Mersier, Frantz v. United States of America

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 24-CV-62098-ALTMAN/STRAUSS
FRANTZ MERSIER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
/
REPORT AND RECOMMENDATION
THIS MATTER was referred to me “for an evidentiary hearing and a Report and
Recommendation on Mersier’s claim” – in his Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (“Motion”) [DE 1] – that “his trial
counsel was ineffective by failing to advise him of his right to enter an open plea” (“Mersier’s
Claim”) [DE 8] at 4.1 	On June 27, 2025, I held an evidentiary hearing, at which the parties
presented testimony, evidence, and arguments on Mersier’s Claim. I have also carefully reviewed
the parties’ briefing [DE 1-1, 6, 7] and supplemental briefing [DE 23, 24] on the Motion, as well
as all other pertinent portions of the record. Based on my review of the record, my observations
from the evidentiary hearing, and applicable law, I respectfully recommend that the Motion be
DENIED as to Mersier’s Claim.
1 “An ‘open’ guilty plea is a plea made by the defendant without the benefit of a plea agreement
entered into with the Government.” United States v. Booth, 432 F.3d 542, 543 n.1 (3d Cir. 2005);
see also Broderick v. United States, No. 8:14-CR-358-T-27SPF, 2020 WL 1511854, at *4 n.8
(M.D. Fla. Mar. 30, 2020) (“A plea that is not entered pursuant to a plea agreement is known as
an ‘open plea.’” (citing Liebman v. Dep’t of Corr., 411 F. App’x 261, 262 n.1 (11th Cir. 2011))).
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BACKGROUND
Mersier was charged by indictment with one count of conspiracy to commit sex trafficking,
in violation of 18 U.S.C. § 1594(c), and one count of sex trafficking of a minor, in violation of 18
U.S.C. § 1591. See Indictment, United States v. Mersier, No. 21-60094-CR-ALTMAN (S.D. Fla.
Mar. 16, 2021) (“CR Case”), ECF No. 19 at 1-2. 	In March 2022, Mersier and the Government
entered into a plea agreement. [DE 20-2]; see also CR Case, ECF No. 73. Thereunder: (1) Mersier
agreed to plead guilty to both counts of the Indictment; (2) the Government agreed to “recommend
at sentencing that the Court reduce by two levels the sentencing guideline level applicable to the
defendant’s offense, pursuant to Section 3E1.1(a) of the Sentencing Guidelines, based upon the
defendant’s . . . acceptance of personal responsibility”; (3) the Government agreed to request “an
additional one-level decrease pursuant to Section 3E1.1(b) of the Sentencing Guidelines” if
Mersier’s offense level was “determined to be 16 or greater”; and (4) Mersier agreed, “in exchange
for the undertakings made by the United States in [the] plea agreement,” to “waive[] all rights” to
appeal his sentence. [DE 20-2] at 1, 4, 8.
The Court ultimately sentenced Mersier to 235 months of imprisonment on both counts of
the Indictment (to be served concurrently). CR Case, ECF No. 105 at 2. At Mersier’s sentencing
hearing, the Court determined that Mersier had a total offense level of 37, explaining as follows:
(1) Mersier had a base offense level of 30; (2) a two-level increase applied under U.S.S.G. §
2G1.3(b)(1)(B) because the minor victim was in the custody, care, or supervisory control of the
defendant; (3) a two-level increase applied under U.S.S.G. § 2G1.3(b)(2)(B) for unduly
influencing a minor to engage in prohibited sexual conduct; (4) a two-level increase applied under
U.S.S.G. § 2G1.3(b)(3)(B) because the offense involved the use of a computer or interactive
computer service to entice, encourage, offer, or solicit a person to engage in prohibited sexual
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conduct with the minor; (5) a two-level increase applied under U.S.S.G. § 2G1.3(b)(4)(A) because
the offense involved the commission of a sex act or sexual contact; (6) a two-level increase applied
under U.S.S.G. § 3A1.1(b)(1) because the minor victim was a vulnerable victim; and (7) the
offense level would be decreased by three for acceptance of responsibility (i.e., the three-level
decrease the Government agreed to recommend in the parties’ plea agreement). 	Transcript of
Sentencing Hearing [DE 20-4] at 8-24. Based upon Mersier’s offense level (37) and his criminal
history category (II), the Court determined that Mersier’s advisory guideline range was 235-293
months of imprisonment. Id. at 25. The Court sentenced Mersier to the low end of that range (235
months). Id. at 35-36.
FINDINGS OF FACT
As indicated above, Mersier’s Claim – that “his trial counsel was ineffective by failing to
advise him of his right to enter an open plea,” [DE 8] at 4 – was referred to me for an evidentiary
hearing and report and recommendation. 	At the June 27, 2025 evidentiary hearing, the parties
presented testimony from two witnesses: (1) Mersier; and (2) Mersier’s trial counsel, Jorge Del
Villar (“Del Villar”). Based on the testimony and evidence presented at the evidentiary hearing,
including my observations of the demeanor and credibility of the witnesses, I make the following
findings of fact.
Around June 2021, a few months into Mersier’s criminal case, Mersier retained private
counsel. 	Mersier retained Evan Hoffman (“Hoffman”), and Hoffman brought in Del Villar to
handle the matter, as Hoffman generally does when he is retained in connection with a federal
case. 	Del Villar is an experienced criminal defense attorney. 	He has been a criminal defense
attorney for over 25 years and worked as an assistant state attorney for roughly four years before
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he went into criminal defense. 	Although Del Villar mostly practices in state court, he typically
handles a few cases in federal court every year.
