United States v. Slocum

• Docket Number: 21-7283
• Decision Date: 01 July 2024
• Citation: United States v. Slocum, 106 F.4th 308 (4th Cir. 2024)
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Willie SLOCUM, Jr., a/k/a Jay, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

106 F.4th 308

UNITED STATES of America, Plaintiff - Appellee, v. Willie SLOCUM, Jr., a/k/a Jay, Defendant - Appellant.

No. 21-7283

United States Court of Appeals, Fourth Circuit

Argued: March 21, 2024

Decided: July 1, 2024

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston.John T. Copenhaver, Jr., Senior District Judge.(2:13-cr-00274-1;2:17-cv-03759)

ARGUED: Salvatore Mills Mancina, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.Joshua Clarke Hanks, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.ON BRIEF: Erica Hashimoto, Director, Emily Webb, Student Counsel, Daniel Reid, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Before DIAZ, Chief Judge, and QUATTLEBAUM and RUSHING, Circuit Judges.

Vacated and remanded by published opinion.Judge Quattlebaum wrote the opinion, in which Judge Rushing joined.Chief Judge Diaz wrote a concurring opinion.

QUATTLEBAUM, Circuit Judge:

Willie Slocum, Jr., appeals the district court's denial of his 28 U.S.C. § 2255 motion to correct, vacate or set aside his convictions and sentences based on ineffective assistance of counsel.Slocum was indicted on two counts of drug conspiracy under 21 U.S.C. § 846, but Slocum argues that the two charged conspiracies were really one.Insisting that he was punished twice for the same conspiracy in violation of the Fifth Amendment's Double Jeopardy Clause, Slocum argues that his trial counsel rendered ineffective assistance by failing to raise a double jeopardy challenge before the trial court.

While not dispositive, Slocum's ineffective assistance claim invites us to consider whether Slocum was put in double jeopardy in the first place.The district court determined that he was not.In fact, the district court declined to hold an evidentiary hearing on Slocum's claim and denied his motion without ordering a response from the government.But conducting a factual inquiry guided by the "totality of the circumstances" test from United States v. MacDougall, 790 F.2d 1135(4th Cir.1986), and our multiple conspiracy case law, Slocum was punished twice for a single conspiracy in violation of the Double Jeopardy Clause.Still, whether trial counsel had a strategic reason for failing to raise a double jeopardy challenge is unclear on this record.Slocum is entitled to an evidentiary hearing under 28 U.S.C. § 2255(b) where the performance of his trial counsel can be assessed.We, therefore, vacate the district court's denial of Slocum's § 2255 motion and remand for an evidentiary hearing on Slocum's ineffective assistance claim.

I.

A federal grand jury returned a five-count indictment against Slocum.Relevant to this appeal, Count One charged Slocum with conspiring under 21 U.S.C. § 846 to violate 21 U.S.C. § 841(a)(1) by distributing more than one kilogram of heroin, and Count Two charged him with conspiring under § 846 to violate § 841(a)(1) by distributing a quantity of oxycodone.¹The indictment charged both conspiracies as occurring "[f]rom before May 2012 through October 2013, at or near Charleston, Kanawha County, West Virginia, and within the Southern District of West Virginia and elsewhere."CompareJ.A. 31, withJ.A. 32.

Slocum proceeded to a three-day jury trial, where he was represented by counsel.In its opening argument, the government told the jury that Slocum recruited "people to sell drugs," often drug addicts who sold "heroin and pills" to support their own addictions.J.A. 53-54.The government presented 16 witnesses in its case-in-chief.Many testified that they sold both heroin and oxycodone for Slocum or knew others who did.Several also described how they and others transported heroin and oxycodone for Slocum.They further testified that Slocum and other members of the conspiracy sold the drugs to a network of people in and around Charleston, who then both used and re-sold the drugs.In its closing argument, the government summarized this evidence of "a big drug conspiracy."J.A. 875.The jury convicted Slocum on all counts.

The district court sentenced Slocum to 360 months' imprisonment for the heroin conspiracy count and a concurrent prison term of 240 months for the oxycodone conspiracy count.Slocum received lower, concurrent terms on the remaining counts, resulting in a total term of imprisonment of 360 months.The district court also imposed a five-year term of supervised release on the heroin conspiracy count and concurrent three-year terms of supervised release on each of the other counts.The district court ordered Slocum to pay a total fine of $5,000 and $100 special assessments on each count of conviction.

