IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
__________________________
No. 00-41224 __________________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
KERRY L. BASS, also known as Kerry Lerron Bass Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Southern District of Texas
___________________________________________________ October 16, 2002
Before WIENER and STEWART, Circuit Judges, and RESTANI*, District
Judge.
Wiener, Circuit Judge:
Defendant-Appellant Kerry L. Bass appears before this court a
second time, appealing the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. Bass
maintains that his counsel provided ineffective assistance at trial
and on direct appeal by failing to challenge (1) the sufficiency of
the evidence supporting his continuing criminal enterprise (“CCE”)
conviction and (2) on double-jeopardy grounds, his conspiracy and
CCE convictions. Concluding that Bass’s counsel was ineffective in
* Judge of the U.S. Court of International Trade, sitting by designation. failing to challenge the sufficiency of the evidence for his CCE
conviction, we vacate Bass’s conviction on that count. Doing so
makes moot his double jeopardy claim.
I. FACTS AND PROCEEDINGS
Bass is currently incarcerated in a federal penitentiary in
eastern Texas. His status as federal prisoner no. 66118-079 is the
culmination of a legal process that began on April 14, 1994, when
he was indicted on multiple counts of violating federal narcotics
statutes and failing to file income tax returns.1 Two other
individuals, Troy Donovan Bounds and Paul Anthony Alix, were named
in the indictment.
A jury trial commenced in October 1994. The government
presented evidence showing that Bass was implicated in a web of
drug commerce in several East Texas communities. Bass used his
legitimate chemical business, KLB Environmental Services (“KLB”),
in Houston, Texas, as a cover for his participation in that drug
1 The specific charges were as follows: conspiring from December 1988 to January 1993 to distribute more than 50 grams of cocaine base (count 1); conspiring from December 1988 to January 1933 to possess with the intent to distribute more than 5 kilograms of cocaine (count 2); engaging from December 1988 to January 1933 in a CCE, with counts 1-2 and counts 4-11 constituting the predicate offenses (count 3); on various occasions between October and December 1990, aiding and abetting possession with intent to distribute more than 5 grams of cocaine base (count 4-9); in January 1991, aiding and abetting possession with the intent to distribute more than 50 grams of cocaine base (count 10); from July 1989 through January 1990, aiding and abetting engaging in a monetary transaction in criminally derived property affecting interstate commerce (count 11); and failing to file income tax returns for the years 1988 through 1991 (counts 12-15).
2 commerce. He employed Bounds (one of his indicted co-conspirators)
at KLB, and he directed Bounds to deliver cocaine to numerous
persons in Houston.
During his involvement in the drug ring, Bass sold cocaine on
a regular basis——either personally or through Bounds——to Steven
Alix, Paul Alix, Bryan Kyles, Shawn Wade, and David Fischer. These
individuals converted the cocaine they purchased from Bass into
cocaine base (known in common parlance as “crack”), which they
resold in Victoria, Texas. They either sold the cocaine base
directly or supplied it to others, such as David Barefield, who
then resold it. Kyles testified that, from the many discussions
that he and Bass had concerning “everything that [they] were
doing,” including “cooking cocaine into ‘crack,’” Bass knew of the
conversion and resale of the cocaine base.
Bass’s knowledge of his purchasers’ activities was confirmed
by his renting of vehicles for Fisher so that Fisher could travel
to Victoria to sell the cocaine base. The car rental fees were
paid with the proceeds from Fisher’s sales. In addition, Bass
advised Fisher not to drive flashy cars lest he be noticed by the
police. When a Cadillac rented by Fisher was seized by police late
in December of 1990, Bass had Kyles drive both Bass and Bounds to
Victoria to retrieve the vehicle.
Bass also used KLB in several other respects related to drug
commerce. First, Bass had Bounds sell cocaine for Bass in the
course of Bounds’s employment at KLB, and Bounds frequently drove
3 KLB-marked vehicles and wore a KLB uniform when making cocaine
deliveries for Bass. Second, Bass told Fisher, Wade, Steven Alix,
and Kyles that they could use KLB as an employment reference, even
though none of them worked there. Third, Bass placed Paul Alix on
the payroll at KLB, even though he did not work there; and when the
police arrested Paul Alix in Victoria, Texas, on December 27, 1991,
they found a KLB business card in his wallet.