After initially retaining Del Villar, Mersier maintained that he wanted to go to trial.
According to Mersier, he never actually wanted to go to trial, but he may have told Del Villar that
he wanted to go to trial because Mersier wanted Del Villar to get him the best deal. Del Villar,
however, credibly testified that Mersier’s desire to proceed to trial only changed after Mersier
learned that his co-defendant, Paula Barboza (“Barboza”), was going to cooperate with the
Government. It was Barboza’s decision that led Mersier to decide he wanted to pursue a resolution
rather than proceed to trial.
During Del Villar’s representation of Mersier, Del Villar met with Mersier on roughly six
occasions, approximately twice in person and approximately four times by video conference.
Their meetings typically lasted at least 20 minutes but generally no more than 45 minutes, and one
or more of the video conference meetings were impacted by microphone issues.
One of the in-person meetings (possibly the first) between Mersier and Del Villar occurred
on Saturday, March 5, 2022, when Del Villar visited Mersier to review a proposed plea agreement.
At the time, Mersier’s change-of-plea hearing was scheduled for the following Wednesday, March
9, 2022. The change of plea hearing had initially been scheduled for February 11, 2022 (CR Case,
ECF No. 60), but it was continued twice (CR Case, ECF Nos. 61 & 62) because a quarantine at
the jail prevented Del Villar from visiting Mersier for a period of a few weeks in February 2022.
When Del Villar did visit Mersier on March 5, 2022, it is undisputed that the two reviewed
the plea agreement together (though Del Villar did not have the factual proffer with him that day).
Consistent with Del Villar’s practice, he reviewed the plea agreement paragraph by paragraph with
Mersier. Mersier understood the terms of the plea agreement, including the appellate waiver.
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However, the parties dispute what alternative options Del Villar presented to Mersier (i.e.,
what options Mersier had other than signing the plea agreement). As Mersier tells it, Del Villar
told Mersier he only had two options: (1) sign the plea agreement; or (2) go to trial. According to
Mersier, Del Villar never told Mersier that he could alternatively enter an open plea. Del Villar,
however, credibly testified that he told Mersier that Mersier had the option of going straight to the
Court for an open plea. 	Del Villar explained that he has been using the same process for years
when he receives a plea agreement. Before even reviewing a plea agreement with his clients, Del
Villar advises them that they do not have to accept the plea agreement and that they have the
alternative options of proceeding to trial or going straight to the Court and pleading guilty. Del
Villar also explains that the plea agreement is not the “end-all-be-all” and that it can be negotiated.
Ultimately, Del Villar recommended to Mersier that he accept the plea agreement. 	As
noted above, in the plea agreement, the Government agreed to recommend that the Court reduce
Mersier’s offense level by two levels based upon acceptance of responsibility and to also request
an additional one-level reduction under Section 3E1.1(b) of the Sentencing Guidelines. Del Villar
recalled estimating that the three-level reduction would equate to a reduction of 5-6 years in
Mersier’s sentence and believed the three-level reduction would be all-but-guaranteed if Mersier
entered into the plea agreement. Without the plea agreement, Del Villar believed Mersier would
be able to obtain, at most, the two-level reduction for acceptance of responsibility. And Del Villar
was not convinced that the two-level reduction was a “sure thing” without the plea agreement.
Del Villar did acknowledge that the plea agreement provided relatively minimal benefit
insofar as it did not provide benefits beyond effectively guaranteeing the three-level reduction.
Nonetheless, he believed the plea agreement was Mersier’s best option given that it essentially
ensured Mersier would receive the three-level reduction. Del Villar expressed some concern about
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whether Mersier would be able to obtain the two-level reduction for acceptance of responsibility
without the plea agreement. Del Villar’s concern stemmed from the fact that the case had been
pending for some time (it had, in fact, been pending for approximately one year) and from the
nature of the charges. Based on his conversations with other attorneys, Del Villar was concerned
that the nature of the charges would lead to a harsh sentence.
Cross-examination of Del Villar did initially elicit some concerns about Del Villar’s ability
to remember Mersier’s case and what Del Villar did or did not advise Mersier (as opposed to what
Del Villar’s general practice is). 	That is because when Mersier’s habeas counsel contacted Del
Villar in February 2025, Del Villar said he did not recognize the name Mersier. Even after habeas
counsel told Del Villar that Del Villar represented Mersier in a sex trafficking case, Del Villar said
that did not ring a bell. 	However, following that conversation, Del Villar said he was able to
refresh his recollection by pulling up the case, by looking at entries on the docket and some of the
case discovery, and by speaking with Hoffman. Additionally, Del Villar testified how the name
Barboza (Mersier’s co-defendant) stuck out to him and how seeing the name Barboza again also
helped Del Villar recall details of the case. Moreover, in the context of whether Del Villar advised
Mersier of the option of an open plea, Del Villar credibly testified that – even aside from his
general practice – he remembered doing the math with Mersier related to how Mersier’s sentence
would be affected with or without the two-level reduction for acceptance of responsibility and the
additional level that the Government agreed to request pursuant to the plea agreement.
