In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1404
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K IMANI L ANIER F LEMING,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:07-CR-91—Robert L. Miller, Jr., Judge.
A RGUED S EPTEMBER 26, 2011—D ECIDED A PRIL 17, 2012
Before C UDAHY, P OSNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Kimani Lanier Fleming was found
guilty by a jury of several serious drug and firearm
charges, for which he received a mandatory life sentence.
Fleming’s counsel appealed his conviction on evidenti-
ary grounds, and this court affirmed. Fleming then filed
a petition under 18 U.S.C. § 2255 asserting that his
counsel had been constitutionally ineffective. In re-
sponse to Fleming’s petition, the government admitted
2 No. 11-1404
that it had failed to file its notice of enhanced penalty
within the permitted time. This prompted the district
court to set aside Fleming’s mandatory life sentence and
to hold a hearing on the other issues raised in his § 2255
petition. Ultimately, the court resentenced him to a term
of 480 months’ imprisonment. Fleming has appealed
again, challenging both his conviction for possession of
cocaine base with intent to distribute and his revised
sentence. He has no certificate of appealability, how-
ever, permitting his appeal on the conviction, and we
decline to grant one. The only issue properly before us
is whether it was appropriate for the district court to
include routine drug purchases as relevant conduct
when it computed the revised sentencing guideline
range. Finding no clear error in that decision, we affirm
Fleming’s revised sentence.
I
Fleming (also known as “K” and Kamari Merryweather)
began selling significant quantities of crack cocaine
out of three properties in Elkhart, Indiana, in 2006. In
July 2007, federal agents began collecting evidence
about Fleming’s drug dealing operation. Using in-
formants, the agents set up four controlled buys from
Fleming in August 2007; each one took place at a house
located at 403 9th Street, in Elkhart. The ruse succeeded:
Fleming sold 6.68, 13.84, 31.27, and 30.88 grams of
crack cocaine over the course of the four transactions.
Next, the agents obtained a search warrant for the 9th
Street property. Once there, they found firearms, powder
No. 11-1404 3
cocaine, marijuana, and materials used to cook and pack-
age crack cocaine.
At trial, several witnesses testified that Fleming sold
crack cocaine to them during 2006 and 2007. In addition,
Jason Lucas testified that he distributed Fleming’s crack
cocaine. He recounted that he traveled with Fleming
from Elkhart to Detroit, Michigan, about every eight
days during the months of December 2006 to April 2007.
Fleming typically purchased four to nine ounces of
powder cocaine per trip. Lucas and Fleming would
then cook the powder into crack after they returned to
Detroit. When one ounce of powder cocaine is cooked,
according to the South Bend Police, it yields a little
over one ounce of crack.
The jury convicted Fleming on December 13, 2007, on
all seven counts. Relevant to this appeal, he was con-
victed on Count 1, possession with intent to distribute
more than 50 grams of crack in violation of 21 U.S.C.
§ 841(a)(1). Fleming was sentenced on February 26, 2008,
to life imprisonment for Count 1, with varying sen-
tences for the other convictions. The district court gave
Fleming a mandatory life sentence for Count 1 because
of Fleming’s prior criminal convictions.
Fleming appealed his convictions on evidentiary
grounds, but this court affirmed. United States v. Fleming,
290 F. App’x 946, 948 (7th Cir. 2008). Following his unsuc-
cessful direct appeal, Fleming filed a petition (and, later,
an amended petition) under 28 U.S.C. § 2255 asserting
that he had received ineffective assistance of counsel
at trial. Among other things, he argued that his counsel
4 No. 11-1404
failed properly to challenge the government’s late notice
of sentence enhancement and that counsel should
have challenged his possession conviction because none
of the controlled buys individually involved 50 or more
grams of crack cocaine. The government admitted in
its response to Fleming’s petition that its written notice
of sentence enhancement was filed three days late. The
government was required under 21 U.S.C. § 851 to give
Fleming this notice before trial or the entry of a plea.
The jury trial began on December 11, 2007, but the gov-
ernment did not file its written notice until Decem-
ber 14, 2007.
The district court denied some of Fleming’s requests
summarily, and it held an evidentiary hearing to
consider others. During the hearing, it explored some
of Fleming’s ineffective assistance assertions; in the end,
it concluded that Fleming was entitled to be resen-
tenced without the mandatory life sentence in light of
the government’s late § 851 notice. Relevant to this
appeal, the district court denied Fleming’s attempt
also to challenge his possession conviction, because
it deemed aggregation of drug quantities permissible
under Seventh Circuit precedent. It resentenced Fleming
to concurrent terms of 420 months for the conviction
for possession with intent to distribute 50 grams or
more and the three convictions for distribution of more
than five grams of crack, 240 months for the crack dis-
tribution conviction, 120 months for one firearm con-
viction, and a consecutive 60-month sentence for the
other firearm conviction, making a total of 480 months.
