USA v. Marbury

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Case No. 1:98-cr-264-07-RCL

SHELTON MARBURY,

Defendant.

MEMORANDUM OPINION

In 1999, defendant Shelton Marbury and five others were charged, via a 90-count

indictment, with various violations of federal and D.C. law for their participation in "a massive

drug distribution organization in Southeast Washington, D.C." United States v. Bostick, 791 F.3d

127, 134 (D.C. Cir. 2015). In 2001, a jury convicted Mr. Marbury of nearly a dozen offenses,

including first degree murder, assault with intent to kill, possession of a firearm during a crime of

violence, and narcotics conspiracy. See Verdict Forms, ECF No. 685. The Court sentenced Mr.

Marbury to 145 years in prison. See J., ECF No. 781. Mr. Marbury and his co-defendants appealed

their convictions and the Circuit affirmed the judgments. Bostick, 791 F.3d at 135.

Mr. Marbury now moves prose to vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255. Def. 's Mot., ECF No. 957. The government opposes Mr. Marbury's motion and urges the

Court to summarily deny Mr. Marbury's claims as without merit. Gov't Opp'n, ECF No. 962.

Upon consideration of Mr. Marbury's motion, the parties' submissions, the applicable law,

and the record, the Court will DENY Mr. Marbury's Section 2255 motion.

I. BACKGROUND

The Circuit explained the factual history underlying Mr. Marbury's offense as the

following:

1
 During the 1980s and 1990s, [Mr. Marbury's co-defendant] Tommy Edelin
purchased large quantities of drugs from wholesale suppliers in New York. In
Washington, D.C., he provided the drugs to a group of mid-level distributors. Those
mid-level distributors in turn sold the drugs to street-level dealers, who then sold to
retail customers primarily in the Stanton Dwellings and Congress Park
neighborhoods of Southeast Washington, D.C ....

In the course of their activities, Tommy Edelin and his associates committed
numerous murders and shootings, often during clashes with rival drug crews. Those
conflicts frequently followed a pattern: A dealer from a rival group would rob or
attack one of Edelin's associates. Edelin would respond by ordering his associates
to kill the attacker as well as members of the attacker's crew. Throughout the 1990s,
several of Edelin's distributors and dealers, including the defendants here,
participated in such violence.. . .

Shelton Marbury was a street-level dealer of crack cocaine. He operated at the
lowest level of Tommy Edelin's distribution network. He committed two murders
and participated in several shootings during the conflict with the Stanton Terrace
Crew in 1996.... [Additionally,] Marbury regularly purchased resale quantities of
crack cocaine from mid-level members of Tommy Edelin's organization, and they
then redistributed those drugs.

Bostick, 791 F.3d at 136, 140.

After a multi-year joint investigation by the Federal Bureau of Investigation and the D.C.

Metropolitan Police Department, Tommy Edelin, Mr. Marbury, and four other members of the

conspiracy were charged with almost one hundred crimes under both federal law and the D.C.

Code. Id. at 13 7.

Following a lengthy trial, a jury found Mr. Marbury guilty of the following offenses:

Count No. Description Statute
1 Conspiracy to distribute and possession with intent to 21 U.S.C. § 846
distribute a controlled substance
19 Assault with intent to murder while armed of Edgar D.C. Code §§ 22-503,
Watson -3202, and -105
20 First-degree murder while armed of Anthony Payton D.C. Code§§ 22-2401,
-3202, and -105
35 First-degree murder while armed of Robert Keys D.C. Code§§ 22-2401,
-3202, and -105
68 Possession of a firearm during the assault with intent D.C. Code §§ 22-
to murder while armed of Ed,gar Watson 3201(b), -3204(b)

2
 69 Possession of a firearm during the first-degree D.C. Code §§ 22-
murder while armed of Anthony Payton 3201(b), -3204(b)
70 Possession of a firearm during the assault with intent D.C. Code§§ 22-
to murder while armed of Darnell Mu]l)hy 3201(b), -3204(b)
71 Possession of a firearm during the assault with intent D.C. Code §§ 22-
to murder while armed ofKerbin Johnson 3201(b), -3204(b)
73 Possession of a firearm during the assault with intent D.C. Code §§ 22-
to murder while armed of Mark Barnes 3201(b), -3204(b)
82 Possession of a firearm during the first-degree D.C. Code §§ 22-
murder while armed of Robert Keys 320l(b), -3204(b)

