Giles v. USA

Filing 13

ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 9/8/2017. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-652-RJC
(3:09-cr-203-RJC-DCK-1)
ERIC GILES,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
_______________________________________

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ORDER

THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and supplemental § 2255 motion to vacate, (Doc.
No. 11).
I.

BACKGROUND

Petitioner was indicted in a marijuana trafficking conspiracy involving numerous coconspirators including the co-defendant with whom he was tried, Kyle Corsi. (Crim. Case No.
3:09-cr-203, Doc. No. 102). The counts pertaining to Petitioner are: Count (1), conspiracy to
possess with intent to distribute a mixture and substance containing a detectable amount of
marijuana (100 kilograms or more) in violation of 21 U.S.C. § 846, 841(a)(1), 841(b)(1)(B); Count
(2), conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i),
(a)(1)(B)(ii), 1956(h); Count (3), conspiracy to structure a currency transaction to evade reporting
requirements in violation of 18 U.S.C. § 371, 31 U.S.C. § 5324(a)(3); Counts (4) and (6),
possession of a firearm in furtherance of a drug trafficking crime in violation of 21 U.S.C. § 924(c);
Count (5), possession with intent to distribute a mixture and substance containing a detectable
1

amount of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), 18 U.S.C. § 2; and Counts
(7) and (8), possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (Id.,
Doc. No. 102 at 4).
The facts of the case, as summarized by the Fourth Circuit Court of Appeals, are as follows:
Giles and Corsi were members of a marijuana distribution ring operating in
Chapel Hill and Charlotte, North Carolina. As the ring-leader, Giles would travel
to California to procure “high-grade” marijuana. Giles would then send packages
containing several pounds of marijuana through the mail from a fictitious
business—Norcal Athletics—to Corsi and other distributors back in North
Carolina. When a package arrived, Giles would send a text message that “the eagle
has landed” to notify a given distributor that the package was ready for pickup and
distribution. To finance the purchases, the distributors made large cash deposits into
bank accounts that Giles managed. However, pursuant to Giles’ instructions, the
distributors kept their individual deposits under $10,000 to avoid federal reporting
requirements. Over its three years of operation, the distribution ring sold over one
hundred kilograms of marijuana and made deposits totaling several hundred
thousands of dollars.
On October 26, 2009, after over a year tracking the operation and
intercepting packages containing marijuana en route from “Norcal Athletics” to
North Carolina, federal agents arrested Giles in Charlotte. With Giles’ consent,
agents searched his vehicle and confiscated his cellular phone and approximately
one pound of marijuana. At that time, Giles identified his source of marijuana in
California, but stated that any packages sent by Norcal Athletics contained only
athletic gear, and denied knowledge of the contents of the package of marijuana
seized from his car. That same day, agents searched Giles’ residence, and
discovered receipts and other documentation linking him to shipments from
California to North Carolina.
On the evening of Giles’ arrest, six federal agents and two uniformed police
officers went to Corsi’s residence to attempt to speak with him about the marijuana
distribution ring….. Agent Morgan informed Corsi that the officers had information
that there might be narcotics in the residence, and hoped to talk with him and obtain
his consent for a search. Corsi became agitated and denied the officers consent to
enter the house.… After several minutes, Corsi shouted … that he knew why the
officers were there and that he was ready to talk and “be a man about it.”
… Corsi .. admitted that he had been receiving high-grade marijuana from
California through the mail. He explained that his supplier would send text
messages indicating when the packages had arrived in North Carolina and were
ready for pickup. Corsi also explained that other members of the ring would deposit
money into the drug supplier’s bank account to prepay for the marijuana, but stated
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that he had never done so. However, after Agent Morgan showed Corsi bank
surveillance photographs of him and an unidentified woman (who Corsi then
identified as his girlfriend) making cash deposits, Corsi admitted to making several
deposits into the drug supplier's account. After approximately thirty minutes, the
agents concluded the interview and left the residence without arresting Corsi.
A week later, on November 3, several agents and officers returned and
arrested Corsi at his residence…. Agent Morgan ascertained from the officer that
Corsi had been informed of his Miranda rights, and then asked Corsi several
clarifying questions regarding his October 26 statements. Corsi confirmed several
statements from his earlier interview, including that packages he received from
Norcal Athletics had contained marijuana.….
United States v. Giles, 518 Fed. Appx. 181, 183-85 (4th Cir. 2013).
Prior to trial, the Government raised a potential Bruton1 problem due to its intent to
introduce co-Defendant Corsi’s statement mentioning Petitioner. It proposed using neutral
pronouns “drug supplier” or “source of supply” in place of Petitioner’s name. (Id., Doc. No. 242
at 5); see also (Id., Doc. No. 118). Petitioner’s counsel objected that the proposed pronouns are
not neutral because they imply wrongdoing, and that the jury would “certainly realiz[e]” that these
pronouns refer to Petitioner. (Id., Doc. No. 242 at 5-6). The Court overruled the objection and
found that the use of pronouns “allows the jury to understand the confession in context, but avoids
the constitutional issue in an appropriate way and in a way that’s been approved by the Fourth
Circuit.” (Id., Doc. No. 242 at 6).
The Government called numerous unindicted co-conspirators2 at trial who testified that
Petitioner was the head of a marijuana distribution organization that lasted for three years and
brought hundreds of pounds of marijuana into North Carolina from California, and transferred over

1

Bruton v. United States, 391 U.S. 123 (1968).

2
The operative indictment names as unindicted co-conspirators Keith Kraszewski, William Skach, Barrett
Fischer, Ryan Grubb, and Joyce Tedder, who pled guilty to various charges before Petitioner and co-Defendant’s trial,
at which all of them except Tedder testified. Two other unindicted co-conspirators who are not included in the
operative indictment, Sara Beth Bartholomew and Christopher Loth, also testified at trial.

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one million dollars of marijuana sale revenue from North Carolina back to California to fund
additional marijuana purchases.
The Government presented evidence that police found a firearm in the home Petitioner
shared with his girlfriend in December 2007.3 (Id., Doc. No. 268 at 141). Petitioner’s girlfriend
gave police permission to search the home when they arrived to investigate a domestic dispute.
Police discovered a firearm on the top shelf of a cabinet within inches of marijuana, money, and a
bong. (Id., Doc. No. 268 at 147-49). The Government argued that this gun possession violated §
922(g) because Petitioner had a 1991 conviction for assault with great bodily injury in violation of
California Penal Code Section 245(a)(1), which is a felony offense punishable by more than a year
in prison. Defense counsel refused to stipulate that the California conviction is a felony, arguing
that it is a misdemeanor conviction under a “wobbler” statute. The Court ruled that the California
conviction is a prior felony conviction for purposes of § 922(g), and the only issue for the jury in
that regard is whether Petitioner is the same person who was convicted in the California case. (Id.,
Doc. No. 269 at 8-10).
The Government introduced co-Defendant Corsi’s pre-arrest statement to police during
DEA Agent Christopher Morgan’s direct testimony, with the Bruton modifications it had proposed
pre-trial. During this testimony there were approximately 14 references, both by the prosecutor
and Agent Morgan, to co-Defendant’s “drug supplier” or “source of supply.” (Id., Doc. No. 270 at
84-89).
In addition to the numerous unindicted co-conspirators’ testimony, the Government also
introduced evidence of packages that Petitioner sent from California to various North Carolina
addresses that corresponded to marijuana shipments, some of which were intercepted by United

3

A second incident was alleged to have occurred in 2006, as charged in Count (4), but the jury acquitted
Petitioner of that count so it will not be discussed further in this Order.

