United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Defendant Wesley Tavion Grant's pro
se Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence [Doc. No. 231], which is supported
by a separate brief [Doc. No. 234]. The government has filed
a response [Doc. No. 246], accompanied by the affidavit of
Defendant's counsel, Paul Antonio Lacy [Doc. No. 246-1],
and Defendant has filed a reply [Doc. No. 248]. For reasons
that follow, the Court finds that no hearing is needed and
the Motion should be denied.
and Procedural Background
August 18, 2015, a federal grand jury charged Defendant and
three others with conspiracy to possess with intent to
distribute phencyclidine (PCP) in violation of 21 U.S.C.
§ 846. Defendant was also charged with one count of
distributing PCP and one count of possessing with intent to
distribute PCP in violation of 21 U.S.C. § 841(a)(1), or
aiding and abetting the commission of these crimes, 18 U.S.C.
§ 2. The statutory penalty for two charges of the
Indictment was a mandatory minimum prison sentence of 10
years, and if the offense was committed “after two or
more prior convictions for a felony drug offense have become
final, ” the statute in effect at the relevant time
required “a mandatory term of life imprisonment without
release.” See 21 U.S.C. § 841(b)(1)(A)
(prior to 2018 amendment); see First Step Act of
2018, Pub. L. No. 115-391, § 401(a)(2)(A)(i), 132 Stat.
5194, 5220 (2018).
experienced criminal defense attorney, Assistant Federal
Public Defender Paul Antonio Lacy, was appointed to represent
Defendant at arraignment. Following a
Jameshearing and the resolution of pretrial
motions, Defendant and one co-defendant, Larenzo Gabourel,
proceeded to trial in January 2016. Another co-defendant,
Paul Thomas, reached a plea agreement and testified for the
prosecution. A jury found Defendant and Mr. Gabourel guilty
of all offenses charged against them in the Indictment. In
July 2016, Defendant received a mandatory life sentence based
on a criminal history that included two felony drug
trafficking offenses and an information filed before trial
pursuant to 21 U.S.C. § 851(a). Mr. Gabourel received a
180-month prison sentence. Both defendants appealed, and
their convictions and sentences were affirmed in a single
opinion. See United States v. Gabourel, 629
Fed.Appx. 529 (10th Cir. 2017). The instant § 2255
Motion was timely filed on September 5, 2018, and was fully
briefed on May 20, 2019.
asserts three grounds for relief, all of which allege he
received ineffective assistance of trial and appellate
counsel by Mr. Lacy. Defendant complains that Mr. Lacy failed
to: 1) “object to an erroneous jury instruction in
light of Rosemond v. U.S., 134 S.Ct. 1240
(2014);” 2) “object to an erroneous jury
instruction in light of Henderson v. U.S., 135 S.Ct.
1780 (2015);” and 3) “object to the District
Court's failure to inform [Defendant] that any challenge
to a prior conviction is waived if not made before
sentencing.” See Def.'s Mot. [Doc. No.
231] at 3, 4, 6 (ECF page numbering). Although not expressly
stated, Defendant appears to claim Mr. Lacy was unaware of
Supreme Court decisions affecting essential elements of the
government's case, and overlooked the statutory
requirements of the enhanced penalty statute, 21 U.S.C.
§ 851. Defendant primarily complains that the colloquy
requirement of § 851(b) - in particular, the obligation
to inform him that any challenge to a prior conviction must
be made before sentencing - was not followed.
establish ineffective assistance of counsel, Defendant must
demonstrate both that counsel's performance was deficient
and that the deficiency prejudiced the defense. See Smith
v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016).
“An insufficient showing on either element is fatal to
an ineffective-assistance claim, rendering consideration of
the other element unnecessary.” Id. In
assessing the performance prong of an ineffective assistance
claim, “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). To prove deficient
performance, a defendant must demonstrate that his
counsel's performance “fell below an objective
standard of reasonableness” (id. at 688), that
is, it was “‘completely unreasonable, not merely
wrong.'” Byrd v. Workman, 645 F.3d 1159,
1167 (10th Cir. 2011) (quoting Hooks v. Workman, 606
F.3d 715, 723 (10th Cir. 2010)). To prove prejudice,
“[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
“Aiding and Abetting” Jury Instruction
first claims Mr. Lacy overlooked a legal development that
required modification of the jury instruction for
“aiding and abetting” based on the Supreme
Court's decision in Rosemond v. United States,
572 U.S. 65 (2014). Defendant acknowledges that the parties
requested, and this Court used at trial, the Tenth
Circuit's pattern instruction for criminal liability as
an aider and abettor under 18 U.S.C. § 2.
Compare Def.'s Opening Br. at 6-7 (quoting
Instr. No. 23) with Tenth Cir. Crim. Pattern Jury
Instr. § 2.06 (2011 ed. updated Feb. 2018) (available at
asserts, however, that the pattern instruction was an
inaccurate statement of the law after Rosemond, and
that Mr. Lacy erred by not requesting a modified instruction
that incorporated its holding.
consideration of this claim, the Court finds that Defendant
fails to allege facts that would establish either an error by
counsel or resulting prejudice. Defendant's view of
Rosemond is unsupported by any legal authority that
might extend its holding to his case. In Rosemond,
572 U.S. at 67, the Supreme Court held that aiding and
abetting a firearm offense under 18 U.S.C. § 924(c) -
using or carrying a firearm “during and in relation to
any crime of violence or drug trafficking crime” -
requires proof of an additional element, that is, advance
knowledge that a firearm would be used or carried during the
commission of the predicate offense. Defendant was not
charged with aiding and abetting a violation of §
additional element of advance knowledge announced in
Rosemond has been extended by some federal appellate
courts, primarily to other “double-barreled” or
“combination” crimes.See United States v.
Baker, 912 F.3d 297, 314 (5th Cir. 2019) (discussing
split of authority), amended and superseded on
reh'g, 923 F.3d 390 (5th Cir. 2019). The Tenth
Circuit has taken a more limited view. See United States
v. Davis, 750 F.3d 1186, 1193 (10th Cir. 2014)
(“After Rosemond, a jury instruction on aiding
and abetting § 924(c) should address the defendant's
advance knowledge of the gun.”); see also United
States v. Arciniega-Zetin, 755 Fed.Appx. 835, 845 n.8
(10th Cir. 2019) (“Neither the Supreme Court nor this
circuit court has extended Rosemond beyond the
combination crime of 18 U.S.C. § 924(c).”). Under
current Tenth Circuit law, Rosemond does not apply
to Defendant's charged offenses of aiding and abetting a
violation of 21 U.S.C. § 841(a)(1). See Tenth
Cir. Crim. Pattern Jury Instr. § 2.06 cmt. (2011 ed.
updated Feb. ...