See Verdict Forms at 28-33. 1

In December 2004, this Court sentenced Mr. Marbury. As to Count 1, the Court concluded

that "the murders of Anthony Payton, Damien Jennifer, Robert Keys, Sherman Johnson, and Edgar

Watson were reasonably foreseeable to defendant Marbury and that he is properly held accountable

for these murders as acts in furtherance of the narcotics conspiracy charged in Count One." Bostick,

791 F.3d at 158. Guided by the U.S. Sentencing Guidelines, the Court calculated a base offense

level of 43. 2 Id. That base offense level, combined with Mr. Marbury's criminal history category

ofl, dictated a term oflife imprisonment. See Gov't Opp'n at 7. However, the Court only imposed

240 months of incarceration, the statutory maximum. See id.; J. at 2. As to the D.C. code offenses,

this Court sentenced Mr. Marbury as follows: 15 years to life incarceration as to Count 19; 3 30

1
The jury also found Mr. Marbury guilty of Count 72, possession of a firearm during the assault with intent to murder
while armed of Darren Marcus, in violation ofD.C. Code§§ 22-3201(b), -3204(b). See Verdict Forms at 33. On direct
appeal, the Circuit instructed that "Marbury's convictions on Counts 71 and 72" "should merge, and one should be
vacated" because "[b]oth convictions arose out of Marbury' s uninterrupted possession of a firearm during the assault
with intent to murder of police officers Kerbin Johnson and Darren Marcus." Bostick, 791 F.3d at 161-62. On remand,
this Court accordingly vacated Mr. Marbury's conviction on Count 72. Order, ECF No. 866, at 3.
2
Specifically, the Court applied U .S.S.G. § 2Dl.l(d)(l), which provides: "If a victim was killed under circumstances
that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime
jurisdiction of the United States, apply §2Al.1 (First Degree Murder)[.)" See U.S.S.G. Manual, ch. 2, Part D (2021).
Section 2Al. l establishes a base offense level of 43. See id., Parts A--C.
The government's opposition makes reference to§ 2A3 .l(c)(l). See Gov't Opp'n at 7. This sentencing provision,
which applies in criminal sexual abuse cases, is inapplicable here.
3
The Court also sentenced Mr. Marbury to 15 years to life incarceration as to Count 22. See J. at 2. That conviction
was later vacated. See infra n.6.

3
 years to life incarceration as to Counts 20 and 35; 5 to 15 years of incarceration as to Counts 68

through 73 and 82. See J. at 2. The Court imposed all sentences to run consecutively to each other. 4

See id.

On appeal, the Circuit affirmed Mr. Marbury's judgment. Bostick, 791 F.3d at 135. In so

doing, the Circuit carefully reviewed-and rejected-the various challenges Mr. Marbury raised,

including, as relevant here, the sufficiency of the government's evidence against him, and the

Court's jury instructions.

Mr. Marbury claimed that this Court erred by finding that the murders of Anthony Payton,

Damien Jennifer, Robert Keys, Sherman Johnson, and Edgar Watson were (1) reasonably

foreseeable to him and (2) attributable to the conspiracy. See id. at 158. The Circuit found that

both arguments were "meritless." Id. As to the first, the Circuit noted that "Marbury directly

participated in and was convicted of two of the five murders for which he was held accountable-

the killing of Payton and Keys." Id. As to the second argument, the Circuit rejected Mr. Marbury's

account that the killings were committed for reasons other than furthering the goals of the

conspiracy. 5 See id. at 138-39. In its review of the record, the Circuit specifically noted that Earl

Edelin, Tommy Edelin's father and another of Mr. Marbury's co-defendants, "taught" "Marbury[]

and others how to use firearms to kill" and that "(h]e gave Marbury a gun to use in the shootings."

Id. at 139. That evidence, along with statements made by Tommy Edelin to members of the

conspiracy referring to the murders, indicated that the "murders were committed, at least in part,

to protect the profits and operations of Tommy Edelin's drug distribution enterprise." Id.