On March 9, 2022, the Court held Mersier’s change of plea hearing. See Transcript of Plea
Colloquy [DE 20-3]. 	Mersier confirmed that he understood the charges against him, which
included that he acted “knowing, in reckless disregard of the fact, and having had a reasonable
opportunity to observe the [victim], that the [victim] had not attained the age of eighteen (18)
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years.” 	Id. at 7-8; CR Case, ECF No. 19 at 1-2. 	The Court reviewed the plea agreement with
Mersier and the rights Mersier was giving up under the plea agreement, and Mersier confirmed he
understood and signed the plea agreement. 	See [DE 20-3] at 9-23. 	Mersier specifically
acknowledged that he understood he was “waiving or forever giving up [his] right to appeal the
sentence that [the Court] imposed or the manner in which [the Court] impose[d] it” (with three
limited exceptions), and Mersier confirmed that he was “freely and voluntarily waiving [his] right
to appeal.” Id. at 17-19. Mersier also confirmed that he was pleading guilty of his own free will
because he was in fact guilty. Id. at 20.
After reviewing the plea agreement with Mersier, the Court directed the Government to set
forth the factual basis for Mersier’s plea. Id. at 23. Although it appears Mersier did not see the
Factual Proffer [DE 20-1] until the date of his change of plea hearing, the Government’s oral
factual proffer on the record at the hearing specifically noted that Mersier knew the victim was
under the age of 18. 	[DE 20-3] at 24. 	Following the Government’s factual proffer, Mersier
confirmed that he heard the allegations of the factual proffer and that he did “all the things the
factual proffer allege[d] that [he] did.” Id. at 29. Mersier also said he did not have any changes
or objections, and he confirmed that he accepted “all of the factual allegations of the factual proffer
as true and accurate for purposes of this case.” Id. Mersier then pled guilty to Counts 1 and 2 of
the Indictment, and the Court accepted his plea. Id. at 29-30.
Subsequently, on June 22, 2022, the Court held Mersier’s sentencing hearing. See [DE 20-
4]. 	Prior to that hearing, the U.S. Probation Office (“USPO”) prepared Mersier’s Presentence
Investigation Report (“PSR”). 	CR Case, ECF No. 99. 	USPO met with Mersier to prepare its
report, though without Del Villar, as he waived his appearance at the meeting between Mersier
and USPO. Once USPO prepared the PSR, Del Villar met with Mersier to review objections to
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the PSR that Del Villar had drafted. Mersier did not raise any concerns when Del Villar met with
Mersier to review the PSR and draft objections. However, Mersier subsequently filed an Affidavit
(CR Case, ECF No. 98) objecting to various aspects of the PSR. Therein, Mersier denied knowing
that the victim was a minor at the time of the offense. At some point prior to filing the Affidavit,
Mersier apparently attempted to get Del Villar to file certain objections included in the Affidavit,
but Del Villar was not willing to do so. Del Villar would not file the objections because Mersier
had previously admitted to Del Villar that he knew the victim was a minor at the time of the
offense. I found Del Villar’s testimony regarding Mersier’s admission to be credible.
At 	Mersier’s 	sentencing 	hearing, 	the 	Court 	addressed 	Mersier’s 	Affidavit 	before
proceeding to sentencing, ultimately striking the Affidavit as an unauthorized pro se filing given
that Mersier was represented by counsel. See [DE 20-4] at 3-8; see also CR Case, ECF No. 102.
Mersier in fact requested that the Affidavit be stricken. [DE 20-4] at 7. He also confirmed he was
not interested in backing out of his plea. Id. Consequently, the Court proceeded with sentencing,
heard arguments regarding objected-to enhancements, computed Mersier’s advisory guideline
range, and ultimately sentenced Mersier to 235 months of imprisonment. See id. at 8-36.
Ultimately, I found Del Villar’s testimony more credible than Mersier’s testimony – in
general and specifically on the central dispute of whether Del Villar advised Mersier that he had
an option to enter an open plea. In making this finding, I have considered my observations of the
witnesses during their testimony, their relative motivations, and Del Villar’s extensive experience
as 	a 	criminal 	defense 	attorney. 	Additionally, 	Mersier’s 	testimony 	and 	conduct 	include
inconsistencies on other points that make his testimony less credible overall. 	For example,
Mersier’s testimony that Barboza’s decision to cooperate against him did not cause him to plead
guilty, and his testimony that he only told Del Villar he wanted to go to trial because he wanted
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Del Villar to get him the best deal, was not credible. Indeed, even Mersier’s Motion is inconsistent
regarding Mersier’s desire to proceed to trial.2 Moreover, Mersier’s decision to file an Affidavit
(signed under penalty of perjury) maintaining he did not know the victim was a minor at the time
of the offense made Mersier less credible overall. Not only did Mersier tell Del Villar otherwise,
but as indicated above, Mersier also confirmed (under oath) at his change of plea hearing that the
Government’s proffer, including that Mersier knew the victim was under the age of 18, was
accurate.3 He similarly acknowledged, in response to the Court’s explanations, understanding the
charges to which he was pleading, which explicitly included the element that he acted “knowing
and in reckless disregard of the fact, and having had a reasonable opportunity to observe the person,
that the person had not attained the age of 18 years.” [DE 20-3] at 7-8. These contradictions, in
addition to my other observations noted above, lead me to credit Del Villar’s testimony over
Mersier’s testimony.