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States Postal Inspectors, bank account activity by Petitioner and the co-conspirators in amounts
just under the $10,000 reporting limit that corresponded to marijuana purchases in California and
shipments to North Carolina, and surveillance images of Petitioner in California banks and post
offices corresponding to drug transactions and shipments.
Petitioner chose not to testify at trial or present a defense case. (Id., Doc. No. 270 at 201).
The jury found Petitioner not guilty of Count (4), and guilty of the remaining counts with
the special findings that 100 kilograms or more of a mixture or substance containing a detectable
amount of marijuana was reasonably foreseeable to Petitioner in Count (1), and that the objects of
the conspiracy in Count (2) were to violate 18 U.S.C. § 1956(a)(1)(A)(i) (with intent to promote)
and 18 U.S.C. § 1956(a)(1)(B)(ii) (with intent to avoid a transaction reporting requirement). (Id.,
Doc. No. 159).
Petitioner filed a pro se motion for new trial prior to sentencing in which he attached
“newly discovered evidence,” i.e., a 1998 California court document containing a crossed-out
entry stating “17(b) REDUCE FELONY TO MISD.” (Id., Doc. No. 201). Petitioner argued that
this entry shows that his 1991 assault conviction was reduced from a felony to a misdemeanor.
The Government filed a California court official’s declaration that no motion to reduce was filed
in Petitioner’s case, but that such a motion was filed in his co-defendant’s case, and the crossedout entry appeared to correct a human error. (Id., Doc. No. 212). The Court denied the pro se
motion for new trial because Petitioner was not diligent in uncovering the proffered evidence, and
that it would not likely alter the verdict because the crossed-out entry refers to a co-defendant.
United States v. Giles, 2011 WL 13152579, *1-2 (Aug. 15, 2011). The Fourth Circuit affirmed on
June 17, 2016, because, after reviewing the record, it found no abuse of discretion in either of
bases for the Court’s ruling. United States v. Giles, 652 Fed. Appx. 210 (4th Cir. 2016). The United

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States Supreme Court denied certiorari on March 20, 2017. Giles v. United States, 137 S.Ct. 1359
(2017).
The presentence investigation report (“PSR”) grouped together Counts (1), (2) and (5) and
used the base offense level of for violation of 18 U.S.C. § 1956, for an underlying offense from
which the laundered funds were derived, conspiracy to possess with intent to distribute marijuana,
based on the quantity of drugs for which Petitioner is responsible (at least 100 but less than 400
kilograms of marijuana). (Id., Doc. No. 237 at ¶ 30-31). Two levels were added because Petitioner
was convicted of violating 18 U.S.C. § 1956. (Id., Doc. No. 237 at ¶ 32). Four levels were added
because Petitioner was a leader/organizer of the offense. (Id., Doc. No. 237 at ¶ 34). The resulting
adjusted offense level subtotal for that group was 32. (Id., Doc. No. 237 at ¶ 36).
The base offense level for Count (3) is the base offense level of six plus the number of
offense levels corresponding to the value of the funds (14 levels) resulting in a base offense level
of 20. (Id., Doc. No. 237 at ¶ 20). Two levels were added because Petitioner knew the funds were
proceeds of unlawful activity. (¶ 38). Two more levels were added because Petitioner was
convicted of violating 31 U.S.C. § 5324 and he committed the offense as part of a pattern of
unlawful activity involving more than $100,000 in a 12-month period. (¶ 39). This resulted in an
adjusted offense level subtotal of 24 for Count (3). (Id., Doc. No. 237 at ¶ 43).
The base offense level for Counts (7) and (8) was 20 because Petitioner violated 18 U.S.C.
§ 922(g)(1) after sustaining a felony conviction for a controlled substance offense. (Id., Doc. No.
237 at ¶ 43-44). Two levels were added because the offense involved three firearms. (¶ 45). Four
levels added because Petitioner used or possessed the weapon in connection with the felony
offense of distributing marijuana. (Id., Doc. No. 237 at ¶ 46). The adjusted offense level for Counts
(7) and (8) was 26. (Id., Doc. No. 237 at ¶ 50).

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The offense guideline that produces the highest offense level is the one for Counts (1), (2)
and (5), and therefore, the adjusted offense level subtotal for that group of 32 was used. (Id., Doc.
No. 237 at ¶ 51, 52); see USSG § 3D1.3(b). No Chapter Four enhancements applied, so the
resulting total offense level was 32, plus the statutory minimum sentence for Count (6) pursuant
to § 924(c). (Id., Doc. No. 237 at ¶ 53, 55, 56). Petitioner had two criminal history points and a
criminal history category of II. (Id., Doc. No. 237 at ¶ 65). The resulting guidelines imprisonment
range was 135 to 168 months plus a mandatory consecutive five-year sentence for Count (6). (Id.,
Doc. No. 237 at 103).
The Court sentenced Petitioner in the middle of the advisory guideline range to a total of
196 months’ imprisonment (136 months as to Counts (1) and (2), 120 months as to Counts (3), (7)
and (8), 60 months as to Count (5), all concurrent, and 60 months as to Count (6), consecutive),
followed by a total of four years of supervised release. (Id., Doc. No. 250); (Id., Doc. No. 272 at
55-57).
Petitioner argued on direct appeal that the Court erred by admitting text messages obtained
from Petitioner’s cellular phone as party admissions under Fed. R. Ev. 801(d)(2)(A), rather than
statements between co-conspirators under Fed. R. Ev. 801(d)(2)(E). The Fourth Circuit affirmed
on April 12, 2013. It rejected Petitioner’s claim as refuted by the record. Further, considering the
defendants’ failure on appeal to demonstrate that any of the admitted text messages were not sent
“in the course and furtherance of the conspiracy,” it was unable to conclude that the Court abused
its discretion by admitting the text messages. United States v. Giles, 518 Fed. Appx. 181, 189 (4th
Cir. 2013) (quoting Bourjaily v. United States, 483 U.S. 171, 186 (1987)). The Fourth Circuit
further found that Petitioner’s un-briefed argument that the Court used the wrong evidentiary

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standard when determining whether a conspiracy existed at the time the text messages at issue
were sent, even if preserved, was meritless. Id.
On July 23, 2015, counsel filed a motion for sentence reduction pursuant to 18 U.S.C. §
3582, guidelines Section 1B1.10 and Amendment 782. (Id., Doc. No. 296). The Court granted the
motion on July 13, 2016, and reduced the sentence to 109 months for Counts (1), (2), (3), (7) and
(8), or time served if less than that figure, and the sentence remained unchanged for Counts (5)
and (6).
Meanwhile, Petitioner filed the instant § 2255 motion to vacate on November 14, 2014,
raising a number of claims of ineffective assistance of trial and appellate counsel, and several other
claims of constitutional error. (Doc. No. 1). The Government filed a Response addressing each of
Petitioner’s claims. (Doc. No. 6). Petitioner filed a reply. (Doc. No. 10). On June 23, 2016,
Petitioner filed a “Motion to Vacate Supplement (Johnson Claim),” in which he raises a new claim
based on Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 11).
II.

SECTION 2255 STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that the arguments
presented by Petitioner can be resolved without an evidentiary hearing based on the record and
governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions,
the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI.
To show ineffective assistance of counsel, Petitioner must first establish a deficient performance

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by counsel and, second, that the deficient performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The deficiency prong turns on whether “counsel's
representation fell below an objective standard of reasonableness ... under prevailing professional
norms.” Id. at 688. A reviewing court “must apply a ‘strong presumption’ that counsel’s
representation was within the ‘wide range’ of reasonable professional assistance.” Harrington v.
Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 689). The Strickland standard is
difficult to satisfy because the “Sixth Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
The prejudice prong inquires into whether counsel’s deficiency affected the judgment. See
Strickland, 466 U.S. at 691. A petitioner must demonstrate “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.” Id. at
694. In considering the prejudice prong of the analysis, a court cannot grant relief solely because
the outcome would have been different absent counsel’s deficient performance, but rather, it “can
only grant relief under . . . Strickland if the ‘result of the proceeding was fundamentally unfair or
unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell,
506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner “bears the burden of
affirmatively proving prejudice.” Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the
petitioner fails to meet this burden, a reviewing court need not even consider the performance
prong. Strickland, 466 U.S. at 697.
To establish prejudice in the context of appellate representation, a petitioner must show a
“reasonable probability ... he would have prevailed on his appeal” but for his counsel’s
unreasonable failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285–86 (2000); see also

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United States v. Mannino, 212 F.3d 835, 845–46 (3d Cir. 2000) (“The test for prejudice under
Strickland is not whether petitioners would likely prevail upon remand, but whether we would
have likely reversed and ordered a remand had the issue been raised on direct appeal.”).
III.

