Kristopher Hamberg v. United State

Filing

OPINION FILED - THE COURT: WILLIAM JAY RILEY, ROGER L. WOLLMAN and LAVENSKI R. SMITH. Roger L. Wollman, Authoring Judge (PUBLISHED) [3895812] [11-1415]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1415
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Kristopher Kai Hamberg,
Appellant,
v.
United States of America,
Appellee.

*
*
*
* Appeal from the United States
* District Court for the
* District of North Dakota.
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*
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Submitted: February 17, 2012
Filed: March 30, 2012
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Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
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WOLLMAN, Circuit Judge.
Kristopher Hamberg was convicted of conspiracy to distribute and possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846,
and of two counts of using a firearm during a drug trafficking crime, in violation of
18 U.S.C. §§ 924(c)(1)(A) and 2. Hamberg was sentenced to 276 months’
imprisonment on the conspiracy count, 84 months’ imprisonment on the first firearm
count, and 300 months’ imprisonment on the second firearm count. The district court
ordered that the sentences be served consecutively, resulting in a total sentence of 660
months’ imprisonment. The conviction and sentence were affirmed on direct appeal.
United States v. Hamberg, 182 F. App’x 599 (8th Cir. 2006) (unpublished) (per

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curiam). Hamberg filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255,
arguing four separate grounds of ineffective assistance of trial counsel. The district
court1 denied his motion in its entirety. We granted a certificate of appealability on
the issue whether counsel was ineffective for failing to object to the imposition of two
consecutive sentences for the two firearms convictions based on Hamberg’s
employment of the same firearm in a single drug-trafficking offense. We affirm.
I.
The evidence at trial showed that Hamberg became involved in drug dealing
activities in the Fargo, North Dakota, area in 2003. Jason Burnside began purchasing
methamphetamine from Hamberg that summer. By August of 2003, Burnside
estimated that he owed Hamberg approximately $400 for methamphetamine.
This debt appears to have been a motivating factor in the two instances of
firearm use that resulted in the consecutive sentences at issue in Hamberg’s appeal.
Brent Duursma, another acquaintance who distributed methamphetamine for
Hamberg, testified that he knew that Burnside owed Hamberg money on a drug debt.
Duursma testified that Hamberg pointed a gun at Duursma’s head, threatened to shoot,
and demanded that Duursma tell Hamberg of Burnside’s whereabouts.
In the second incident, Burnside accompanied Anthony Francis to an apartment
for the purpose of obtaining methamphetamine. Francis then alerted Hamberg, who
came to the apartment and assaulted Burnside. Witnesses testified that Hamberg
struck Burnside in the face with a gun and that during the assault the gun discharged,
although the bullet did not hit anyone.

1

The Honorable Ralph R. Erickson, then Chief Judge, United States District
Court for the District of North Dakota.
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The incident in which Hamberg threatened Duursma was the basis for the first
firearm count; the incident in which Hamberg assaulted Burnside was the basis for the
second. At sentencing, the district court stated that “the way the court reads the
statute, that is a minimum mandatory consecutive seven years for brandishing,” and
for the incident when the firearm discharged “a minimum mandatory additional
consecutive twenty-five years.”
Sentencing Tr. at 665; see 18 U.S.C.
§§ 924(c)(1)(A)(ii) and (C)(i). Hamberg contends that a single underlying drug
offense, the conspiracy, cannot support multiple convictions under 18 U.S.C. § 924
for use of a firearm in furtherance of the drug offense. He argues that his counsel’s
failure to object to the consecutive terms of imprisonment at sentencing constitutes
ineffective assistance of counsel.
II.
We review de novo the denial of a § 2255 motion and review any underlying
factual findings for clear error. United States v. Hernandez, 436 F.3d 851, 854-55
(8th Cir. 2006) (citations omitted). The standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), provides the framework for evaluating an
ineffective assistance of counsel claim.
Under Strickland, a petitioner must show that his counsel’s performance was
both deficient and prejudicial to obtain relief. Id. at 687. That is, “the movant must
show that his lawyer’s performance fell below the minimum standards of professional
competence (deficient performance) and that there is a reasonable probability that the
result of the proceedings would have been different if his lawyer had performed
competently (prejudice).” Alaniz v. United States, 351 F.3d 365, 367-68 (8th Cir.
2003) (citing Strickland, 466 U.S. at 690, 694). “Our scrutiny of counsel’s
performance must be ‘highly deferential.’” New v. United States, 652 F.3d 949, 952
(8th Cir. 2011) (citing Strickland, 466 U.S. at 687).

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Hamberg argues that, because there is a circuit split on the issue of whether a
single underlying drug offense can support multiple convictions for use of a firearm
in furtherance of the drug offense, his counsel was deficient by failing to object to the
consecutive sentences on the two firearms counts. Hamberg concedes, however, that
United States v. Lucas, 932 F.2d 1210 (8th Cir. 1991), is controlling precedent in this
circuit.2 In Lucas, we held that “each separate use of a firearm in relation to a violent
crime or drug trafficking crime is punishable under section 924(c) regardless of
whether other section 924(c) charges are related to the same predicate offense.” 932
F.2d at 1223. We reasoned that “the clear design of section 924(c) [is] to deter
individual uses of firearms,” not just “firearm use as a course of action.” Id. In this
case, Hamberg used the firearm in two different places, threatening and assaulting two
different victims, and for two different, although related, purposes. Each instance of
use is separately punishable as a violation of § 924(c).
We disagree with Hamberg’s contention that competent counsel would have
“preserved the issue through objection for presentation through en banc review or a
petition for writ of certiorari.” Appellant’s Br. at 7. We have held that “[a] failure to
raise arguments that require the resolution of unsettled legal questions generally does
not render a lawyer’s services ‘outside the wide range of professionally competent
assistance’ sufficient to satisfy the Sixth Amendment.” New, 652 F.3d at 952 (citing
Strickland, 466 U.S. at 690). In Fields v. United States, 201 F.3d 1025, 1027-28 (8th
Cir. 2000), we held that an attorney who did not object to a jury instruction acted
within the range of professional competence because there was no Eighth Circuit or
Supreme Court authority on the issue and because the two circuits that had addressed
the issue had reached opposite conclusions. Fields extended our ruling in Parker v.
2

We note that Hamberg is correct that the majority of our sister circuits have
reached the opposite conclusion. See United States v. Diaz, 592 F.3d 467, 471-72 (3d
Cir. 2010) (collecting cases). As the Third Circuit noted in Diaz, our view, also held
by the Fourth Circuit, is the minority view on this issue. Id. at 473 (citing United
States v. Camps, 32 F.3d 102, 108-09 (4th Cir. 1994) and Lucas, 932 F.2d at 1222.
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Bowersox, 188 F.3d 923, 929 (8th Cir. 1999), in which we held that “failure to
anticipate a change in the law will not establish that counsel performed below
professional standards.” Fields, 201 F.3d at 1028. If we do not require counsel to
raise arguments that anticipate changes in the law or raise unsettled issues of law, then
it cannot be considered professionally unreasonable for counsel to fail to object to the
correct application of settled law within our circuit.
Hamberg’s counsel acted within the range of professional competence when he
chose not to object to the district court’s application of the settled law. Because
counsel’s performance was not deficient, Hamberg’s claim of ineffective assistance
fails.
III.
The judgment is affirmed.
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