4
The Court also imposed a $1,200 assessment and restitution in the amount of$24,973.83. See J. at 4.
5 The Circuit refers to these murders as the "Stanton Terrace Crew killings." See Bostick, 791 F.3d at 138. Evidence
at trial established that Edgar Watson and Anthony Payne were members of the Stanton Terrace Crew. See Gov't
Opp'n at 3.

4
 Mr. Marbury also challenged the sufficiency of the evidence supporting his convictions on

Counts 70 through 73, claiming that his firearm possession convictions could not stand because

the jury had acquitted him of the underlying assaults. See id. at 141. The Circuit rejected that

argument as well, stating:

Multiple cooperating witnesses provided detailed testimony about Marbury's role
in the charged assaults, all of which involved shootings directed at the Stanton
Terrace Crew. In all but one of the attacks, one of the testifying witnesses had
participated in the crime with Marbury. In the remaining instance, that witness
testified that Marbury had asked him for help in covering up Marbury's role in the
shooting. Another Government witness testified that after that assault, Marbury had
asked to trade guns because his gun had a victim's "body" on it. July 2, 2001 Trial
Tr. at 12065 (Thomas Sims). According to the witnesses, Marbury carried a firearm
during each assault.

Based on that testimony, a rational jury could readily find that Marbury participated
in each underlying assault. We therefore affirm his convictions for possession of a
firearm during a crime of violence.

Id.

Finally, Mr. Marbury challenged this Court's omission of a sentence in the agreed upon

jury instructions that "in the defendants' view, would have underscored that the Government must

prove each individual defendant's involvement in the conspiracy." Id. at 144. The Circuit

disagreed, concluding "that the instructions adequately conveyed that an individual defendant must

join the conspiracy to be found guilty under 21 U.S.C. § 846." Id. Specifically, the Circuit noted

that the Court's "instructions repeatedly emphasized that to convict a particular defendant of Count

One, the jury must find that the individual defendant knowingly participated in the conspiracy with

the specific intent to further its objectives." Id. Even though "[t]he omitted sentence would have

underscored the point," "the omission of the sentence did not render the instructions erroneous."

Id. This was especially true in light of the Court's careful instruction to the jury that "a person who

has no knowledge of or intent to join the conspiracy, but just happens to act in a way that is of

5
 benefit to the conspiracy, or to a conspirator, does not thereby himself become a conspirator." Id.

(citing Trial Tr. at 21523-24).

Even though the Circuit affirmed his conviction, the Circuit remanded Mr. Marbury's case

to this Court for resentencing. A year after Mr. Marbury's original sentencing, the Supreme Court

decided United States v. Booker, 543 U.S. 220 (2005), holding that the U.S. Sentencing Guidelines

were advisory. Because Mr. Marbury had been sentenced under the mandatory Guidelines regime,

the Circuit found that he was "entitled to what our cases have termed a Booker remand of the

record to determine whether the District Court would impose [a] different sentence[], more

favorable to the defendant[], under the advisory Guidelines." Id. at 162. 6

On remand, the Court imposed the same sentence. See Mem. Order, ECF No. 919. Because

Mr. Marbury was personally convicted of multiple murders, and found responsible for several

piore due to his membership in the conspiracy, this Court noted that it "did not and does not feel

that a constructive life sentence is too harsh a penalty for Marbury's crimes." See id. at 2. The

Court further noted that "[n]one of the factors laid out in 18 U.S.C. § 3553(a) counsel in favor of

a reduction." Id. Based on these reasons, the Court determined that, "[h]ad the Guidelines been

advisory at the time of[] Marbury's original sentencing, the Court would not have imposed a lesser

sentence." Id. Mr. Marbury appealed this Court's order and the Circuit affirmed. United States v.

Bostick, 839 Fed. App'x 556, 557 (D.C. Cir. 2021). The Supreme Court denied Mr. Marbury's

petition for certiorari. Marbury v. United States, No. 21-6132, 142 S. Ct. 632 (Dec. 6, 2021).

In March 2022, Mr. Marbury moved pro se to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. He argues that his sentence must be vacated because it was imposed in

6
In addition to the Booker remand, the Circuit instructed the Court on remand to: (1) merge Mr. Marbury's convictions
on Counts 71 and 72, discussed supra n.1; and (2) vacate Mr. Marbury's sentence of 15 years to life for Count 22
because he was acquitted of this count. Bostick, 791 F.3d at 161.

