205 F.3d 958 (7th Cir. 2000)
Randy T. Lanier,  Petitioner-Appellant,v.United States of America,  Respondent-Appellee.
No. 98-2689
The  United States Court of Appeals  For the Seventh Circuit
Argued November 2, 1999Decided February 9, 2000

Appeal from the United States District Court  for the Southern District of Illinois.  Nos. 96 CV 4033 and 87 CR 40070--James L. Foreman, Judge. [Copyrighted Material Omitted]
Before Cudahy, Coffey and Kanne, Circuit Judges.
Kanne, Circuit Judge.


1
We once reviewed the  convictions of Randy Thomas Lanier on direct  appeal in United States v. Kramer, 955 F.2d 479  (7th Cir. 1992), and he appears before us again  under 42 U.S.C. sec. 2255. Seven years ago, we  affirmed his convictions for conspiracy to  distribute marijuana and participation in a  continuing criminal enterprise. Lanier now asks  us to reconsider his convictions in light of two  recent Supreme Court rulings: Richardson v.  United States, 526 U.S. 813, 119 S.Ct. 1707  (1999), and Rutledge v. United States, 517 U.S.  292 (1996). We agree that his convictions  violated the holdings of both cases but,  unfortunately for Lanier, find that this changes  little for him. We affirm the district court  decision to vacate Lanier's conspiracy conviction  but let the CCE conviction and its life sentence  stand in light of Rutledge; we find that the  trial court committed harmless error under  Richardson. Lanier also raised a statute of  limitations claim for which we affirm denial  because he raised it on direct appeal and cannot  present it again on collateral attack.

I.  History

2
Randy Thomas Lanier enjoyed success in auto  racing during the early 1980s and won rookie of  the year honors at the Indianapolis 500 in 1986.  The cash rewards of racing provided him venture  capital for the lucrative sideline occupation of  directing a drug-dealing enterprise that imported  several hundred tons of marijuana into the United  States. We described his operation more fully on  direct appeal in Kramer, 955 F.2d at 482-83.  Lanier's drug enterprise collapsed when he and  two confederates were arrested and charged with  (1) conspiracy to distribute marijuana under 21  U.S.C. sec. 846 and 21 U.S.C. sec. 841 (a)(1);  (2) participation as a principal administrator,  organizer or leader of a continuing criminal  enterprise ("CCE") under 21 U.S.C. sec. 848; and  (3) conspiracy to commit federal tax fraud under  18 U.S.C. sec. 371.


3
Their trial began on January 26, 1988, and ran  fourteen weeks before Judge James Foreman in the  United States District Court for the Southern  District of Illinois. Pursuant to Seventh Circuit  precedent at the time, Judge Foreman did not  instruct the jury that it must agree unanimously  beyond a reasonable doubt which underlying  violations constitute the "continuing series" for  a CCE conviction. After five days of  deliberation, during which the jury spent most of  its time considering the CCE charges and  deadlocked five times, the jury convicted all  three defendants on all counts.


4
For the CCE conviction, Lanier was sentenced to  the mandatory term of life imprisonment without  possibility of parole. Lanier also received a  forty-year term of imprisonment for conspiracy  and a five-year term for tax fraud added  consecutively to the end of his forty-year  sentence, with the forty-five-year cumulative  sentence to run concurrently with his life  sentence for CCE. Finally, the jury found Lanier  liable for $60 million in criminal forfeitures  relating to his CCE conviction.


5
During the forfeiture proceeding, the government  requested a total forfeiture of almost $68  million for Lanier's participation in seven  different drug shipments. The government claimed  the following sums as Lanier's shares of the  profits from the seven shipments: $2.2 million  and $3 million for two shipments to Melbourne,  Florida; $3 million for a Bridgeport,  Connecticut, shipment; $12.8 million for a  shipment to New York, New York; $15.5 million and  $15 million for two Redwood City, California,  shipments; $16.5 million for a New Orleans,  Louisiana, shipment. The jury found Lanier liable  for $60 million total in criminal forfeitures but  returned its verdict without specifying the  shipments in which Lanier had participated.


