UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY SELLERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, Senior
District Judge. (5:08-cr-00944-MBS-21; 5:14-cv-02056-MBS)
Submitted: June 22, 2016 Decided: July 25, 2016
Before WILKINSON, KEENAN, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, dismissed in part, and
remanded by unpublished per curiam opinion.
Anthony Sellers, Appellant Pro Se. Jimmie Ewing, John David
Rowell, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Sellers appeals the district court’s judgment
denying relief on his 28 U.S.C. § 2255 (2012) motion. We
granted a certificate of appealability and ordered supplemental
briefing on two issues: (1) whether counsel was ineffective by
failing to challenge Count 41 of the indictment as duplicitous,
and (2) whether counsel was ineffective by failing to argue that
Sellers’ convictions on Counts 37 and 41 violated double
jeopardy. For the reasons that follow, we affirm in part,
reverse in part, dismiss in part, and remand to the district
court with instructions to vacate the conviction and sentence on
Count 37 and to enter an amended judgment.
I.
As we stated in Sellers’ direct appeal:
On August 14, 2008, Sellers was stopped by police
for an improper lane change while driving. Upon
approaching the vehicle, Officers Phillip Furtick and
Terry Logan noticed a strong odor of marijuana.
Officer Furtick asked Sellers and his passenger to
step out of the vehicle, at which point Sellers
admitted to there being marijuana inside the vehicle.
Officer Logan also observed a partially hidden bag of
what appeared to be cocaine under the passenger seat
as the passenger exited the vehicle. The police
officers then placed Sellers and his passenger under
arrest and searched the vehicle. The search uncovered
marijuana, cocaine, a pistol, and roughly $3,000.
United States v. Sellers, 512 F. App’x 319, 323 (4th Cir. 2013)
(No. 10-4701).
2
Sellers was convicted following a jury trial of—among other
offenses—possession with intent to distribute a quantity of
cocaine (Count 37), in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (2012), and 18 U.S.C. § 2 (2012), and possession with
intent to distribute and distribution of a quantity of cocaine
within 1000 feet of a school (Count 41), in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), 860(a) (2012), and 18 U.S.C.
§ 2. Both convictions stemmed from the August 14, 2008, traffic
stop. The district court sentenced Sellers to concurrent
sentences of 360 months and 720 months on Counts 37 and 41,
respectively, to be served concurrently with his mandatory life
sentence on a related drug conspiracy conviction. The court
imposed separate special assessments for Counts 37 and 41. We
affirmed the district court’s judgment on appeal. Sellers, 512
F. App’x at 333.
Sellers timely filed a § 2255 motion, asserting the claims
on which we granted a certificate of appealability. The
district court denied the motion, finding that Sellers was not
prejudiced by any errors of counsel as to Counts 37 and 41
because Sellers’ ultimate sentence was unaffected by these
convictions.
II.
“We review de novo a district court’s legal conclusions in
denying a § 2255 motion,” including “any mixed questions of law
3
and fact addressed by the court as to whether the petitioner has
established a valid Sixth Amendment ineffective assistance
claim.” United States v. Ragin, __ F.3d __, __, No. 14-7245,
2016 WL 930202, at *5 (4th Cir. Mar. 11, 2016). To succeed on
his ineffective assistance of counsel claims, Sellers “must show
that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). To satisfy the first part
of the test, he must demonstrate “that counsel’s representation
fell below an objective standard of reasonableness.” Id. at
688. To satisfy the second hurdle, Sellers must establish “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
A.
Sellers first contends that counsel should have argued that
Count 41 was duplicitous. The Government responds that § 860(a)
creates various means by which the offense can be committed—
rather than creating separate offenses—and that, because the
indictment was not duplicitous, counsel was not ineffective.
“Duplicity is defined as the joining in a single count of
two or more distinct and separate offenses.” United States v.
Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (internal quotation
marks omitted). “Duplicitous indictments present the risk that
4
a jury divided on two different offenses could nonetheless
convict for the improperly fused double count.” United States
v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010).
