Bud THEUS III, Appellant, v. UNITED STATES of America, Appellee.
No. 09-1015.
United States Court of Appeals, Eighth Circuit.
Submitted: Nov. 18, 2009. Filed: July 13, 2010.
611 F.3d 441
Before RILEY, Chief Judge,1 WOLLMAN, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
Bud Theus III was convicted of conspiracy to distribute or possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine, in violation of
I.
Theus and five other individuals were indicted for conspiracy related to the distribution and possession with intent to distribute five kilograms of cocaine in South Dakota. Theus and co-defendant Juan Rodriguez went to trial, a five-day affair during which the remaining four co-defendants testified against Rodriguez. None of the named co-conspirators testified to knowing Theus or his involvement in the conspiracy. Theus was not a member of the conspiracy charged in the indictment. Instead, he was a member of a different conspiracy, involving two co-conspirators who were not charged in the indictment, Genaro Delbosque and Roosevelt Scott.
Delbosque testified that he regularly sold powder cocaine to Theus. Once or twice a week over the course of one and a half years, Theus would order one or two ounces of cocaine from Delbosque. Theus always paid cash, never taking the drugs on consignment. Delbosque testified that he did not know what Theus did with the drugs.
Scott, Theus‘s uncle, moved in with Theus in November 2003, after being released from prison. He lived with Theus for about two months and first saw drug activity on November 3 or 4, 2003. Scott testified that he observed Delbosque deliver an ounce of cocaine to Theus, who paid cash for the drugs. Shortly thereafter, Theus gave Scott half an ounce of cocaine so that Scott could enter the business. Scott converted the powder cocaine into crack cocaine and sold it, eventually paying Theus $450 for the half ounce of powder cocaine. Theus also gave Scott a cellular phone, which Theus‘s customers would call to order crack cocaine. Scott testified that
Theus traveled to Louisiana after Scott had moved in with him. He left Scott a half ounce of crack cocaine, his cellular phone, and Delbosque‘s phone number. Scott sold Theus‘s crack cocaine and ordered two ounces of powder cocaine from Delbosque, one for himself and one for Theus. After Theus returned to Sioux Falls, South Dakota, he resumed his drug activities. Sometimes, he would distribute crack cocaine to Scott‘s customers during the late-night hours. One of Theus‘s customers testified that he purchased crack cocaine from Theus from 2003 through 2004, buying $100 quantities two to three times each week. Other than the half ounce of cocaine Theus gave to Scott, there was no evidence that Theus distributed powder cocaine.
At the close of the government‘s case and again at the close of the trial, Theus‘s attorney moved for judgment of acquittal, arguing that, although there “may be evidence Mr. Theus sold drugs and bought drugs,” the government failed to establish that Theus was a member of the charged conspiracy. The district court took the motion under advisement and submitted the case to the jury.
The jury was instructed to determine whether:
[T]here were really two or more separate conspiracies to commit the crime of distribution or possession with intent to distribute a mixture or substance containing cocaine-one between [the named co-conspirators, Delbosque,] and Juan Rodriguez to commit the crime of conspiracy to distribute or possess with intent to distribute 5 kilograms or more of a mixture or substance containing cocaine; and another between Bud Theus III and co-conspirators Genaro Delbrosque (sic) and Roosevelt Scott to commit the crime of conspiracy to distribute crack cocaine.
The Government must convince you beyond a reasonable doubt that each Defendant was a member of the conspiracy charged in the Indictment. If the Government fails to prove this as to a Defendant, then you must find that Defendant not guilty of the conspiracy charge, even if you find that he was a member of some other conspiracy. Proof that a Defendant was a member of some other conspiracy is not enough to convict.
The jury was provided a verdict form that allowed it to determine whether Theus was guilty of the offense charged in the indictment or of a lesser included offense. Accordingly, the jury could find that the conspiracy involved the following amounts of a mixture or substance containing cocaine: (1) five kilograms or more, (2) 500 grams or more, or (3) some lesser amount. The jury found Theus guilty of conspiracy to distribute or possess with intent to distribute five kilograms of a mixture or substance containing cocaine. Theus‘s counsel did not move for a new trial.
In a post-trial order, the district court stated that “the Government has not proven beyond a reasonable doubt that Bud Theus, III was a member of the charged conspiracy.... The Government did prove beyond a reasonable doubt that Bud Theus, III had possession of prohibited drugs with the intent to distribute those drugs and that he did in fact distribute such drugs.” D. Ct. Order of July 10, 2006, at 1. The district court ordered the parties to submit their respective positions on the case. Id. Theus argued for acquittal; the government argued that there was only one conspiracy and that the jury‘s verdict should stand.
The district court concluded that a variance existed between the indictment and the proof. D. Ct. Order of Aug. 29, 2006.