This appeal followed.
No. 11-1404 5
II
Fleming, urging again that the government never
proved that he distributed more than 50 grams at one
time, first would like to challenge the sufficiency of the
evidence to convict him on Count 1 for possession
with intent to distribute. As we noted, federal agents
coordinated four controlled buys of crack from Flem-
ing. When aggregated, the quantities of crack exceed
50 grams, but no individual transaction reached that
threshold. The initial jury instructions stated only that
the jury should conclude that Fleming violated 21 U.S.C.
§ 841(a)(1) if it found that he possessed more than
50 grams. When the jury sent out a question asking
whether the 50-gram level could be reached by ag-
gregating the individual amounts, the court answered
in the affirmative.
At the resentencing hearing that followed Fleming’s
petition under § 2255, he urged the district court to
follow United States v. Sandlin, 291 F.3d 875, 879 (6th
Cir. 2002), which prohibits such aggregation. The district
court, however, rejected this argument because it inter-
preted this court’s decision in United States v. Easter,
553 F.3d 519, 523 (7th Cir. 2009), to permit aggregation.
Fleming is now trying to appeal from that determina-
tion. The government asserts that this court lacks juris-
diction to pursue the point because Fleming did not
secure a certificate of appealability (CA) that would
have permitted an appeal of the district court’s partial
denial of his § 2255 petition. Fleming’s petition suc-
ceeded in part and failed in part: he obtained the relief
6 No. 11-1404
he sought—new sentencing—with respect to the validity
of his life sentence, but he did not persuade the court
that there was anything wrong with the aggregation of
the amounts of drugs he sold. Insofar as he is now ap-
pealing from the new sentence, he is essentially bringing
a direct appeal for which he needs no CA. The question
is whether he needs a CA for his challenge to the aggrega-
tion ruling, which is the part of the case that was
rejected in his § 2255 proceeding. Although we have not
had occasion to address this situation before, our sister
circuits have done so and have unanimously con-
cluded that a CA is needed for the part of the case
that challenges the denial of collateral relief. See
United States v. Willis, 649 F.3d 1248, 1253 (11th Cir.
2011); Wall v. United States, 619 F.3d 152, 154 (2d Cir.
2010); United States v. Haden, 475 F.3d 652, 664 (4th Cir.
2007); United States v. Green, 242 F.3d 384 (9th Cir. 2000);
United States v. Johnson, 208 F.3d 227 (10th Cir. 2000);
United States v. Reese, 204 F.3d 1117, 1117 (5th Cir. 1999).
We see no reason to part company with them, and we
thus conclude that Fleming is not entitled to challenge
the adverse portion of the district court’s decision on his
§ 2255 motion without a CA. As of now, neither the
district court nor this court has granted one, and so
without further action, he is out of luck.
Anticipating the possibility of this conclusion, Fleming
has asked that we consider his present appeal as
including an implicit request for a CA. See F ED. R. A PP .
P. 22(b)(2). Before a CA may be granted, however, the
petitioner must present a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
No. 11-1404 7
He must have a constitutional claim (or an underlying
procedural argument on which a constitutional claim
depends), and he must “demonstrate that reasonable
jurists would find the district court’s assessment of his
constitutional claims debatable or wrong.” Tennard v.
Dretke, 542 U.S. 274, 281 (2004); see also Arredondo v.
Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008). A § 2255
petition is “not a substitute for a direct appeal.” Coleman
v. United States, 318 F.3d 754, 760 (7th Cir. 2003).
Fleming’s complaint about the manner in which
his drug quantities were treated does not meet that de-
manding standard. He did not challenge the jury instruc-
tions on his earlier direct appeal, and so he can avoid
procedural default only if we find that “failure to
consider the issue would amount to a fundamental mis-
carriage of justice.” Fountain v. United States, 211 F.3d
429, 433 (7th Cir. 2000). Fleming’s argument on this part
of the case has never rested on ineffective assistance of
counsel. He says only that the jury instructions were
improper. Indeed, Fleming does not mention his
former counsel once in his CA briefing.
Even if Fleming had argued that his former counsel
provided ineffective assistance for failing to raise the
aggregation challenge to his possession conviction, we
see nothing on this record that would support a finding
of a substantial showing of a denial of a constitutional
right. Under Strickland v. Washington, 466 U.S. 668 (1984),
Fleming had to show that his counsel’s “performance
was deficient, and that the deficiency prejudiced the
defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003); see
8 No. 11-1404
Brown v. Finnan, 598 F.3d 416, 419 (7th Cir. 2010). This is
not easy, because courts must presume that counsel is
effective. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403
(2011); see also United States v. Trevino, 60 F.3d 333, 338
(7th Cir. 1995). While Fleming’s former counsel could
have challenged the jury instructions more aggres-
sively, we cannot say that his decision not to object “fell
below the standard of competency.” Sandoval v. United
States, 574 F.3d 847, 852 (7th Cir. 2009). When the jury
submitted its aggregation question to the court, counsel
requested that the judge adhere to the instructions
without adding any explicit approval of aggregation.
