Iii v. U.S.A

• Citation: 611 F.3d 441
• Decision Date: 13 July 2010
• Docket Number: No. 09-1015.,09-1015.
• Parties: Bud THEUS III, Appellant,v.UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

611 F.3d 441

Bud THEUS III, Appellant,v.UNITED STATES of America, Appellee.

No. 09-1015.

United States Court of Appeals Eighth Circuit.

Submitted: Nov. 18, 2009.

Filed: July 13, 2010.

Stephanie Rae Amiotte, argued, Sioux Falls, SD, for Appellant.

Mark E. Salter, AUSA, argued, Sioux Falls, SD (John E. Haak, AUSA, on the brief, Sioux Falls, SD), for appellee.

Before RILEY, Chief Judge,¹ WOLLMAN, and SHEPHERD, Circuit Judges.

WOLLMAN, Circuit Judge.

Bud Theus III was convicted of conspiracy to distribute or possess with intent to distribute five kilograms or more of a mixture or substance containing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In the order denying Theus's motion for judgment of acquittal, the district court found a variance between the indictment and the proof, concluding that the evidence proved that Theus was part of a cocaine base (crack cocaine) conspiracy that was proven but not charged. Because Theus suffered no prejudice from the variance, however, the district court denied the motion for judgment of acquittal. Theus was sentenced to ten years' imprisonment, the mandatory minimum sentence for distributing and possessing with intent to distribute five kilograms of a mixture or substance containing cocaine. After his conviction was affirmed United States v. Theus, 230 Fed.Appx. 642 (8th Cir.2007) (unpublished per curiam), Theus, acting pro se, moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Theus argued that he had been denied his Sixth Amendment right to effective assistance of counsel because his attorney had failed to move for a new trial and had failed to submit a supplemental brief to this court after being ordered to do so. The district court denied the motion and certified the two issues for appeal. We reverse the denial of § 2255 relief and remand for resentencing.

I.

Theus and five other individuals were indicted for conspiracy related to the distribution and possession with intent to distribute five kilograms of cocaine in South Dakota. Theus and co-defendant Juan Rodriguez went to trial, a five-day affair during which the remaining four co-defendants testified against Rodriguez. None of the named co-conspirators testified to knowing Theus or his involvement in the conspiracy. Theus was not a member of the conspiracy charged in the indictment. Instead, he was a member of a different conspiracy, involving two co-conspirators who were not charged in the indictment, Genaro Delbosque and Roosevelt Scott.

Delbosque testified that he regularly sold powder cocaine to Theus. Once or twice a week over the course of one and a half years, Theus would order one or two ounces of cocaine from Delbosque. Theus always paid cash, never taking the drugs on consignment. Delbosque testified that he did not know what Theus did with the drugs.

Scott, Theus's uncle, moved in with Theus in November 2003, after being released from prison. He lived with Theus for about two months and first saw drug activity on November 3 or 4, 2003. Scott testified that he observed Delbosque deliver an ounce of cocaine to Theus, who paid cash for the drugs. Shortly thereafter, Theus gave Scott half an ounce of cocaine so that Scott could enter the business. Scott converted the powder cocaine into crack cocaine and sold it, eventually paying Theus $450 for the half ounce of powder cocaine. Theus also gave Scott a cellular phone, which Theus's customers would call to order crack cocaine. Scott testified that he typically sold a gram of crack cocaine to a customer for $100 cash.

Theus traveled to Louisiana after Scott had moved in with him. He left Scott a half ounce of crack cocaine, his cellular phone, and Delbosque's phone number. Scott sold Theus's crack cocaine and ordered two ounces of powder cocaine from Delbosque, one for himself and one for Theus. After Theus returned to Sioux Falls, South Dakota, he resumed his drug activities. Sometimes, he would distribute crack cocaine to Scott's customers during the late-night hours. One of Theus's customers testified that he purchased crack cocaine from Theus from 2003 through 2004, buying $100 quantities two to three times each week. Other than the half ounce of cocaine Theus gave to Scott, there was no evidence that Theus distributed powder cocaine.

At the close of the government's case and again at the close of the trial, Theus's attorney moved for judgment of acquittal, arguing that, although there “may be evidence Mr. Theus sold drugs and bought drugs,” the government failed to establish that Theus was a member of the charged conspiracy. The district court took the motion under advisement and submitted the case to the jury.

