                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

                        v.
                                                   Case No. 09-cr-00281-11 (CRC)
 ELOHIM BEY CROSS,

                        Defendant.

                                 MEMORANDUM OPINION

       In 2011, a jury convicted Defendant Elohim Bey Cross of conspiracy to distribute and

possess with the intent to distribute over one kilogram of heroin, in violation of 21 U.S.C. §

841(b)(1)(A)(i), and he was given a mandatory-minimum twenty-year sentence. Recently, by

Memorandum Opinion and Order, this Court granted Cross’s Petition for Post-Conviction Relief

under 28 U.S.C. § 2255, on the grounds that his trial counsel—in failing to employ key evidence

at her disposal—had rendered constitutionally deficient performance. See Memorandum

Opinion, April 18, 2017, ECF No. 465; Order, April 18, 2017, ECF No. 466. However, noting

that “the prejudice stemming from trial counsel’s ineffectiveness [had been] limited to the drug-

quantity element of Cross’s conviction,” and that “the jury [had been] instructed, and impliedly

made a guilt determination, on two lesser-included offenses with lower drug-quantity

thresholds,” the Court stopped short of vacating Cross’s conviction. Mem. Op. at 30. Instead,

the Court vacated his sentence, and sought supplemental briefing “on the effect of the Court’s

prejudice finding on Cross’s conviction.” Id.

       Cross has since moved for his release from custody, arguing that under Alleyne v. United

States, 133 S. Ct. 2151 (2013), he “could not be subject to any mandatory minimums without

being retried”; that, accordingly, the Court would be required to sentence him “within the
framework of [21 U.S.C.] § 841(b)(1)(C) or § 841(c),” which have no specified drug-quantity

thresholds and no mandatory minimums; and that any within-Guidelines sentence grounded in

convictions under those provisions would fall short of the custodial time Cross has effectively

served. Pet’r’s Mot. for Release from Custody, ECF No. 468; Pet’r’s Reply Supp. Mot. for

Release (“Pet’r’s Reply”), ECF No. 471. The Government responds that Alleyne is inapposite,

since the jury was instructed on lesser-included drug quantities, and therefore by implication

found those amounts. See Gov’t’s Reply to Suppl. Br. (“Gov’t’s Reply”), ECF No. 478, at 12. It

urges the Court to leave in place Cross’s “[21 U.S.C.] § 846 conspiracy conviction and

resentence [him] pursuant to [21 U.S.C.] § 841(b)(1)(B)(i),” which—due to an applicable prior

felony drug conviction enhancement—would establish for Cross a ten-year mandatory minimum,

based on a 100-gram drug-quantity threshold. Gov’t’s Reply 2. Finally, in his third submission

following this Court’s Order, Cross asks for a new trial, arguing that this Court lacks the

authority to reinstate any lesser-included conspiracy conviction—even one lacking a mandatory

minimum. See Pet’r’s Suppl. Br., ECF No. 475.

       Section 2255 provides that, when a court finds on collateral attack that a sentence has

been imposed unlawfully, it “shall vacate and set the judgment aside and shall discharge the

prisoner or resentence him or grant a new trial or correct the sentence as may appear

appropriate.” 28 U.S.C. § 2255(b). Noting in particular the last four words of that provision, the

D.C. Circuit has recently emphasized that it confers upon district courts “discretion in choosing

from among” the provision’s available remedies. United States v. Palmer, 854 F.3d 39, 49 (D.C.

Cir. 2017). In light of the parties’ supplemental arguments, and under the circumstances present

here, the Court identifies the following possible remedies—now that it has vacated Cross’s

sentence for his conviction for conspiring to distribute one kilogram or more of heroin, in




                                                 2
violation of 21 U.S.C. § 841(b)(1)(A)(i). First, as the Government favors, the Court could

sentence Cross based on a lesser-included conviction for conspiring to distribute 100 grams or

more of heroin, in violation of 21 U.S.C. § 841(b)(1)(B)(i). Second, as Cross initially suggested,

the Court could sentence Cross based on a lesser-included conviction for conspiring to distribute

any detectable amount of heroin, in violation of 21 U.S.C. § 841(b)(1)(C), which would carry no

mandatory minimum. Third, as Cross now urges, the Court could simply vacate Cross’s

conviction and grant him a new trial.