DISCUSSION

A. Claims of Ineffective Assistance of Trial Counsel
The Government argues that Petitioner’s claims ineffective assistance of trial counsel fail
on the merits. For the following reasons, the Court agrees.
1.

Petitioner contends that trial counsel was ineffective for failing to argue he

is actually innocent of violating § 922(g) because his 1991 California conviction for assault with
great bodily injury is a misdemeanor, not a felony. He appears to argue that counsel was ineffective
for failing to present at trial a 1998 document which demonstrates that the California court
converted his assault conviction into a misdemeanor. (Crim. Case No. 3:09-203-RJC-DCK, Doc.
No. 201-1 at 9).
Section 922(g)(1) makes it unlawful for a person “who has been convicted in any court of,
a crime punishable by imprisonment for a term exceeding one year” to, inter alia, “possess in or
affecting commerce, any firearm or ammunition….”
A crime is considered a felony under California law if it is punishable by death,
imprisonment in state prison, or imprisonment in county jail for 16 months, or two or three years.
Cal. Penal Code §§ 17(a), 1170(h). When a crime is punishable at the court’s discretion either by
state prison or county jail, it is a misdemeanor “for all purposes” if, inter alia, “the prosecuting
attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that
the offense is a misdemeanor, unless the defendant at the time of his or her arraignment or plea
objects to the offense being made a misdemeanor, in which event the complaint shall be amended

10

to charge the felony and the case shall proceed on the felony complaint.” Cal. Penal Code §
17(b)(3). Section 245 is a so-called “wobbler” statute because it can result in imprisonment in a
state prison greater than a year or imprisonment in a county jail for less than a year, and therefore
wobbles between a felony and a misdemeanor. United States v. Adams, 716 F.3d 1066, 1070 (8th
Cir. 2013).
Petitioner’s claim of ineffective assistance is refuted by the record insofar as counsel
argued at trial that Petitioner’s 1991 California assault conviction is a misdemeanor that cannot
support a § 922(g) violation. Counsel’s failure to discover, obtain, and present the 1998 California
document at trial was not ineffective assistance because it does not demonstrate that the California
conviction is, in fact, a misdemeanor and thus would not have probably changed the outcome of
trial. Petitioner raised this issue in his pro se motion for a new trial, at which time the Court
examined the 1998 California document and found that it did not demonstrate that Petitioner’s
1991 conviction had been converted to a misdemeanor. The Court found that the crossed-out
notation purportedly converting the felony conviction to a misdemeanor resulted from human error
and actually referred to the co-defendant. The Fourth Circuit affirmed the Court’s ruling on this
issue, Giles, 652 Fed. Appx. at 210, and it need not be reconsidered here. See generally Pepper v.
United States, 562 U.S. 476, 506 (2011) (law of the case doctrine generally provides that, “when
a court decides upon a rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case”) (quoting Arizona v. California, 460 U.S. 605, 618 (1983));
Carlson v. Boston Sci. Corp., 856 F.3d 320, 325 (4th Cir. 2017).
The Court has already determined that the 1998 document did not refer to Petitioner’s case
and would not have resulted in a different trial outcome, and the Fourth Circuit affirmed. It is

11

impossible for Petitioner to demonstrate ineffective assistance of counsel under these
circumstances.
2.

Petitioner contends that counsel was ineffective for allowing the

Government to characterize him as a “drug supplier” and “source of supply” before the jury heard
co-Defendant’s redacted confession using those terms at trial, which violated Bruton v. United
States, 391 U.S. 123 (1968).
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. In Bruton, the Supreme Court held that, in certain circumstances,
admission of a non-testifying co-defendant’s confession that inculpates the defendant violates the
Confrontation Clause because the defendant has no opportunity for cross-examination. 391 U.S.
at 126; see also United States v. Campbell, 935 F.2d 39, 43 (4th Cir. 1991) (holding that Bruton
prohibits the admission of a statement of a non-testifying co-defendant “if it could be fairly
understood to incriminate the accused”). However, a non-testifying co-defendant’s statement is
admissible if it is redacted to eliminate any reference to the defendant, Richardson v. Marsh, 481
U.S. 200, 211 (1987), or if “the defendant’s name is replaced by a symbol or neutral pronoun,”
United States v. Vogt, 910 F.2d 1184, 1191 (4th Cir. 1990). If a proffered statement of one nontestifying co-defendant becomes incriminating against another by virtue of an inference from other
evidence at trial, the Confrontation Clause may not be offended if those statements are redacted
and a proper limiting jury instruction is given. Richardson, 481 U.S. at 208–09. On the other hand,
redactions that obviously identify the defendant, even without naming him, effect a constitutional
violation that cannot be cured by a jury instruction. Gray v. Maryland, 523 U.S. 185, 195–96
(1998). Gray differentiates between statements that incriminate by inference or only when linked

12

with later evidence and those that obviously refer to a particular person or involve inferences a
jury could make even without additional evidence. Id. at 196. Only in the latter instance does a
constitutional violation occur. Id. Thus, in order for the prosecution to introduce a non-testifying
co-defendant's statement into evidence at a joint trial, the statement must be (1) properly sanitized,
and (2) accompanied by a limiting instruction that it not be used against the defendant. See
Richardson, 481 U.S. at 211; Bowie v. Polk, 2006 WL 3690652, at *1 (W.D.N.C. Dec. 11, 2006).
In the instant case, the Government introduced co-Defendant Corsi’s pre-arrest statement
via Agent Morgan’s direct examination. The prosecutor and Agent Morgan replaced
approximately fourteen references to Petitioner with “source of supply” and “drug supplier.” The
Court instructed the jury that co-Defendant’s statement could only be considered against coDefendant. See (Id., Doc. No. 270 at 216) (“You must not consider or discuss the evidence of one
defendant’s statement in any way with respect to the other defendant.”). This testimony occurred
after Skach and Fischer testified that Petitioner was one of their sources of marijuana supply,
however, both of these witnesses testified that they had other marijuana sources besides Petitioner.
See (Id., Doc. No. 268 at 72-73, 79) (Skach testifying that Gonzalez told him his “source of supply”
is Petitioner, who remained the source of supply during the relevant time period, but that he also
had another source of supply); (Id., Doc. No. 269 at 229-31) (Fischer testifying that he had several
sources of supply during the relevant time period including co-Defendant, and that he ultimately
learned that Keith Kraszeswki was getting marijuana from his roommate, Petitioner).
Petitioner’s claim of ineffective assistance is refuted by the record insofar as counsel did
raise a Bruton objection to the Government’s use of pronouns that were not neutral because they
assigned criminal liability and obviously referred to Petitioner. See (Id., Doc. No. 242 at 5-6).