6
Lanier and two co-defendants appealed their CCE  and conspiracy convictions, launching a flurry of  assorted claims including two that are presented  again in Lanier's sec. 2255 petition. We rejected  all their claims in Kramer on January 30, 1992.  955 F.2d 479.


7
On February 20, 1996, Lanier filed this sec.  2255 petition. He offered two claims not argued  on direct appeal: (1) civil forfeiture of his  property in an earlier proceeding constituted  punishment for his crimes so his subsequent  criminal convictions in a later proceeding  violated the double jeopardy prohibition on  successive punishment; (2) double jeopardy barred  contemporaneous convictions for CCE and  conspiracy to distribute. On April 23, 1997,  before the district court ruled on Lanier's  pending sec. 2255 petition, Lanier filed a  supplement to his original petition, in which he  added two arguments previously raised in his  direct appeal: (1) the district court erred by  failing to instruct the jury that it must agree  unanimously which underlying crimes constitute  the "continuing series" necessary for a CCE  conviction; (2) the district court erred by  permitting the jury to rely on the conspiracy  charge as one of the violations within the  continuing series even though some of the  predicate acts for the conspiracy fell outside  the statute of limitations for CCE offenses.


8
On March 5, 1998, the district court granted  Lanier's petition by vacating the conspiracy  conviction in light of Rutledge, subject to  reinstatement if the CCE conviction is  overturned, and applied Lanier's fifty dollar  special assessment fee to Lanier's criminal  forfeiture judgment. However, the district court  let stand Lanier's CCE conviction and life  sentence and denied Lanier's petition on all  other grounds. Lanier now appeals the district  court's decision to vacate his conspiracy  conviction rather than his CCE conviction and the  denial of his petition with respect to his  Richardson and statute of limitations claims.

II.  Analysis

9
We review de novo a district court's denial of  a motion under sec. 2255 to vacate, alter or  amend criminal sentences. See Gray-Bey v. United  States, 156 F.3d 733, 737 (7th Cir. 1998), cert.  denied, 119 S.Ct. 849 (1999). We review a  district court's resentencing decisions under  sec. 2255 for abuse of discretion. See United  States v. Smith, 103 F.3d 531, 534 (7th Cir.  1996) (entrusting to the district court's  discretion the restructuring of the defendant's  sentence when vacatur of a conviction is required  under sec. 2255).

A.  Absence of Richardson Jury Instructions

10
A jury found Lanier guilty of both conspiracy  to distribute controlled substances in violation  of 21 U.S.C. sec. 846 and conducting a continuing  criminal enterprise in violation of 21 U.S.C.  sec. 848. Section 848 defines CCE as "a  continuing series of violations" of drug offenses  undertaken in concert with five or more other  persons with respect to whom the defendant  occupies a position of organizer, supervisor or  manager. See 21 U.S.C. sec. 848. Conviction for  CCE requires a unanimous finding that the  defendant committed a "continuing series of  violations," but Seventh Circuit precedent at the  time of Lanier's trial and direct appeal did not  mandate a jury instruction requiring jury  unanimity regarding which specific violations  form the continuing series. See Kramer, 955 F.2d  at 486-87. We so held in Kramer, where we  rejected Lanier's unanimity instruction argument  on direct appeal and affirmed his conviction. Id.


11
In March 1999, the district court rejected this  unanimity instruction claim in Lanier's sec. 2255  petition, reasoning that Lanier was barred from  arguing this claim under sec. 2255 because he  already raised and lost this issue in Kramer.  However, the Court's decision in Richardson in  June 1999 represents changed circumstances of law  since Kramer, which permits Lanier to present his  claim here under sec. 2255. We now reconsider  whether the absence of a unanimity instruction,  which Lanier presciently requested at trial,  requires reversal of Lanier's CCE conviction.


