              Case: 15-11727    Date Filed: 05/02/2016    Page: 1 of 11


                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-11727
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket Nos. 5:14-cv-00301-WTH-PRL;
                          5:13-cr-00020-WTH-PRL-1


LUCIEN FRANK SOBOLEWSKI,

                                                                Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                   (May 2, 2016)

Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Lucien Frank Sobolewski appeals the district court’s denial of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct his sentence. Following a jury trial,
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Sobolewski was convicted of being an unlawful user of a controlled substance in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). On

appeal, Sobolewski argues that the district court erred in rejecting his claim that

trial counsel rendered ineffective assistance by failing to introduce at trial certain

evidence suggesting that he was not “an unlawful user of a controlled substance.” 1

After careful review of the record and briefs, we affirm.

                                 I.      BACKGROUND

A.     Offense Conduct

       On February 6, 2013, Zachary Nichols, a law enforcement officer with the

United States Forest Service (“USFS”), pulled over Sobolewski’s truck in Ocala

National Forest after observing that the driver, Sobolewski, and his passenger,

Charlie McIntyre, were not wearing seatbelts. Officer Nichols asked Sobolewski

whether he had anything illegal in his truck. Sobolewski responded that he had a

gun and a concealed weapons permit. Sobolewski showed the concealed weapons

permit to Officer Nichols.

       Officer Nichols then asked Sobolewski if he had any open containers or

illegal substances in the truck. Sobolewski initially responded that he did not, but

after Officer Nichols requested to search the truck, Sobolewski voluntarily
       1
        In a 28 U.S.C. § 2255 proceeding, we review a district court’s legal conclusions de novo
and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.
2008). A claim of ineffective assistance of counsel is a mixed question of law and fact that we
review de novo. Id.

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admitted that he had marijuana in the glove box. Officer Nichols searched the

glove box and found a plastic baggie containing 6.8 grams of marijuana. Officer

Nichols also found rolling papers next to the driver’s seat, a gun behind the

driver’s seat, two bullets attached to the gun’s holster, and three bullet casings in

the driver’s side cup holder.

      After the search, Everett Bane, another law enforcement officer with the

USFS, asked Sobolewski what he and McIntyre had been doing before the traffic

stop. Sobolewski answered that they had been shooting at the shooting range.

Officer Bane then asked whether they had smoked any marijuana that day.

Sobolewski responded that they had smoked some marijuana earlier that day. The

officers seized the marijuana and eventually let Sobolewski go free.

B.    Indictment, Arrest, Drug Test, and Competency Hearing

      On March 20, 2013, 42 days after the traffic stop, a federal grand jury

returned a single-count indictment charging Sobolewski with “being an unlawful

user of a controlled substance” in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g)(3) and 924(a)(2). On April 18, 2013, Sobolewski was arrested.

Sobolewski’s trial counsel advised Sobolewski to obtain an independent drug test.

On May 1, 2013, 84 days after the traffic stop, Sobolewski obtained that

independent drug test, which returned a “negative” result for the presence of drugs

in his urine. Sobolewski provided trial counsel with the results of his drug test.


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       In August 2013, Sobolewski and his trial counsel executed a written plea

agreement whereby Sobolewski pleaded guilty to the one count in the indictment.

In September 2013, Sobolewski’s trial counsel filed an unopposed motion to

determine Sobolewski’s mental competency prior to the entry of the written plea

agreement. Trial counsel alleged that Sobolewski had a cyst in his brain, was

being treating by a therapist, and had previously suffered head trauma in a

December 2012 motorcycle accident. Trial counsel also alleged that Sobolewski’s

primary physician and his therapist were both concerned about Sobolewski’s

ability to understand the proceedings.

       The district court granted the competency motion and ordered Sobolewski

to undergo a psychiatric examination. On September 17, 2013, Dr. Almari Ginory,

an Assistant Professor of Forensic Psychiatry at the University of Florida,

examined Sobolewski. Sobolewski told Dr. Ginory that he had previously used

marijuana on a few isolated occasions, but was not a habitual marijuana user with

symptoms of withdrawal or tolerance. Sobolewski told Dr. Ginory that he last

used marijuana the night before his arrest in order to help him sleep.

      In her written report, Dr. Ginory cited to the definition of substance abuse

found in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition,

text revision (“DSM IV-TR”), and stated:

      According to the DSM IV-TR, substance abuse is defined as a
      maladaptive pattern of substance use which leads to impairment or
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      distress as manifested by at least one of the following symptoms.
      Recurrent use resulting in a failure to fulfill major obligations,
      recurrent use in situations where it is physically hazardous, recurrent
      legal problems, and/or continued use despite recurrent interpersonal
      problems caused by the effects of the substance.

