United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1015
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Bud Theus III, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
United States of America, *
*
Appellee. *
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Submitted: November 18, 2009
Filed: July 13, 2010
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Before RILEY, Chief Judge,1 WOLLMAN, and SHEPHERD, Circuit Judges.
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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 21 U.S.C. §§ 841(a)(1) and 846. In the order denying Theus’s motion for
judgment of acquittal, the district court found a variance between the indictment and
the proof, concluding that the evidence proved that Theus was part of a cocaine base
(crack cocaine) conspiracy that was proven but not charged. Because Theus suffered
no prejudice from the variance, however, the district court denied the motion for
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
judgment of acquittal. Theus was sentenced to ten years’ imprisonment, the
mandatory minimum sentence for distributing and possessing with intent to distribute
five kilograms of a mixture or substance containing cocaine. After his conviction was
affirmed, United States v. Theus, 230 Fed. Appx. 642 (8th Cir. 2007) (unpublished per
curiam), Theus, acting pro se, moved to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. Theus argued that he had been denied his Sixth Amendment right
to effective assistance of counsel because his attorney had failed to move for a new
trial and had failed to submit a supplemental brief to this court after being ordered to
do so. The district court denied the motion and certified the two issues for appeal.
We reverse the denial of § 2255 relief and remand for resentencing.
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
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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 he
typically sold a gram of crack cocaine to a customer for $100 cash.
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
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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. Although the government failed to prove
that Theus was a member of the charged conspiracy, the district court determined that
the evidence proved that Theus belonged to a separate conspiracy to possess crack
cocaine with the intent to distribute. Id. at 2-3. The district court found that the
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variance did not affect Theus’s substantial rights because the indictment put him on
notice of the evidence to be presented against him, the indictment foreclosed the
possibility that there would be subsequent prosecution for the same offense, and that
any spillover of evidence from one conspiracy to another did not prejudice Theus. Id.
at 5. With respect to any spillover evidence, the district court stated,
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 United States Sentencing Guidelines
§ 2D1.1(c)(7) was twenty-six, the base offense level for at least 500 grams but less
than two kilograms of cocaine. With a criminal history category of II, Theus’s
guidelines range sentence was seventy to eighty-seven months’ imprisonment. The
PSR noted that “there is not enough evidence to support that the defendant was
involved with 5 kilograms of cocaine.” Inexplicably, it nonetheless applied the ten-
year mandatory minimum sentence for distributing or possessing with intent to
distribute five kilograms or more of a mixture or substance containing cocaine
provided by 21 U.S.C. § 841(b)(1)(A)(ii), rather than the five-year mandatory
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minimum sentence provided by § 841(b)(1)(B)(ii) for the 1.02 kilograms attributed
to Theus. Over the government’s objection to the amount of cocaine attributed to
Theus and Theus’s objection to the application of the mandatory minimum, the district
court adopted the PSR.
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.”
Neither the PSR nor the district court explained why Theus was sentenced to
the mandatory minimum for the Rodriguez conspiracy, which involved five kilograms
of cocaine, when the government failed to prove that Theus was involved in that
conspiracy. Theus did not appeal his sentence.
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
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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 Federal Rule of Criminal
Procedure 33 and for failing to submit a supplemental brief to this court after being
ordered to do so. The district court determined that Theus failed to show that counsel
was deficient or that he suffered prejudice as a result of counsel’s failure to move for
a new trial because counsel raised the same arguments in the motion for judgment of
acquittal that would have been raised in the motion for a new trial. The district court
also concluded that Theus suffered no prejudice as a result of counsel’s failure to
submit the supplemental brief to this court because counsel competently presented the
spillover argument in its initial brief and at oral argument. The district court denied
Theus’s § 2255 motion and his subsequent motion for reconsideration. In its order
denying reconsideration, the district court made clear that the motion for a new trial
would have been denied even if counsel had moved for such relief.
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
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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 (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 circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689 (internal
quotations and citation omitted). To show prejudice, the movant must demonstrate
that there is a reasonable probability that the outcome would have been different but
for counsel’s deficient performance. Id. at 694. We review the district court’s denial
of a § 2255 motion de novo. King v. United States, 595 F.3d 844, 848 (8th Cir. 2010).
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 Rule 33 of the Federal Rules of Criminal Procedure,
unlike a Rule 29 motion for judgment of acquittal, a district court has discretion to
weigh the evidence and evaluate the credibility of the witnesses.” (internal quotations
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and citation omitted)). During Theus’s trial, the district court had expressed its
concern that the case involved two conspiracies, including one that had not been
charged, and it instructed the jury to acquit Theus if the government had failed to
prove that he was a member of the conspiracy charged in the indictment. Theus’s
attorney thus employed a reasonable strategy in seeking acquittal based on the
government’s failure to prove the charged conspiracy. Moreover, a new trial would
have allowed the government to seek a superseding indictment charging Theus with
a crack cocaine conspiracy. Theus’s counsel was presumably well aware that the
evidence that Theus was involved in a crack cocaine conspiracy was strong and that
a crack cocaine conviction would yield a much higher sentence than a powder cocaine
conviction. Trial counsel thus acted competently when he decided to move for
judgment of acquittal and forego moving for a new trial.
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.
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B.
Theus contends that his attorney’s failure to submit a supplemental brief to this
court constituted deficient performance and that he suffered prejudice as a result.