       Starting from the top, for the same reason that the Court vacated Cross’s sentence on the

one-kilogram conspiracy conviction, the Court declines to sentence Cross based on a 100-gram

conspiracy conviction. In short, Cross has shown that “there is a reasonable probability that, but

for [his trial] counsel’s” failure to employ the drug-quantity chart in his defense, the jury would

not have attributed even one hundred grams of heroin to him. See Strickland v. Washington, 466

U.S. 668, 694 (1984). Together with the reasoning outlined in the Court’s previous Opinion, that

conclusion follows because the only trial evidence arguably tying Cross to a greater-than-100-

gram drug quantity, aside from Toure’s testimony, was a wiretapped phone conversation in

which Cross referenced a “dollar fifty cent ticket.” Gov’t’s Opp’n Def.’s Mot. Vacate, Ex. B, at

EC_000031. And the only evidence suggesting that this phrase indicated a quantity (namely, of

150 grams) came from Toure’s testimony, see Trial Tr. 32:5–7 (July 19, 2011 p.m.), which ought

to have been impeached. There is thus easily a “reasonable probability,” Strickland, 466 U.S. at

694, that the jury would have attributed less than 100 grams of heroin to Cross if the drug-

quantity chart had been utilized. Accordingly, the Court will not sentence Cross based on a




                                                 3
lesser-included conviction under 21 U.S.C. § 841(b)(1)(B)(i), for joining a 100-gram heroin

conspiracy.1

              The prejudice concern would not be implicated, however, were the Court to sentence

Cross based on a lesser-included conviction for conspiring to distribute any detectable amount of

heroin, under 21 U.S.C. § 841(b)(1)(C). The Court has already found that “there was abundant

evidence introduced at trial that Cross entered into a conspiracy with Toure.” Mem. Op. at 24.

Cross presses the argument that the conspiracy was actually one to distribute marijuana rather

than heroin, citing stray testimony from Toure that he sold marijuana around the time of the

relevant heroin conspiracy, see Trial Tr. 43–44, 48 (July 19, 2011 p.m.), and three wiretapped

calls discussing marijuana transactions between Toure and an unknown male (or males), see

Suppl. to Pet’r’s Suppl. Br., ECF No. 479. The calls, however, which were not introduced at

Cross’s trial, are in no way legally relevant to whether Cross was prejudiced by his trial

counsel’s failure to introduce the drug-quantity document. See Strickland, 466 U.S. at 695 (“In

making [a prejudice] determination, a court hearing an ineffectiveness claim must consider the

totality of the evidence before the judge or jury.”) (emphasis added). And in any event, the calls

reveal little more than what Toure’s stray testimony established: Toure was selling marijuana

around the time he was also distributing heroin. That fact hardly forecloses the likelihood that

the conspiracy between Cross and Toure was one to distribute heroin, particularly when: (1)

heroin (and not marijuana) was found in Cross’s hotel room; (2) the drug-quantity chart indicated

that heroin (and not marijuana) was recovered from Cross; and (3) there is no affirmative

evidence that Cross ever purchased marijuana from Toure. For these reasons, and those set forth


                                                            
              1
        Because the Court finds that there was prejudice to the jury’s implied 100-gram heroin
amount finding, as well as its 1-kilogram heroin amount finding, there is no need to resolve
whether Alleyne, 133 S. Ct. 2151, and related cases are implicated in these circumstances.


                                                               4
in the Court’s prior opinion, there is no danger of prejudice to Cross’s conviction except as to the

drug quantity element.

              Cross makes a separate argument that this Court is without jurisdictional authority under

§ 2255 to enter a conviction for a lesser-included offense. He cites the text of the statute’s

remedial provision, which as discussed above, permits a court to “discharge the prisoner or

resentence him or grant a new trial or correct the sentence as may appear appropriate,” but not

expressly to enter a conviction for a lesser-included offense. 28 U.S.C. § 2255(b). This text-

based argument, however, is at odds with the case law, which has understood § 2255’s

language—in particular, the provisions permitting a court to “resentence” and “correct the

sentence as may appear appropriate”—as conferring “grants of broad and flexible power to the

district court.” Rutledge v. United States, 230 F.3d 1041, 1047 (2000); see also United States v.

Hillary, 106 F.3d 1170, 1171 (4th Cir. 1997). Indeed, that “broad and flexible power” under

§ 2255 has been held specifically by at least two courts to include the power to enter a lesser-

included conviction where it “does not suffer from [the] procedural or substantive defect” of the

greater conviction. Rutledge, 230 F.3d at 1048; see also United States v. Silvers, 888 F. Supp.

1289, 1306–09 (D. Md. 1995), aff’d in relevant part 90 F.3d 95 (4th Cir. 1996). One of those

cases was cited with approval by the Supreme Court. See Rutledge v. United States, 517 U.S.