LEGAL STANDARD
Under § 2255, a prisoner in custody may file a motion to vacate, set aside, or correct his
sentence in four situations: (1) “the sentence was imposed in violation of the Constitution or laws
of the United States”; (2) “the court was without jurisdiction to impose such sentence”; (3) “the
2 Compare [DE 1-1] at 9 (“Had Counsel properly advised me of First Step Act ineligibility, I would
have been in a better position during the plea negotiation process and would have insisted on going
to trial for Count 2.”), and [DE 1-1] at 11 (“Again, without this advice, Petitioner would not have
pled Guilty and proceeded to trial, where he believes his sentence would have been less than the
one imposed.” (cleaned up)), with [DE 1-1] at 10 (“Had Petitioner known that he could file an
Open Plea and keep his appellate rights, he would have not only pled Guilty much earlier than he
did and would not have planned for trial, which was apparent by his numerous trial dates.” (cleaned
up)).
3 See Riolo v. United States, 38 F.4th 956, 968 (11th Cir. 2022) (“There is a strong presumption
that the statements made during the [plea] colloquy are true. [Mersier] bears a heavy burden to
show that his own statements, made under oath at the time, were false.” (internal citations and
quotation marks omitted)).
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sentence was in excess of the maximum authorized by law”; and (4) the sentence “is otherwise
subject to collateral attack.” 	28 U.S.C. § 2255(a); see also Rudolph v. United States, 92 F.4th
1038, 1044 (11th Cir. 2024). 	The court is authorized to provide specified relief if it finds “the
judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by
law or otherwise open to collateral attack, or that there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”
Amodeo v. FCC Coleman - Low Warden, 984 F.3d 992, 996 (11th Cir. 2021) (quoting § 2255(b)).
“[A] § 2255 movant ‘bears the burden to prove the claims in his § 2255 motion.’” 	Beeman v.
United States, 871 F.3d 1215, 1222 (11th Cir. 2017) (citations omitted).
The Sixth Amendment to the United States Constitution “gives criminal defendants the
right to effective assistance of counsel.” Ritchie v. United States, 112 F.4th 1344, 1347 (11th Cir.
2024) (citing U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984)). “A
defendant is entitled to the effective assistance of counsel not only during the guilt or innocence
phase of a criminal trial, but also during sentencing, resentencing, and on direct appeal.” Perkins
v. United States, 73 F.4th 866, 879 (11th Cir. 2023) (citing Strickland, 466 U.S. at 686). 	“To
establish a claim of ineffective assistance of counsel, a defendant must show (1) that her attorney’s
performance was deficient and (2) that the attorney’s deficient performance prejudiced her
defense.” 	Ritchie, 112 F.4th at 1347 (citing Strickland, 466 U.S. at 687). 	“This two-part test
extends to the plea process.” 	Id. (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)); see also
Carmichael v. United States, 966 F.3d 1250, 1258 (11th Cir. 2020) (“The Supreme Court has long
recognized that Strickland’s two-part inquiry applies to ineffective assistance of counsel related to
the plea process.” (citing Hill, 474 U.S. at 57)). “Surmounting Strickland’s high bar is never an
easy task, and the strong societal interest in finality has special force with respect to convictions
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based on guilty pleas.” Riolo, 38 F.4th at 973 (citation omitted). “A habeas petitioner claiming
ineffective assistance of counsel must carry his burden on both Strickland prongs, and a court need
not address both prongs if the petitioner has made an insufficient showing on one of those
elements.” Carmichael, 966 F.3d at 1258 (citing Johnson v. Alabama, 256 F.3d 1156, 1176 (11th
Cir. 2001)).
“Demonstrating deficient performance requires showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment.” Ritchie, 112 F.4th at 1347 (internal quotation marks and citation omitted). “That
is, counsel’s performance must have fallen below ‘an objective standard of reasonableness,’ under
‘prevailing professional norms.’” Bilotti v. Fla. Dep’t of Corr., 133 F.4th 1320, 1329 (11th Cir.
2025) (quoting Strickland, 466 U.S. at 688); see also Carmichael, 966 F.3d at 1258 (“Under the
first prong of Strickland, counsel’s performance is deficient if it falls below an objective standard
of reasonableness and is ‘outside the wide range of professionally competent assistance.’” (quoting
Johnson v. Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011))). 	“Judicial scrutiny of counsel’s
performance must be highly deferential.” Perkins, 73 F.4th at 879 (quoting Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000)). 	“There is a strong presumption that counsel’s
performance was reasonable and that counsel made all significant decisions in the exercise of
reasonable 	professional 	judgment.” 	Id. 	(internal 	quotation 	marks 	and 	citation 	omitted).
Consequently, a movant “must establish that no competent counsel would have taken the action
that his counsel did take.” Id. (quoting Chandler, 218 F.3d at 1315).
To establish prejudice, “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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
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Bilotti, 133 F.4th at 1329 (quoting Strickland, 466 U.S. at 694). 	“The likelihood of a different
result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
“In the context of pleas a defendant must show the outcome of the plea process would have been
different with competent advice.” 	Lafler v. Cooper, 566 U.S. 156, 163 (2012); see also
Carmichael, 966 F.3d at 1258-59 (“In the plea-negotiation context, the prejudice requirement
focuses on whether counsel’s unconstitutionally ineffective performance adversely affected the
outcome of the plea process.” (citing Hill, 474 U.S. at 59)).
ANALYSIS
The Court should reject Mersier’s Claim. Mersier has not made a sufficient showing on
either the performance or prejudice prong under Strickland. Here, the deficient performance prong
turns on whether Del Villar advised Mersier that Mersier could enter an open guilty plea in lieu of
entering into a plea agreement with the Government. Courts have recognized that failing to advise
a defendant of the option to enter an open plea may constitute deficient performance. See Saez v.
