U.S.A v. Anderson

• Decision Date: 08 April 2010
• Docket Number: Crim. No. 89-160-1(RCL).
• Citation: 705 F.Supp.2d 1
• Parties: UNITED STATES of America,v.Marcos ANDERSON, Defendant.
• Court: U.S. District Court — District of Columbia

705 F.Supp.2d 1

UNITED STATES of America,v.Marcos ANDERSON, Defendant.

Crim. No. 89-160-1(RCL).

United States District Court District of Columbia.

April 8, 2010.

Margaret J. Chriss, U.S. Attorney's Office, Washington, DC, for United States of America.

Beverly Gay Dyer, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before this Court is defendantMarcos Anderson's Petition to Vacate, Modify or Correct Sentence under 28 U.S.C. § 2255.Having considered Mr. Anderson's motion, the opposition by the United States, the replies thereto, and the oral arguments of counsel, the petition to modify his sentence is denied for the reasons set forth below.

I.INTRODUCTION

Between 1988 and 1989Marcos Anderson ran a large-scale drug ring centered in Washington, D.C.On May 12, 1989 a 126-count indictment was returned against Mr. Anderson and thirty others.Mr. Anderson was charged with conspiracy, continuing criminal enterprise, distribution of controlled substances, possession with intent to distribute controlled substances, interstate travel in aid of racketeering, unlawful use of a communication device, and use of a firearm during a drug trafficking offense.At trial, the jury found Mr. Anderson guilty on all counts of the indictment.Mr. Anderson was sentenced to concurrent terms of 405 months for the conspiracy, continuing criminal enterprise, distribution of controlled substances, and possession with intent to distribute controlled substances counts, 60 months on the interstate travel in aid of racketeering counts, and 48 months on the unlawful use of a communication device counts.Mr. Anderson was sentenced to 60 months on each of the four firearm counts, each to run consecutively.

After his first trial, Mr. Anderson appealed his conviction and the D.C. Circuit affirmed, but remanded the case for resentencing as it found the sentences for conspiracy and continuing criminal enterprise to be cumulative.United States v. Anderson,39 F.3d 331(D.C.Cir.1994).Rehearing en banc was granted by the Court of Appeals to reconsider Mr. Anderson's consecutive sentences for the firearms counts and the opinion in Anderson I was vacated.59 F.3d 1323(D.C.Cir.1995).Upon rehearing en bancthe Court of Appeals reversed three of the four firearms convictions and remanded for resentencing.United States v. Anderson,59 F.3d 1323(D.C.Cir.1995).Upon remand the district court resentenced Mr. Anderson to concurrent sentences of 364 months on the continuing criminal enterprise count, distribution of controlled substances count, and possession with intent to distribute controlled substance count; he also received another concurrent sentence of 60 months for interstate travel in aid of racketeering, and another concurrent 27 months for unlawful use of a communication facility.Mr. Anderson was given a 60 month consecutive sentence on the remaining firearms count.Mr. Anderson lodged his third appeal and the Court of Appeals affirmed his conviction and sentences.United States v. Anderson,172 F.3d 921(D.C.Cir.1998)(Table Op.).Mr. Anderson then petitioned for certiorari, which was denied on January 25, 1999.525 U.S. 1129, 119 S.Ct. 918, 142 L.Ed.2d 915(1999).On January 24, 2000, Mr. Anderson timely filed a petition to vacate, modify or correct his sentence under 28 U.S.C. § 2255.

In his 2255 petition Mr. Anderson makes three sets of claims.The first set of claims is based on allegedly deficient jury instructions.The petition asserts that the jury instructions regarding the continuing criminal enterprise count were defective in light of Richardson v. United States,526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985(1999), as the court failed to instruct the jurors that they had to agree unanimously as to which offenses formed the predicate offenses necessary to find that the defendant violated 21 U.S.C. § 848.He further argues that the instructions were defective as the court failed to require that the jurors agree that the predicate offenses needed to be related to one another in order to constitute a continuing criminal enterprise.Mr. Anderson also argues that jury had to unanimously agree on the identities of the five persons he supervised.

In his second set of claims Mr. Anderson alleges that he received ineffective assistance of counsel regarding the difference in sentence exposure between going to trial and pleading guilty.Had he been correctly informed of the difference, Mr. Anderson says he would have pleaded guilty.Finally, Mr. Anderson contends that his resentencing for possession with intent to distribute controlled substances violated the ex post facto clause, as the court considered information beyond the indictment, which would not have been permitted under the guidelines at the time of his original sentence.