12
Before the Supreme Court decided Richardson, the  circuits split on the issue whether a CCE  conviction requires jury unanimity regarding  which violations constitute the continuing  series. Compare Richardson v. United States, 130  F.3d 765, 779 (7th Cir. 1997) (holding that jury  unanimity is not required), vacated by  Richardson, 526 U.S. 813 (1999), United States v.  Hall, 93 F.3d 126, 129 (4th Cir. 1996) (same),  and United States v. Anderson, 39 F.3d 331, 350-  51 (D.C. Cir. 1994) (same), with United States v.  Edmonds, 80 F.3d 810, 822 (3d Cir. 1996) (ruling  that the jury must unanimously agree on which  violations constitute the continuing series). In  Richardson, the Supreme Court held that a jury  must agree unanimously on which specific  predicate acts constitute the "continuing series of violations" for a CCE conviction. 119 S.Ct. at  1710-13. The Court decided that each predicate  violation within the series is itself an element  of the CCE offense and that the jury must agree  unanimously not only that the defendant committed  a "continuing series of violations" but agree  unanimously also about which violations the  series comprised. See id. Thus, a defendant is  entitled to an instruction that the jury must  agree unanimously which specific acts support the  CCE conviction. See id. Otherwise, a jury could  convict a defendant even though some jurors found  that the CCE conviction is based on one set of  continuing violations while other jurors found  that it is based on a different set of continuing  violations.


13
We note quickly that Teague v. Lane, 489 U.S.  288, 305-09 (1989), does not apply. Lanier is  entitled to the benefit of Richardson, even on  collateral attack, because Teague only bars  retroactive application of a "new rule" of  criminal procedure. Id. Richardson simply  articulated the meaning of "continuing series of  violations" in sec. 848, and Teague is inapt here  where we interpret a criminal statute. See  Bousley v. United States, 523 U.S. 614, 620  (1998). Furthermore, although Lanier presented  his Richardson argument in a supplement to his  original sec. 2255 motion, the supplemental  filing did not constitute a "second or successive  motion." Supplemental briefs submitted before the  district court has decided the original motion  are amendments to the original motion. See  Johnson v. United States, 196 F.3d 802, 805 (7th  Cir. 1999). Therefore Lanier's supplemental  briefing was part of a single sec. 2255 motion  properly before us now.


14
Lanier predictably insists that the district  court failure to provide the unanimity  instruction was a "structural" constitutional  error within the meaning of Arizona v.  Fulminante, 499 U.S. 279 (1991), which would  require us to reverse Lanier's conviction without  evaluating the prejudicial effect of the error.  Such structural errors are so intrinsically  harmful that they require automatic reversal of  conviction. See id. at 310, 311 S.Ct.1246. The government  disagrees and insists that the absence of a  unanimity instruction is subject to harmless  error analysis. Fortunately, the Supreme Court's  decision last term in Neder v. United States, 527  U.S. 1, 119 S.Ct. 1827 (1999), is helpful here.


15
In Neder, 119 S.Ct. at 1836, the Court held  that omission of an element from the district  court charge to the jury is not a structural  constitutional error exempt from harmless error  analysis. The Court explained that structural  errors "infect the entire trial process," id. at  1833 (quoting Brecht v. Abrahamson, 507 U.S. 619,  630 (1993)), and "necessarily render a trial  fundamentally unfair." Neder, 119 S.Ct. at 1833  (quoting Rose v. Clark, 478 U.S. 570, 577  (1986)). The Court recognized that trial errors  escape harmless error review only in a "very  limited class of cases" and cited the example of  "the complete deprivation of counsel or trial  before a biased judge" because such a defect  necessarily renders the trial fundamentally  unfair and vitiates all the jury's findings of  guilt. Neder, 119 S.Ct. at 1833. In contrast,  omission of an element of a crime is not a  structural defect, nor is an error involving  improper instruction on a single element of an  offense. See id. at 1833-34 (citing California v.  Roy, 519 U.S. 2 (1996) (omission of an "intent or  purpose" element of crime); Yates v. Evatt, 500  U.S. 391 (1991) (erroneous mandatory rebuttable  presumption); Carella v. California, 491 U.S. 263  (1989) (erroneous mandatory conclusive  presumption); Pope v. Illinois, 481 U.S. 497  (1987) (wrong standard for guilt)). An erroneous  jury instruction on only one element of the crime  draws harmless error analysis because the error  does not pervade the entire judicial proceeding  and render its outcome categorically unreliable  or unjust.