Dr. Ginory opined that Sobolewski “does not meet criteria for cannabis abuse as he

does not have recurrent impairment due to substance use.” Dr. Ginory also opined

that Sobolewski was mentally competent to stand trial.

      Based on Dr. Ginory’s report, the district court found that Sobolewski was

mentally competent to stand trial. Sobolewski informed the court that he wished to

proceed to trial.

C.    Trial and Evidence of Prior Drug Use

      At trial, Officers Nichols and Bane offered testimony describing the

February 6, 2013 stop and search of Sobolewski’s truck. The government then

called three witnesses to testify about Sobolewski’s history of marijuana use.

      Courtney McCrae, a special agent with the USFS, testified that he conducted

an interview with Sobolewski and McIntyre immediately after the officers

searched Sobolewski’s truck. During the interview, Sobolewski admitted that he

began using marijuana because of relationship problems with his fiancée.

Sobolewski also executed a written affidavit after the interview. In the affidavit,

Sobolewski testified that he had been smoking marijuana “off and on” since he was

19 years old. Sobolewski further testified that he had been “using” marijuana more


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recently as a form of self-medication to alleviate headaches that developed after his

December 2012 motorcycle accident. Sobolewski admitted that he smoked

marijuana the day before and the day of the offense.

      McIntyre testified that he first met Sobolewski in December 2012. McIntyre

testified that over the course of two or three weeks he saw Sobolewski use

marijuana “[m]aybe every other day,” and that Sobolewski would replace the bag

of marijuana in his glove box “[m]aybe every other day.” McIntyre also testified

that Sobolewski would frequently give marijuana to McIntyre’s sister, Angelina

McIntyre, and she and Sobolewski would smoke it together.

      Angelina McIntyre testified that she first met Sobolewski in October 2012

and eventually began working for him in late December 2012. She testified that

from late December 2012 until Sobolewski’s arrest in April 2013, she and

Sobolewski went into the woods every day after work to smoke marijuana

together. Sobolewski always provided the marijuana.

      Sobolewski called two witnesses to testify in his defense. Crystal Colbert,

the mother of Sobolewski’s niece, testified that she had known Sobolewski for

three years and had interacted with him on a regular basis during that time.

Colbert testified that she went into the woods with Angelina McIntyre and

Sobolewski on at least 10 occasions. According to Colbert, on those occasions,

she and Angelina McIntyre would smoke marijuana, but Sobolewski would not.


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Colbert further testified that she had never seen Sobolewski smoke marijuana in

the three years that she had known him.

      George Asbate testified that he knew both Charles McIntyre and

Sobolewski, but had not been friends with Sobolewski since 2011. Asbate testified

that he spoke to Charles McIntyre in December 2013 to discuss the investigation

that ensued after the February 2013 search of Sobolewski’s truck. Asbate testified

that Charles McIntyre told him that he had never seen Sobolewski consume

marijuana.

      Sobolewski’s trial counsel did not call Dr. Ginory to testify, nor did counsel

attempt to introduce into evidence Dr. Ginory’s psychiatric evaluation report.

Sobolewski’s trial counsel also did not introduce into evidence Sobolewski’s

negative post-arrest drug test.

      Prior to deliberations, the district court instructed the jury that Sobolewski

was charged with being an “unlawful user of a controlled substance” in possession

of a firearm. The district court further instructed that an “unlawful user of a

controlled substance” meant “a person who, at the time he possessed or received a

firearm or ammunition, was actively and regularly engaged in the ongoing use of a

controlled substance or substances over a period of time that is sufficient to

establish a pattern of conduct as distinguished from isolated and disconnected

usages.”


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      The jury found Sobolewski guilty of the one count charged in the

indictment. In April 2014, the district court sentenced Sobolewski to serve a year

and a day in prison. Sobolewski did not appeal his conviction or sentence.

D.    Section 2255 Motion to Vacate

      In May 2014, Sobolewski filed a motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. Sobolewski alleged, inter alia, that his trial

counsel was ineffective for failing to introduce as evidence at trial:

(1) Dr. Ginory’s opinion that Sobolewski did not meet the criteria for cannabis

abuse, and (2) Sobolewski’s negative post-arrest drug test. Sobolewski contended

that this evidence would have bolstered his argument at trial that he was not an

“unlawful user” of marijuana under 18 U.S.C. § 922(g)(3), as it tended to show

that he was not actively and regularly engaged in the ongoing use of a controlled

substance. He alleged that counsel’s failure to introduce the evidence at trial

constituted deficient performance resulting in prejudice.