13

Moreover, counsel cannot be deemed ineffective because no Bruton error occurred and,
even if it did, Petitioner was not prejudiced. The use of “supplier” and “source of supply” did not
necessarily point to Petitioner in this large drug distribution conspiracy in light of Skach and
Fischer that they had suppliers besides Petitioner. A completely non-descriptive word like
“individual” would have rendered co-Defendant’s statement difficult if not impossible to
understand, and the Court provided a limiting instruction. See, e.g., United States v. Lighty, 616
F.3d 321, 376–77 (4th Cir. 2010) (testimony that co-defendant was accompanied by “three other
people” during the offense did not violate Bruton because there was no way to facially identify the
people without more information and it would have been unclear to the jury that the statements
had been altered; only when the out of court statement is linked with in-court testimony, which
defendant had the opportunity to challenge through cross-examination, might one infer that the
out-of-court statement refers to defendant); United States v. Oliver, 513 Fed. Appx. 311, 313 (4th
Cir. 2013) (district court did not abuse its discretion by denying defendant’s motion to sever under
Bruton where defendant’s name was replaced with “the driver” because it did not result in any
obvious indication of deletion and did not, standing alone, facially incriminate the defendant); see
also United States v. Kreiser, 15 F.3d 635, 639 (7th Cir. 1994) (no Bruton error occurred when codefendant’s statement was redacted to refer to “source” during joint trial because nothing
prevented the jury from supposing that a third unindicted co-conspirator participated along with
defendant and co-defendant, the word “source” did not identify the defendant by race, age, size,
or any other means, and the court twice instructed the jury that the confession was only admissible
as to co-defendant); United States v. Green, 648 F.3d 569, 575-76 (7th Cir. 2011) (in a mortgage
fraud case, replacing defendant’s name with “straw buyer” did not violate Bruton even though it
suggested illegal activity because the phrase could have referred to a very large class of people,

14

not just the defendant, and while there was other evidence introduced at trial that implicated
defendant as the straw buyer, the link was not direct or obvious). Petitioner fails to explain what
further objection counsel could have made that would have changed the Court’s ruling under these
circumstances.
Further, there is no reasonable probability that the outcome of trial would have been
different regardless of any Bruton error due to the overwhelming evidence of Petitioner’s guilt.
See generally United States v. Lumpkin, 44 Fed. Appx. 246 (9th Cir. 2002) (finding that, if a Bruton
error occurred, it was not prejudicial); Gardner v. Ozmint, 511 F.3d 420 (4th Cir. 2007) (in a capital
case, counsel’s failure to object to the admission of co-defendant’s statements and testimony at
sentencing which revealed defendant’s graphic, inclupatory remarks and racial animus, was
deficient, but defendant was not prejudiced because there was no reasonable probability that the
jury would have issued a more lenient sentence had counsel properly handled co-defendant’s
testimony).
Therefore, Petitioner has failed to demonstrate either deficient performance or prejudice
and his Bruton claim is denied.
3.

Petitioner contends that counsel was ineffective for failing to object to the

Court’s application of a leadership role at sentencing.
A four-level aggravating role is applied “[i]f the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise extensive….” U.S.S.G.
§ 3B1.1(a). The burden is on the government to prove by a preponderance of the evidence that the
sentencing enhancement should be applied. United States v. Steffen, 741 F.3d 411, 414 (4th Cir.
2013); United States v. Grubbs, 585 F.3d 793, 803 (4th Cir. 2009); United States v. Garnett, 243
F.3d 824, 828 (4th Cir. 2001). In distinguishing between a leadership and organizational role from

15

one of mere management or supervision, factors a court should consider include “the exercise of
decision making authority, the nature of participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree
of participation in planning or organizing the offense, the nature and scope of the illegal activity,
and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1, app. Note 4.
First, Petitioner’s suggestion that the jury should have determined whether he held a
leadership role beyond a reasonable doubt, is legally incorrect. Sentencing judges may make
findings of fact under a preponderance of the evidence standard “so long as [the] Guidelines
sentence is treated as advisory and falls within the statutory maximum authorized by the jury’s
verdict.” United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008).
The Court’s application of the role enhancement to Petitioner was not objectionable
because the Government proved by a preponderance of the evidence that Petitioner was a leader
or organizer and the sentence is within the statutory maximum that the verdict authorized. The
Government introduced evidence that Petitioner was the person who had a source of high-quality
marijuana in California, repeatedly traveled to California to purchase marijuana and ship it back
to North Carolina using addresses of individuals whom he compensated for receiving the packages,
distributed the marijuana to several individuals who sold it for him, and instructed several
individuals on the procedure for depositing the cash they received from marijuana sales into bank
accounts he controlled to avoid reporting requirements and to facilitate his purchase of more
marijuana.
Petitioner’s sentence for each Count was within the statutory maximum for the relevant
offense. Count (1), conspiracy to possess with intent to distribute marijuana, is a Class B Felony
punishable by five to 40 years’ imprisonment, and Petitioner was sentenced to 136 months; Count

16

(2), conspiracy to commit money laundering, is a Class C felony punishable by up to 20 years’
imprisonment and Petitioner was sentenced to 136 months; Count (3), conspiracy to structure a
currency transaction to evade reporting requirements, is a Class C felony punishable by up to 10
years’ imprisonment and Petitioner was sentenced to 10 years; Count (5), possession with intent
to distribute marijuana is a Class D felony punishable by up to five years’ imprisonment and
Petitioner was sentenced to five years; Count (6), use and carrying a firearm during and in relation
to a drug trafficking crime, is a Class A felony punishable by not less than five years’ imprisonment
and Petitioner received five years; and Counts (7) and (8), possession of a firearm by a convicted
felon, is a Class C felony punishable by not more than 10 years’ imprisonment and Petitioner
received 10 years for each of those counts. See (Crim. Case No. 3:09-cr-203-RJC-DCK, Doc. No.
250); 21 U.S.C. §§ 841(a)(1), 846; 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(ii) and 1956(h);
31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 371; 21 U.S.C. § 841(a)(1) (t); 18 U.S.C. § 924(c); 18
U.S.C. § 922(g)(1). Petitioner’s Counsel cannot be deemed ineffective for failing to object to the
Court’s application of a four-level enhancement for a leadership or organizational role under these
circumstances.
Second, Petitioner argues that applying a leadership/organizational role is “duplicitous,”4
however, the gist of Petitioner’s claim appears to be that the application of a four-level role
enhancement to the money laundering count constituted double counting.
Double counting occurs when a provision of the Guidelines is applied to increase
punishment on the basis of a consideration that has been accounted for by application of another

Duplicity is “the joining in a single count of two or more distinct and separate offenses” and is generally
not permitted. United States v. Burns, 990 F .2d 1426, 1438 (4th Cir. 1993). A leadership enhancement derives from
the advisory sentencing guidelines and is not a separate offense, so it cannot be duplicitous by definition.
4

17

Guideline provision or by application of a statute. See United States v. Reevey, 364 F.3d 151, 158
(4th Cir. 2004). “[T]here is a presumption that double counting is proper where not expressly
prohibited by the guidelines.” United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014) (quoting
United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010)).
Petitioner fails to identify anything in the Guidelines that expressly prohibits application
of § 3B1.1 to a money laundering conspiracy, and the Court is unaware of any case law supporting
that position. See generally United States v. Bartley, 230 F.3d 667 (4th Cir. 2000) (the district
court did not clearly err by finding that defendant’s role in marijuana distribution and money
laundering conspiracies warranted a three-level enhancement).
Petitioner’s claim of ineffective assistance with regards to the leadership/organizer role is
therefore denied.
4.

Petitioner contends that his convictions violate Double Jeopardy and the

merger doctrine. His argument appears to be twofold. First, that a single agreement cannot support
conspiracy convictions for money laundering, marijuana distribution, and structuring because only
one agreement existed, and second, that the money laundering and marijuana distribution
conspiracies merge because the laundered money consisted of marijuana sales “receipts” rather
than “profits.”
The Double Jeopardy Clause of the Fifth Amendment provides that no one shall “be subject
for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. This
guarantee simply prevents “the sentencing court from prescribing greater punishment than the
legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983); United States v. Martin, 523
F.3d 281, 290 (4th Cir. 2008). It does not, however, prohibit the legislature from punishing the
same act or course of conduct under different statutes. Albernaz v. United States, 450 U.S. 333,

18

344 (1981). Thus, when a defendant violates more than one statute in a single course of conduct,
a court may impose multiple punishments without violating the Double Jeopardy Clause if the
legislature authorizes it to do so. United States v. Terry, 86 F.3d 353, 355 (4th Cir.1996).
Ultimately, a court’s “only task is to determine whether Congress intended to impose multiple
punishments,” United States v. Chandia, 514 F.3d 365, 372 (4th Cir. 2008), because “the power to
define criminal offenses and to prescribe the punishments to be imposed upon those found guilty
of them [ ] resides wholly with the Congress.” Whalen v. United States, 445 U.S. 684, 689 (1980).
This determination is guided by Blockburger v. United States, 284 U.S. 299 (1980), in
which the Supreme Court held that, “where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of a fact which the other does not.” Id. at
304. When applying this test in multiple punishment cases, a court’s “exclusive focus” is “upon
the elements of the statutory provisions in question,” rather than on the particular facts of the
underlying case. United States v. Allen, 13 F.3d 105, 109 n. 4 (4th Cir. 1993). If each provision
requires proof of a distinct element, “then multiple punishments are presumed to be authorized
absent a clear showing of contrary Congressional intent.” Terry, 86 F.3d at 356 (citing Albernaz,
450 U.S. at 340).
The so-called “merger doctrine” refers to the constitutional prohibition arising out of the
Double Jeopardy Clause against punishing a person twice for the same offense. United States v.
Belt, 516 F.2d 873, 876 (8th Cir. 1975). Merger occurs when all of the elements of the lesser
offense are necessarily included in the greater offense, so that the greater offense logically
subsumes the lesser. Coates v. State of Maryland, 436 F. Supp. 226, 230 (D. Md. 1977).