6
 violation of the law. The government opposed and Mr. Marbury replied, ECF No. 964. His motion

is now ripe for review.

II. LEGALSTANDARDS

A. 28 U.S.C. § 2255

A prisoner may move to vacate, set aside, or correct his sentence if (1) the sentence was

imposed "in violation of the Constitution or laws of the United States"; (2) the court lacked

jurisdiction to impose the sentence; (3) the sentence "was in excess of the maximum authorized

by law"; or (4) the sentence is "otherwise subject to.collateral attack." 28 U.S.C. § 2255(a). The

prisoner bears the burden to prove his right to relief by a preponderance of the evidence. United

States v. Baugham, 941 F. Supp. 2d 109, 112 (D.D.C. 2012). While a district court must construe

prose filings liberally, see United States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014), a court

need not hold an evidentiary hearing when "the motion and the files and records of the case

conclusively show the prisoner is entitled to no relief[.]" 28 U.S.C. § 2255(b).

B. Cause, Prejudice, and Actual Innocence

"It is well established in the federal circuits that a federal prisoner cannot raise collaterally

any issue litigated and adjudicated on a direct appeal from his conviction, absent an intervening

change in the law." Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (per curiam) (internal

citations omitted). Claims that were not raised on direct review will be considered in a

Section 2255 motion only if the petitioner can demonstrate (1) "cause" and "prejudice" or (2) that

he is "actually innocent." See Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v.

United States, 523 U.S. 614, 622 (1998). Cause may be shown where a claim is "so novel that its

legal basis is not reasonably available to counsel," but "futility cannot constitute cause if it means

simply that a claim was unacceptable to that particular court at that particular time." Bousley, 523

7
 U.S. at 622-23 (internal quotations and citations omitted). To establish "prejudice," a petitioner

must show "not merely that the errors at his trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphases in

original); United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003).

If a defendant can prove that he is actually innocent of the charged offense, procedural bars

will not apply. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But "tenable actual-innocence

gateway pleas are rare[.]" Id. A defendant must demonstrate that "in light of ... new evidence, no

juror, acting reasonably, would have voted to find him guilty beyond a reason~ble doubt." Id.

(quoting Schlup v. Delo, 513 U.S . 298, 329 (1995)). "Actual innocence means factual innocence,

not mere legal insufficiency." Bousley, 523 U.S. at 623. Ineffective assistance of counsel claims

fall outside the requirements of the cause and prejudice rule, however, as they may be raised in

collateral proceedings under Section 2255. See Baugham, 941 F. Supp. 2d at 112 (citing Massaro,

538 U.S. at 504).

C. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a petitioner "must prove both

incompetence and prejudice." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Specifically,

the petitioner must demonstrate that (1) "counsel's representation fell below an objective standard

of reasonableness ... under prevailing professional norms" and (2) "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have

been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). That sets a high bar,

as a court's evaluation of counsel's actions "must be highly deferential," and is assessed under the

circumstances present at the time of representation without the benefit of hindsight. Id. at 689.

8
 Furthermore, a "reasonable probability" under Strickland's second prong is one that is "sufficient

to undermine confidence in the outcome." Id. at 694. To find prejudice, the petitioner must show

there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster,

563 U.S. 170, 189 (2011) (internal quotations and modifications omitted). An ineffective

assistance of counsel claim is defeated if the defendant fails to demonstrate either prong.

Strickland, 466 U.S. at 700.

III. DISCUSSION

Mr. Marbury collaterally challenges the constitutionality of his convictions in three main

ways: 7 (1) he is "actually innocent of his alleged conspiracy predicated on the crime of violence

involving count(s) 35 thru [sic] 42 in connection with 18 U.S.C. §924(c)," Def.'s Mot. at 5-10, (2)

this Court violated the Sixth Amendment in sentencing him, see id. at 12, 16-17, and (3) he was

denied effective assistance of counsel, see Def. 's Reply at 4-5. 8 The government argues that all of

Mr. Marbury's claims are procedurally barred or meritless. Gov't Opp'n at 1-2. This Court agrees.