II.ANALYSIS

A.Richardson Claims

Mr. Anderson was indicted for violating 21 U.S.C. § 848, which establishes criminal liability for conducting a “continuing criminal enterprise.”A person is engaged in a continuing criminal enterprise if he gains substantial income or resources from violating any felony drug law as part of a continuing series of violations of felony drug laws in concert with five or more persons whom he supervised.21 U.S.C. § 848(c).

The jury was instructed that the government, as part of its burden, needed to prove beyond a reasonable doubt that “Marcos Anderson committed a series of three or more violations of the federal drug laws....”Motionat 5(quotingTr. Vol. XXXIXat 103-08).Though he did not raise the issue at trial, on his direct appeal Mr. Anderson argued that the jury instructions were deficient because they did not require the jury to unanimously agree on the identities of those persons whom Mr. Anderson supervised or which predicate offenses made up part of the “continuing series of violations.”The D.C. Circuit rejected both of these arguments.United States v. Anderson,39 F.3d 331, 350-51(D.C.Cir.1994)(hereinafter Anderson I )vacated59 F.3d 1323(D.C.Cir.1995).In his 2255 motion, Mr. Anderson raises, for the first time, a claim that the jury instructions were also deficient as they failed to require the jury to find that the predicate offenses were related to one another.

i. Juror Unanimity as to Predicate Offenses

Since Mr. Anderson's appeals, though before he filed his 2255 petition, the Supreme Court decided Richardson v. United States,526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985(1999).Richardson resolved a circuit split as to whether a jury had to unanimously agree as to which predicate offenses make up the “continuing series of offenses.”Id. at 816, 119 S.Ct. 1707.The Supreme Court concluded that a jury was required to unanimously agree which predicate violations make up the continuing series of violations.Id.There is no dispute that the instructions in Mr. Anderson's case do not comply with Richardson.¹The only question is: what effect does this error have?

Since Richardson was decided, several courts have determined, and the parties seem to agree, that the decision applies retroactively to cases on collateral review.See, e.g., United States v. Dago,441 F.3d 1238, 1243(10th Cir.2006);Ross v. United States,289 F.3d 677, 682(11th Cir.2002);Santana-Madera v. United States,260 F.3d 133, 139(2d Cir.2001);United States v. Lopez,248 F.3d 427, 432(5th Cir.2001);Murr v. United States,200 F.3d 895, 906(6th Cir.2000).As Mr. Anderson timely filed his 2255 petition Richardson also applies to his case.

In Richardson,the Supreme Court left undecided what standard of review to apply on remand id. at 824, 119 S.Ct. 1707, and the Seventh Circuit disposed of the case without deciding the issue by remanding to the district court for vacatur of Richardson's CCE conviction, a solution it found attractive as the defendant's conviction for conspiracy had been undisturbed United States v. Richardson,195 F.3d 316, 317(7th Cir.1999).Other courts confronted with a Richardson problem have applied harmless error review.²See, e.g., Ross,289 F.3d at 681-82;Murr,200 F.3d at 906;United States v. Escobar-de Jesus,187 F.3d 148, 161-62(1st Cir.1999)(citingNeder v. United States,527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35(1999)).

Harmless error, of course, has more than one meaning.In Brecht v. Abrahamson,³the Supreme Court held that a defendant is entitled to habeas relief when he demonstrates that a non-structural constitutional error “had a substantial or injurious effect [on] determining the jury's verdict.”Brecht v. Abrahamson,507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353(1993).The competing harmless error standard was enunciated in Chapman v. California, where the Court said that a constitutional error must be held “harmless beyond a reasonable doubt” in order for it to be left unredressed.386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).Chapman is still the correct standard for constitutional errors, objected to at trial, and raised on appeal.United States v. Evans,216 F.3d 80, 89-90(D.C.Cir.2000).Several of the courts applying Richardson to claims made on collateral review have employed the Brecht standard.See, e.g., Ross,289 F.3d at 682;Murr,200 F.3d at 906.Two courts, however, have applied the Chapman test to Richardson claims on collateral review.SeeLanier v. United States,220 F.3d 833, 839(7th Cir.2000);Escobar-de Jesus,187 F.3d 148, 161-62.And they both did so based on Neder v. United States, which held Chapman to apply to erroneous jury instructions. Neder, 527 U.S. at 3, 119 S.Ct. 1827.

The Neder approach surely cannot be correct here though, for a couple of reasons.First Neder involved a case on direct review, and as noted earlier the Brecht harmless error rule is the one applicable to collateral review of nonstructural constitutional errors.⁴Secondly, Neder objected to the erroneous jury instruction at trial, which entitled him to...