United States, No. 2:21-CV-531-SPC-NPM, 2023 WL 1781684, at *6 (M.D. Fla. Feb. 6, 2023)
(“A petitioner may allege ineffective assistance if counsel ‘failed to advise the defendant of the
option to enter an open plea.’” (quoting Broderick, 2020 WL 1511854, at *5)); West v. United
States, No. 2:05-CR-124-FTM-29, 2013 WL 1798945, at *3 (M.D. Fla. Apr. 29, 2013) (“Failing
to advise a defendant of his ability to plead ‘straight up’ to all counts in an indictment without a
plea agreement constitutes deficient performance.”); see also Booth, 432 F.3d at 550 (“Booth has
raised sufficient allegations that his trial counsel deprived him of the opportunity to make a
reasonably informed decision regarding whether to change his plea or proceed to trial because his
trial counsel failed to inform him that he could enter an open plea.”).
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The deficient performance prong of Mersier’s Claim “boils down to a credibility
determination.” Saez, 2023 WL 1781684, at *7. Mersier says Del Villar never advised him that
he could enter an open plea of guilty as an alternative to the plea agreement. Del Villar, on the
other hand, testified that he did advise Mersier of the option to go straight to the Court for an open
plea. As discussed in the Findings of Fact section above, I found Del Villar’s testimony to be more
credible. Therefore, Mersier’s Claim fails on the deficient performance prong.
However, even if I had found Mersier’s testimony more credible than Del Villar’s
testimony (and consequently that Del Villar failed to advise Mersier that he could enter an open
plea instead of entering into the plea agreement), Mersier’s Claim still fails on the prejudice prong.
To demonstrate prejudice, Mersier must
establish a reasonable probability that: (1) []he would have pled guilty “straight
up;” (2) the district court would have accepted [his] plea; (3) []he would have then
appealed or collaterally attacked [his] sentence; and (4) [his] sentence after that
appeal or collateral attack “would have been less severe than under the judgment
and sentence that in fact were imposed.”
Taylor v. United States, No. 16-12138-K, 2017 WL 5202358, at *3 (11th Cir. Aug. 18, 2017)
(quoting Lafler v. Cooper, 566 U.S. 156, 164 (2012)).4
Here, the Government does not dispute the second and third requirements – i.e., that if
Mersier would have entered an open guilty plea, there is a reasonable probability that the Court
would have accepted the plea and that Mersier would have then appealed or collaterally attacked
his sentence. The Government does, however, dispute the first and fourth requirements. Given
that I have found Del Villar advised Mersier of the option to enter an open plea, and given that
4 See also Saez, 2023 WL 1781684, at *6; Broderick, 2020 WL 1511854, at *5; Kasper v. United
States, No. 3:13-CR-60-J-32PDB, 2018 WL 501557, at *5 (M.D. Fla. Jan. 22, 2018); United States
v. Orozco-Sanchez, 804 F. App’x 952, 960 (10th Cir. 2020) (“[T]o establish prejudice, [the
defendant] must show a reasonable probability that entering an open guilty plea would have been
more favorable to him than continuing with the plea agreement.”).
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Mersier chose to enter into the plea agreement instead of pleading guilty straight up, Mersier has
not satisfied the first prejudice requirement.
Mersier has also failed to satisfy the fourth prejudice requirement. He has not established
a reasonable probability that his sentence after appeal or collateral attack would have been less
severe than the sentence the Court imposed. 	Mersier argues that his sentence would have been
lower after appeal because he contends that this Court erred in applying three sentencing
enhancements: (1) § 2G1.3(b)(1)(B)’s enhancement that applies if “the minor was otherwise in the
custody, care, or supervisory control of the defendant”; (2) § 2G1.3(b)(3)(B)’s enhancement that
applies “[i]f the offense involved the use of a computer or an interactive computer service to . . .
entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor”;
and (3) the vulnerable victim enhancement under § 3A1.1(b)(1) (i.e., “[i]f the defendant knew or
should have known that a victim of the offense was a vulnerable victim”).
Because of the appellate waiver in his plea agreement, Mersier was unable to pursue an
appeal of this Court’s decision to apply the three sentencing enhancements.5 	But had Mersier
entered an open plea, he would have been able to pursue an appeal. 	So, Mersier’s contention
regarding the fourth prejudice requirement turns on whether a reasonable probability exists that
Mersier would be able to show on appeal that this Court erred in applying any of the three
aforementioned sentencing enhancements.6 	In other words, to satisfy the fourth prejudice
5 Mersier did file an appeal, but the Eleventh Circuit granted the Government’s motion to dismiss
the appeal “pursuant to the appeal waiver in [Mersier’s] plea agreement.” CR Case, ECF No. 129;
see also [DE 8] at 3 n.1.