A. Mr. Marbury's Claims Are Timely

As a threshold matter, Mr. Marbury' s claims are not time-barred. Under the Anti-Terrorism

and Effective Death Penalty Act, a defendant must bring any Section 2255 claims within one year

of when the "judgment of conviction becomes final." 28 U.S.C. § 2255(f)(l). A judgment of

7
Mr. Marbmy's motion notes "Argument One," see Def.'s Mot. at 4-9, "Argument Two," see id. at 9-12, and
"Argument Three," see id. at 12-17. The government understands Mr. Marbury's motion as "essentially rais[ing] two
main arguments." Gov't Opp'n at I. The Court, in construing Mr. Marbury' s prose submission liberally, views Mr.
Marbury's filings as raising three arguments, but not as he so styled them. Sp eci£cally, the Court considers 'Argument
Two" to be a restatement of the first part of "Argument One" and therefore will not independently consider it.
Additionally, the Court views Mr. Marbury's reply as clarifying that he is indeed raising ineffective assistance of
counsel claims, even though the government did not read his motion as raising these claims. See Def.' s Reply at 4-5;
Gov't Opp'n at 11-12 n.4.
8 Mr. Marbury makes his ineffective assistance of counsel claims explicit for the first time in reply. Generally, a court

need not consider arguments made for the first time in a reply brief. See United States v. Brown, 249 F. Supp. 3d 287,
295 n.1 (D.D.C. 2017). However, given his reference to in.effective assistance of counsel in his original motion, see
Def. 's Mot. at 18, along with the liberal construction of prose submissions, see Arrington, 763 F.3d at 22, the Court
will consider the new claims raised in reply as well.

9
 conviction is "final" when the Supreme Court denies a petition for writ of certiorari. See Clay v.

United States, 537 U.S. 522, 527 (2003). Accordingly, Mr. Marbury's conviction became final on

December 6, 2021. See Marbury, 142 S. Ct. 632. Mr. Marbury attested to submitting his motion

on March 28, 2022. See Def.'s Mot. at 21. Motions by prose prisoners are considered filed when

placed in the prison mailing system. See Blount v. United States, 860 F.3d 732, 741 (D.C. Cir.

201 7). Because Mr. Marbury filed his motion less than one year after his conviction became final,

his motion is timely.

B. Mr. Marbury's Actual-Innocence Argument Is Without Merit

Mr. Marbury argues that he is "actually innocent of his alleged conspiracy predicated on

the crime of violence involving count(s) 35 thru [sic] 42 in connection with 18 U.S.C. §924(c)"

for three reasons: (1) "conspiracy is not a crime of violence under the principles enumerated in

United States v. Davis, 139 S. Ct. 2319 (2019),"9 (2) "he was convicted and sentenced for a

racketeering conspiracy[] predicated on a statute declared to be unconstitutionally vague"; and (3)

"the evidence adduced at trial was insufficient to sustain the convictions." Def.'s Mot. at 5-10.

The government argues that Mr. Marbury's arguments are meritless. See Gov't Opp'n at 11-14. 10

The first prong of Mr. Marbury' s actual-innocence argument falters because his conspiracy

conviction (Count 1), was predicated on narcotics distribution, not a crime of violence. Mr.

Marbury was convicted of conspiracy to distribute and possession with intent to distribute a

controlled substance, in violation of 21 U.S.C. § 846. The jury determined that the government

9
In Davis, the Supreme Court held 18 U.S.C. § 924(c)(3)(B), the statute's so-called "residual clause," to be
unconstitutionally vague. 139 S. Ct. at 2336.
10
The government also argues that this claim is procedurally barred because the Supreme Court decided Davis while
the Circuit's mandate on his direct appeal wa still pending and he failed to raise the Dm is claim in his petition for
rehearing. See Gov' t Opp' n at 11-12. The Court finds that Mr. Marbury adequately explained cause and prejudice
excusing his failure to raise the claim on appeal and thus does not find the claim procedurally barred. See Def.' s Reply
at 18-19. Nevertheless, the claim is without merit.
 had established beyond a reasonable doubt that the controlled substance was cocaine base and that

Mr. Marbury was responsible for less than 5 grams. See Verdict Forms at 28-29. Thus, the

conspiracy charge-and conviction-was predicated on Mr. Marbury's involvement in the

distribution, possession, and intent to distribute narcotics, not a crime of violence.

