                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6954


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

ANTHONY PAYTON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.      Raymond A. Jackson,
District Judge. (4:08-cv-00120-RAJ; 4:93-cr-00065-1)


Submitted:   May 31, 2011                    Decided:   July 6, 2011


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Anthony Payton, Appellant Pro Se.     Laura Pellatiro Tayman,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Anthony Payton seeks to appeal the district court’s

judgment denying his 28 U.S.C.A. § 2255 (West Supp. 2010) motion

to vacate as untimely.            For the reasons that follow, we deny a

certificate of appealability and dismiss.

             Payton pled guilty in 1994 to one count of possession

with intent to distribute cocaine base in violation of 21 U.S.C.

§ 841 (2006), and one count of money laundering in violation of

18 U.S.C. § 1956 (2006).            He is currently serving a 240-month

sentence.      In 2008, Payton moved the district court to vacate

pursuant to § 2255 on the basis of the Supreme Court’s then-

recent decision in United States v. Santos, 553 U.S. 507 (2008).

The district court concluded that Santos is not retroactively

applicable     to   cases    on    collateral      review,      and    thus   Payton’s

motion   was    time   barred      by     the    one-year       limitations    period

contained in the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”).           This timely appeal followed, and the case

was placed in abeyance for United States v. Halstead, 634 F.3d

270 (4th Cir. 2011).         The case is now ripe for review.

             The order Payton seeks to appeal is not appealable

unless   a   circuit    justice      or    judge       issues    a    certificate   of

appealability.         See    28    U.S.C.       § 2253(c)(1)(B)        (2006).     A

certificate     of     appealability            will    not     issue     absent    “a

substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2) (2006).                    When the district court denies

relief    on    the      merits,    a    prisoner    satisfies      this   standard    by

demonstrating            that   reasonable        jurists   would     find    that     the

district       court’s      assessment      of     the   constitutional      claims    is

debatable      or     wrong.        Slack    v.    McDaniel,   529    U.S.    473,     484

(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).

When the district court denies relief on procedural grounds, the

prisoner must demonstrate both that the dispositive procedural

ruling is debatable, and that the petition states a debatable

claim of the denial of a constitutional right.                       Slack, 529 U.S.

at 484-85.

               Payton argues both that his § 2255 motion was timely

and that he is entitled to relief under Santos.                              Because we

conclude that his claim falls outside the reach of Santos, we do

not address whether his § 2255 motion was timely filed under the

AEDPA.

               Santos was a fractured decision by the Supreme Court.

A plurality of the Court found that the term “proceeds” in the

money laundering statute was ambiguous, and, applying the rule

of lenity, determined that “proceeds” means “profits” and not

“receipts.”          Santos, 553 U.S. at 510-14.                 Only four justices

signed on to this opinion.                  In his opinion concurring in the

judgment, Justice Stevens agreed with the plurality that in the

context    of       an    illegal       gambling    operation,      “proceeds”       means

                                              3
“profits,”    but      in     other     cases,     including       those     involving

contraband    sales,        “proceeds”      can    mean      either     “profits”      or

“receipts.”      Id.    at     524-28      (Stevens,      J.,    concurring     in    the

judgment).       Both        the     plurality     and    Justice       Stevens      were

concerned about a problem identified as the “merger problem” —

in which every violation of the underlying statute would also be

a violation of money laundering.                See id. at 515-16.

           Halstead         helped    to   clarify     the      scope   of   Santos    in

light of the Supreme Court’s split reasoning.                       In Halstead, we

concluded that

     Santos [holds] that when a merger problem arises in
     the context of money laundering and illegal gambling,
     the required solution is to define the proceeds of the
     illegal gambling business as its net profits.    When,
     however, a merger problem arises in the context of
     money laundering and an illegal activity other than
     illegal gambling, . . . that would require addressing
     that situation on a case-by-case approach, [and] we
     will leave further development of a solution to a
     future case that presents the problem[.]

Halstead, 634 F.3d at 278-79.

           Applying that analysis to this case, we conclude that

Payton’s   conviction        for     possession    with      intent     to   distribute

cocaine base does not present a merger problem with his money

laundering conviction.             An actual financial transaction is not

an element of Payton’s drug conviction.                      Thus, the offenses do

not merge, and Santos is inapplicable to Payton’s claims.                             See

United States v. Webster, 623 F.3d 901, 906 (9th Cir. 2010).


                                            4
          Because Payton has not made a substantial showing of

the denial of a constitutional right, we deny a certificate of

appealability and dismiss the appeal.     We grant Payton’s motion

to proceed in forma pauperis.       We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before the court and argument would not aid the

decisional process.

                                                         DISMISSED




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