6 Mersier’s arguments regarding the sentencing enhancements seem to miss the point to a degree.
At the June 27, 2025 evidentiary hearing, and in his supplemental memorandum [DE 23], Mersier
focused to a significant extent on Del Villar’s performance in connection with sentencing,
including by arguing that Del Villar should have cited more case law in connection with sentencing
and that Del Villar improperly conceded certain issues at sentencing. But Del Villar’s performance
at sentencing is outside the scope of what has been referred to me. As indicated above, all that has
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requirement, Mersier must establish a reasonable probability that he would have been successful
in appealing at least one of the three enhancements that he addresses. Even if Mersier can only
make the showing for one of the three enhancements, that is enough given that each enhancement
added two levels to his offense level.7 I emphasize that Mersier does not need to show that an
appeal would have actually, or even more likely than not, been successful; he only needs to
establish a reasonable probability that he would have succeeded in his appeal of at least one of the
three enhancements at issue. 	Cf. Missouri v. Frye, 566 U.S. 134, 147 (2012) (“To establish
prejudice in this instance, it is necessary to show a reasonable probability that the end result of the
criminal process would have been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time.”). 	But Mersier has not made that showing. 	Each of the three
enhancements is discussed in turn.
1. 	Custody, Care, or Supervisory Control
There is no reasonable probability that Mersier would succeed in an appeal of this Court’s
application of the custody, care, or supervisory control enhancement. The sentencing guidelines
been referred to me is Mersier’s Claim that Del Villar was ineffective by failing to advise him of
his right to enter an open plea. 	In other words, insofar as the deficient performance prong of
Strickland is concerned, the relevant inquiry concerns the advice Del Villar provided or did not
provide to Mersier regarding Mersier’s ability to plead guilty straight up without a plea agreement
(advice that Del Villar provided months before sentencing). The only reason sentencing is relevant
to Mersier’s Claim (i.e., what has been referred to me) is because of the fourth prejudice
requirement.
7 I assume without deciding that Mersier would have still received the two-level decrease for
acceptance of responsibility if he entered an “open plea” without a plea agreement. Notably, at
the evidentiary hearing, the Government acknowledged that Mersier likely would have received
the two-level decrease for acceptance of responsibility even if he pled guilty without the plea
agreement. But see Bilus v. United States, No. 20-11585, 2021 WL 3523922, at *6-7 & nn. 11, 13
(11th Cir. Aug. 11, 2021) (finding defendant’s contention that he would have received two-level
reduction for acceptance of responsibility if he pled guilty instead of proceeding to trial to be
speculative).
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provided for a two-level enhancement in Mersier’s case “[i]f (A) the defendant was a parent,
relative, or legal guardian of the minor; or (B) the minor was otherwise in the custody, care, or
supervisory control of the defendant.” U.S.S.G. § 2G1.3(b)(1); see also United States v. Gatlin,
90 F.4th 1050, 1070 (11th Cir. 2024) (“Under U.S.S.G. § 2G1.3(b)(1)(B), a defendant’s offense
level may be enhanced by two if ‘the minor was . . . in the custody, care, or supervisory control of
the defendant.’”). 	Mersier contends that the custody, care, or supervisory control enhancement
under § 2G1.3(b)(1)(B) does not apply here – or at least that there is a reasonable probability he
would succeed in appealing the enhancement – because case law requires that the defendant be
entrusted with parent-like authority. While that is true in some other circuits, the Eleventh Circuit
has expressly rejected Mersier’s position in binding case law. 	See Gatlin, 90 F.4th at 1070-72.
Notably, in Gatlin, the Eleventh Circuit expressly disagreed with Ninth Circuit case law on which
Mersier relies. Id. at 1071 (“[W]e conclude that the Ninth Circuit’s analysis in Brooks regarding
§ 2G1.3(b)(1)(B) is too narrow and thus decline to follow its approach.”).
As the Eleventh Circuit explained in Gatlin, “[a]ccording to § 2G1.3’s commentary,
‘[s]ubsection (b)(1) is intended to have broad application and includes offenses involving a victim
less than 18 years of age entrusted to the defendant, whether temporarily or permanently.’” Id. at
1070 (quoting U.S.S.G. § 2G1.3 cmt. n.2(A)). “[T]he language of the commentary [is] ‘broadly
inclusive,’ as it use[s] terminology—i.e., ‘includes offenses involving a minor entrusted to the
defendant’ and ‘among those who would be subject to this enhancement’—that [is] not
exhaustive.” Id. at 1071 (citing United States v. Isaac, 987 F.3d 980, 991 (11th Cir. 2021)).8 “In
8 Mersier emphasizes that Isaac, which interpreted a similar enhancement, and which formed the
basis for much of the reasoning in Gatlin, states that the enhancement “can apply when a minor is
‘entrusted’ to a defendant.” [DE 23] at 2. That is true, and it is also true, as Mersier points out,
that Isaac involved a defendant who “was trusted with” a minor by the minor’s family. 987 F.3d
at 992. However, Gatlin makes clear that the while the enhancement includes entrustment cases,
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applying the enhancement, ‘the court should look to the actual relationship that existed between
the defendant and the minor and not simply to the legal status of the defendant-minor
relationship.’” Gatlin, 90 F.4th at 1070 (quoting U.S.S.G. § 2G1.3 cmt. n.2(A)). Consideration
of the actual relationship (as opposed to the legal relationship) requires a functional approach, not
a formalistic approach. 	Id. 	The enhancement is not “limited to relationships between the
defendant and the victim that are only ‘broadly comparable to that of parents, relatives, and legal
guardians,’” and it does not require a preexisting relationship between the defendant and the
victim. Id. at 1071 (citation omitted).