Moreover, as the government correctly points out, Mr. Marbury was only convicted of one

of the counts he cites (albeit incorrectly) as the predicates for Count 1: Count 35, First-degree

murder while armed of Robert Keys in violation ofD.C. Code§§ 22-2401, -3202, and -105. See

Gov't Opp'n at 12; Verdict Forms at 32. Mr. Marbury was acquitted of Count 36, see Verdict

Forms at 32, and Counts 37-42 charged Mr. Marbury's co-conspirators, not Mr. Marbury, see

Gov't Opp'n at 12. Mr. Marbury was charged with two other counts of violating 18 U.S.C.

§ 924(c)-Counts 51 and 53-but was acquitted of both. See Verdict Forms at 32.

To the extent that Mr. Marbury's actual-innocence claim challenges this Court's finding

that the murder of Keys was attributable to the conspiracy, this argument cannot be raised in a

collateral attack because Mr. Marbury already raised it on direct appeal. Garris, 794 F.2d at 726.

Even so, the Circuit previously rejected this argument as "meritless" when it determined, after

examining the extensive trial record, that the "murders were committed, at least in part, to protect

the profits and operations of Tommy Edelin's drug distribution enterprise." See Bostick, 791 F.3d

at 158.

Finally, Mr. Marbury's argument would be unavailing even liberally construing his motion

as challenging the constitutionality of his convictions for the D.C. Code equivalent of 18 U.S.C.

§ 924(c)-Counts 68 through 73 and 82. The D.C. Court of Appeals has held that provisions of

the D.C. Code criminalizing possession of a firearm during a crime of violence are not

unconstitutionally vague. See Arrington v. United States, 238 A.3d 218,221 (D.C. 2020).

11
 The second and third prongs of Mr. Marbury's actual-innocence claim are also without

merit. Mr. Marbury was, in fact, acquitted of Count 3, the RICO conspiracy charge. See Verdict

Form at 29. And he already challenged the sufficiency of the evidence against him on direct appeal

and the Circuit disagreed. Thus, he may not raise the same claim in a collateral attack. Garris, 794

F.2d at 726.

Finally, Mr. Marbury misunderstands the actual-innocence standard. A defendant asserting

an actual-innocence argument must "persuade[] the district court that, in light of ... new evidence,

no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."

McQuiggin, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329). A "prototypical example," for

instance, "is the case where the State has convicted the wrong person of the crime." Sawyer v.

Whitley, 505 U.S. 333,340 (1992) (internal quotation marks omitted). Mr. Marbury does not bring

new evidence showing his factual innocence. Instead, his arguments center only on "mere legal

insufficiency," which is not enough to avail himself of the actual-innocence exception. Bousley,

523 U.S. at 623.

Therefore, Mr. Marbury has not established that his sentence was imposed in violation of

law based on actual innocence.

C. Mr. Marbury's Sixth Amendment Claim Is Without Merit

Mr. Marbury avers that this Court violated his Sixth Amendment rights in two ways in

imposing his sentence, but both arguments miss the mark.

First, he argues that the Court impermissibly calculated his sentence by relying on facts in

the PSR to determine his sentence for Count 1. 11 He claims that this practice violated the Sixth

11
Mr. Marbury does not specifically refer to Count 1 but repeatedly references the U. S. Sentencing Guidelines and its
calculation of possible sentences. See Def.'s Mot. at 12-17. Becau e Count 1 was Mr. Maibury' s only federal count
of conviction, the Court infers that Mr. Marbury is referring to this conviction. Cf Gov' t Opp'n at 15.

12
 Amendment and associated Supreme Court precedent requiring essential elements of crimes to be

found by ajury. 12 See Def.'s Mot. at 12, 16-17. However, as the government correctly notes, this

Court relied on facts specifically found by the jury. See Gov't Opp'n at 15. 13 At trial, the jury

"found [Mr. Marbury] responsible for several murders committed in furtherance of the Count One

drug conspiracy." Bostick, 791 F.3d at 158. The Circuit affirmed the validity of this finding by

saying that "Marbury directly participated in and was convicted of two of the five murders for

which he was held accountable" and that "the record amply support[ ed] the inference that the

violent campaign against the Stanton Terrace Crew (including the murders of Payton and Keys)

was· undertaken at least in part to further the profits and operations of the Count One drug

conspiracy." Id. at 158-59. This Court relied on, and cited, the findings by both the jury and the

Circuit in reimposing Mr. Marbury's original sentence. See Mem. Order at 2.

