US v. Anthony Seller
Filing
UNPUBLISHED PER CURIAM OPINION filed denying certificate of appealability as to remaining claims. Originating case number: 5:08-cr-00944-MBS-21, 5:14-CV-02056-MBS. Copies to all parties and the district court. [999895769]. Mailed to: Anthony Sellers. [15-7222]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY SELLERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.
Margaret B. Seymour, Senior
District Judge. (5:08-cr-00944-MBS-21; 5:14-cv-02056-MBS)
Submitted:
June 22, 2016
Decided:
July 25, 2016
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, dismissed
remanded by unpublished per curiam opinion.
in
part,
and
Anthony Sellers, Appellant Pro Se.
Jimmie Ewing, John David
Rowell, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Anthony
denying
Sellers
relief
on
appeals
his
28
the
U.S.C.
district
§ 2255
court’s
(2012)
judgment
motion.
We
granted a certificate of appealability and ordered supplemental
briefing on two issues: (1) whether counsel was ineffective by
failing to challenge Count 41 of the indictment as duplicitous,
and (2) whether counsel was ineffective by failing to argue that
Sellers’
jeopardy.
convictions
For
the
on
Counts
reasons
that
37
and
follow,
41
violated
we
affirm
in
double
part,
reverse in part, dismiss in part, and remand to the district
court with instructions to vacate the conviction and sentence on
Count 37 and to enter an amended judgment.
I.
As we stated in Sellers’ direct appeal:
On August 14, 2008, Sellers was stopped by police
for an improper lane change while driving. Upon
approaching the vehicle, Officers Phillip Furtick and
Terry Logan noticed a strong odor of marijuana.
Officer Furtick asked Sellers and his passenger to
step out of the vehicle, at which point Sellers
admitted to there being marijuana inside the vehicle.
Officer Logan also observed a partially hidden bag of
what appeared to be cocaine under the passenger seat
as the passenger exited the vehicle. The police
officers then placed Sellers and his passenger under
arrest and searched the vehicle. The search uncovered
marijuana, cocaine, a pistol, and roughly $3,000.
United States v. Sellers, 512 F. App’x 319, 323 (4th Cir. 2013)
(No. 10-4701).
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Sellers was convicted following a jury trial of—among other
offenses—possession
cocaine
(Count
with
37),
in
intent
to
violation
distribute
of
21
a
quantity
U.S.C.
of
§ 841(a)(1),
(b)(1)(C) (2012), and 18 U.S.C. § 2 (2012), and possession with
intent to distribute and distribution of a quantity of cocaine
within 1000 feet of a school (Count 41), in violation of 21
U.S.C.
§ 2.
§§ 841(a)(1),
(b)(1)(C),
860(a)
(2012),
and
18
U.S.C.
Both convictions stemmed from the August 14, 2008, traffic
stop.
The
district
court
sentenced
Sellers
to
concurrent
sentences of 360 months and 720 months on Counts 37 and 41,
respectively, to be served concurrently with his mandatory life
sentence on a related drug conspiracy conviction.
The court
imposed separate special assessments for Counts 37 and 41.
affirmed the district court’s judgment on appeal.
We
Sellers, 512
F. App’x at 333.
Sellers timely filed a § 2255 motion, asserting the claims
on
which
we
granted
a
certificate
of
appealability.
The
district court denied the motion, finding that Sellers was not
prejudiced by any errors of counsel as to Counts 37 and 41
because
Sellers’
ultimate
sentence
was
unaffected
by
these
convictions.
II.
“We review de novo a district court’s legal conclusions in
denying a § 2255 motion,” including “any mixed questions of law
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and fact addressed by the court as to whether the petitioner has
established
claim.”
a
valid
Sixth
Amendment
ineffective
assistance
United States v. Ragin, __ F.3d __, __, No. 14-7245,
2016 WL 930202, at *5 (4th Cir. Mar. 11, 2016).
To succeed on
his ineffective assistance of counsel claims, Sellers “must show
that
counsel’s
performance
was
deficient”
and
deficient performance prejudiced the defense.”
Washington, 466 U.S. 668, 687 (1984).
“that
the
Strickland v.
To satisfy the first part
of the test, he must demonstrate “that counsel’s representation
fell below an objective standard of reasonableness.”
688.
Id. at
To satisfy the second hurdle, Sellers must establish “that
there
is
a
reasonable
probability
that,
but
for
counsel’s
unprofessional errors, the result of the proceeding would have
been different.”
Id. at 694.
A.
Sellers first contends that counsel should have argued that
Count 41 was duplicitous.
The Government responds that § 860(a)
creates various means by which the offense can be committed—
rather
than
creating
separate
offenses—and
that,
because
the
indictment was not duplicitous, counsel was not ineffective.
“Duplicity is defined as the joining in a single count of
two or more distinct and separate offenses.”