      The district court denied Sobolewski’s § 2255 motion. This appeal

followed.

                                II.    DISCUSSION

      Under 18 U.S.C. § 922(g)(3), it is unlawful for any person “who is an

unlawful user of or addicted to any controlled substance” to possess a firearm.

18 U.S.C. § 922(g)(3) (emphasis added). The term “unlawful user” is not defined


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in the statute. However, in the context of interpreting a sentencing enhancement

under the United States Sentencing Guidelines, this Court has defined the term

“unlawful user,” as used in § 922(g)(3), as a person whose drug use is “regular,

ongoing, and contemporaneous with his firearm possession.” United States v.

Edmonds, 348 F.3d 950, 953-54 (11th Cir. 2003).

      We evaluate claims of ineffective assistance of counsel under the two-prong

test set forth in Strickland.2 Hunt v. Comm’r, Ala. Dep’t of Corr., 666 F.3d 708,

721 (11th Cir. 2012). To establish constitutionally ineffective assistance of

counsel, a defendant must show that (1) his attorney’s performance was deficient

and (2) the deficient performance prejudiced the defendant. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

      Under the prejudice prong of Strickland, the defendant must show a

“reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Osley v. United States, 751 F.3d 1214,

1222 (11th Cir. 2014) (quotation marks omitted). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. (quotation

marks omitted). The defendant must carry his burden on both Strickland prongs to

demonstrate ineffective assistance of counsel. Id.

      Here, we need not decide the deficient performance issues because


      2
          Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
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Sobolewski has failed to show prejudice in any event. See Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir. 2000) (“[T]he court need not address the performance

prong if the defendant cannot meet the prejudice prong.”). Dr. Ginory’s written

report and potential testimony show only that Sobolewski did not meet the clinical

criteria for marijuana abuse. However, this Court has recognized that the

disjunctive form of § 922(g)(3) prohibits either unlawful users of controlled

substances or addicts from possessing firearms. 3 See United States v. Corona, 849

F.2d 562, 562-63 nn.1-2 (11th Cir. 1988). In this case, the indictment only charged

Sobolewski with being an “unlawful user” of a controlled substance, not an addict.

Consistent with instructive Eleventh Circuit precedent, the district court charged

the jury to determine whether Sobolewski was an “unlawful user” because he

“regularly engaged in the ongoing use of [marijuana].” A diagnosis that

Sobolewski does not meet the clinical criteria for marijuana abuse does not show

that he was not an “unlawful user” of marijuana. Further, Dr. Ginory’s evaluation

occurred on September 17, 2013, which was over seven months after the February

6, 2013 traffic stop. Because § 922(g)(3) criminalizes regular drug use that is

       3
         Federal regulations define the phrase “[u]nlawful user of or addicted to any controlled
substance” as “[a] person who uses a controlled substance and has lost the power of self-control
with reference to the use of the controlled substance; and any person who is a current user of a
controlled substance in a manner other than as prescribed by a licensed physician” as evinced by
a “recent use or possession of a controlled substance or a pattern of use or possession.” See
27 C.F.R. § 478.11. The regulations are consistent with and support our holdings in Corona and
Edmonds that being an “unlawful user” is distinct from being an addict, and only requires proof
of regular and ongoing use of a controlled substance. See Edmonds, 348 F.3d at 953-54; Corona,
849 F.2d at 562-63 nn.1-2.
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contemporaneous with possessing a firearm, the relevant timeframe here is

Sobolewski’s unlawful use of marijuana at the time he possessed a firearm—which

was during the traffic stop—not seven months later. See Edmonds, 348 F.3d at

953-54.

      In fact, the government presented evidence that Sobolewski had been

consuming marijuana on a regular basis from December 2012 (the period

surrounding his motorcycle accident) through February 6, 2013 (the date of his

firearm offense conduct). Indeed, Sobolewski admitted that he began “using”

marijuana again after his motorcycle accident to treat headaches and had smoked

marijuana on the day of the traffic stop and the day before. Additionally, there is

not a reasonable probability that the jury would have reached a different verdict

had it known about the belated negative drug test taken on May 1, 2013.

      In sum, Dr. Ginory’s expert opinion and Sobolewski’s negative drug test

were not probative of whether Sobolewski was an “unlawful user” of marijuana

during the time he possessed his gun on February 6, 2013. Even if this evidence

was relevant, Sobolewski failed to demonstrate a reasonable probability that the

result of the proceeding would have been different had trial counsel introduced it to

the jury. See Osley, 751 F.3d at 1222. Accordingly, Sobolewski did not satisfy

Strickland’s prejudice prong, and we affirm.

      AFFIRMED.


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