Second, Mr. Marbury argues that, in refusing to reduce his sentence on remand, the Court

violated the Sixth Amendment by treating the U.S. Sentencing Guidelines as effectively

mandatory. 14 See Def 's Mot. at 16-17. Mr. Marbury's argument misunderstands the wide

discretion available to a sentencing court. Post-Booker, a sentencing court starts by calculating the

Guidelines range but is free "to consider all relevant information at an initial sentencing hearing,"

12
See U.S . Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been committed"); Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) ("[A]ny fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt"); Alleyne v. United States, 570 U.S.
99, 104 (2013) ("[A]nyfact that increases the mandatory minimum is an 'element' that must be submitted to the jury").
13
The government argues in the alternative that any Sixth Amendment challenges to his sentence are procedurally
barred because he failed to raise them on direct appeal. See Gov' t Opp'n at 15. Since it is unclear whether the error
Mr. Marbury claims occurred during the Court's original sentencing or the Booker remand resentencing, and mindful
of the liberal construction of prose filings, this Court does not conclude that Mr. Marbury's claim is procedurally
barred. Regardless, his claim is without merit.
14The Supreme Court in Booker held that mandatory application of the Guidelines was unconstitutional under the
Sixth Amendment because it removed the jury's role in deciding whether the government had sufficiently proven facts
necessary to support a sentence. See 543 U.S. at 249-58.

13
 and "[t]hat discretion also carries forward to later proceedings that may modify an original

sentence." Concepcion v. United States, 142 S. Ct. 2389, 2399 (2022). In fact, "[t]he only

limitations on a court's discretion to consider any relevant materials at an initial sentencing or in

modifying that sentence are those set forth by Congress in a statute or by the Constitution." Id. at

2400. Here, the Court properly recognized the only relevant limitation on its sentencing

discretion-the statutory maximum of 240 months' incarceration for Count 1. The Court then

sentenced Mr. Marbury considering the record, including the jury's verdict and the Circuit's

findings on appeal. Imposing the same sentence on remand is an exercise well within the court's

discretion. See In Re Sealed Case, 573 F.3d 844, 853 (D.C. Cir. 2009).

Thus, as with Mr. Marbury's actual-innocence argument, he has not established that his

sentence was imposed in violation of the Sixth Amendment.

D. Mr. Marbury's Ineffective Assistance of Counsel Claims Are Without Merit

Finally, Mr. Marbury raises various ineffective of counsel claims. He argues that his trial

counsel "failed to object to [a] jury instruction that omitted essential mens rea element of acquitted

charged offense" and "was ineffective for failing to move for a judgment of acquittal based upon

the insufficiency of the government's evidence" against him. Def. 's Reply at 4-5. Next, he faults

his appellate counsel for counsel's: "failure to raise ... [meritorious] issue [on trial court's refusal

to grant defense counsel's request for jury instruction defining element of crime] and [appellate

counsel's decision instead to raise weaker issues were unlikely to succeed fell below prevailing

norms of professional conduct." Id. at 4 (alterations in original). Relatedly, Mr. Marbury contends

that the Court gave an "erroneous jury instruction [that] reduced the government's burden of

proof[,]" essentially "permit[ing] a murder conviction based on a preponderance of the evidence

that prior uncharged crimes occurred" and that appellate counsel were ineffective when counsel

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 "failed to seek plain error review." Id. at 4-5 (alterations in original). Mr. Marbury's arguments

fall short of the required Strickland prongs of deficiency and prejudice.

Mr. Marbury's two arguments alleging his trial counsel's ineffectiveness are unavailing.