Whatever the reason for counsel’s failure to file a supplemental brief, Theus’s
substantial rights were not prejudiced by his counsel’s failure to do so or as a result
of the spillover of evidence from the Rodriguez conspiracy.
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
2
If the jury had compartmentalized the evidence, it would have either (1)
convicted Theus of the lesser included conspiracy involving 500 grams or more of
cocaine, or (2) acquitted Theus, as it was instructed to do if the government failed
prove that Theus was a member of the conspiracy charged in the indictment.
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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
minimum sentence.4 During oral argument before this court, counsel stated that there
was no sentencing prejudice. Thus, neither the district court nor this court was put on
notice that Theus was sentenced to the statutory mandatory minimum sentence on the
3
The indictment charged conspiracy to distribute and possess with intent to
distribute five kilograms of a mixture or substance containing cocaine, in violation of
21 U.S.C. §§ 841(a)(1) and 846. “Although section 841(a)(1) is worded in the
disjunctive to encompass a number of similar crimes, federal pleading requires that
an indictment charge in the conjunctive to inform the accused fully of the charges.
. . . Proof of any one of the violations charged conjunctively in the indictment will
sustain a conviction.” United States v. Klein, 850 F.2d 404, 406 (8th Cir. 1988)
(quoting United States v. McGinnis, 783 F.2d 755, 757 (8th Cir. 1986) (internal
quotations and citations omitted)). The verdict form was written in the disjunctive,
allowing the jury to find that the conspiracy distributed or possessed with intent to
distribute five kilograms of cocaine. Although Theus distributed powder cocaine only
to Scott, the government proved that Theus possessed more than 500 grams of powder
cocaine with the intent to distribute it.
4
The government argues that our review is limited to the issues specified in the
certificate of appealability. The failure to brief the spillover issue should have been
framed as whether counsel was ineffective for failing to raise sentencing prejudice.
To the extent that we have expanded the certificate to consider counsel’s failure to
argue sentencing prejudice, we think such expansion is appropriate, particularly
because Theus filed his § 2255 motion pro se. The issues were thus not presented to
the district court as clearly as they might have been. See King, 595 F.3d at 854 n.5
(expanding the certificate of appealability sua sponte); United States v. Morgan, 244
F.3d 674, 674-75 (8th Cir. 2001) (en banc) (retaining “discretion to consider sua
sponte issues beyond those specified in a certificate of appealability”).
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basis of the amount of cocaine involved in the Rodriguez conspiracy and not on the
amount that the district court found was involved in the second, uncharged conspiracy.
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 28 U.S.C. § 2255.” United States v. Wiley, 245 F.3d
750, 752 (8th Cir. 2001). Failure to raise an issue at trial or on direct appeal, of
course, may be raised in a § 2255 proceeding if the defendant can show he was
prejudiced by, among other things, the ineffective assistance of counsel. See
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Strickland v. Washington, 466 U.S. 668, 694 (1984). The familiar test for Strickland
prejudice is a showing by the defendant “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id.
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.
In affirming Theus’s conviction on direct appeal, this court “conclude[d] that
even if there was a variance, Theus’s substantial rights were not affected and that
sufficient evidence supports his conviction.” United States v. Theus, 230 F. App’x
642, 643 (8th Cir. 2007) (unpublished per curiam). The court elected not to decide
whether there was a variance, and determined sufficient evidence supported Theus’s
conviction regardless. Thus, if there were no variance, there was sufficient evidence
to support the charged conviction, and if there were a variance there was sufficient
evidence to support the varied conviction.
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
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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 21 U.S.C. § 841(b)(1)(A)(ii)(II)
and (iii).
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 3. “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.
1
Nothing in the record indicates Theus bought powder cocaine merely for
resale. (See App. 42 (The district court found “Theus . . . bought powder cocaine
from Delbosque and then rocked up the cocaine and sold it as crack cocaine,
sometimes with the help of his uncle, Roosevelt Scott.”), 51 (The district court
“believe[d] that the Defendant and Roosevelt Scott were jointly involved in their own
conspiracy with regard to distributing powder cocaine that the defendant turned into
crack.”).) While it is true Theus was charged and convicted of the larger powder
cocaine conspiracy, the record is clear, to the extent the district court identified a
smaller uncharged conspiracy, the smaller conspiracy involved the production and
distribution of crack cocaine. Whether a variance involving the drug type is
permissible presents some interesting questions, particularly in the powder/crack
cocaine area, but those issues are not before the court. Instead, Theus argues counsel
was ineffective for failing to argue Apprendi v. New Jersey, 530 U.S. 466, 495 (2000)
(holding facts elevating a sentence beyond the statutory maximum must be found by
a jury), operates to require a jury determination of the amount of crack cocaine in
order for Theus to be subject to the mandatory minimum.
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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
in controlling authority.”). Counsel could not have been ineffective where, as here,
raising the argument would not have changed the result of the proceeding. Moreover,
far from deficient performance, counsel’s decision not to raise this issue before the
district court or on direct appeal, and thus not risk a much higher Guidelines sentence
for crack distribution, may well have been a sound tactical choice. See Strickland,
466 U.S. at 689 (recognizing defense counsel must have “wide latitude” in making
tactical decisions). I would affirm the district court’s denial of Theus’s § 2255
motion.
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