19

The elements of a money laundering conspiracy are: (1) the existence of an agreement
between two or more persons to commit one or more of the substantive money laundering offenses
proscribed under 18 U.S.C. § 1956(a) or § 1957; (2) that the defendant knew that the money
laundering proceeds had been derived from an illegal activity; and (3) that the defendant knowingly
and voluntarily became part of the conspiracy. United States v. Singh, 518 F.3d 236, 248 (4th Cir.
2008) (citing United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005)).
The elements of marijuana distribution conspiracy are: (1) an agreement to possess
marijuana with intent to distribute existed between two or more persons, (2) the defendant knew
of the conspiracy, and (3) the defendant knowingly and voluntarily became part of the conspiracy.
21 U.S.C. §§ 841(a)(1), 846; United States v. Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).
The elements of conspiracy to structure are: (1) the existence of an agreement; (2) an overt
act by one of the conspirators in furtherance of the objectives; (3) intent to agree to defraud the
United States; and (4) knowledge of the reporting requirements and an act to avoid them. 18 U.S.C.
§ 371; 31 U.S.C. § 5324(a)(3); United States v. Winfield, 997 F.2d 1076, 1082 (1993).
First, no double jeopardy violation occurred because Petitioner’s convictions for
conspiracy to commit money laundering, conspiracy to distribute marijuana, and conspiracy to
commit structuring each involve at least one element that the others do not. See, e.g., Corsi v.
United States, 2016 WL 5422110 at *4 (W.D.N.C. Sept. 26, 2016) (rejecting co-Defendant Kyle
Corsi’s § 2255 argument that his convictions for money laundering conspiracy and money
structuring conspiracy violate double jeopardy because structuring involves proof of an element
the other does not, namely, that the defendant conspired to avoid the reporting requirement under
§ 3513(a) by depositing and withdrawing less than $10,000 on each occasion). Further, Petitioner
fails to identify any clear showing of Congressional intent that these offenses not be punished

20

individually. Terry, 86 F.3d at 356 Therefore, they constitute separate offenses under the
Blockberger test and counsel was not ineffective for failing to raise a meritless double jeopardy
objection.
Second, Petitioner’s conviction for money laundering conspiracy does not merge into his
conviction for conspiracy to distribute marijuana.
At the time of Petitioner’s offenses, the federal money laundering statute did not define
“proceeds.”5 The United States Supreme Court addressed the issue in United States v. Santos, 553
U.S. 507 (2008), in which defendants involved in an illegal lottery were convicted of running an
illegal gambling business as well as money laundering offenses. The Court found that the ordinary
definition of “proceeds” should be used in the statute, however, that term has two ordinary
meanings, either “profits” or “receipts.” The Court adopted the narrower “profits” definition
pursuant to the rule of lenity. Id., at 513-14. The plurality noted that adopting the broader “receipts”
definition would create a merger problem for statutes such as illegal gambling because, “if
‘proceeds’ means ‘receipts,’ nearly every violation of the illegal-lottery statute would also be a
violation of the money-laundering statute, because paying a winning bettor is a transaction
involving receipts that the defendant intends to promote the carrying on of the lottery. Id. Since
few lotteries, if any, will not pay their winners, the statute criminalizing illegal lotteries … would
‘merge’ with the money-laundering statute.” Id. at 115-16. Justice Stevens agreed with the
plurality that proceeds should be defined as “profits” with respect to the illegal gambling statute
at issue in Santos, but suggested that the definition of “proceeds” should be determined on a case5
Congress amended the money laundering statute in May 2009 to define proceeds to include “gross receipts,”
which effectively overruled Santos. Fraud Enforcement and Recovery Act of 2009, Pub.L. No. 111–21, § 2(f)(1), 123
Stat. 1617, 1618 (2009) (codified at 18 U.S.C. § 1956(c)(9)). Nevertheless, because the amendment was not enacted
at the time of the conduct giving rise to Petitioner’s convictions, this expanded definition of “proceeds” does not apply
in this case. See Hines v. Drew, 634 Fed. Appx. 918, 924 (4th Cir. 2015).

21

by-case basis, “thereby implying that the ‘profits’ definition is only warranted in the context of
crimes creating such merger problems.” Hines v. Drew, 634 Fed. Appx. 918 (4th Cir. 2015); see
Santos, 553 U.S. at 525-26 (Stevens, J., concurring in part) (stating that “this Court need not pick
a single definition of ‘proceeds’ applicable to every unlawful activity, no matter how incongruous
some applications may be” where, for instance, it is clear from the legislative history that Congress
intended the term “proceeds” to include gross revenues for offenses such as sale of contraband and
the operation of organized crime syndicates involving such sales).
Viewing the Santos plurality opinion and Justice Stevens’ concurrence on their “narrowest
grounds,” the Fourth Circuit reads Santos to hold that, “when a merger problem arises in the
context of money laundering and illegal gambling, the required solution is to define the proceeds
of the illegal gambling business as its net profits.” United States v. Halstead, 634 F.3d 270, 279
(4th Cir. 2011). On the other hand, when a merger problem arises in the context of money
laundering and an illegal activity other than illegal gambling, Justice Stevens’ opinion requires
addressing that situation on a case-by-case approach. Id. “Thus, when the illegal activity includes
money transactions to pay for the costs of the illegal activity, a merger problem can occur if the
government uses those transactions also to prosecute the defendant for money laundering. An
individual cannot be convicted for money laundering for paying the ‘essential expenses of
operating’ the underlying crime.” Id. at 279 (quoting Santos, 553 U.S. at 528). However, when the
financial transactions of the predicate offenses are different from the transactions prosecuted as
money laundering, the merger problem recognized in Santos does not even arise. Id.
In the instant case, the substantive offense supporting the charge of conspiracy to commit
money laundering is a charge of conspiracy to distribute marijuana. See (Id., Doc. No. 102 at 34). Petitioner’s conviction for conspiracy to distribute marijuana does not merge with the money

22

laundering conspiracy because an actual financial transaction is not an element of the drug offense,
and thus, Santos does not apply at all. See United States v. Webster, 623 F.3d 901 (9th Cir. 2010)
(“Because neither the conspiracy nor the drug possession count against [defendant] presents a
merger problem, neither requires narrowly defining ‘proceeds’ as ‘profits’ for the money
laundering counts”); United States v. Payton, 437 Fed. Appx. 241, 242–43 (4th Cir. 2011)
(conviction for possession with intent to distribute cocaine base does not merge into a money
laundering conviction because an actual financial transaction is not an element of the drug offense).
Petitioner’s argument that the Government was required to prove that he used “profits” rather than
“receipts” from the marijuana distribution in his money laundering offense, is legally incorrect.
Therefore, counsel was not ineffective for failing to raise these meritless double jeopardy
and merger claims, and § 2255 relief will be denied.
B. Claims of Ineffective Assistance of Appellate Counsel.
The Government argues that Petitioner’s claims of ineffective assistance of appellate
counsel fail on the merits. For the following reasons, the Court agrees.
1.