“[P]ossession with intent to distribute and distribution
. . . are two different offenses,” each requiring proof of an
element that the other does not. United States v. Randall, 171
F.3d 195, 209 (4th Cir. 1999); see Hawkes, 753 F.2d at 358
(“[W]here separate evidence is required to prove two charges
arising from the same factual situation such charges are
separate offenses.” (internal quotation marks omitted)).
However, “to join possession and distribution . . . in one count
may not be duplicitous” where a single act constitutes two
violations of the same subsection of § 860(a). Hawkes, 753 F.2d
at 357 (internal quotation marks omitted).
We conclude that Sellers was not prejudiced by counsel’s
failure to raise this argument, although we reach this
conclusion on grounds different than those relied upon by the
district court. We conclude that Sellers did not establish
prejudice. See Strickland, 466 U.S. at 694. The Government’s
evidence overwhelmingly established Sellers’ possession with
intent to distribute. While it is possible—indeed likely—that
jurors believed Sellers possessed the cocaine with intent to
distribute it, but did not distribute any cocaine on August 14,
2008, it is unlikely that any juror believed Sellers distributed
5
cocaine on that date but did not possess cocaine with intent to
distribute it. Cf. United States v. Kakos, 483 F.3d 441, 445
(6th Cir. 2007) (upholding conviction on single count that
charged two offenses where, based on trial evidence, “[t]here
[was] . . . no risk that the jury was not unanimous in its
belief that Defendant [committed one offense and not the
other]”). We therefore affirm the district court’s denial of
relief on this claim.
B.
Sellers further argues that the district court erroneously
relied on his mandatory life sentence on a related count when it
concluded that, even if counsel had raised and succeeded on a
double jeopardy challenge regarding the imposition of multiple
punishments for Counts 37 and 41, Sellers could not show
prejudice. We agree with Sellers.
The Double Jeopardy Clause of the Fifth Amendment
“prohibits the government from subjecting a person to ‘multiple
punishments for the same offense.’” United States v.
Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (quoting Ohio v.
Johnson, 467 U.S. 493, 498 (1984)). “[T]wo different statutes
define the ‘same offense[]’” when “one is a lesser included
offense of the other.” Rutledge v. United States, 517 U.S. 292,
297 (1996) (internal quotation marks omitted). Because
“[§] 841(a) is a lesser included offense of § 860(a),” United
6
States v. Parker, 30 F.3d 542, 553 (4th Cir. 1994), * Sellers has
demonstrated that counsel should have objected to the multiple
convictions and sentences.
Moreover, counsel’s failure to object prejudiced Sellers.
The imposition of a special assessment is itself punishment.
Rutledge, 517 U.S. at 301-03. Thus, the imposition of two $100
special assessments for Counts 37 and 41 constitutes multiple
punishments for the same offense, and counsel’s failure to argue
that one of the convictions must be vacated prejudiced Sellers.
As the Government concedes, when two statutes proscribe the same
offense, “‘the only remedy . . . is for the District Court . . .
to exercise its discretion to vacate one of the underlying
convictions’ as well as the concurrent sentence based upon it.”
Rutledge, 517 U.S. at 301-02 (quoting Ball v. United States, 470
U.S. 856, 864 (1985)). We thus reverse the district court’s
denial of relief on the double jeopardy claim, and remand to the
district court with instructions to vacate Sellers’ conviction
and sentence on Count 37 and to enter an amended judgment
omitting that count.
*
See also 21 U.S.C. § 860(a) (“Any person who violates
[§] 841(a)(1) of this title . . . by distributing, possessing
with intent to distribute, or manufacturing a controlled
substance . . . within one thousand feet of [a school] . . . is
subject to” enhanced mandatory minimum sentences (emphasis
added)).
7
III.
Accordingly, we affirm in part, reverse in part, and remand
to the district court with instructions to vacate Sellers’
conviction and sentence on Count 37 and to enter an amended
judgment. We deny a certificate of appealability as to Sellers’
remaining claims and dismiss that portion of the appeal. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART;
REVERSED IN PART;
DISMISSED IN PART;
AND REMANDED
8