UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-7804
TERRENCE RENARD RUSSELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Henry C. Morgan, Jr., District Judge.
(CR-97-382, CA-00-1343-AM)
Submitted: April 1, 2002
Decided: May 20, 2002
Before MICHAEL and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Terrence Renard Russell, Appellant Pro Se. James L. Trump,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
2 UNITED STATES v. RUSSELL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Terrence Renard Russell seeks to appeal from the district court’s
orders denying his motion filed under 28 U.S.C.A. § 2255 (West
Supp. 2001). In the district court, Russell asserted a number of claims
of ineffective assistance of counsel. The district court addressed each
of these and denied relief. We dismiss in part, vacate in part, and
remand for further proceedings.
As to several of the claims, the district court found that, assuming
that counsel’s performance was deficient, based on Russell’s offense
level, the sentence would be the same; therefore he could not show
prejudice as required to prove ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 694 (1984). In addressing
Russell’s claim that the errors, viewed together, resulted in prejudice,
the district court held that cumulative errors are not recognized in the
Fourth Circuit. The court cited Fisher v. Angelone, 163 F.3d 835, 852
(4th Cir. 1988), for this proposition. In Fisher, we held that it is not
appropriate to consider the cumulative effect of attorney error when
the individual claims of ineffective assistance do not violate the
defendant’s constitutional rights. Id. at 852-53.
The individual claims in Fisher were reviewed on the merits and
determined not to amount to error. Thus, cumulatively, we held they
could not amount to error. Id.; see Moore v. Reynolds, 153 F.3d 1086,
1113 (10th Cir. 1998) (stating that cumulative error analysis applies
where there are two or more actual errors; it does not apply to the
cumulative effect of non-errors). However, in this case, the district
court did not review the individual claims of error on the merits.
Rather, the court held that, even if there were error, there was no prej-
udice to Russell. We find that Fisher is not controlling here.
The district court dismissed—for lack of prejudice in light of Rus-
sell’s offense level of 45—Russell’s claims that counsel was ineffec-
UNITED STATES v. RUSSELL 3
tive in: (1) not opposing the two-level sentencing enhancement from
a level 43 to a level 45 for restraint of a victim; (2) failing to seek an
adjustment for role in the offense based on Russell’s lack of intent to
kill; (3) failing to request a two-point reduction in Russell’s criminal
history score, which could have resulted in a one-level reduction in
criminal history category; (4) failing to object to the sentencing
court’s comments during Russell’s allocution regarding his professed
Christian faith; and (5) failing to object to the court curtailing Rus-
sell’s allocution.
Assuming—as the district court did in addressing each of these
claims—that counsel’s performance was deficient in each of these
instances, cumulatively, Russell could show prejudice. At offense
level 43 or above, the Guidelines require a mandatory life sentence.
USSG Ch. 5, Pt. A. (Sentencing Table). Russell’s offense level was
45 for each of the three counts. A two-level reduction in Russell’s
offense level would have no effect on Russell’s sentence. However,
if the court were to find that there was a reasonable probability that
the two-level restraint-of-victim enhancement would have been suc-
cessfully opposed and that a motion for a two-level reduction for role
in the offense would have been successful, Russell’s offense level
would have been 41, resulting in a sentencing range of 360 months
to life. See USSG Ch. 5, Pt. A. (Sentencing Table). In determining a
sentence within this range, Russell’s criminal history—while not
technically relevant because at level 41, the range is the same for
criminal history category III and IV—may have influenced where,
within that range the district court imposed sentence. Likewise,
because at level 41 there is a sentencing range, whether counsel was
ineffective for failing to challenge the sentencing court’s comment
during, and curtailment of, Russell’s allocution cannot be dismissed
based on the fact that the court had no discretion in sentencing.
Accordingly, because the district court did not address whether there
was error as to the above enumerated claims, we find that the district
court erred in applying the cumulative error analysis. See Fisher, 163
F.3d at 852-53. We therefore issue a certificate of appealability and
vacate the district court’s order as to these issues and remand for fur-
ther proceedings.
As to Russell’s remaining claims of ineffective assistance of coun-
sel, we have reviewed the record and the district court’s opinion and
4 UNITED STATES v. RUSSELL
find no reversible error. Accordingly, we deny a certificate of
appealability and dismiss the appeal as to these issues on the reason-
ing of the district court. See United States v. Russell, Nos. CR-97-382,
CA-00-1343-AM (E.D. Va. filed Dec. 15, 2002 & entered Dec. 20,
2000; filed Aug. 23, 2001 & entered Aug. 27, 2001). We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED IN PART, VACATED IN PART, AND REMANDED