Herman Majors v. USA

Filing

OPINION filed : AFFIRMED. Decision not for publication. Richard Allen Griffin, Raymond M. Kethledge,and John K. Bush (AUTHORING), Circuit Judges.

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NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0185n.06
No. 17-5034
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

HERMAN MAJORS,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

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FILED
Apr 10, 2018
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE MIDDLE
DISTRICT OF TENNESSEE
OPINION

Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. In 2004, Petitioner-Appellant Herman Majors entered
into a conspiracy to distribute cocaine with Adrian Patterson, Cleo Patterson, and others. Adrian
Patterson would purchase bulk cocaine in California, which Majors, Cleo, and others would then
transport to Tennessee.

In late 2004, Majors was arrested while transporting twenty-six

kilograms of cocaine, after which the shipments continued without his direct involvement until
2006, when Adrian Patterson was arrested.
Majors was convicted of conspiracy to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a) and 846. During sentencing, the Presentence Report (“PSR”)
calculated his Guidelines range based on the amount of cocaine transported during the entire
conspiracy (more than 150 kilograms), resulting in a base offense level of 38. The amount of
cocaine transported while Majors was transporting cocaine was somewhere between 60 and 106

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kilograms, which would have resulted in a base offense level of 36, had it been used to calculate
the base offense level.
Majors was sentenced to 360 months of imprisonment. When he was sentenced, he was
already serving an undischarged state sentence of 120 months of imprisonment. Because the
trial court did not indicate whether the federal sentence was to run concurrently or consecutively
with that state sentence, the federal sentence defaulted, by operation of rule, to a consecutive
sentence. Majors challenges his conviction and sentence pursuant to 28 U.S.C. § 2255. We
affirm.
I
The district court articulated the pertinent facts as follows:
Between 2004 and 2006, defendants [Adrian] Patterson and Majors participated in
a drug trafficking conspiracy involving the possession and distribution of more
than 150 kilograms of cocaine. Patterson purchased cocaine from dealers in Los
Angeles, and arranged for it to be transported to Tennessee. Majors and other
individuals traveled to and from Los Angeles with cash and drugs hidden in
vehicles.
The conspiracy came to light over a period of years. In late 2004, while driving to
Los Angeles, Majors and Cleo Patterson (a relative of Adrian Patterson’s) were
stopped for a traffic violation, and a search revealed 26 kilograms of cocaine in a
hidden compartment of the vehicle. Both men were arrested. [The Oklahoma
Indictment against Majors was dismissed without prejudice, but Cleo Patterson
was tried, convicted, and sentenced to 360 months.] In 2006, agents of the Drug
Enforcement Administration in Los Angeles and Nashville began collaborating on
an investigation of a multi-kilogram cocaine transaction that was to take place in
Tennessee. The Los Angeles agents had learned from a wiretap that a cocaine
supplier would be traveling from Los Angeles to meet a buyer in Clarksville,
Tennessee. The Nashville agents identified Adrian Patterson as buyer. With the
participation of officers from the Clarksville Police Department, the agents
established surveillance of the expected meeting site, which was located at
2211 Ladd Drive.
Soon thereafter, Tim Anderson of the Clarksville Police Department sought and
obtained a warrant to search for evidence of drug trafficking at Ladd Drive. The
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warrant was executed the same day, and Adrian Patterson was among those
present during the search. Officers seized over $300,000 in cash, along with
approximately one kilogram of cocaine. Also seized was a Ford F–150 that had
been used to transport Herman Majors and Cleo Patterson from Los Angeles to
Tennessee in 2004.
Majors v. United States, No. 3:15-cv-0799, 2016 WL 7438959, at *1–2 (M.D. Tenn. Dec. 27,
2016).
Majors and others were charged with conspiring to possess with intent to distribute five
or more kilograms of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1).
The jury returned a guilty verdict, and the district court later sentenced Majors to 360
months of incarceration—the bottom of the Sentencing Guidelines range as calculated in the
PSR. The conviction and sentence were affirmed on direct review. United States v. Patterson,
587 F. App’x 878 (6th Cir. 2014), cert. denied, Majors v. United States, 135 S. Ct. 1723 (Mar.
30, 2015).
Majors filed a motion to vacate his conviction and sentence in the district court on July
20, 2015, and he filed an amended motion to vacate on January 8, 2016. Majors v. United States,
No. 3:15-cv-0799, 2016 WL 7438959, at *1. The district court denied all twenty-one grounds of
relief Majors asserted in his amended motion but granted certificates of appealability as to three
grounds. Id. at *13.
II
The three grounds of relief now under our review all relate to the effectiveness of Major’s
counsel. We review the district court’s legal conclusions de novo and uphold its factual findings
unless they are clearly erroneous. Jefferson v. United States, 730 F.3d 537, 544 (6th Cir. 2013).