16
The district court's failure to provide a  unanimity instruction for Lanier on the  underlying violations for his CCE conviction is  likewise subject to harmless error analysis. See  United States v. Escobar-De Jesus, 187 F.3d 148,  161-62 (1st Cir. 1999) (applying harmless error  analysis to erroneous jury instructions under  Richardson); United States v. Long, 190 F.3d 471,  476 n.3 (6th Cir. 1999). This error is similar to  the jury instructions in Neder where the court  erroneously omitted an essential element of the  crime but the harmless error standard applied.  Lanier was deprived of a verdict with explicit  jury findings listing the offenses on which the  jury based its verdict of guilt on the CCE count,  just as Neder was deprived of an explicit jury  finding of guilt on an element of his offense. In  both cases, the district court omitted an element  of the offense from the jury instruction, and  neither error pervaded the entire trial such that  we necessarily must conclude that the verdict was  unreliable or the error prejudiced the defense.  Instead, we determine whether the absence of a  Richardson instruction prejudiced Lanier's  defense under the harmless error standard.


17
Lanier claims that the test for evaluating  harmless error is whether it is apparent beyond  a reasonable doubt that the error did not  contribute to the verdict at all--an onerous  standard for the government to meet. He cites  Sullivan v. Louisiana, 508 U.S. 275, 278-79  (1993), and United States v. Russell, 134 F.3d  171, 181 (3d Cir. 1998), to support his claim,  but this is not the proper test. In Neder,  subsequent to Sullivan and Russell, the Court  announced the standard for harmless error review:  "Is it clear beyond a reasonable doubt that a  rational jury would have found the defendant  guilty absent the error?" Neder, 119 S.Ct. at  1838. Lanier's conviction therefore must be  affirmed if Lanier would have been convicted for  CCE even assuming that the jury had received the  Richardson unanimity instruction at trial.


18
We must determine from the record whether the  jury agreed unanimously on the identity of two  specific criminal violations committed by Lanier.  The jury found Lanier guilty of CCE and liable  for $60 million in forfeitures in connection with  his CCE violations, but returned its verdict  without identifying the specific shipments in  which Lanier had participated and upon which the  CCE conviction and forfeitures were based. Even  without a Richardson instruction, Lanier's CCE  conviction signifies that each juror found Lanier  guilty of at least two drug crimes because  conviction for CCE requires a unanimous finding  of guilt for at least two continuing violations.  Kramer, 955 F.2d at 486. Nevertheless, we can  decipher the forfeiture judgment to determine  whether the jury agreed unanimously on two  specific criminal violations. We find that the  jury forfeiture verdict establishes unanimity  regarding four continuing drug offenses at  minimum.


19
At the criminal forfeiture proceeding, the  government claimed almost $68 million as Lanier's  share of the profits from seven separate drug  shipments. Although Lanier's share of three  shipments was less than $3 million for each,  Lanier earned much more for each of the other  four shipments: $12.8 million, $15.5 million,  $16.5 million and $15 million. The jury must have  unanimously found Lanier guilty of criminal  participation in each of these shipments because  the forfeiture total would have fallen short of  $60 million without all four sums.