Petitioner contends that counsel was ineffective for failing to investigate

Petitioner’s claim that his 1991 California conviction is not a felony, and argue on direct appeal
that he is actually innocent of violating § 922(g).
The record reveals that Petitioner does have a predicate felony conviction to support his §
922(g) offense for the reasons set forth in Section A(1), supra. Appellate counsel cannot be deemed
ineffective for failing to raise this meritless claim on direct appeal.
2.

Petitioner contends that appellate counsel was ineffective for conceding that

Petitioner’s confrontation rights were not violated under Bruton.

23

Petitioner’s argument that appellate counsel was deficient for failing to a Bruton error on
direct appeal is meritless because, even if a Bruton error occurred at trial, it was harmless in light
of the overwhelming evidence of Petitioner’s guilt. See Section (III)(A)(2), supra. Therefore there
is no reasonable probability that it would have succeeded had counsel raised it on direct appeal.
See generally Schneble v. Florida, 405 U.S. 427, 430 (1972) (Bruton error does not automatically
require reversal of the ensuing criminal conviction if the properly admitted evidence of guilt is so
overwhelming, and the prejudicial effect of the codefendant's admission is so insignificant by
comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was
harmless error). Appellate counsel cannot be deemed ineffective for failing to raise this meritless
claim. See Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“by definition, appellate counsel
cannot be ineffective for a failure to raise an issue that lacks merit.”).
3.

Petitioner contends that counsel was ineffective for conceding, without

Petitioner’s authorization, that he consented to the search of his iPhone where the search was
actually unconstitutional.
The Government presented evidence at trial that Petitioner’s iPhone was inside the backpack
he was carrying when agents arrested him pursuant to a federal warrant. (Crim. Case No. 3:09-cr203-RJC-DCK, Doc. No. 269 at 295) (Agent John Nash testifying that, upon his arrest, Petitioner
gave consent to search his car and had a backpack with him that his phone was inside); (Id., Doc.
No. 270 at 27) (Agent Chris Morgan testifying that he went to arrest Petitioner on October 26,
2009, pursuant to an arrest warrant). Petitioner’s contention that the warrant agents obtained to
search the iPhone was somehow defective, is conclusively refuted by the record. See (Doc. No. 61). Because Petitioner has failed to demonstrate that a Fourth Amendment violation occurred, he
cannot demonstrate that appellate counsel was ineffective for conceding the legality of the search

24

on direct appeal. See generally Berrier v. Shanahan, 2014 WL 174777, at *4 (M.D.N.C. Jan. 13,
2014). Even if counsel articulated the wrong basis for the concession on direct appeal, or did so
without Petitioner’s consent, Petitioner is unable to demonstrate prejudice because the Fourth
Amendment claim is meritless.
4.

Petitioner appears to contend that counsel was ineffective for failing to

assert issues Petitioner raised at the sentencing hearing about merger his leadership role.
Appellate counsel cannot be deemed ineffective for failing to raise these meritless issues
for the reasons set forth in Section A(4), supra. See Greer, 264 F.3d at 676.
5.

Petitioner appears to contend that counsel was ineffective for failing to

argue that the jury did not determine a drug quantity beyond a reasonable doubt for the conspiracy
to distribute marijuana charged in Count (1), having only found in the jury instructions and verdict
form that he possessed a “detectable amount” of marijuana, rather than a specific quantity which
violated the Sixth Amendment pursuant to Alleyne v. United States, 133 S.Ct. 2151 (2013). Had
counsel raised this issue on direct appeal, Petitioner’s maximum sentence would have been five
years’ imprisonment.
The Sixth Amendment requires that any fact “[o]ther than the fact of a prior conviction ...
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). In Alleyne, the Supreme Court held that facts which increase mandatory minimum
sentences must be either admitted by defendant or submitted to the jury and established beyond a
reasonable doubt. 133 S.Ct. at 2163.
Conviction for conspiracy to distribute narcotics requires proof beyond a reasonable doubt:
(1) “an agreement between two or more persons to engage in conduct that violates a federal drug
25

law;” (2) “the defendant’s knowledge of the conspiracy;” and (3) ‘the defendant’s knowing and
voluntary participation in the conspiracy.” United States v. Kellam, 568 F.3d 125, 139 (4th Cir.
2009). The drug quantity attributable to a defendant charged with conspiracy is “the amount [he]
agreed to distribute or possess with intent to distribute as well as the amount agreed to be
distributed or possessed with intent to distribute by co-conspirators in furtherance of the conspiracy
that were known to [him] or reasonably foreseeable to [him].” United States v. Jones, 658 Fed.
Appx. 188, 190 (4th Cir. 2016) (citing United States v. Hickman, 626 F.3d 756, 763-72 (4th Cir.
2010); United States v. Brooks, 524 F.3d 549, 557-59 (4th Cir. 2008)). “[A] trial court is therefore
obligated to instruct a jury to use Pinkerton6 principles to determine the quantity of drugs
attributable to each individual defendant involved in a drug conspiracy.” Brooks, 524 F.3d at 558.
That is, “[a] defendant convicted of conspiracy should be sentenced not only on the basis of his
conduct, but also on the basis of conduct of coconspirators in furtherance of the conspiracy that
was known to the defendant or reasonably foreseeable to him.” United States v. Williams, 986
F.2d 86, 90 (4th Cir. 1993).
No Alleyne violation occurred because the Court sentenced Petitioner in accordance with
the amount of marijuana found by the jury beyond a reasonable doubt. Petitioner was charged in
Count (1) with conspiracy to possess with intent to distribute marijuana involving 100 kilograms
or more of a mixture and substance containing a detectable amount of marijuana, which is
punishable by not less than five, and not more than forty, years’ imprisonment. 21 U.S.C. §
841(a)(1), (b)(1)(B), 846. The Court instructed the jury with regards to Count (1) that, if it
unanimously concluded beyond a reasonable doubt that the substance was marijuana, it must then
determine the quantity of the substance “which was possessed in furtherance of the conspiracy and

6

Pinkerton v. United States, 328 U.S. 640 (1946).

26

was reasonably foreseeable to the defendant. Acts are reasonably foreseeable if they can be
reasonably foreseen as a necessary or natural consequence of the conspiracy….” (Crim. Case No.
3:09-cr-203-RJC-DCK, Doc. No. 270 at 279). The jury found Petitioner guilty in Count (1) of
conspiracy to distribute or possess with intent to distribute a mixture or substance containing a
detectable amount of marijuana in violation of 21 U.S.C. §§ 841 and 846, and also unanimously
found that 100 kilograms or more of a mixture or substance containing a detectable amount of
marijuana was “reasonably foreseeable to the defendant[.]” (Id., Doc. No. 159 at 1).
The Court instructed the jury in accordance with Pinkerton principles and the jury
unanimously found beyond a reasonable doubt that the amount of marijuana reasonably
foreseeable to Petitioner was 100 kilograms or more. Therefore, his sentence of 136 months’
imprisonment for Count (1) was within the 40-year statutory maximum for that offense and no
Alleyne violation occurred. See, e.g., Jones, 658 Fed. Appx. at 190 (finding that the evidence was
sufficient to support a conviction for conspiracy to distribute and possess with intent to distribute
one kilogram or more of heroin where there was substantial evidence that one kilogram or more
of heroin was reasonably foreseeable to her).
Appellate counsel cannot be deemed ineffective for failing to raise a meritless Alleyne
issue on direct appeal. See Greer, 264 F.3d at 676.
6.