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Successfully arguing that trial counsel was constitutionally deficient requires showing
both that “(1) his trial counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defendant.” McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012)
(internal quotation marks omitted).
In order to satisfy the first requirement, Majors must show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” Strickland, 466 U.S. 668, 687 (1984), and our review of his trial counsel’s
performance is highly deferential, for we must “apply a ‘strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.’”

McPhearson,

675 F.3d at 559 (quoting Strickland, 466 U.S. at 689). Specifically, “trial counsel’s tactical
decisions are particularly difficult to attack,” and those decisions cannot be adjudged deficient if
they “might be considered sound trial strategy.” O’Hara v. Wigginton, 24 F.3d 823, 828 (6th
Cir. 1994) (internal quotation marks omitted).
If Majors satisfies the first requirement, he must then show that there is a reasonable
probability that “an increased prison term did flow from [the] error” to satisfy the prejudice
prong. Glover v. United States, 531 U.S. 198, 200 (2001).
A
Trial testimony showed that Majors had transported between 60 and 106 kilograms of
cocaine over the course of the conspiracy. At sentencing, Majors’s counsel did not argue that
Majors was responsible only for this cocaine and not the cocaine transported after his arrest.
Counsel instead made the rather more ambitious argument that the testimony was insufficient to
show that Majors had transported more than the 26 kilograms of cocaine with which he was
arrested and that he was therefore responsible only for those 26 kilograms. Majors argues that

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this decision to swing for the fences instead of attempting a base hit amounted to ineffective
assistance of counsel under Strickland.
Under USSG § 1B1.3(a)(1)(B) (Nov. 2011),1 a defendant is responsible for his conduct,
as well as other “relevant conduct,” which includes “in the case of a jointly undertaken
activity . . . all reasonably foreseeable acts or omissions of others in furtherance of the jointly
undertaken criminal activity, that occurred during the commission of the offense of conviction.”
Majors points to an application note to this section that tells us that when a defendant
“was hired only to help off-load a single shipment” in an otherwise ongoing distribution
conspiracy, he “is not accountable for prior or subsequent shipments . . . because those acts were
not in furtherance of his jointly undertaken criminal activity (the importation of the single
shipment[]).” USSG § 1B1.3, comment. (n.2(c)(3)).
Majors’s argument relies on this comment and on the government’s statement at trial that
“[Majors] was a courier, and on New Year’s Eve, 2004 he was arrested on his final trip. . . . The
Government has never contended that the Defendant—we had any proof about Defendant
Herman Majors after that day. . . . Because there is no such proof. Pure and simple.” Majors’s
argument is that while the government had proved that he had couriered on multiple occasions, it
had not proved that he was anything more than a courier and that his counsel ought to have
argued that USSG § 1B1.3, comment. (n.2(c)(3)) applied to him, limiting his responsibility to the
cocaine that he had distributed.
Unfortunately for Majors’s position, there is significant evidence that his involvement in
the transportation conspiracy went well beyond merely being a courier. As the district court

1

The 2011 edition of the Sentencing Guidelines was in effect at the time Majors was sentenced and
therefore continues to govern his claims in this petition. See United States v. Jennings, 945 F.2d 129, 135
n.1 (6th Cir. 1991) (“The version of the [sentencing] guidelines in effect at the time of sentencing is
ordinarily applied.”).