Evidence of the two conspiracies was quite distinct. Theus was buying powder cocaine and rocking it up and then selling the crack cocaine himself or through Roosevelt Scott. It would not have been difficult for the jury to compartmentalize the evidence. The Court does not find any spill over prejudice from the evidence of the charged conspiracy. The trial focused on Juan Rodriguez and the extensive evidence regarding his powder cocaine distribution. It was easy to compartmentalize from the separate and less extensive but strong evidence concerning Theus and his crack distribution.
Id. Theus‘s motion for judgment of acquittal was denied, and his sentencing hearing was scheduled.
The presentence investigation report (PSR) attributed 1.02 kilograms of cocaine to Theus based on the amount of powder cocaine that he purchased from Delbosque. The PSR stated that “[s]ince the defendant was charged in a conspiracy involving powder cocaine, that is used for purposes of computing the guidelines.” The PSR determined that Theus‘s base offense level under
At sentencing, the district court rejected the government‘s argument that Theus‘s base offense level should have been based on five kilograms or more of powder cocaine. “The government is lucky, frankly, that the Court on the basis of what wasn‘t argued by anybody affirmed the conviction on a separate analysis. I understand your position, but I don‘t agree with the five k[ilogram] or more that the jury found with regard to this defendant. It isn‘t supportable by the evidence.” The district court sentenced Theus to 120 months’ imprisonment, the mandatory minimum for distributing or possessing with intent to distribute five kilograms or more of a mixture or substance containing cocaine. The district court expressed that “if the Court had an option, because of some other positive things that you have shown, the Court would like to be able to sentence you within the advisory guideline range which is 70 to 87 months, but the Court can‘t do that.”
Theus appealed his conviction, arguing that the evidence was insufficient to support his conviction and that the district court erred by failing to recognize that the variance between the conspiracy for which Theus was convicted and the one alleged in the indictment affected his substantial rights. After receiving Theus‘s pro se motion for leave to file a supplemental citation, we ordered counsel to file simultaneous supplemental briefs on Theus‘s contention that he suffered prejudice as a result of the spillover of evidence from one conspiracy to another. Theus‘s attorney did not submit a supplemental brief.
During oral argument before our court, Theus‘s counsel was asked whether Theus suffered any sentencing prejudice as a result of the variance. He responded that there was no substantial prejudice to Theus‘s rights because the district court “took into account the lower quantity of drugs involving Bud Theus.” When asked whether there was any argument that Theus was unfairly sentenced, counsel responded, “No. I would have appealed that issue if that were the case.” We affirmed the judgment of the district court, concluding that “even if there was a variance, Theus‘s substantial rights were not affected and that sufficient evidence supports his conviction.” Theus, 230 Fed.Appx. at 643.
Theus moved to vacate, set aside, or correct his sentence, arguing that counsel was ineffective for failing to move for a new trial under
We appointed counsel to present the two issues certified for appeal: (1) whether counsel was ineffective for failing to move for a new trial and (2) whether counsel was ineffective for failing to submit the supplemental brief required by our order.
II.
The Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. To establish a claim for ineffective assistance of counsel, a § 2255 movant must demonstrate that counsel‘s representation was deficient and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is that which falls below the “range of competence demanded of attorneys in criminal cases.” Id. at 687 (internal quotations and citation omitted). “[T]he defendant must overcome the presumption that, under the
A.
Theus has failed to show that his attorney‘s performance was deficient in failing to move for a new trial. Counsel moved for judgment of acquittal, arguing that the government failed to prove the conspiracy charged in the indictment. In Theus‘s case, the decision to move for judgment of acquittal rather than for a new trial may be deemed sound trial strategy, even though the standard for the latter is less stringent. See generally United States v. Coplen, 533 F.3d 929, 931 (8th Cir.2008) (“In ruling on a motion for a new trial under
We disagree with Theus‘s contention that his case is analogous to United States v. Hilliard, 392 F.3d 981 (8th Cir.2004). In Hilliard, counsel failed to timely file post-trial motions, even though the district court had directed him to do so and had remarked that it “had grave reservations about the jury verdict.” Id. at 985. We affirmed the district court‘s subsequent grant of relief under § 2255. “Not filing a dispositive motion, particularly when directed to do so by the district court, is a classic dereliction of an attorney‘s obligation to provide his client with the type of performance required by the Sixth Amendment.” Id. at 986. The district court held that it would have granted the motion for a new trial if it had been filed, and thus the defendant showed that proceedings would have been different if the lawyer had acted competently. Id. at 987. Unlike the attorney in Hilliard, Theus‘s counsel timely filed a motion for judgment of acquittal. In denying Theus‘s § 2255 motion, the district court held that Theus‘s counsel acted competently because the issues that would have been raised in the motion for a new trial were raised in the motion for judgment of acquittal. Moreover, even if counsel had moved for a new trial, the district court would have denied the motion. Accordingly, Theus is unable to show that he was prejudiced. Hilliard is thus inapposite.
B.
