                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-7222


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTHONY SELLERS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.     Margaret B. Seymour, Senior
District Judge. (5:08-cr-00944-MBS-21; 5:14-cv-02056-MBS)


Submitted:   June 22, 2016                 Decided:   July 25, 2016


Before WILKINSON, KEENAN, and THACKER, Circuit Judges.


Affirmed in part, reversed in part, dismissed         in   part,   and
remanded by unpublished per curiam opinion.


Anthony Sellers, Appellant Pro Se. Jimmie Ewing, John David
Rowell, Assistant United States Attorneys, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Anthony     Sellers     appeals       the        district    court’s     judgment

denying    relief    on    his   28    U.S.C.     § 2255     (2012)   motion.       We

granted a certificate of appealability and ordered supplemental

briefing on two issues: (1) whether counsel was ineffective by

failing to challenge Count 41 of the indictment as duplicitous,

and (2) whether counsel was ineffective by failing to argue that

Sellers’    convictions      on       Counts     37    and   41    violated      double

jeopardy.      For   the    reasons      that    follow,     we   affirm    in   part,

reverse in part, dismiss in part, and remand to the district

court with instructions to vacate the conviction and sentence on

Count 37 and to enter an amended judgment.

                                          I.

     As we stated in Sellers’ direct appeal:

          On August 14, 2008, Sellers was stopped by police
     for an improper lane change while driving. Upon
     approaching the vehicle, Officers Phillip Furtick and
     Terry Logan noticed a strong odor of marijuana.
     Officer Furtick asked Sellers and his passenger to
     step out of the vehicle, at which point Sellers
     admitted to there being marijuana inside the vehicle.
     Officer Logan also observed a partially hidden bag of
     what appeared to be cocaine under the passenger seat
     as the passenger exited the vehicle. The police
     officers then placed Sellers and his passenger under
     arrest and searched the vehicle. The search uncovered
     marijuana, cocaine, a pistol, and roughly $3,000.

United States v. Sellers, 512 F. App’x 319, 323 (4th Cir. 2013)

(No. 10-4701).




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       Sellers was convicted following a jury trial of—among other

offenses—possession         with   intent    to    distribute      a     quantity   of

cocaine    (Count    37),     in   violation      of    21    U.S.C.     § 841(a)(1),

(b)(1)(C) (2012), and 18 U.S.C. § 2 (2012), and possession with

intent to distribute and distribution of a quantity of cocaine

within 1000 feet of a school (Count 41), in violation of 21

U.S.C.    §§ 841(a)(1),       (b)(1)(C),     860(a)     (2012),    and     18   U.S.C.

§ 2.     Both convictions stemmed from the August 14, 2008, traffic

stop.        The   district    court   sentenced         Sellers    to    concurrent

sentences of 360 months and 720 months on Counts 37 and 41,

respectively, to be served concurrently with his mandatory life

sentence on a related drug conspiracy conviction.                          The court

imposed separate special assessments for Counts 37 and 41.                           We

affirmed the district court’s judgment on appeal.                      Sellers, 512

F. App’x at 333.

       Sellers timely filed a § 2255 motion, asserting the claims

on   which    we    granted    a   certificate         of    appealability.         The

district court denied the motion, finding that Sellers was not

prejudiced by any errors of counsel as to Counts 37 and 41

because    Sellers’     ultimate     sentence      was       unaffected    by   these

convictions.

                                       II.

       “We review de novo a district court’s legal conclusions in

denying a § 2255 motion,” including “any mixed questions of law

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and fact addressed by the court as to whether the petitioner has

established        a   valid   Sixth   Amendment     ineffective       assistance

claim.”       United States v. Ragin, __ F.3d __, __, No. 14-7245,

2016 WL 930202, at *5 (4th Cir. Mar. 11, 2016).                   To succeed on

his ineffective assistance of counsel claims, Sellers “must show

that     counsel’s      performance       was   deficient”      and    “that    the

deficient performance prejudiced the defense.”                    Strickland v.

Washington, 466 U.S. 668, 687 (1984).             To satisfy the first part

of the test, he must demonstrate “that counsel’s representation

fell below an objective standard of reasonableness.”                       Id. at

688.     To satisfy the second hurdle, Sellers must establish “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.

                                          A.

       Sellers first contends that counsel should have argued that

Count 41 was duplicitous.          The Government responds that § 860(a)

creates various means by which the offense can be committed—

rather    than     creating    separate    offenses—and   that,       because   the

indictment was not duplicitous, counsel was not ineffective.

       “Duplicity is defined as the joining in a single count of

two or more distinct and separate offenses.”                 United States v.

Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (internal quotation

marks omitted).         “Duplicitous indictments present the risk that

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a   jury    divided    on       two     different        offenses     could       nonetheless

convict for the improperly fused double count.”                                 United States

v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010).