20
Furthermore, the jury agreed unanimously on  Lanier's specific crime with respect to each of  those four shipments. The indictment listed three  types of illegal conduct relating to the drug  shipments, each of which could have served as an  underlying violation to support Lanier's CCE  conviction: (1) distribution of a controlled substance under 21 U.S.C. sec. 841(a)(1); (2)  possession with intent to distribute under 21  U.S.C. sec. 841(a)(1); (3) importation of a  controlled substance under 21 U.S.C. sec. 952(a).  The government contends each juror must have  found that Lanier had committed possession with  intent to distribute because that crime is  encompassed by both distribution and importation  under these facts. We agree.


21
First, importation and possession with intent to  distribute are coextensive here. Both crimes  require possession of a controlled substance and  knowledge, and the added requirement of intent to  distribute under sec. 841(a)(1) is implicit in a  guilty verdict for importation because no  rational juror could conclude that Lanier  imported at least 280 tons of marijuana for his  own personal use without intent to distribute to  others. See, e.g., United States v. Stribling, 94  F.3d 321, 325 (7th Cir. 1996); see also United  States v. Beltran-Garcia, 179 F.3d 1200, 1206  (9th Cir. 1999). Lanier could not have committed  the crime of importation without also committing  the crime of possession with intent to  distribute.


22
Second, the elements of distribution include the  elements of possession with intent to distribute.  Conviction for distribution under sec. 841(a)(1)  requires the following elements: (1) knowledge  that marijuana is a controlled substance; (2)  possession; (3) intent to distribute; (4)  transfer from one person to another. See United  States v. Johnson, 127 F.3d 625, 628 (7th Cir.  1997). The first three elements suffice for  conviction under sec. 841(a)(1) for possession  with intent to distribute, see United States v.  Covarrubias, 65 F.3d 1362, 1369 (7th Cir. 1995),  so the jury could not have found Lanier guilty of  distribution without also finding him guilty of  possession with intent to distribute.


23
Despite the jury's opaque forfeiture verdict, we  agree with the government that the jury must have  unanimously found Lanier guilty of at least four  violations of sec. 841(a)(1) for possession of a  controlled substance with intent to distribute.  Although the jury instructions in Lanier's trial  were improper under Richardson, this was harmless  error. We will affirm denial of Lanier's sec.  2255 petition with respect to his Richardson  claim.


24
B.  Vacatur of the  Conspiracy Conviction Under Rutledge


25
The Supreme Court in Rutledge, 517 U.S. at 300,  held that conviction for both conspiracy to  distribute marijuana and CCE, based on the same  drug distribution enterprise, violates the  presumptive prohibition against double punishment  for the same offense. See also Ball v. United  States, 470 U.S. 856, 861-64 (1985) (requiring  clear legislative intent for double punishment  for a single offense); Whalen v. United States,  445 U.S. 684, 691-95 (1980). Recognizing that  conviction for CCE requires proof of every fact  necessary to convict for conspiracy to  distribute, the Court concluded that "conspiracy  as defined in sec. 846 does not define a  different offense from the CCE offense defined in  sec. 848." Rutledge, 517 U.S. at 300. Thus, the  Court held that conspiracy to distribute  marijuana is a lesser included offense within CCE  and conviction for both crimes violates the  presumption that Congress intended only one  punishment for a single offense. See id. at 307.  The Court reversed and remanded for further  proceedings but did not specify which conviction  should be vacated and which should stand. See id.


