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United States v. Grant

United States District Court, W.D. Oklahoma

June 13, 2019

WESLEY TAVION GRANT, a/k/a Olajawan Armond Bush, Defendant.



         Before 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.[1]

         Factual and Procedural Background

         On 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).

         An experienced criminal defense attorney, Assistant Federal Public Defender Paul Antonio Lacy, was appointed to represent Defendant at arraignment. Following a James[2]hearing 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.[3]

         Defendant's Motion

         Defendant asserts three grounds for relief, all of which allege he received ineffective assistance of trial and appellate counsel by Mr. Lacy.[4] 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.

         Standard of Decision

         To 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.


         1) “Aiding and Abetting” Jury Instruction

         Defendant 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 Jury%20Instructions%20Update%202018.pdf). Defendant 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.

         Upon 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 § 924(c).

         The additional element of advance knowledge announced in Rosemond has been extended by some federal appellate courts, primarily to other “double-barreled” or “combination” crimes.[5]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. ยง 2.06 cmt. (2011 ed. updated Feb. ...

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