing on one of the prongs. See id. at 697; Brown v. United
States, 720 F.3d 1316, 1326 (11th Cir. 2013).
3. Discussion
A. Timeliness and Procedural Default
The parties agree the motion is timely and no claims are procedurally
defaulted. (Mot. at 11, ECF No. 1; Resp. at 5, ECF No. 7). Having reviewed the
record in full, the Court confirms the same. The parties dispute the merits of
Andre’s ineffective assistance of counsel (“IAC”) claims in Grounds One through
Eight of the Motion. Accordingly, the Court proceeds to the merits.
B. IAC Ground One
Andre asserts ineffective assistance in trial counsel’s failure to object to
the prosecutor’s statements during closing argument which constituted a
constructive amendment. (See ECF No. 1 at 4). He argues that Count One of the
indictment “did not include attempted persuasion, enticement, inducement, or
coercion of AN ADULT.” Id. However, in closing argument the prosecutor
constructively amended the indictment by stating no less than six times that
persuading an adult (the father who is bringing the daughter) was a sufficient
basis for conviction. Id. Andre alleges ineffective assistance in counsel’s failure
to object to each of the prosecutor’s statements and for failure to request a
curative instruction. Id.
“A constructive amendment occurs when the essential elements of the
offense contained in the indictment are altered to broaden the possible bases for
conviction beyond what is contained in the indictment.” United States v. Narog,
372 F.3d 1243, 1247 (11th Cir. 2004). The Court finds that constructive
amendment did not occur in this case. Rather, the prosecutor correctly stated
the law in closing argument. As explained by the Eleventh Circuit in affirming
Andre’s convictions, a “defendant does not have to communicate or negotiate
directly with a child to be convicted under § 2422(b), nor does the child even
have to exist. A defendant ‘can be convicted under [§ 2422(b)] when he arranges
to have sex with a minor or a supposed minor through communications with an
adult intermediary.’ United States v. Lanzon, 639 F.3d 1293, 1299 (11th Cir.
2011).” Andre, 813 F. App’x. at 413. Ultimately, “[w]hat matters is that Andre
agreed to pay money to have sex with a child.” Id. at 414. Because the prosecutor
correctly stated the law in closing argument, Ground One is meritless.
Counsel is not ineffective for failing to raise non-meritorious issues, see
Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001); nor is counsel required
to present every non-frivolous argument, see Dell v. United States, 710 F.3d
1267, 1282 (11th Cir. 2013). Andre fails to show “deficient performance” or
“prejudice.” Strickland. 466 U.S. at 687-88. Accordingly, Ground One is denied.
C. IAC Ground Two
In Ground Two, Andre alleges counsel was ineffective for “failing to object
to an obvious fatal variance when the government presented evidence not
contained in the indictment.” (ECF No. 1 at 5). A variance between indictment
and proof is fatal only when it affects the “substantial rights” of the defendant by
insufficiently notifying him of the charges against him so that he may prepare a
proper defense. See Berger v. United States, 295 U.S. 78, 82 (1935). Once again,
Andre misunderstands the law. As explained above, a defendant can be convicted
under Section 2422(b) when he arranges to have sex with a minor or a supposed
minor through communications with an adult intermediary. That is what
happened in this case. Andre was indicted, and later convicted at trial, for
communications he had with the fictional father concerning the fictional child.
As explained by the Eleventh Circuit, a defendant can be convicted under Section
2422(b) for exactly this conduct. See Andre, 813 F. App’x. at 413. The Court finds
that there was no variance between the indictment and proof at trial. As such,
counsel was not ineffective for failing to raise a non-meritorious issue. See
Chandler, 240 F.3d at 917. Andre fails to show “deficient performance” or
“prejudice.” Strickland. 466 U.S. at 687-88. Accordingly, Ground Two is denied.
D. IAC Ground Three
Andre alleges in Ground Three that counsel rendered ineffective assistance
in failing “to object to the government’s misstatements rising to the level of
prosecutorial misconduct during closing arguments.” (ECF No. 1 at 7). This claim
centers on the prosecutor’s statements to the jury asserting that “we do not have
to show that he had a predisposition.” Id. Andre states that entrapment was his
defense at trial, meaning that “the government was required to prove the
essential element of predisposition.” Id. He alleges that, no less than four times
during closing argument, the prosecutor told the jury that “we do not have to
show that he had a predisposition.” Id. Andre asserts that counsel was ineffective
for failing to object and seek a curative instruction. Id.
The Court first notes that a prosecutor’s statements in closing argument
are not evidence. The jury was instructed on the law by the Court. On direct
appeal, the Eleventh Circuit held that the Court did not abuse its discretion in
giving the entrapment pattern jury instruction, which states in relevant part: “if
there is a reasonable doubt about whether the Defendant was willing to commit
the crime without the persuasion of a Government officer or a person under the
Government's direction, then you must find the Defendant not guilty.” Andre,
813 F. App'x at 412; Eleventh Circuit Criminal Pattern Instruction, No. S13.1
(2016).
The Eleventh Circuit also addressed the question of whether Andre was
predisposed to commit his crimes before he was contacted by the government.
On this point, the Eleventh Circuit stated:
“Even though predisposition involves the defendant's willingness to
commit the crime before he was contacted by the government,
proving it does not require pre-contact evidence. Predisposition can
be proven by the defendant's ‘ready commission’ of the charged
crime. Or it can be shown if the defendant is given the opportunity
to back out of the illegal activity but fails to do so. Whether a
defendant was predisposed to committing a crime is a ‘fact-intensive
and subjective inquiry.’