26
Lanier interprets this silence to mean that  district courts should let stand the conviction  that is "most justified by the totality of the  circumstances" and vacate the other conviction.  Citing jury notes from his trial, Lanier points  out that the jury convicted him quickly on the  conspiracy count but deliberated for five days  over the CCE count. Lanier claims that the jury  would have convicted for conspiracy and acquitted  him of CCE had the district court, pursuant to  Rutledge, provided a lesser included crime  instruction. Lanier also cites purported  mitigating factors including the notion that  marijuana is "not as harmful as many other  controlled substances" and the fact that he was  only in his youthful late-twenties at the time of  his offenses. Although Lanier did not raise this  lesser included offense argument on direct  appeal, the Court's intervening decision in  Rutledge since his direct appeal provides  reasonable cause to excuse Lanier's failure and  to hear this claim under sec. 2255. See Reed v.  Ross, 468 U.S. 1, 17 (1984) (holding that failure  to raise a claim on direct appeal is excusable  when the claim is based on a new rule of  constitutional law with retroactive effect  decided after direct appeal).


27
The government wisely concedes that Rutledge  applies here and agrees that the conspiracy  conviction must be set aside. Nevertheless,  Lanier argues that the district court improperly  applied Rutledge by vacating the lesser  conviction for conspiracy rather than the CCE  conviction. However, when the presumption against  double punishment requires invalidation of the  conviction for either the greater or lesser  offense, the choice of which conviction to vacate  rests with the sound discretion of the district  court. See Ball, 470 U.S. at 864; United States  v. Martin, 732 F.2d 591, 593 (7th Cir. 1984). We  agree with the government that the district court  did not abuse its discretion by vacating the  lesser conviction of conspiracy and letting the  CCE conviction stand. See United States v. Boyd,  131 F.3d 951, 954-55 (11th Cir. 1997) ("The  proper remedy for convictions on both greater and  lesser included offenses is to vacate the  conviction and the sentence of the lesser  included offense."); see also United States v.  McSwain, 197 F.3d 472, 483 (10th Cir. 1999);  United States v. Brito, 136 F.3d 397, 408 (5th  Cir. 1998); United States v. Rosario, 111 F.3d  293, 301 (2d Cir. 1997). The infirmity of which  Lanier complains is a technical one and does not  diminish the finding of guilt for CCE. He was  convicted of two crimes for the same predicate  offense. It is not unjust nor an abuse of  discretion to punish him for either crime here  because the jury found him guilty of committing  the offense that underlies both convictions. To  argue that the conspiracy conviction was more  justified or more certain than the CCE conviction  is beside the point. Rutledge commands that  Lanier receive only one punishment for his  offense, but he was guilty of both crimes in  fact.


28
Reviewing this sec. 2255 motion, the district  court let stand the conviction for the more  serious crime of CCE and vacated the lesser  included conspiracy conviction as duplicative of  the CCE conviction. It would be paradoxical for  us to rule that his life sentence for the CCE  count should be vacated on account of his lesser  conspiracy conviction when there would be no  question at all had the government successfully  convicted Lanier only on the CCE count and not  charged or convicted him for the lesser offense  as well. The district court did not abuse its  discretion by vacating the conspiracy conviction  and letting the CCE conviction stand.

C.  Statute of Limitations

29
Lanier argues that the court improperly  instructed the jury that it could rely upon the  charged conspiracy under sec. 846 as one of the  violations underlying the CCE count even though  some of the predicate acts upon which the  conspiracy charge was based were not within the  statute of limitations period for the CCE count.  However, Lanier failed to raise this  nonconstitutional claim on direct appeal and now  is barred from raising it for the first time in  this sec. 2255 petition regardless of cause and  prejudice. See Barnickel v. United States, 113  F.3d 704, 706 (7th Cir. 1997); Olmstead v. United  States, 55 F.3d 316, 319 (7th Cir. 1995);  Bontkowski v. United States, 850 F.2d 306, 313  (7th Cir. 1988). The district court dismissed Lanier's statute of limitations claim on this  ground, and we will affirm.

III.  Conclusion

30
For the foregoing reasons, we AFFIRM the grant of  Lanier's sec. 2255 motion and vacatur of Lanier's  conspiracy conviction, AFFIRM denial of Lanier's  petition under his Richardson claim because we  find harmless error and AFFIRM denial of Lanier's  petition under his statute of limitations claim.

