U.S. v. Bass

• Decision Date: 16 October 2002
• Docket Number: No. 00-41224.,00-41224.
• Citation: 310 F.3d 321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kerry L. BASS, also known as Kerry Lerron Bass, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

310 F.3d 321

UNITED STATES of America, Plaintiff-Appellee, v. Kerry L. BASS, also known as Kerry Lerron Bass, Defendant-Appellant.

No. 00-41224.

United States Court of Appeals, Fifth Circuit.

October 16, 2002.

Rehearing Denied December 19, 2002.

Jeffery Alan Babcock, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Kerry Lerron Bass, Beaumont, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER and STEWART, Circuit Judges, and RESTANI,^* Judge.

WIENER, Circuit Judge:

Defendant-Appellant Kerry L. Bass appears before this court a second time, appealing the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Bass maintains that his counsel provided ineffective assistance at trial and on direct appeal by failing to challenge (1) the sufficiency of the evidence supporting his continuing criminal enterprise ("CCE") conviction and (2) on double-jeopardy grounds, his conspiracy and CCE convictions. Concluding that Bass's counsel was ineffective in failing to challenge the sufficiency of the evidence for his CCE conviction, we vacate Bass's conviction on that count. Doing so makes moot his double jeopardy claim.

I. FACTS AND PROCEEDINGS

Bass is currently incarcerated in a federal penitentiary in eastern Texas. His status as federal prisoner no. 66118-079 is the culmination of a legal process that began on April 14, 1994, when he was indicted on multiple counts of violating federal narcotics statutes and failing to file income tax returns.¹ Two other individuals, Troy Donovan Bounds and Paul Anthony Alix, were named in the indictment.

A jury trial commenced in October 1994. The government presented evidence showing that Bass was implicated in a web of drug commerce in several East Texas communities. Bass used his legitimate chemical business, KLB Environmental Services ("KLB"), in Houston, Texas, as a cover for his participation in that drug commerce. He employed Bounds (one of his indicted co-conspirators) at KLB, and he directed Bounds to deliver cocaine to numerous persons in Houston.

During his involvement in the drug ring, Bass sold cocaine on a regular basis — either personally or through Bounds — to Steven Alix, Paul Alix, Bryan Kyles, Shawn Wade, and David Fisher. These individuals converted the cocaine they purchased from Bass into cocaine base (known in common parlance as "crack"), which they resold in Victoria, Texas. They either sold the cocaine base directly or supplied it to others, such as David Barefield, who then resold it. Kyles testified that, from the many discussions that he and Bass had concerning "everything that [they] were doing," including "cooking cocaine into `crack,'" Bass knew of the conversion and resale of the cocaine base.

Bass's knowledge of his purchasers' activities was confirmed by his renting of vehicles for Fisher so that Fisher could travel to Victoria to sell the cocaine base. The car rental fees were paid with the proceeds from Fisher's sales. In addition, Bass advised Fisher not to drive flashy cars lest he be noticed by the police. When a Cadillac rented by Fisher was seized by police late in December of 1990, Bass had Kyles drive both Bass and Bounds to Victoria to retrieve the vehicle.

Bass also used KLB in several other respects related to drug commerce. First, Bass had Bounds sell cocaine for Bass in the course of Bounds's employment at KLB, and Bounds frequently drove KLB-marked vehicles and wore a KLB uniform when making cocaine deliveries for Bass. Second, Bass told Fisher, Wade, Steven Alix, and Kyles that they could use KLB as an employment reference, even though none of them worked there. Third, Bass placed Paul Alix on the payroll at KLB, even though he did not work there; and when the police arrested Paul Alix in Victoria, Texas, on December 27, 1991, they found a KLB business card in his wallet.