Significantly, the facts of Gatlin, where the Eleventh Circuit affirmed the application of
the enhancement, are analogous to the facts here and demonstrate why there is no reasonable
probability Mersier would prevail on an appeal of the enhancement. In Gatlin, the Eleventh Circuit
found that the defendant occupied “a guardian-like position over” the victim, explaining, inter alia,
that: (1) the defendant was 41 years old when he met the 17-year-old victim; (2) the defendant
knew the victim was unemployed and homeless; and (3) the defendant provided the victim with
shelter and food during the relevant period. Id. at 1072. The fact that the defendant and victim
“only had a short-term relationship” did not change the outcome, as “§ 2G1.3(b)(1)(B) does not
require the defendant and the victim to have a long-term relationship.” 	Id. (citations omitted).
Similarly, in this case, the Court examined the actual relationship between Mersier and the victim,
finding that the victim was in the care of Mersier and his co-defendant, and explaining, inter alia,
it is not limited to such cases alone given the “broadly inclusive” terminology used in the
enhancement’s commentary. 90 F.4th at 1071. Notably, as indicated below, the Eleventh Circuit
found in Gatlin that the enhancement applied even though none of the facts in Gatlin suggested
that the victim there was “entrusted” to the defendant. Therefore, to the extent Mersier argues that
Isaac required that the minor be “entrusted” to the Defendant, the Eleventh Circuit’s opinion in
Gatlin clearly shows he is mistaken.
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that: (1) Mersier was 15 years older than the 16-year-old victim; (2) the victim was a runaway
(who had been in a group foster home) when she met Mersier; (3) Mersier provided the victim
with food and shelter, including a place to sleep; (4) the victim had nowhere else to go; and (5)
Mersier and his co-defendant were directing the victim’s actions and drove her around to have sex
with adult men. [DE 20-4] at 11-14.
At bottom, the argument Mersier makes regarding the applicability of § 2G1.3(b)(1)(B)’s
enhancement is a legal argument that the Eleventh Circuit squarely rejected in Gatlin. Therefore,
he does not have a reasonable probability of succeeding on an appeal of the enhancement.
2. 	Vulnerable Victim
There is no reasonable probability that Mersier would succeed in an appeal of this Court’s
application of the vulnerable victim enhancement. 	“A two-level increase applies where a
defendant knew, or should have known, that a victim of the offense was vulnerable.” United States
v. Mathews, 874 F.3d 698, 706 (11th Cir. 2017) (citing U.S.S.G. § 3A1.1(b)(1)); see also U.S.S.G.
§ 3A1.1(b)(1) (“If the defendant knew or should have known that a victim of the offense was a
vulnerable victim, increase by 2 levels.”). “A ‘vulnerable victim’ is a person ‘who is a victim of
the offense of conviction’ or any relevant conduct for which the defendant is accountable, and
‘who is unusually vulnerable due to age, physical or mental condition, or who is otherwise
particularly susceptible to the criminal conduct.’” Mathews, 874 F.3d at 706 (quoting U.S.S.G. §
3A1.1, cmt. n.2). Section “3A1.1(b)(1) does not require a defendant to have targeted his victims
based on their vulnerability, as it requires only that the defendant knew or should have known that
a victim of the offense was vulnerable.” United States v. Cobb, 842 F.3d 1213, 1221 (11th Cir.
2016) (citing United States v. Birge, 830 F.3d 1229, 1232-34 (11th Cir. 2016)). 	“[B]oth
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circumstances and immutable characteristics can render a victim vulnerable.” 	United States v.
Baptiste, 935 F.3d 1304, 1318 (11th Cir. 2019) (citation omitted).
Mersier asserts that “[t]he key to the vulnerable victim enhancement is that the victim
cannot be a typical Mann Act victim.” [DE 23] at 3. But as the Government points out, Mersier
was not convicted under the Mann Act. See [DE 24] at 5. At any rate, Mersier’s point seems to
be that the Court erred by applying the vulnerable victim enhancement because the enhancement
does not apply “if the factor that makes the person a vulnerable victim is incorporated in the offense
guideline.” 	U.S.S.G. § 3A1.1, cmt. n.2. 	“For example, if the offense guideline provides an
enhancement for the age of the victim, this [enhancement] would not be applied unless the victim
was unusually vulnerable for reasons unrelated to age.” Id.
However, as is evident from the transcript of the sentencing hearing [DE 20-4], the Court
did not find the victim to be vulnerable merely due to her age. Rather, the Court found that there
was no “double counting” and “made clear” its finding “that the victim was unusually vulnerable
for reasons other than her age,” including “her status.” [DE 20-4] at 18-20. The Court explained
that the victim was “a runaway from a foster home,” that “[s]he has no family, no parents, no
phone, no car, no school, no supervision of any kind,” and that “[s]he has no money, she has no
source of food, no source of shelter or other sustenance.” Id. at 19.
Notably, the Eleventh Circuit has affirmed the application of the vulnerable victim
enhancement in analogous circumstances. See United States v. Lowe, 763 F. App’x 878 (11th Cir.
2019). In Lowe, the defendant was convicted of the same offenses as Mersier. See id. at 878. The
Eleventh Circuit found that the district court did not err in applying the enhancement where “[t]he
government expressly stated that age was not the only reason for the vulnerable victim
enhancement,” and where the victim had no supervision or support from family, was addicted to
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drugs, and had no means of transportation other than the defendant. Id. at 880. See also United
States v. Muslim, 944 F.3d 154, 168 (4th Cir. 2019) (finding victim was “‘particularly susceptible
to the criminal conduct,’ given her lack of a stable home and parental figures” and therefore
affirming application of enhancement);9 United States v. Murphy, No. 23-3817, 2025 WL
2658285, at *4 (6th Cir. Mar. 18, 2025) (affirming application of enhancement and finding minor
victim was a runaway and substance abuser and “therefore was particularly susceptible to engaging
in commercial sex in exchange for [the defendant’s] provision for her material needs and his
attention to her”). Ultimately, Mersier has failed to establish that he has a reasonable probability
of prevailing on an appeal of this Court’s application of the vulnerable victim enhancement.