Regarding the first argument, he is correct that his trial counsel failed to object to the Court's

inadvertent omission of one sentence in the jury instructions. However, the Circuit reviewed the

issue for plain error and found that "[t]here was no error, much less plain error." See Bostick, 791

F.3d at 144. Therefore, Mr. Marbury cannot show a "reasonable probability" of a different jury

verdict had the jury heard the omitted sentence, let alone a "substantial" "likelihood" of a different

result. Cullen, 563 U.S. at 189. As for his second argument, Mr. Marbury's counsel did move for

a judgment of acquittal. See Mot., ECF No. 549. This Court held a hearing on the motion and

granted judgment of acquittal on two counts not relevant here but denied the motion in all other

respects. See Mot. Hearing (08/14/2001). Therefore, the "Court will not find defective

performance based solely on counsel losing an argument." United States v. Martin, No. 98-cr-329

(RCL), 2021 WL 4989983, at *17 n.14 (D.D.C. Oct. 27, 2021).

Mr. Marbury' s complaints about his appellate counsel also fail to satisfy Strickland. With

regard to the first prong---deficient performance-it is well-settled that courts reviewing Section

2255 motions "will not second guess reasonable tactical choices by defense counsel." United

States v. Catlett, 97 F.3d 565, 571 (D.C. Cir. 1996). Mr. Marbury faults appellate counsel for not

raising issues regarding jury instructions refused or given by this Court and instead focusing on

other "weaker" arguments. See Def' s Reply at 4. As the Supreme Court has recognized, appellate

counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from

among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S.

259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). On appeal, the Circuit noted that

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 appellate counsel had "raised a great number and variety of arguments." See Bostick, 791 F.3d at

135. While Mr. Marbury may disagree with the arguments that counsel chose to devote resources

to, he has not explained why his appellate counsel's strategy fell below the objective standard of

reasonableness, especially given the court's "highly deferential" review of his counsel's choices.

Strickland, 466 U.S. at 689.

Finally, the cases upon which Mr. Marbury relies to establish that errors by his appellate

counsel caused prejudice under Strickland's second prong miss the mark. Mr. Marbury cites

Molina-Martinez v. United States, 578 U.S. 189, 198 (2016) and Rosales-Mireles v. United States,

138 S. Ct. 1897, 1908 (2018) for the proposition that errors in calculating a Guidelines range are

presumptively prejudicial. Def. 's Reply at 5--6. However, that proposition is inapplicable here. The

Circuit already determined that this Court properly calculated Mr. Marbury's Guidelines range.

See Bostick, 791 F.3d at 158. Therefore, Mr. Marbury cannot establish prejudice either.

* * *

To sum up, Mr. Marbury's claims are without merit and he has not offered new evidence

that he is actually innocent. Moreover, his actual-innocence arguments focused on the legal

insufficiency of his convictions, not the factual insufficiency. For these reasons, the Court will

DENY his motion to vacate, set aside, or correct his conviction under 28 U.S.C. § 2255.

IV. CERTIFICATE OF APPEALABILITY

Before appealing a final order denying a Section 2255 motion, a court must "issue or deny

a certificate of appealability." Rules Governing § 2255 Proceedings, Rule ll(a). The defendant

may not appeal a final order without this certificate of appealability, which requires "a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Doing so requires the

defendant to demonstrate "that reasonable jurists could debate whether (or, for that matter, agree

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that) the petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484

(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (internal quotation marks

omitted)). When a district court denies relief on procedural grounds, the defendant must also show

that reasonable jurists would debate "whether the district court was correct in its procedural

ruling." United States v. Baxter, 761 F.3d 17, 26 n.10 (D.C. Cir. 2014) (quoting Slack,

529 U.S. at 484).

Mr. Marbury's arguments are without merit and his actual-innocence claim focused on the

legal insufficiency of his convictions, not the factual insufficiency. For these reasons, the Court

finds that reasonable jurists would not debate whether Mr. Marbury' s claims deserve

encouragement to proceed further. Mr. Marbury has not made a substantial showing of the denial

of a constitutional right. The Court will therefore decline to issue a certificate of appealability for

Mr. Marbury' s claims.

V. CONCLUSION

For these reasons, the Court concludes that Mr. Marbury's motion and the record in his

case do not show his entitlement to relief. The Court declines to hold an evidentiary hearing, see

28 U.S.C. § 2255(b), and will DENY Mr. Marbury's motion. No certificate of appealability shall

issue. A separate Order consistent with this Memorandum Opinion shall issue this date.

SIGNED this '7 ,..... day of January, 2023.
Royce C. Lamberth
United States District Judge

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