The jury convicted Bass on all counts for which he was charged
in the indictment. Bass was sentenced to (1) nine terms of 360
months’ imprisonment, to be followed by five years of supervised
release for each of the conspiracy and distribution counts; (2) one
term of 360 months’ imprisonment, to be followed by five years of
supervised release for the CCE count; (3) one term of 120 months’
imprisonment, to be followed by three years of supervised release
for the criminally derived property count, and (4) one term of
twelve months’ imprisonment, to be followed by one year’s
supervised release for the income tax evasion counts. All terms
are being served concurrently. Bass was also ordered to pay
separate $50 assessments for each of the conspiracy, distribution,
and CCE counts, and separate $25 assessments for each of the tax
evasion counts, for a total of $650. We affirmed Bass’s conviction
and sentence on direct appeal.2
Bass subsequently filed a pro se 28 U.S.C. § 2255 motion to
2 United States v. Alix, 86 F.3d 429 (5th Cir. 1996).
4 vacate, set aside, or correct sentence. He alleged, inter alia,
that his counsel at trial and on appeal provided ineffective
assistance by failing to challenge (1) the sufficiency of the
evidence supporting his conviction for conspiring to distribute
cocaine base, (2) the quantity of cocaine base attributed to him
for sentencing purposes, (3) the sufficiency of the evidence
supporting his CCE conviction, and (4) on double-jeopardy grounds,
his conspiracy and CCE convictions. The government moved to
dismiss Bass’s § 2255 motion on the merits. Without holding an
evidentiary hearing, the district court dismissed the case with
prejudice, and denied Bass a certificate of appealability (“COA”).
Bass then sought a COA from this court, which we granted for
the sole purpose of a limited remand to the district court for it
to enter written reasons for the dismissal of Bass’s claim of
ineffective assistance of appellate counsel based on the failure to
challenge the sufficiency of the evidence supporting his CCE
conviction. We deferred ruling on Bass’s request for a COA for his
claim of ineffective assistance based on counsel’s failure to mount
a double-jeopardy challenge to Bass’s conspiracy and CCE
convictions, and we denied the COA for the other issues.
On remand, the district court issued an order explaining that
Bass’s appellate counsel was not ineffective for failing to
challenge the sufficiency of the evidence supporting Bass’s CCE
conviction, contending that there was in fact sufficient evidence.
The district court noted that the evidence adduced at trial showed
5 that Bass met the legal requirements for violating the CCE statute,
i.e., he (1) engaged in a continuing series of drug violations; (2)
organized, managed or supervised six individuals (Troy Bounds, Paul
Alix, David Fisher, Brian Kyles, Shawn Wade, and Steven Alix); and
(3) derived a substantial profit from the drug trafficking.
After the district court so ruled, we granted a COA and
ordered briefing with respect to the two issues on which Bass
claims ineffective assistance: his counsel’s failure (1) to
challenge, on direct appeal, the sufficiency of the evidence
supporting Bass’s CCE conviction, and (2) to challenge, on double-
jeopardy grounds, both at trial and on direct appeal, Bass’s
conspiracy and CCE convictions.
II. ANALYSIS
We first address the issue of the sufficiency of the evidence
supporting Bass’s CCE conviction. This requires us to answer two
questions: (1) whether the evidence is sufficient to support Bass’s
CCE conviction, and (2) if so, whether the failure of Bass’s
counsel to raise this issue on direct appeal was prejudicial. As
we shall explain, because we answer these questions in the
affirmative and vacate Bass’s CCE conviction, we need not address
Bass’s double jeopardy claim.
A. Standard of Review; Test for Ineffective Assistance of Counsel
A district court’s conclusions concerning a § 2255
petitioner’s claims of ineffective assistance of counsel involve
6 mixed questions of fact and law, which we review de novo.3
In applying the same standards as the district court, we
recognize that a claim of ineffective assistance of counsel is
properly made in a § 2255 motion because it raises an issue of
constitutional magnitude and, as a general rule, cannot be resolved
on direct appeal.4 To obtain relief on a claim of ineffective
assistance of counsel, a defendant must demonstrate that (1)
counsel’s conduct was constitutionally deficient because it fell
below an objective standard of reasonableness, and (2) this
deficient performance prejudiced his defense.5 It is insufficient
for a defendant merely to prove that counsel’s conduct was
deficient; a defendant must have also been prejudiced by this
ineffective legal assistance. To prove prejudice, the defendant
must show “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.”6 Such a claim fails unless the defendant
establishes both deficient performance and prejudice.7
B. Sufficiency of the Evidence for the CCE Conviction
Bass alleges that his attorney performed deficiently and
3 United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). 4 United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992). 5 Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 6 Id. at 694. 7 Id. at 697.