3. 	Use of Computer or Interactive Computer Service
Mersier has failed to establish that – without his appellate waiver – he would have a
reasonable probability of prevailing on an appeal of this Court’s application of the enhancement
under § 2G1.3(b)(3)(B). 	That enhancement increases a defendant’s offense level by two levels
“[i]f the offense involved the use of a computer or an interactive computer service to . . . entice,
encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor.”
U.S.S.G. § 2G1.3(b)(3)(B).10
9 Notably, the Fourth Circuit in Muslim found no error and upheld the district court’s imposition
of both the “vulnerable victim” enhancement and the “custody, care, or supervisory control”
enhancement. 	944 F.3d at 168-69. 	It also rejected, albeit without discussion, the appellant’s
argument “that the Government must distinguish Defendant’s prostitute victims as more
vulnerable than a typical prostitute victim.” Id. at 168.
10 For purposes of the enhancement, a “computer” is:
An electronic, magnetic, optical, electrochemical, or other high speed data
processing device performing logical, arithmetic, or storage functions, and includes
any data storage facility or communications facility directly related to or operating
in conjunction with such device, but such term does not include an automated
typewriter or typesetter, a portable hand held calculator, or other similar device.
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At sentencing, the Court found that the § 2G1.3(b)(3)(B) enhancement applies, explaining
as follows:
In this case, there’s no dispute that the minor was asked to pose nude, and that Ms.
Barboza, at Mr. Mersier’s direction, took nude photographs of the minor, which
were then used to offer her up for sexual services to some or maybe all of the five
johns that are involved in this case.
And so although . . . Mr. Mersier himself did not take the photos . . . the guideline
talks about whether the offense involved the use of the device, not whether the
defendant himself used the device. And so it’s sufficient on these facts to find that
that two-point enhancement also applies.
[DE 20-4] at 16-17. In so finding, the Court overruled Del Villar’s policy-based objection that the
enhancement is improper because it applies in nearly all cases of this type such that is has become
part of the baseline. 	Id. at 15-17. 	But Del Villar acknowledged that the enhancement applies
factually. 	See id. at 16 (“MR. DEL VILLAR: It applies, Judge. There’s no way around that.
Factually it applies.”).
It is unclear why Mersier contends that he has a reasonable probability of succeeding on
an appeal of the § 2G1.3(b)(3)(B) enhancement. Although Mersier was pro se when he filed his
Motion and Reply in this case, I provided his habeas counsel with an opportunity to file a post-
trial memorandum to address the sentencing enhancements at issue here (the enhancements
relevant to the fourth prejudice requirement in the context of this case). However, Mersier’s sole
argument regarding the § 2G1.3(b)(3)(B) enhancement in that memorandum is the following:
18 U.S.C. § 1030(e)(1); see also U.S.S.G. § 2G1.3, cmt. n.1 (“‘Computer’ has the meaning given
that term in 18 U.S.C. § 1030(e)(1).”). 	“Using a smart phone constitutes use of a computer.”
United States v. Foard, 108 F.4th 729, 736 (8th Cir. 2024) (citing United States v. Kramer, 631
F.3d 900, 902 (8th Cir. 2011)); see also United States v. Carmona, 625 F. App’x 963, 967 (11th
Cir. 2015).
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This enhancement is a factual issue that requires proof that a defendant enticed a
third person to engage in illegal sexual conduct using a computer. See United States
v. Pringler, 765 F.3d 445 (5th Cir. 2014). Not only was there no such proof, at
Sentencing the trial attorney stated “Judge, this is more of a policy rather than
factual issue.”
[DE 23] at 4.
As an initial matter, the enhancement is not limited to cases where “a defendant enticed a
third person to engage in illegal sexual conduct using a computer.” Rather, it applies where “the
offense involved the use of a computer” to “entice, encourage, offer, or solicit a person to engage
in prohibited sexual conduct with the minor.” U.S.S.G. § 2G1.3(b)(3)(B) (emphasis added). At
any rate, Mersier’s perfunctory argument fails to explain what “factual issue” exists. And to the
extent there is some material factual dispute related to the enhancement, Mersier failed to present
evidence at the evidentiary hearing regarding any such factual dispute. Thus, Mersier has failed
to satisfy his burden of establishing a reasonable probability that an appeal of the enhancement
would be successful, and consequently, that his sentence after an appeal would have been less
severe than under the judgment and sentence that in fact were imposed.
CONCLUSION
For the reasons discussed above, I respectfully RECOMMEND that the Motion be
DENIED as to Mersier’s Claim.
The parties will have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation within which to file written objections, if any, with the Honorable
Roy K. Altman, United States District Judge. Failure to timely file objections shall bar the parties
from a de novo determination by the District Judge of an issue covered in the Report and shall bar
the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this
Report except upon grounds of plain error if necessary in the interest of justice. See 28 U.S.C. §
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636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th
Cir. 1989); 11th Cir. R. 3-1.
DONE AND SUBMITTED in Fort Lauderdale, Florida this 27th day of October 2025.
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