FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-3322
(D.C. Nos. 2:15-CV-07616-CM and
MARDELL TROTTER, No. 2:04-CR-20140-CM-2)
(D. Kansas)
Defendant-Appellant.
_________________________________
ORDER *
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Mardell Trotter was convicted on federal drug and gun charges.
After an unsuccessful direct appeal, Mr. Trotter moved to vacate the
sentence on one of the gun charges (Count 11). The district court denied
relief and a certificate of appealability. Mr. Trotter now asks us for a
certificate of appealability. We deny this request and dismiss the appeal.
*
Because oral argument would not be helpful, we decide this appeal
based on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. The order
may be cited for its persuasive value under Fed. R. App. P. 32.1(a) and
10th Cir. R. 32.1(A).
I. Procedural History
On the disputed gun charge, Mr. Trotter was sentenced under 18
U.S.C. § 924(c), which imposes a five-year mandatory minimum sentence
for those who, during and in relation to any drug trafficking crime, “use[]
or carr[y] a firearm, or who, in furtherance of any such crime, possess[] a
firearm.” According to the government, Mr. Trotter traded drugs for a gun.
The jury found Mr. Trotter guilty, and the court imposed a sentence that
included a five-year prison term for the § 924(c) charge.
On direct appeal, Mr. Trotter challenged the refusal to depart
downward and argued that the evidence was insufficient for a conviction
under § 924(c). We affirmed the conviction and remanded to the district
court for clarification of the reasons for declining to depart downward.
United States v. Trotter (Trotter II), 518 F.3d 773 (10th Cir. 2008). 1
On remand, the district court clarified its reasoning without
modifying its earlier judgment or sentence. Mr. Trotter appealed and we
remanded for resentencing under the revised sentencing guidelines. United
States v. Trotter, No. 13-3145 (10th Cir. Nov. 21, 2013) (unpublished). On
remand, the district court reduced Mr. Trotter’s sentence from 322 to 180
months.
1
Before remanding, we had affirmed the conviction and sentence.
United States v. Trotter, 483 F.3d 694 (10th Cir. 2007). That decision was
vacated by the U.S. Supreme Court. Trotter v. United States, 552 U.S. 1091
(2008).
2
In appealing that sentence again, Mr. Trotter’s counsel filed a brief
under Anders v. California, 386 U.S. 738 (1967), identifying potentially
appealable issues. In part, the Anders brief stated that Mr. Trotter might
argue that the jury had been improperly instructed on the § 924(c) count in
light of the U.S. Supreme Court’s opinion in Watson v. United States, 552
U.S. 74 (2007). United States v. Trotter, 601 F. App’x 721, 725 (10th Cir.
2015) (unpublished). In Watson, the Supreme Court held that trading drugs
for a gun cannot constitute a “use” for purposes of § 924(c). Watson, 552
U.S. at 83. But the Supreme Court did not address § 924(c)’s “possession
in furtherance of” prong. Id.
We reviewed the issue for plain error. Doing so, we concluded that
Watson did not apply because it addresses only one of the two prongs in
§ 924(c). See Trotter, 601 F. App’x at 725. Because we had previously held
that trading guns for drugs may satisfy the “possession in furtherance of”
prong, we concluded that the district court had not plainly erred. Id.
(quoting United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007)
(holding that trading drugs for guns satisfies § 924(c)’s “possession in
furtherance of” prong)); see also United States v. Gurka, 605 F.3d 40, 44
(1st Cir. 2010) (expressing agreement with the Second, Seventh, and Ninth
Circuits that “Watson does not affect the prong of 18 U.S.C.
§ 924(c)(1)(A) concerned with ‘possession in furtherance of’”).
3
Mr. Trotter now claims that under Watson, his counsel was
ineffective by failing to present claims of insufficiency of the evidence and
actual innocence.
II. Standard for a Certificate of Appealability
To appeal the denial of relief, Mr. Trotter needs a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B). We may issue a certificate only
if Mr. Trotter “has made a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). To make this showing, Mr. Trotter
must demonstrate that “jurists of reason could disagree with the district
court’s resolution of his constitutional claims or . . . jurists could conclude
the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
III. Standard for Ineffective Assistance of Counsel
In his motion, Mr. Trotter claims that his counsel was ineffective for
failing to argue that Watson constitutes an intervening change in the law.
To determine whether counsel was ineffective, we apply the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, Mr. Trotter must first show that his attorney’s
“performance was deficient” and “fell below an objective standard of
reasonableness.” 466 U.S. at 687-88. If Mr. Trotter makes that showing, he
must also demonstrate prejudice, which exists only if there is “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
4
proceeding would have been different.” Id. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id.
IV. Counsel’s omissions were not prejudicial to the outcome.
Section 924(c) contains two prongs. The first prong prohibits the
“use” of a firearm during and in relation to a drug trafficking crime, and
the second prong prohibits “possession” of a firearm in furtherance of a
drug trafficking crime. Mr. Trotter was indicted on both prongs. A “crime
denounced in the statute disjunctively may be alleged in an indictment in
the conjunctive, and thereafter proven in the disjunctive.” United States v.
Gunter, 546 F.2d 861, 868-69 (10th Cir. 1976). Thus, the § 924(c)
conviction required the government to satisfy only one of the two prongs.
Mr. Trotter contends that in light of Watson v. United States, there is
no longer sufficient evidence for his § 924(c) conviction. 552 U.S. 74
(2007). It is true that Mr. Trotter’s conviction cannot be sustained under
§ 924(c)’s “use” prong because that possibility is foreclosed by the
Supreme Court’s opinion in Watson. Id. at 83. But Watson does not address
the “possession in furtherance of” prong, and we have held that trading
drugs for guns satisfies the “possession in furtherance of” prong. See id.;
United States v. Luke-Sanchez, 483 F.3d 703, 706 (10th Cir. 2007).
Similarly, we have held that Watson does not bear on the sufficiency of the
evidence for a conviction under the “possession in furtherance of” prong.
5
Trotter, 601 F. App’x 721, 725 (10th Cir. 2015) (unpublished); United
States v. Trotter, 483 F.3d 694, 702 (10th Cir. 2007), vacated on other
grounds, 552 U.S. 1091 (2008). Thus, even after Watson, Mr. Trotter’s
conviction under § 924(c) may be upheld under the “possession in
furtherance of” prong.
Mr. Trotter also claims that Watson constitutes an intervening change
in law that renders him actually innocent. A claim of actual innocence
requires new evidence that would prevent any reasonable jury from finding
Mr. Trotter guilty. See Schlup v. Delo, 513 U.S. 298, 329 (1995). Mr.
Trotter did not present any new evidence. Instead, his claim is based solely
on the opinion in Watson. Again, Watson does not bear on the “possession
in furtherance of” prong of § 924(c) and Mr. Trotter does not question the
applicability of that prong to his conviction. See Trotter, 601 F. App’x at
725; Trotter, 483 F.3d at 702. Absent other evidence, this claim fails as a
matter of law.
V. Disposition
We deny Mr. Trotter’s request for a certificate of appealability and
dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
6