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discussed in detail, in addition to transporting cocaine repeatedly, Majors was responsible for
recruiting Cleo into the conspiracy, planned the travel logistics for the trips he took with Cleo,
made trips with other coconspirators, transported both cash and cocaine as part of the conspiracy,
and agreed that Cleo would take the responsibility for the cocaine found when Majors and Cleo
were arrested, ensuring that Majors would remain free.
“Where a defendant is part of a jointly undertaken criminal activity involving drugs, the
defendant is accountable for all quantities of contraband with which [he] was directly involved
and . . . all reasonably foreseeable quantities of contraband that were within the scope of the
criminal activity that [he] jointly undertook.” United States v. Watson, 620 F. App’x 493, 513
(6th Cir. 2015) (alteration in original) (emphasis added) (internal quotation marks omitted).
Because there was significant evidence that Majors had been an integral member of the
conspiracy and was involved in both planning and executing the scheme to distribute cocaine,
and because the sentencing court would have only needed to find that Majors had jointly
undertaken the entire conspiracy by a preponderance of the evidence, see United States v.
Jordan, 20 F. App’x 319, 324–25 (6th Cir. 2001), it is likely that the sentencing court would not
have accepted Majors’s preferred argument, had it been made.
This prevents Majors from successfully making his ineffective-assistance-of-counsel
claim for two related reasons. First, trial counsel’s tactical decision to make the weak argument
that Majors was responsible only for 26 kilograms of cocaine, which is already “virtually
unchallengeable,” Buell v. Mitchell, 274 F.3d 337, 360 (6th Cir. 2001) (internal quotation marks
omitted), does not appear so foolhardy once we recognize that the alternative argument was
similarly weak. If one is highly likely to strike out, one might as well swing for the home run.

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Second, even assuming that trial counsel’s decision was deficient, the weakness of
Majors’s preferred argument prevents him from showing prejudice. Because it is unlikely that
the sentencing court would have accepted the argument that the cocaine shipments made after
Majors’s arrest were not “relevant conduct,” Majors cannot show that there is a reasonable
probability that his counsel’s failure to make this argument resulted in his receiving a longer
sentence. See Glover, 531 U.S. at 200.
B
The district court’s judgment is silent as to whether Majors’s sentence was to run
concurrently or consecutively to his undischarged state sentence. Under 18 U.S.C. § 3584(a),
when a federal judgment is silent on this matter, the sentences run consecutively.
Majors argues that his trial counsel was deficient for failing to argue that his federal and
state sentences should run concurrently. He argues that had trial counsel made this argument, the
trial court would have considered Majors’s age, the length of the unexpired state sentence, and
the fact that Majors’s prior convictions consisted primarily of thefts and simple possession of
drugs, and allowed Majors to serve the terms concurrently.
But as we held on direct review, the district court did consider Majors’s age and criminal
history during sentencing. See Patterson, 587 F. App’x at 892–93. The only factor that it did
not explicitly consider was Majors’s undischarged state conviction, but the district court did
consider the PSR, ibid., and the PSR clearly included that information.
Majors has presented no reason to think that the district court was unaware of its power to
impose concurrent sentences or that, had it been reminded of this power, it would have chosen to
do so. Given that Majors argued for a downward variance based on the factors he now argues
would have persuaded the district court to issue a concurrent sentence, and given that the district

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court declined to issue a downward variance, it seems unlikely that the district court would have
been persuaded to issue a concurrent sentence, which would have been functionally identical to a
downward variance. Majors therefore cannot show that he was prejudiced by his counsel’s
failure to argue that his federal sentence should have been served concurrently with his
undischarged state sentence.
C
Finally, Majors argues that his appellate counsel was ineffective for failing to make the
“relevant conduct” argument that Majors earlier argued his trial counsel was deficient for not
making. Just as Majors cannot show that he was prejudiced when his trial counsel did not make
an argument that was unlikely to be successful, he cannot show that he was prejudiced when his
appellate counsel failed to make an argument that was unlikely to be successful. Mapes v. Coyle,
171 F.3d 408, 427 (6th Cir. 1999).
III
For the forgoing reasons, we AFFIRM.

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