292, 306 (1996) (citing Silvers, 888 F. Supp. at 1306–09).2 The Court, accordingly, finds that it

has jurisdiction to enter a lesser-included offense as a form of § 2255 relief.



                                                            
              2
          Cross attempts to distinguish these cases on the grounds that they involved “the
reinstatement of a previously-vacated verdict that had been initially, and expressly, returned by
the jury.” Pet’r’s Reply 6. But nothing in the reasoning of those decisions supports the
conclusion that a district court, in fashioning post-conviction relief, may reinstate an expressly
found, but not an impliedly found, lesser-included offense. If the former is a valid means of
“resentenc[ing]” or “correct[ing] [a] sentence”—on the theory that a lesser-included offense is


                                                               5
               The Court, then, is left with two potential remedies: sentencing Cross based on the

lesser-included penalty provision of 21 U.S.C. § 841(b)(1)(C), for a conspiracy involving “any

detectable amount” of heroin; or vacating Cross’s conviction and granting him a new trial.

These circumstances are nearly identical to those faced by the Fourth Circuit in a pair of cases

Cross cites in his briefing. Like Cross, the defendant in United States v. Collins, 415 F.3d 304,

314 (4th Cir. 2005), had been convicted of one count of conspiracy, 21 U.S.C. § 846, to

distribute a controlled substance, 21 U.S.C. § 841(a)(1), under 21 U.S.C. § 841(b)’s highest

penalty provision, § 841(b)(1)(A), which for Collins was based on an attribution of 50 grams or

more of crack cocaine. Collins, 415 F.3d at 311–12. The Fourth Circuit found that the district

court had erroneously instructed the jury as to the drug quantity attributable to the defendant, and

that accordingly, there was error with respect to the § 841(b) penalty provision. Id. at 314. At

the same time, the court noted that the defendant’s “conviction under § 846 [was] sound,” as was

the underlying substantive narcotics distribution provision, § 841(a). Id. Recognizing that

permitting the district court itself to determine the drug quantity for the purposes of § 841(b)

would run afoul of the Sixth Amendment, the court presented the Government with a choice. It

could (1) “request that [the court] affirm the conspiracy conviction and remand for [the

defendant] to be resentenced under the default penalty provision in § 841 . . . 21 U.S.C.

§ 841(b)(1)(C),” or (2) “request that [the court] reverse [the defendant’s] conspiracy conviction

and remand for a new trial.” Id. at 315. In United States v. Davis, 270 F. App’x 236 (4th Cir.

2008), the Fourth Circuit gave the Government the same choice, under similar circumstances.

Id. at 255.



                                                            
“part of the sentencing package which the defendant has challenged,” Rutledge, 230 F.3d at
1048—then the latter should be permitted, as well.


                                                               6
              Here, too, the Court finds that offering the Government a choice between a new trial, and

a sentence based on 21 U.S.C. § 841(b)(1)(C)’s penalty provision, is the best means of balancing

the relevant equities. Both alternatives would “neutralize the taint of [the] constitutional

violation,” and neither would “grant a windfall to the defendant.” Lafler v. Cooper, 566 U.S.

156, 170 (2012) (citations and quotation marks omitted). However, the Government is in the

best position to determine whether conducting a new trial, rather than accepting the entrance of a

lesser-included conviction and sentence, would “needlessly squander the considerable resources

[necessarily] invested in [a] criminal prosecution.” Id. Accordingly, and as set forth in an

accompanying Order, the Court will give the Government seven days to elect between those

alternatives.3




                                                                   CHRISTOPHER R. COOPER
                                                                   United States District Judge

Date: June 23, 2017




                                                            
              3
          A procedural wrinkle remains: If the government requests that the Court sentence Cross
based on the lesser-included offense, should the Court leave in place Cross’s § 846 conspiracy
conviction and resentence him under the lesser penalty provision, as the Government has more
recently suggested, see Gov’t’s Reply 2, or “vacate [Cross’s] conviction,” and then “enter a
judgment of conviction for the lesser-included offense,” as the Government initially urged?
Gov’t’s Suppl. Br. 1, ECF No. 470. In light of case law indicating that § 841 is “a tripartite
statute that establishes three crimes with three different statutory sentence maxima depending on
the drug quantity categories of § 841(b),” United States v. Ginyard, 511 F.3d 203, 209 (D.C. Cir.
2008) (citing United States v. Webb, 255 F.3d 890, 895 (D.C. Cir. 2001)), the Court believes that
the Government’s initial suggestion—vacating one conviction and entering another—is
procedurally more sound.


                                                               7