The jury convicted Bass on all counts for which he was charged in the indictment. Bass was sentenced to (1) nine terms of 360 months' imprisonment, to be followed by five years of supervised release for each of the conspiracy and distribution counts; (2) one term of 360 months' imprisonment, to be followed by five years of supervised release for the CCE count; (3) one term of 120 months' imprisonment, to be followed by three years of supervised release for the criminally derived property count, and (4) one term of twelve months' imprisonment, to be followed by one year's supervised release for the income tax evasion counts. All terms are being served concurrently. Bass was also ordered to pay separate $50 assessments for each of the conspiracy, distribution, and CCE counts, and separate $25 assessments for each of the tax evasion counts, for a total of $650. We affirmed Bass's conviction and sentence on direct appeal.²

Bass subsequently filed a pro se 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence. He alleged, inter alia, that his counsel at trial and on appeal provided ineffective assistance by failing to challenge (1) the sufficiency of the evidence supporting his conviction for conspiring to distribute cocaine base, (2) the quantity of cocaine base attributed to him for sentencing purposes, (3) the sufficiency of the evidence supporting his CCE conviction, and (4) on double-jeopardy grounds, his conspiracy and CCE convictions. The government moved to dismiss Bass's § 2255 motion on the merits. Without holding an evidentiary hearing, the district court dismissed the case with prejudice, and denied Bass a certificate of appealability ("COA").

Bass then sought a COA from this court, which we granted for the sole purpose of a limited remand to the district court for it to enter written reasons for the dismissal of Bass's claim of ineffective assistance of appellate counsel based on the failure to challenge the sufficiency of the evidence supporting his CCE conviction. We deferred ruling on Bass's request for a COA for his claim of ineffective assistance based on counsel's failure to mount a double-jeopardy challenge to Bass's conspiracy and CCE convictions, and we denied the COA for the other issues.

On remand, the district court issued an order explaining that Bass's appellate counsel was not ineffective for failing to challenge the sufficiency of the evidence supporting Bass's CCE conviction, contending that there was in fact sufficient evidence. The district court noted that the evidence adduced at trial showed that Bass met the legal requirements for violating the CCE statute, i.e., he (1) engaged in a continuing series of drug violations; (2) organized, managed or supervised six individuals (Troy Bounds, Paul Alix, David Fisher, Brian Kyles, Shawn Wade, and Steven Alix); and (3) derived a substantial profit from the drug trafficking.

After the district court so ruled, we granted a COA and ordered briefing with respect to the two issues on which Bass claims ineffective assistance: his counsel's failure (1) to challenge, on direct appeal, the sufficiency of the evidence supporting Bass's CCE conviction, and (2) to challenge, on double-jeopardy grounds, both at trial and on direct appeal, Bass's conspiracy and CCE convictions.

II. ANALYSIS

We first address the issue of the sufficiency of the evidence supporting Bass's CCE conviction. This requires us to answer two questions: (1) whether the evidence is insufficient to support Bass's CCE conviction, and (2) if so, whether the failure of Bass's counsel to raise this issue on direct appeal was prejudicial. As we shall explain, because we answer these questions in the affirmative and vacate Bass's CCE conviction, we need not address Bass's double jeopardy claim.

A. Standard of Review; Test for Ineffective Assistance of Counsel

A district court's conclusions concerning a § 2255 petitioner's claims of ineffective assistance of counsel involve mixed questions of fact and law, which we review de novo.³

In applying the same standards as the district court, we recognize that a claim of ineffective assistance of counsel is properly made in a § 2255 motion because it raises an issue of constitutional magnitude and, as a general rule, cannot be resolved on direct appeal.⁴ To obtain relief on a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) counsel's conduct was constitutionally deficient because it fell below an objective standard of reasonableness, and (2) this deficient performance prejudiced his defense.⁵ It is insufficient for a defendant merely to prove that counsel's conduct was deficient; a defendant must have also been prejudiced by this ineffective legal assistance. To prove prejudice, the 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."⁶ Such a claim fails unless the defendant establishes both deficient performance and prejudice.⁷

B. Sufficiency of the Evidence for the CCE Conviction

Bass alleges that his attorney performed deficiently and prejudiced his defense in failing to challenge the sufficiency of the evidence supporting his CCE conviction. We "review sufficiency-of-the-evidence challenges to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."⁸ In making this assessment, "this Court views all evidence in the light most favorable to the government with all reasonable inferences and credibility choices to be made in support of the jury's verdict."⁹

Keeping in mind Bass's substantial evidentiary burden, we first address the CCE statute's requirement that the government prove beyond a reasonable doubt that (1) the defendant organized, supervised, or managed at least five persons (2) in a continuing series of drug violations (3) from which the defendant received substantial income.¹⁰ Bass argued to the district court that there...