      “[P]ossession         with       intent   to       distribute       and    distribution

. . . are two different offenses,” each requiring proof of an

element that the other does not.                        United States v. Randall, 171

F.3d 195, 209 (4th Cir. 1999); see Hawkes, 753 F.2d at 358

(“[W]here separate evidence is required to prove two charges

arising     from    the     same        factual         situation     such       charges    are

separate      offenses.”          (internal             quotation     marks           omitted)).

However, “to join possession and distribution . . . in one count

may   not   be     duplicitous”         where       a    single     act   constitutes        two

violations of the same subsection of § 860(a).                            Hawkes, 753 F.2d

at 357 (internal quotation marks omitted).

      We conclude that Sellers was not prejudiced by counsel’s

failure     to     raise        this     argument,         although       we      reach    this

conclusion on grounds different than those relied upon by the

district    court.         We    conclude       that      Sellers     did       not    establish

prejudice.       See Strickland, 466 U.S. at 694.                         The Government’s

evidence     overwhelmingly            established         Sellers’       possession       with

intent to distribute.              While it is possible—indeed likely—that

jurors believed Sellers possessed the cocaine with intent to

distribute it, but did not distribute any cocaine on August 14,

2008, it is unlikely that any juror believed Sellers distributed

                                                5
cocaine on that date but did not possess cocaine with intent to

distribute it.             Cf. United States v. Kakos, 483 F.3d 441, 445

(6th   Cir.     2007)       (upholding      conviction       on    single      count    that

charged two offenses where, based on trial evidence, “[t]here

[was] . . . no risk that the jury was not unanimous in its

belief       that    Defendant       [committed      one     offense      and    not     the

other]”).       We therefore affirm the district court’s denial of

relief on this claim.

                                             B.

       Sellers further argues that the district court erroneously

relied on his mandatory life sentence on a related count when it

concluded that, even if counsel had raised and succeeded on a

double jeopardy challenge regarding the imposition of multiple

punishments         for     Counts    37    and   41,    Sellers       could    not     show

prejudice.      We agree with Sellers.

       The     Double        Jeopardy       Clause      of   the       Fifth    Amendment

“prohibits the government from subjecting a person to ‘multiple

punishments          for    the      same    offense.’”            United      States     v.

Schnittker, 807 F.3d 77, 81 (4th Cir. 2015) (quoting Ohio v.

Johnson, 467 U.S. 493, 498 (1984)).                      “[T]wo different statutes

define   the        ‘same   offense[]’”      when    “one    is    a   lesser    included

offense of the other.”               Rutledge v. United States, 517 U.S. 292,

297    (1996)        (internal       quotation       marks    omitted).           Because

“[§] 841(a) is a lesser included offense of § 860(a),” United

                                              6
States v. Parker, 30 F.3d 542, 553 (4th Cir. 1994), * Sellers has

demonstrated that counsel should have objected to the multiple

convictions and sentences.

       Moreover, counsel’s failure to object prejudiced Sellers.

The imposition of a special assessment is itself punishment.

Rutledge, 517 U.S. at 301-03.              Thus, the imposition of two $100

special assessments for Counts 37 and 41 constitutes multiple

punishments for the same offense, and counsel’s failure to argue

that one of the convictions must be vacated prejudiced Sellers.

As the Government concedes, when two statutes proscribe the same

offense, “‘the only remedy . . . is for the District Court . . .

to    exercise    its   discretion    to       vacate   one      of   the   underlying

convictions’ as well as the concurrent sentence based upon it.”

Rutledge, 517 U.S. at 301-02 (quoting Ball v. United States, 470

U.S. 856, 864 (1985)).           We thus reverse the district court’s

denial of relief on the double jeopardy claim, and remand to the

district court with instructions to vacate Sellers’ conviction

and    sentence    on   Count   37   and       to   enter   an    amended     judgment

omitting that count.



       *
       See also 21 U.S.C. § 860(a) (“Any person who violates
[§] 841(a)(1) of this title . . . by distributing, possessing
with intent to distribute, or manufacturing a controlled
substance . . . within one thousand feet of [a school] . . . is
subject to” enhanced mandatory minimum sentences (emphasis
added)).



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                                      III.

      Accordingly, we affirm in part, reverse in part, and remand

to   the   district    court   with    instructions       to    vacate   Sellers’

conviction and sentence on Count 37 and to enter an amended

judgment.     We deny a certificate of appealability as to Sellers’

remaining claims and dismiss that portion of the appeal.                        We

dispense    with     oral   argument    because     the        facts   and   legal

contentions    are    adequately   presented   in     the      materials     before

this court and argument would not aid the decisional process.



                                                             AFFIRMED    IN PART;
                                                             REVERSED    IN PART;
                                                            DISMISSED    IN PART;
                                                                  AND    REMANDED




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