United States v.
Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (internal quotation
marks omitted).
“Duplicitous indictments present the risk that
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a
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jury
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divided
on
two
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different
offenses
could
convict for the improperly fused double count.”
nonetheless
United States
v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010).
“[P]ossession
with
intent
to
distribute
and
distribution
. . . are two different offenses,” each requiring proof of an
element that the other does not.
United States v. Randall, 171
F.3d 195, 209 (4th Cir. 1999); see Hawkes, 753 F.2d at 358
(“[W]here separate evidence is required to prove two charges
arising
from
separate
the
same
offenses.”
factual
situation
quotation
(internal
such
charges
marks
are
omitted)).
However, “to join possession and distribution . . . in one count
may
not
be
duplicitous”
where
a
single
act
violations of the same subsection of § 860(a).
constitutes
two
Hawkes, 753 F.2d
at 357 (internal quotation marks omitted).
We conclude that Sellers was not prejudiced by counsel’s
failure
to
raise
this
argument,
although
we
reach
this
conclusion on grounds different than those relied upon by the
district
court.
prejudice.
evidence
We
conclude
that
Sellers
did
See Strickland, 466 U.S. at 694.
overwhelmingly
intent to distribute.
established
Sellers’
not
establish
The Government’s
possession
with
While it is possible—indeed likely—that
jurors believed Sellers possessed the cocaine with intent to
distribute it, but did not distribute any cocaine on August 14,
2008, it is unlikely that any juror believed Sellers distributed
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cocaine on that date but did not possess cocaine with intent to
distribute it.
(6th
Cir.
Cf. United States v. Kakos, 483 F.3d 441, 445
2007)
(upholding
conviction
on
single
count
that
charged two offenses where, based on trial evidence, “[t]here
[was] . . . no risk that the jury was not unanimous in its
belief
that
other]”).
Defendant
[committed
one
offense
and
not
the
We therefore affirm the district court’s denial of
relief on this claim.
B.
Sellers further argues that the district court erroneously
relied on his mandatory life sentence on a related count when it
concluded that, even if counsel had raised and succeeded on a
double jeopardy challenge regarding the imposition of multiple
punishments
prejudice.
The
for
Counts
37
and
41,
Sellers
could
not
show
We agree with Sellers.
Double
Jeopardy
Clause
of
the
Fifth
Amendment
“prohibits the government from subjecting a person to ‘multiple
punishments
for
the
same
offense.’”
United
States
v.
Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (quoting Ohio v.
Johnson, 467 U.S. 493, 498 (1984)).
define
the
‘same
offense[]’”
offense of the other.”
297
(1996)
(internal
when
“[T]wo different statutes
“one
is
a
lesser
included
Rutledge v. United States, 517 U.S. 292,
quotation
marks
omitted).
Because
“[§] 841(a) is a lesser included offense of § 860(a),” United
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States v. Parker, 30 F.3d 542, 553 (4th Cir. 1994), * Sellers has
demonstrated that counsel should have objected to the multiple
convictions and sentences.
Moreover, counsel’s failure to object prejudiced Sellers.
The imposition of a special assessment is itself punishment.
Rutledge, 517 U.S. at 301-03.
Thus, the imposition of two $100
special assessments for Counts 37 and 41 constitutes multiple
punishments for the same offense, and counsel’s failure to argue
that one of the convictions must be vacated prejudiced Sellers.
As the Government concedes, when two statutes proscribe the same
offense, “‘the only remedy . . . is for the District Court . . .
to
exercise
its
discretion
to
vacate
one
of
the
underlying
convictions’ as well as the concurrent sentence based upon it.”
Rutledge, 517 U.S. at 301-02 (quoting Ball v. United States, 470
U.S. 856, 864 (1985)).
We thus reverse the district court’s
denial of relief on the double jeopardy claim, and remand to the
district court with instructions to vacate Sellers’ conviction
and
sentence
on
Count
37
and
to
enter
an
amended
judgment
omitting that count.
*
See also 21 U.S.C. § 860(a) (“Any person who violates
[§] 841(a)(1) of this title . . . by distributing, possessing
with intent to distribute, or manufacturing a controlled
substance . . . within one thousand feet of [a school] . . . is
subject to” enhanced mandatory minimum sentences (emphasis
added)).
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III.
Accordingly, we affirm in part, reverse in part, and remand
to
the
district
court
with
instructions
to
vacate
Sellers’
conviction and sentence on Count 37 and to enter an amended
judgment.
We deny a certificate of appealability as to Sellers’
remaining claims and dismiss that portion of the appeal.
dispense
with
contentions
are
oral
argument
adequately
because
presented
in
the
the
facts
We
and
legal
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
REVERSED
DISMISSED
AND
8
IN PART;
IN PART;
IN PART;
REMANDED
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