Theus contends that his attorney‘s failure to submit a supplemental brief to
As we determined in Theus‘s direct appeal, the variance in this case did not prejudice Theus. A variance between the indictment and the proof results where a single conspiracy is charged but the evidence at trial proves multiple conspiracies. United States v. Morales, 113 F.3d 116, 119 (8th Cir.1997). The existence of a variance does not mandate reversal, but reversal is required where a spillover of evidence from one conspiracy to another has prejudiced a defendant‘s substantial rights. Id. The spillover evidence from the Rodriguez conspiracy resulted in Theus‘s conviction of a conspiracy involving five kilograms of cocaine, even though the evidence did not support the drug amount. The district court recognized the jury‘s error, concluding that the government failed to prove that Theus was involved in the Rodriguez conspiracy. The district court determined that the evidence was readily compartmentalized2 and that the government proved that Theus was involved in a different conspiracy to possess with intent to distribute over one kilogram of cocaine, albeit the evidence suggested that he converted the powder cocaine to crack cocaine before distributing it. A variance between the indictment of the five kilogram conspiracy and the proof of a separate conspiracy did not affect Theus‘s substantial rights. The district court erred, however, when it failed to sentence Theus based on the lesser included offense, conspiracy to possess with intent to distribute more than 500 grams of cocaine.3
C.
Theus suffered prejudice as a result of his counsel‘s failure to raise either in the district court or on direct appeal the district court‘s error in imposing a ten-year mandatory minimum sentence for a quantity of cocaine that required only a five-year mandatory minimum sentence.4 During oral
We reject the government‘s argument that its “ox was gored” because it could have charged Theus with a crack cocaine conspiracy and obtained a much higher sentence. Had it intended to prove a crack cocaine conspiracy against Theus, the government should have sought to indict him on that charge. We do not view our decision as a windfall to Theus, because on remand he will be sentenced based on the amount of cocaine the district court found to have been proved.
Conclusion
We reverse the district court‘s denial of § 2255 relief. We vacate Theus‘s sentence and remand the case for resentencing based on the amount of cocaine that Theus was found to have possessed with intent to distribute.
RILEY, Chief Judge, concurring in part and dissenting in part.
I concur with the majority that Theus‘s counsel was not ineffective in failing to move for a new trial and that Theus was not prejudiced by counsel‘s failure to file a supplemental brief before this court on direct appeal. However, because I cannot agree with the majority‘s conclusion that Theus was prejudiced by counsel‘s failure to raise the sentencing prejudice issue, I respectfully dissent.
As an initial matter, it is worth noting the “well established principle” that “[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on
The majority holds Theus‘s counsel was ineffective because, at sentencing and on direct appeal, counsel focused on what I will call “conviction prejudice,” embodied by the spillover argument he made on direct appeal, and thereby waived a related theoretical sentencing prejudice argument. Theus suggests he was prejudiced by counsel‘s failure to raise the sentencing prejudice issue because a variance between the crime for which he was indicted and the crime of which he was convicted resulted in his being subject to a ten-year, rather than to a five-year, statutory mandatory minimum sentence. In my view, Theus‘s claims of sentencing prejudice were considered and rejected by this court on direct appeal and, lacking merit, could not have altered Theus‘s sentence.
If there were no variance, any failure by Theus‘s counsel to raise the issue could not have prejudiced him, because the district court sentenced Theus to the ten-year mandatory minimum for the powder cocaine conspiracy. If, however, there were a variance, then counsel‘s failure to raise the issue of the lower mandatory minimum sentence theoretically could have prejudiced Theus. But Theus could only have been prejudiced if he would have been subject to a lower mandatory minimum for the drugs in the varied conspiracy. The only potential variance at work in this case is between the charged powder cocaine conspiracy and a smaller uncharged crack cocaine conspiracy.5 The ten-year mandatory minimum sentence applies to five kilograms of cocaine, or 50 grams or more of cocaine base. See
Theus experienced no sentencing prejudice because, even if there were a variance, Theus is liable for at least 50 grams of cocaine base. The majority opinion discusses how Theus and co-conspirator Scott purchased cocaine, converted it into crack, and sold it. Ante, at 443-44. “One of Theus‘s customers testified that he purchased crack cocaine from Theus from 2003 through 2004, buying $100 quantities two to three times each week.” Id. This amounts to sales of approximately two to three grams of crack cocaine per week because “Scott testified that he typically sold a gram of crack cocaine to a customer for $100 cash.” Id. Thus, Theus more than doubly exceeds the fifty grams required to trigger the ten-year mandatory minimum from a single customer. In further support, Scott pled guilty under a separate indictment to conspiring to distribute more than 50 grams of crack cocaine.
I believe the prior panel was thinking along these lines when it held there was no prejudice even if there were a variance. That determination is the law of the case and binds us today. See, e.g., Baranski v. United States, 515 F.3d 857, 861 (8th Cir.2008) (“[T]he law of the case ... will not be disturbed absent an intervening change