This action amounted to an objection to the supple-
mental instructions that the court gave. Following the
conviction, Fleming’s counsel appealed evidentiary
rulings, choosing to exclude the aggregation instruction
from the appeal. We cannot say that counsel’s strategic
decision deviated from prevailing professional norms,
particularly because this circuit had not laid down a
clear rule on the issue. Strickland, 466 U.S. at 690 (stating
that “strategic choices made after thorough investiga-
tion of law and facts relevant to plausible options are
virtually unchallengeable”). We conclude that Fleming
has not persuaded us to grant a CA based on alleged
ineffectiveness of counsel.
III
This leaves Fleming’s claim that he was improperly
resentenced; as we noted earlier, because he succeeded
in this aspect of his § 2255 petition and he won a new
sentencing hearing, this is in effect his direct appeal and
No. 11-1404 9
no CA is necessary. We review the district court’s cal-
culation of drug quantity for clear error. United States
v. Cox, 536 F.3d 723, 728 (7th Cir. 2008). The district
court found that Fleming’s course of conduct involved
more than 4.5 kilograms of crack cocaine during the
year leading up to his arrest in 2007. It based its finding
on the Presentence Report prepared by the probation
officer, although that report included the more aggres-
sive recommendation that Fleming should be held re-
sponsible for 5.11 kilograms of crack. Lucas testified
that he and Fleming obtained four to nine ounces of
powder cocaine in Detroit approximately once a week
from December 2006 to April 2007. The court concluded
that Fleming likely had engaged in this activity
(although probably not rigidly) both before meeting
Lucas in December 2006 and after Lucas’s incarceration
in April 2007, all the way up to Fleming’s arrest in
August 2007. In essence, the court extrapolated Lucas’s
testimony about weekly quantities to the full year
before Fleming’s arrest. The court found that this
estimate was reasonable, given that Fleming had about
90 grams of cocaine in his possession in August 2007.
The estimate found further support in the testimony
from Fleming’s customers about the amount of crack
they observed in his possession.
Fleming takes exception to the court’s extrapolation
of Lucas’s account. He argues that the court erred by
treating Lucas’s testimony as “indicative of how much
powder cocaine Mr. Fleming needed every week or two
to supply his customers with crack cocaine.” Fleming
believes that he should be held responsible only for 1.703
10 No. 11-1404
kilograms, which represents the quantity Lucas directly
witnessed.
“Relevant conduct” under U.S.S.G. § 1B1.3(a)(2) includes
acts “that were part of the same course of conduct
or common scheme or plan as the offense of conviction.”
The “same course of conduct” includes offenses that are
“sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single
episode, spree, or ongoing series of offenses.” U.S.S.G.
§ 1B1.3, App. Note 9(B). Characteristics of offenses that
are pertinent to a finding of “same course of conduct”
include “the degree of similarity of the offenses, the
regularity (repetitions) of the offenses, and the time
interval between the offenses.” Id. The government may
request that the court enhance a defendant’s sentence
for uncharged conduct, so long as it shows that such
conduct occurred by a preponderance of the evidence.
United States v. Johnson, 643 F.3d 545, 551 (7th Cir.
2011). The district court must make its determination
on the basis of reliable evidence. Id.
This court has previously stated that drug quantity
evidence must be based on something more than mere
“nebulous eyeballing.” United States v. Hollins, 498 F.3d
622, 631 (7th Cir. 2007) (internal quotations omitted).
Nevertheless, the Sentencing Guidelines allow the dis-
trict court to use reasoned “speculation and reasonable
estimation” of drug quantity. Id.; see also U.S.S.G. § 2D1.1,
App. Note 12. The district court may also “take witness’
estimates of the amount of drugs they purchased and
multiply that by the minimum quantity sold on each
No. 11-1404 11
occasion, as well as extrapolate drug quantities from the
amount of money used to purchase the drugs.” United
States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000).
Contrary to Fleming’s claim, the district court did not
simply assume, based exclusively on Lucas’s testimony,
that the conduct Lucas described continued unabated
for the year in question. The evidence presented at trial
showed that Fleming was a regular drug dealer during
at least the period covered by much of 2006 and 2007
and that he needed at least four grams of crack cocaine
approximately every eight days to meet his customers’
demand. The district court reasonably relied in part on
Lucas’s testimony as an indication of the amount of
cocaine powder Fleming was moving.
We A FFIRM the judgment of the district court, and we
D ENY Fleming’s implicit request for an expanded CA.
4-17-12