Petitioner contends that appellate counsel was ineffective for failing to

argue a fatal variance occurred when the Court constructively amended the indictment by
instructing the jury that it could consider dates other than the one charged in Counts (5) and (6).
A fatal variance occurs “[w]hen the government, through its presentation of the evidence
and/or its argument, or the district court, through its instructions to the jury, or both, broadens the
bases for conviction beyond those charged in the indictment, a constructive amendment …
27

occurs.” United States v. Randall, 171 F.3d 195 (4th Cir. 1999) (citing United States v. Redd, 161
F.3d 793, 795 (4th Cir. 1998)). A constructive amendment is a fatal variance because the
indictment is altered “to change the elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the indictment” and thus violates the Fifth
Amendment. United States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991); see United States v.
Floresca, 38 F.3d 706, 712-13 (4th Cir. 1994) (en banc). However, not all differences between an
indictment and the proof offered at trial rise to the level of a fatal level of constructive amendment.
See Redd, 161 F.3d at 795. When different evidence is presented at trial but the evidence does
not alter the crime charged in the indictment, a “mere variance” occurs. Randall, 171 F.3d at 203.
A mere variance does not violate a defendant’s constitutional rights unless it prejudices him either
by surprising him at trial and hindering the preparation of his defense, or by exposing him to the
danger of a second prosecution for the same offense. Id. When an indictment alleges that a crime
occurred “on or about” a certain date, “proof need only establish beyond a reasonable doubt that
the crime occurred on a date reasonably near that alleged.” United States v. Ward, 676 F.2d 94,
96 (4th Cir. 1982).
Under Rule 404(b) of the Federal Rules of Criminal Procedure, “[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
This rule is inclusive, “admitting all evidence of other crimes or acts except that which tends to
prove only criminal disposition.” United States v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001).
To be admissible under Rule 404(b), prior bad act evidence “must be relevant to an issue other
than character, … necessary to prove an element of the crime charged, … [and] reliable.” United

28

States v. Blauvelt, 638 F.3d 281, 292 (4th Cir. 2011). Finally, the “probative value [of the
evidence] must not be substantially outweighed by its prejudicial nature.” Id. “In drug cases,
evidence of a defendant’s prior, similar drug transaction is generally admissible under Rule 404(b)
as evidence of the defendant’s knowledge and intent.” United States v. Cabrera-Beltran, 660 F.3d
742, 755 (4th Cir. 2011).
Petitioner was charged in Count (5) and (6) with possession with intent to distribute a
detectable amount of marijuana and possession of a firearm in furtherance of a drug trafficking
crime, respectively, both of which allegedly occurred “[o]n or about December 3, 2007….” (Crim.
Case No. 3:09-203-RJC-DCK, Doc. No. 102 at 12).
First, Petitioner’s suggestion that the jury found him guilty in Count (6) of committing an
offense on a date other than that charged is refuted by the record. The Court instructed the jury in
accordance with the date charged in the indictment, on December 3, 2007, and the verdict form
for Count (6) specifies that the offense occurred “on or about” that date. (Id., Doc, No. 159 at 2).
Second, Petitioner’s argument that a fatal variance occurred with regards to Count (5) is
meritless. During deliberations, the jury sent out a question asking: “As to Count Five, are we the
jury only to consider the marijuana the police found on December 3rd, 2007 as it relates to intent
to distribute?” (Id., Doc. No. 271 at 3). The Court proposed re-instructing the jury regarding
Section 404(b) and Count (5), but Petitioner’s counsel objected, arguing that the correct answer
is “yes.” (Id., Doc. No. 271 at 4). The Court explained that simply answering “yes” would
artificially limit the jury’s view of the evidence because other acts of possession with intent to
distribute can go to Petitioner’s intent on December 3, 2007. (Id., Doc. No. 271 at 5). The Court
accordingly instructed the jury that events that occurred on dates other than December 3, 2007,
could be considered for the “very limited purpose” of determining whether he had “the state of

29

mind or intent necessary to commit the crime charged in Count Five of the indictment….” (Id.,
Doc. No. 271 at 6-7).
The Court’s response to the jury’s question clarified that the charged offense was alleged
to have occurred on December 3, 2007, but that other dates could be considered when determining
intent pursuant to Section 404(b). This instruction accords with the applicable law and charged
offense, and did not invite the jury to find Petitioner guilt of any offense other than those charged
in the indictment. See generally Cabrera-Beltran, 660 F.3d at 755–56 (evidence of exceedingly
similar where the same drugs were sold in similar quantities and transported in a similar manner,
even allegedly using the same car in one instance, helped establish the existence of a continuing
distribution scheme, it was admissible under Rule 404(b)); United States v. Hodge, 354 F.3d 305,
312 (4th Cir. 2004) (“[T]he evidence of [a defendant’s prior] drug transactions was relevant and
necessary in that it tended to show the existence of a continuing narcotics business....”). No fatal
variance occurred under these circumstances and appellate counsel cannot be deemed ineffective
for failing to raise a meritless argument on direct appeal. See Greer, 264 F.3d at 676.
Therefore, Petitioner’s claims of ineffective assistance of appellate counsel will be denied.
C. Other Claims of Constitutional Error
Finally, Petitioner raises additional constitutional claims that are procedurally defaulted
and/or meritless.
1.

Petitioner contends that his conviction and sentence for violating § 922(g)

violate the Fifth, Sixth, Thirteenth and Fourteenth Amendments because the predicate conviction
upon which the Court relied is a misdemeanor under California law. The Government argues that
this claim is procedurally defaulted from § 2255 review because Petitioner could have, but did not,

30

raise it on direct appeal. Petitioner appears to argue that any procedural default is excused because
he is actually innocent of violating § 922(g).
Claims that could have been, but were not, raised on direct appeal are procedurally
defaulted from § 2255 review. See Murray v. Carrier, 477 US. 478, 485 (1986); United States v.
Frady, 456 U.S. 152, 165 (1982); Bousley v. United States, 523 U.S. 614, 621-22 (1998).
Procedurally defaulted claims can nevertheless be reviewed if the petitioner demonstrates “cause
and prejudice” or shows that he is “actually innocent” of the charges against him. See Murray, 477
U.S. at 485.
When using ineffective assistance of counsel to excuse procedural default of another
independent claim, counsel must have been so wholly deficient as to violate Petitioner's Sixth
Amendment right. Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citing Murray, 477 U.S. at
488–89). Thus, Petitioner must show that by failing to challenge these issues, counsel’s
performance fell below an objective standard of reasonableness, and that he was prejudiced by
such constitutionally deficient representation. Strickland, 466 U.S. at 668. The Supreme Court has
explained that while ineffective assistance of counsel may establish cause for a procedural default,
“the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to
raise the claim despite recognizing it, does not constitute cause for a procedural default.” Murray,
477 U.S. at 486.
Actual innocence means “factual innocence, not mere legal insufficiency.” Bousley, 523
U.S. at 623. To establish actual innocence, a petitioner must demonstrate that it is “more likely
than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S. 298, 327
(1995).

31

First, Petitioner's assertion that his procedurally defaulted claims were not raised at trial or
on appeal because of counsel’s deficient performance falls short of establishing “cause” for his
procedural default. Neither trial nor appellate counsel was objectively unreasonable for failing to
raise these claims because they are meritless. See Sections A(1), B(1), supra. Therefore,
ineffective assistance of counsel does not excuse his procedural default of these claims and they
are dismissed.
Second, Petitioner’s claim of actual innocence fails because he was not convicted of a
crime of which he is actually innocent. Petitioner’s 1991 California conviction is a felony offense
for purposes of § 922(g), therefore, Petitioner is unable to demonstrate that he is actually innocent
of that offense. See Sections A(1), B(1), supra.
Third, even if this claim was not procedurally defaulted, it would fail on the merits because
Petitioner’s 1991 conviction is, in fact, a felony, and no constitutional error occurred. Id.
Therefore, this claim is dismissed as procedurally defaulted and, even if it were not
defaulted, it would be denied on the merits.
2.