The jury was instructed to determine whether:

[T]here were really two or more separate conspiracies to commit the crime of distribution or possession with intent to distribute a mixture or substance containing cocaine-one between [the named co-conspirators, Delbosque,] and Juan Rodriguez to commit the crime of conspiracy to distribute or possess with intent to distribute 5 kilograms or more of a mixture or substance containing cocaine; and another between Bud Theus III and co-conspirators Genaro Delbrosque (sic) and Roosevelt Scott to commit the crime of conspiracy to distribute crack cocaine.

The Government must convince you beyond a reasonable doubt that each Defendant was a member of the conspiracy charged in the Indictment. If the Government fails to prove this as to a Defendant, then you must find that Defendant not guilty of the conspiracy charge, even if you find that he was a member of some other conspiracy. Proof that a Defendant was a member of some other conspiracy is not enough to convict.

The jury was provided a verdict form that allowed it to determine whether Theus was guilty of the offense charged in the indictment or of a lesser included offense. Accordingly, the jury could find that the conspiracy involved the following amounts of a mixture or substance containing cocaine: (1) five kilograms or more, (2) 500 grams or more, or (3) some lesser amount. The jury found Theus guilty of conspiracy to distribute or possess with intent to distribute five kilograms of a mixture or substance containing cocaine. Theus's counsel did not move for a new trial.

In a post-trial order, the district court stated that “the Government has not proven beyond a reasonable doubt that Bud Theus, III was a member of the charged conspiracy.... The Government did prove beyond a reasonable doubt that Bud Theus, III had possession of prohibited drugs with the intent to distribute those drugs and that he did in fact distribute such drugs.” D. Ct. Order of July 10, 2006, at 1. The district court ordered the parties to submit their respective positions on the case. Id. Theus argued for acquittal; the government argued that there was only one conspiracy and that the jury's verdict should stand.

The district court concluded that a variance existed between the indictment and the proof. D. Ct. Order of Aug. 29, 2006. Although the government failed to prove that Theus was a member of the charged conspiracy, the district court determined that the evidence proved that Theus belonged to a separate conspiracy to possess crack cocaine with the intent to distribute. Id. at 2-3. The district court found that the variance did not affect Theus's substantial rights because the indictment put him on notice of the evidence to be presented against him, the indictment foreclosed the possibility that there would be subsequent prosecution for the same offense, and that any spillover of evidence from one conspiracy to another did not prejudice Theus. Id. at 5. With respect to any spillover evidence, the district court stated,

Evidence of the two conspiracies was quite distinct. Theus was buying powder cocaine and rocking it up and then selling the crack cocaine himself or through Roosevelt Scott. It would not have been difficult for the jury to compartmentalize the evidence. The Court does not find any spill over prejudice from the evidence of the charged conspiracy. The trial focused on Juan Rodriguez and the extensive evidence regarding his powder cocaine distribution. It was easy to compartmentalize from the separate and less extensive but strong evidence concerning Theus and his crack distribution.

Id. Theus's motion for judgment of acquittal was denied, and his sentencing hearing was scheduled.

The presentence investigation report (PSR) attributed 1.02 kilograms of cocaine to Theus based on the amount of powder cocaine that he purchased from Delbosque. The PSR stated that “[s]ince the defendant was charged in a conspiracy involving powder cocaine, that is used for purposes of computing the guidelines.” The PSR determined that Theus's base offense level under United States Sentencing Guidelines § 2D 1.1(c)(7) was twenty-six, the base offense level for at least 500 grams but less than two kilograms of cocaine. With a criminal history category of II, Theus's guidelines range sentence was seventy to eighty-seven months' imprisonment. The PSR noted that “there is not enough evidence to support that the defendant was involved with 5 kilograms of cocaine.” Inexplicably, it nonetheless applied the ten-year mandatory minimum sentence for distributing or possessing with intent to distribute five kilograms or more of a mixture or substance containing cocaine provided by 21 U.S.C. § 841(b)(1)(A)(ii), rather than the five-year mandatory minimum sentence provided by § 841(b)(1)(B)(ii) for the 1.02 kilograms attributed to Theus. Over the government's objection to the amount of cocaine attributed to Theus and Theus's objection to the application of the mandatory minimum, the district court adopted the PSR.

At sentencing, the district court rejected the government's argument that Theus's base offense level should have been based on five kilograms or more of powder cocaine. “The government is lucky, frankly, that the Court on the basis of what wasn't argued by...