Following his unsuccessful direct appeal, Slocum filed a pro se§ 2255 motion.Among other claims, Slocum argued that his trial counsel was ineffective in failing to challenge his conspiracy charges, convictions, and sentences as violating the Double Jeopardy Clause.Underlying this claim was Slocum's assertion that the heroin and oxycodone conspiracies for which he was charged and convicted amounted to the same offense—a single conspiracy.Adopting a magistrate judge's proposed findings and recommendations, the district court determined that Slocum was "clearly not entitled to relief."J.A. 1542.It, therefore, neither ordered a response from the government nor held an evidentiary hearing on Slocum's ineffective assistance claim.In denying Slocum's § 2255 motion, the district court reasoned that Slocum failed to show that the two charged conspiracies constituted the same offense under either the "same evidence" test from Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306(1932), or the "totality of the circumstances" test from our MacDougall decision.According to the district court, Slocum fell short under both tests, so he did not have a meritorious double jeopardy claim.Thus, the district court concluded that, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), trial counsel did not deficiently perform by failing to raise a double jeopardy challenge.Slocum now appeals that decision.²

II.

In reviewing a district court's denial of a § 2255 motion, we review factual findings for clear error and legal conclusions de novo.United States v. Dyess, 730 F.3d 354, 359(4th Cir.2013).To warrant habeas relief based on ineffective assistance of counsel, a movant must satisfy the Supreme Court's two-prong test in Strickland.Under that test, the movant must show that (1) his counsel's performance was deficient, and (2) his counsel's deficient performance prejudiced him.Strickland, 466 U.S. at 687, 104 S.Ct. 2052.The deficient performance prong requires the movant to show "that counsel's representation fell below an objective standard of reasonableness."Id. at 688, 104 S.Ct. 2052.And the prejudice prong requires him to demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694, 104 S.Ct. 2052.

III.

Whether Slocum's trial counsel rendered ineffective assistance by failing to raise a double jeopardy challenge hinges on the question of whether Slocum has sufficiently alleged a double jeopardy violation.After all, if Slocum was not placed in double jeopardy, he could not have been prejudiced by trial counsel's failure to raise a double jeopardy challenge.So, after summarizing the applicable law, we consider whether Slocum has stated a meritorious double jeopardy challenge before turning to the merits of his ineffective assistance claim.

A.

The Fifth Amendment's Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb."U.S. Const. amend. V.This constitutional guarantee has two components."The first provides protection against the imposition of cumulative punishments for the 'same offense' in a single criminal trial; the second against being subjected to successive prosecutions for the 'same offense,' without regard to the actual imposition of punishment."United States v. Ragins, 840 F.2d 1184, 1187(4th Cir.1988)(citations omitted).This case concerns the former, as Slocum argues that he was punished twice for the same conspiracy based on a multiplicitous indictment.

A multiplicitous indictment is one that charges a single offense in multiple counts.United States v. Burns, 990 F.2d 1426, 1438(4th Cir.1993)."[T]he 'signal danger' of a multiplicitous indictment is that a defendant might thereby receive multiple punishments for the same crime."United States v. Goodine, 400 F.3d 202, 207(4th Cir.2005).And given that he was convicted and sentenced on both conspiracy counts, that is precisely the danger that Slocum argues occurred.Indeed, the Supreme Court has made clear that a single conspiracy cannot be punished as multiple conspiracies.Braverman v. United States, 317 U.S. 49, 52-53, 63 S.Ct. 99, 87 L.Ed. 23(1942);see alsoMacDougall, 790 F.2d at 1144("The double jeopardy clause clearly prohibits the division of a single criminal conspiracy into multiple violations of a conspiracy statute.").Slocum, therefore, maintains that his trial counsel should have challenged his indictment as multiplicitous or his subsequent conspiracy convictions as violating his protection against double jeopardy.

The parties dispute which test applies to Slocum's double jeopardy challenge.The government contends that either the Blockburger"same evidence" test or the MacDougall"totality of the evidence" test applies and that both lead to the conclusion that Slocum was not placed in double jeopardy.In contrast, Slocum insists that only the MacDougall"totality of the circumstances" test applies and that it...