United States v. Ross

801 F.3d 374

UNITED STATES of America

v.Edward ROSS, Appellant.

No. 13–4447.

United States Court of Appeals, Third Circuit.

Argued June 3, 2015.

Filed: Sept. 15, 2015.

Will W. Sachse, Katherine U. Davis, Ellen L. Mossman, Dechert, Philadelphia, PA, John McClam (Law Student) (Argued), University of Pennsylvania School of Law, Philadelphia, PA, for Appellant.

Emily McKillip, Floyd J. Miller, Robert A. Zauzmer (Argued), Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: FISHER, JORDAN, and SHWARTZ, Circuit Judges.

OPINION OF THE COURT

JORDAN, Circuit Judge.

Edward Ross appeals from the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his criminal sentence. He asserts that his trial and appellate counsel rendered ineffective assistance to him when they failed both to challenge a deficient jury instruction and to challenge the sufficiency of the evidence on one of his counts of conviction. Because we conclude that he has not satisfied a threshold requirement of section 2255, we will remand the case to the District Court with directions to dismiss the motion.

I. Background

A. Factual Background

Ross was a drug dealer in Chester, Pennsylvania. Between March 25 and April 22, 2004, an undercover detective made four purchases of cocaine from him, and, on three of those occasions, surveillance officers watched Ross leave a residence at 2115 Madison Street and drive directly to a location agreed upon with the detective. The detective arranged a fifth cocaine purchase for April 23, 2004. Before that purchase took place, however, the police obtained a warrant to search 2115 Madison Street. When police officers saw Ross leave the residence and get into his car, they arrested him in the driveway. The officers searched his car and found four bags of cocaine and a loaded Colt .38 caliber handgun.

After the arrest, the police executed the search warrant for the residence. They discovered, among other things, a .25 caliber semi-automatic handgun, and a loaded 9mm pistol. Originally, the 9mm pistol had been semi-automatic, but the firing pin had been replaced with a submachine gun firing pin that enabled the gun to fire continuously. At Ross's subsequent criminal trial, an expert from the Bureau of Alcohol, Tobacco, and Firearms testified that the 9mm pistol, as modified, met the definition of a machinegun set forth in 26 U.S.C. § 5845(b).

B. Procedural History

In March 2006, a federal grand jury returned a superseding indictment charging Ross with four counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (counts 1–4); possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) (count 5); carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count 6); possession of a machinegun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (count 7); possession of a machinegun, in violation of 18 U.S.C. § 922(o ) (count 8); and two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (counts 9 and 10).

Ross's case went to trial. After the parties had finished presenting evidence, the district court instructed the jury; however, regarding count 8, the court did not say—and Ross's trial counsel failed to object and insist—that as part of proving Ross possessed a machinegun, the government was required to prove beyond a reasonable doubt that he had specific knowledge of the firearm's characteristics that made it a “machinegun” as defined by statute, specifically 26 U.S.C. § 5845(b). The jury found Ross guilty on all counts.

At sentencing, because Ross had a prior conviction for a felony drug trafficking offense and was also, on count 5, convicted of an offense involving 500 grams or more of cocaine, he was subject to a mandatory minimum penalty of 10 years' imprisonment. He was further subject to a mandatory consecutive term of 30 years' imprisonment because he was, on count 7, convicted of possessing a machinegun in furtherance of a drug trafficking crime. The district court found that Ross was a career offender under section 4B1.1 of the United States Sentencing Guidelines and sentenced him to concurrent terms of 10 years' imprisonment on counts 1, 2, 3, 4, 5, 8, and 10, followed by a consecutive term of 30 years' imprisonment on count 7. The court imposed a total term of eight years' supervised release, a fine of $3,000, and an $800 special assessment—that is, $100 for each count of conviction. On the government's motion, the district court dismissed counts 6 and 9.

Ross filed a direct appeal. He argued that the district court erroneously concluded that 18 U.S.C. § 924(c)(1)(B)(ii) required the imposition of thirty years' imprisonment on count 7, that the court further erred by increasing his mandatory minimum sentence based on a prior conviction, and that there was insufficient evidence to prove that he had violated 18 U.S.C. § 922(g). He also challenged the constitutionality of 18 U.S.C. §§ 922(o ) and 922(g)(1). On April 27, 2009, we affirmed his conviction. United States v. Ross, 323 Fed.Appx. 117, 120 (3d Cir.2009).

Sixteen months later, in August 2010, Ross filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, and he filed a supplemental motion in September 2013. The District Court denied those motions and refused to issue a certificate of appealability. The Court predicted that we would apply the reasoning of the Supreme Court's decision in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), and would conclude that Ross's conviction under section 922(o ) was unlawful because the jury was not required to find that Ross had specific knowledge of the 9mm pistol's firing characteristics. Nevertheless, the Court reasoned that any error with respect to Ross's conviction under section 922(o ) did not cause prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for two reasons: first, because Ross is classified as a Category VI career criminal, and so the section 922(o ) conviction could not change his criminal history category in any future federal sentencing proceeding; second, because, even if the section 922(o ) conviction were vacated, Ross would not be released from custody any sooner given the concurrency of his sentence for that count with the time he had to serve on other counts of conviction.

Ross timely appealed. He chose to apply directly to us for a certificate of appealability, which we granted. The certificate of appealability limited Ross to raising the issue of whether his trial and appellate counsel rendered ineffective assistance by failing to argue that the government introduced insufficient evidence to convict him of possessing a machinegun as charged in count 8 and that the jury instructions did not require the jury to find as an essential element of that crime that he knew of the characteristics of the firearm that brought it within the statutory definition of “machinegun.” (App. at 23.) In the certificate of appealability, we stated that, “jurists of reason would debate the District Court's conclusion that appellant did not suffer prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),” and, in particular, we noted that it was debatable whether “his conviction under § 922(o ) did not increase his actual sentence and would have no effect under the federal Sentencing Guidelines on the sentence imposed for any federal conviction in the future.” (App. at 23.)

II. Discussion¹

Two questions are before us. The first, raised by the government, is whether the relief that Ross seeks is cognizable under section 2255. The second, pressed by Ross, is whether section 922(o ) includes a mens rea element that requires the government to prove that a defendant had specific knowledge of a firearm's characteristics. Because we answer the first question in the negative, we cannot reach the second.

Ross bases his section 2255 motion on the alleged ineffective assistance of his counsel at trial and on direct appeal. He argues that those lawyers performed deficiently in failing to challenge the sufficiency of evidence presented to prove a violation of section 922(o ) and in failing to object to the associated jury instruction. We note at the outset that, had Ross challenged his conviction under section 922(o ) on direct appeal, there is a fair likelihood we would have vacated that conviction and remanded for resentencing.² But this case comes before us now as a collateral attack on the conviction and sentence, not as a direct appeal, and the forms of relief remaining to Ross are severely limited by statute. He may be right that the 922(o ) conviction is unlawful, but, given the current posture of the case, not every wrong is in our power to right. We are bound by the text of section 2255. That statute provides, in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a) (emphasis added).

The strictures of section 2255 constitute a threshold test in addressing Ross's post-conviction claims of ineffective assistance of counsel. The viability of those claims, if we were to reach their merit, is determined by the familiar two-part inquiry outlined in Strickland v. Washington, pursuant to which Ross has the burden of demonstrating (1) “that counsel's performance was deficient” and (2) “that the...