The government's evidence proved that Andre was predisposed to
commit the crimes. It showed that Andre was the one who initially
contacted Fowler in response to the Craigslist ad. It showed that
once Andre knew the daughter was nine years old he chose to ask
for photos of her and continued to plan to have sex with her. And it
showed that Andre had plenty of opportunity to back out of the
crimes during the months-long gap in communication but chose
instead to re-engage with Fowler and break the law. That is enough
to show predisposition.”

Andre, 813 F. App'x at 414-15 (cleaned up). Given the abundant proof of
predisposition, Andre fails to establish that “the result of the proceeding would
have been different” had counsel objected and requested a curative instruction.
Strickland, 466 U.S. at 694. Having failed to demonstrate any prejudice under
Strickland, Ground 3 is denied. See Dale v. United States, 809 F. App’x 727, 728
(11th Cir. 2020) (noting “a court need not address both prongs if a defendant
has made an insufficient showing of one.”).
E. IAC Ground Four
In Ground Four, Andre asserts counsel was ineffective for “failing to object
to the prosecutor’s statement during closing which constituted a constructive
amendment.” (Id. at 8). This ground relates to the prosecutor’s statements
concerning the charges in Count Two of the indictment. (See id.). Andre was
indicted for attempted enticement of a minor to engage in illicit sexual activity,
in violation of 18 U.S.C. § 2422(b) (Count I) (See CR ECF No. 7). In a Superseding
Indictment, he was indicted on a second count of attempted sex trafficking of a
minor, in violation of 18 U.S.C. § 1591 (See CR ECF No. 26). Andre asserts that
in closing argument the prosecutor referenced solicitation of “the father, not the
minor.” (ECF No. 1 at 8). He claims ineffective assistance in counsel’s failure to
object to each of the prosecutor’s statements and to request a curative
instruction. (See id.).
For the reasons explained in IAC Ground One, this claim is meritless. The
Eleventh Circuit has foreclosed the distinction that Andre seeks to draw between
solicitation of the fictional father and fictional minor child. See Andre, 813 F.
App’x. at 413. (“[w]hat matters is that Andre agreed to pay money to have sex
with a child.”). Counsel is not ineffective for failing to raise non-meritorious
issues. See Chandler, 240 F.3d at 917. Andre fails to show “deficient
performance” or “prejudice.” Strickland. 466 U.S. at 687-88. Accordingly, Ground
Four is denied.
F. IAC Ground Five
In Ground Five, Andre alleges that the “cumulative effect of counsel’s
errors” rises to the level of ineffective assistance. (Id. at 13). Andre does not
provide any specific errors, rather he seems to assert that the cumulative effect
of the errors alleged in Grounds One through Five rise to the level of ineffective
assistance. As discussed above, the Court finds that trial counsel did not err in
failing to raise meritless issues. Andre fails to show “deficient performance” or
“prejudice.” Strickland. 466 U.S. at 687-88. Accordingly, Ground Five is denied.
G. IAC Grounds Six, Seven, and Eight
In Ground Six through Eight, Andre asserts ineffective assistance of
appellate counsel. In Ground Six, he asserts that counsel was ineffective for
failing to raise the constructive amendment issue set out in Ground One of the
motion. (Id. at 14). In Ground Seven, he asserts that counsel was ineffective for
failing to raise the constructive amendment issue set out in Ground Two of the
motion. (Id. at 15). Finally, in Ground Eight, he asserts that counsel was
ineffective for failing to raise the prosecutorial misconduct issue raised in Count
Three of the motion. (Id. at 16).
As discussed above, the claims in Grounds One, Two, and Three are
meritless. Therefore, appellate counsel cannot be ineffective for failing to raise
them on direct appeal. See Chandler, 240 F.3d at 917. Andre fails to show
“deficient performance” or “prejudice.” Strickland. 466 U.S. at 687-88.
Accordingly, Grounds Six, Seven, and Eight are denied.
H. Evidentiary Hearing
A district court is not required to hold an evidentiary hearing where the
petitioner's allegations are affirmatively contradicted by the record, or the claims
are patently frivolous. See Aron v. United States, 291 F.3d 708, 715 (11th Cir.
2002). The Court finds the claims to be patently frivolous and that the motion
and the files and records of the case conclusively show that Andre is not entitled
to relief. See 28 U.S.C. § 2255(b). Therefore, Andre’s request for an evidentiary
hearing is denied.
I. Certificate of Appealability
A prisoner seeking to appeal a district court’s final order denying his
petition for writ of habeas corpus has no absolute entitlement to appeal, and to
do so, must obtain a certificate of appealability. See 28 U.S.C. § 2253{(c)(1);
Harbison v. Bell, 556 U.S. 180, 183 (2009). Here, Andre fails to make “a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
Accordingly, upon consideration of the record, the Court denies the issuance of
a certificate of appealability.
4. Conclusion
For the foregoing reasons, all grounds in Andre’s Motion to Vacate
Sentence Under 28 U.S.C. § 2255 (ECF No. 1) are denied. No evidentiary hearing
will be set, and the Court does not issue a certificate of appealability. The Court
directs the Clerk to close this case. Any pending motions are denied as moot.

Done and ordered, in chambers, in Miami, Florida, on October 4, 2022.

Robert N. Scola, Jr.
United States District Judge

Copies, via U.S. Mail, to
Alvin Celius Andre
15595-104
Tucson-USP

United States Penitentiary
Inmate Mail/Parcels
Post Office Box 24550
Tucson, AZ 85734
PRO SE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10121088. Public record. Not legal advice.