Petitioner contends that his conviction for marijuana offenses violates equal

protection under the Fourteenth Amendment because citizens of other states including California
are not equally subject to criminal liability under marijuana laws.
The Equal Protection Clause of the Fourteenth Amendment provides that “no State shall
deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend.
XIV § 1. Although the Fifth Amendment, unlike the Fourteenth, does not contain an equal
protection clause, it does contain an equal protection component. Bolling v. Sharpe, 347 U.S. 497,
499 (1954). Therefore, the “approach to Fifth Amendment equal protection claims has ... been

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precisely the same as to equal protection claims under the Fourteenth Amendment.” Weinberger
v. Wiesenfeld, 420 U.S. 636, 638, n. 2 (1975); Wayte v. United States, 470 U.S. 598, 610 (1985).
Petitioner’s pro se pleadings are entitled to liberal construction, Haines v. Kerner, 404 U.S.
519 (1972), and therefore Petitioner’s due process claim will be addressed under the Fifth, rather
than Fourteenth, Amendment.
If a law neither burdens a fundamental right nor targets a suspect class, courts will uphold
the legislative classification “so long as it bears a rational relation to some legitimate end.” Romer
v. Evans, 517 U.S. 620, 631 (1996); see also Cleburne v. Cleburne Living Center, Inc., 473 U.S.
432, 440 (1985) (“legislation is presumed to be valid and will be sustained if the classification
drawn by the statute is rationally related to a legitimate state interest”). The rational basis standard
applies if there is no suspect or quasi-suspect class status at issue such as race, alienage, national
origin, or sex that would invoke a higher level of scrutiny. See, e.g., Cleburne, 473 U.S. at 440–
42.
It has been repeatedly held that there is no fundamental right to use or possess or distribute
marijuana. See United States v. Fry, 787 F.2d 903, 905 (4th Cir. 1986) (“There is no fundamental
right to produce or distribute marijuana commercially.”). Therefore, the rational basis standard
applies to Petitioner’s equal protection claim. Kuromiya v. United States, 37 F. Supp. 2d 717, 727–
28 (E.D. Pa. 1999).
The statutes under which Petitioner was convicted pass the rational basis test. Congress’
actions allowing jurisdictions to determine for themselves whether to suspend their local
prohibitions on the use and distribution of marijuana for medical purposes, does not violate equal
protection. “Local decriminalization notwithstanding, the unambiguous federal prohibitions on
medical marijuana use set forth in the CSA continue to apply equally in both jurisdictions, as does
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the ADA's illegal drug exclusion. There is no unequal treatment, and thus no equal protection
violation.” James v. City of Costa Mesa, 700 F.3d 394, 405 (9th Cir. 2012); see Boos v. Barry,
485 U.S. 312, 333 (1988) (remarking that a statute could only run afoul of the Equal Protection
Clause if construed to generate unequal treatment).
Petitioner’s equal protection challenge to his convictions for conspiracy to possess with
intent to distribute and possession with intent to distribute marijuana are meritless and will be
denied.
3.

Finally, Petitioner argues in his supplemental § 2255 motion to vacate that

his § 924(c) conviction and sentence violate due process because he lacks the requisite predicate
convictions for a crime of violence or drug trafficking offense pursuant to Johnson v. United States,
135 S.Ct. 2551 (2015). (Doc. No. 11).
Section 924(c) prohibits using or carrying a firearm “during and in relation to any crime of
violence or drug trafficking crime….” A “drug trafficking crime” is “any felony punishable under
the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.” 18 U.S.C. § 924(c)(2). A “crime of
violence” under § 924(c) means an offense that is a felony and “(A) has as an element the use,
attempted use, or threatened use of physical force against the person or property of another, or (B)
that by its nature, involves a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C.A. § 924(c)(3). The
italicized language is sometimes referred to as the “risk-of-force” clause.
Johnson announced that the Armed Career Criminal Act’s (“ACCA”) residual clause7 is
void for vagueness, and that holding is a retroactively applicable right. Id.; Welch v. United States,

7

ACCA defines a “violent felony” as any felony that:

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136 S.Ct. 1257, 1265 (2016). Johnson addresses only ACCA’s residual clause and “does not call
into question application of the Act to the four enumerated offense, or to the remainder of the Act’s
definition of a violent felony.” Johnson, 135 S.Ct. at 2563.
Petitioner seeks to extend Johnson’s void-for-vagueness holding to § 924(c)(3)’s risk-offorce clause. The Fourth Circuit has not yet determined Johnson’s applicability to § 924(c)(3)(B)
and the other circuits are split on the issue.8 This Court need not decide the issue in this case
because Johnson is factually inapplicable to Petitioner’s case. In Count (6), Petitioner was
convicted of possession of a firearm in furtherance of a drug trafficking crime, i.e., possession with
intent to distribute a mixture and substance containing a detectable amount of marijuana in Count
(5). Therefore, even if Johnson invalidated § 924(c)’s risk-of-force clause, it would have no
bearing on Petitioner’s conviction in Count (6) which is based on a drug trafficking crime.

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another;
or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C.A. § 924(e)(2)(B) (emphasis added). The italicized portion of the definition is referred to as the residual
clause.
8

The majority of circuits have held that Johnson does not apply to, or invalidate, § 924(c)(3)(B) because of
significant textual differences between ACCA’s residual clause and § 924(c)(3)(B)’s so-called risk-of-force clause.
See United States v. Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016), petition for cert. filed (U.S. Dec. 30, 2016) (No.
16-7373); United States v. Hill, 832 F.3d 135, 145-49 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 375-79
(6th Cir. 2016), petition for cert. filed (U.S. Oct. 12, 2016) (No. 16-6392); Ovalles v. United States, 861 F.3d 1257
(11th Cir. 2017); see also United States v. Davis, 677 Fed. Appx. 933, 936–37, 2017 WL 436037, at *2 (5th Cir. Jan.
31, 2017) (unpublished), petition for cert. filed (U.S. May 3, 2017) (No. 16-8997). Only the Seventh Circuit has held
that Johnson applies to invalidate § 924(c)(3)(A). See United States v. Cardena, 842 F.3d 959, 995-99 (7th Cir. 2016).
Even it has acknowledged that “the case for distinguishing § 924(c)(3)(B) is not altogether unconvincing,” but has
held that it is bound by its precedents holding that § 924(c)(3)(B) is unconstitutionally vague until the United States
Supreme Court holds otherwise pursuant to stare decisis. United States v. Jackson, 865 F.3d 946, 954 (7th Cir. 2017);
see United States v. Vivas-Ceja, 808 F.3d 719, 721 (7th Cir. 2015) (finding that Johnson invalidates the residual clause
in 18 U.S.C. § 16(b)); United States v. Cardena, 842 F.3d 959 (7th Cir. 2016) (relying on Vivas-Ceja to hold that the
“residual clause” in § 924(c)(3)(B) is the same as the one in § 16(b) and therefore is also unconstitutionally vague).

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Petitioner’s suggestion that his conviction in Count (5) for violating 21 U.S.C. § 841(a)(1)
is not a “drug trafficking crime” under § 924(c)(2), is incorrect. The Fourth Circuit has long
recognized that possession with intent to distribute in violation of 21 U.S.C. § 841(a)(1) is a “drug
trafficking crime” pursuant to § 924(c). See United States v. James, 834 F.2d 92, 92-93 (4th Cir.
1987) (Ҥ 924(c) by its terms unambiguously applies to crimes of possession with intent to
distribute”). Petitioner’s argument that his conviction in Count (5) is invalid because it violates
equal protection is meritless for the reasons set forth in Section C(2), supra. To the extent that
Petitioner attempts to argue there was insufficient evidence to support Count (5), and thus an
inadequate basis to find a § 922(g) violation, this claim is procedurally defaulted and meritless.
See generally Section C(1), supra.
Therefore, Johnson does not apply to Petitioner’s case and his supplemental § 2255 motion
to vacate is denied.
IV.

CONCLUSION

For the foregoing reasons, the Court dismisses and denies Petitioner’s § 2255 petition and
supplemental motion to vacate.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), and his “Motion to Vacate Supplement (Johnson Claim),” (Doc.
No. 11), are DISMISSED and DENIED.

2.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338
(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

36

jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is
denied on procedural grounds, a petitioner must establish both that the dispositive
procedural ruling is debatable and that the petition states a debatable claim of the
denial of a constitutional right).

Signed: September 8, 2017

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