7 prejudiced his defense in failing to challenge the sufficiency of
the evidence supporting his CCE conviction. We “review
sufficiency-of-the-evidence challenges to determine whether any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”8 In making this assessment,
“this Court views all evidence in the light most favorable to the
government with all reasonable inferences and credibility choices
to be made in support of the jury’s verdict.”9
Keeping in mind Bass’s substantial evidentiary burden, we
first address the CCE statute’s requirement that the government
prove beyond a reasonable doubt that (1) the defendant organized,
supervised, or managed at least five persons (2) in a continuing
series of drug violations (3) from which the defendant received
substantial income.10 Bass argued to the district court that there
was insufficient evidence to establish that he violated the first
element, to wit: that he organized, supervised, or managed five or
more persons.11 In rejecting Bass’s claim, the district court found
8 Alix, 86 F.3d at 435. 9 United States v. Hinojosa, 958 F.2d 624, 628 (5th Cir. 1992). 10 21 U.S.C. § 848(c); United States v. Garcia Abrego, 141 F.3d 142, 164 (5th Cir. 1998). 11 Bass asserts on appeal for the first time that there was insufficient evidence supporting the substantial-income element. This argument, however, is waived given his failure to raise it in his initial § 2255 motion. See Tabita Chem. Co. v. Westlake Styrene Corp., 246 F.3d 377, 384 n.9 (5th Cir. 2001). We also find his additional claim that there was insufficient evidence
8 that the evidence showed that Bass controlled six individuals:
(1) Bounds: delivered cocaine for Bass; (2) Fisher: used vehicles rented by Bass to travel to Victoria to sell cocaine base derived from cocaine purchased from Bass, and listed KLB as an employment reference in an apartment rental application; (3) Kyles: purchased cocaine from Bass, which Kyles resold as cocaine base in Victoria, and also assisted Bass in locating the rental vehicle seized from Fisher; (4) Wade: purchased cocaine from Bass, which Wade resold as cocaine base in Victoria, and also used Bass as an employment reference with Bass’s permission; (5) Paul Alix: paid through the KLB payroll and resold cocaine base derived from cocaine purchased from Bass; and (6) Steven Alix: purchased cocaine from Bass, which Kyles resold as cocaine base in Victoria, and also used Bass as a reference with Bass’s permission.
On appeal, Bass urges his trial contention that his interaction
with these individuals occurred in the context of either friendship
or a buyer-seller relationship, neither of which is sufficient, he
insists, to establish the managerial, supervisory, or
organizational control required by § 848, the CCE statute.
Although § 848 is commonly referred to as the “King Pin
Statute”12 because “it is designed to apply to leaders of large-
supporting the continuing series of drug violations without merit; there were nine drug-trafficking convictions that served as the predicate offenses for Bass’s CCE conviction. This is far more than the three convictions needed to establish a “series of violations.” United States v. Lopez, 248 F.3d 427, 429 n.2 (5th Cir. 2001), cert. denied, 122 S. Ct. 222 (2001) (recognizing that a “series of violations” consists of three or more violations of the federal narcotics statutes). 12 United States v. Johnson, 575 F.2d 1347, 1357-58 (5th Cir. 1978).
9 scale narcotics operations,”13 a defendant need not have been the
single ringleader of a drug enterprise.14 It is sufficient if a
defendant has separate, individual relationships of control with at
least five persons.15 Furthermore, the defendant need not “have
directly or personally organized, supervised, or managed five
people, or even have had personal contact with each underling.”16
If a defendant delegates authority to lieutenants and enforcers to
do his managerial, supervisory, or organizational work, he is
nonetheless exercising control over the extended drug-ring
participants who are doing his bidding.17 Finally, in construing
the terms of the CCE statute, we have maintained that “[t]he terms
‘organized,’ ‘supervised,’ and ‘managed’ are not words of art and
should be interpreted according to their everyday meanings.”18
In appealing the district court’s finding that the evidence
13 United States v. Phillips, 664 F.2d 971, 1013 n.62 (5th Cir. Unit B 1981). 14 United States v. Sotelo, 97 F.3d 782, 789 (5th Cir. 1996). 15 Phillips, 664 F.2d at 1013. 16 United States v. Wilson, 116 F.3d 1066, 1088 (5th Cir. 1997) (citation omitted), rev’d in part on other grounds, United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc). 17 See Hinojosa, 958 F.2d at 630 (noting that a defendant “may not insulate himself from CCE liability by carefully pyramiding authority so as to maintain fewer than five direct subordinates”) (quoting United States v. Ricks, 882 F.2d 885, 891 (4th Cir. 1989)). 18 United States v. Gonzales, 866 F.2d 781, 784 (5th Cir. 1989).
10 supporting his CCE conviction is sufficient, Bass raises an issue
that has not yet been addressed by this court, viz., whether, alone
and in the absence of additional indicia of control, a mere buyer-
seller relationship is sufficient to establish liability under §
848. Although we have not yet ruled on this question, a
substantial number of the other federal circuits have held that a
“mere showing of a buyer-seller relationship, without more, is not
sufficient under § 848” to satisfy the management, supervision, or
organization element of § 848.19 In these cases, activities that
were merely “incidental to the buyer-seller relationship” were held
insufficient to establish CCE liability.20 In contrast, defendants
have been found to possess the level of control prescribed by the
CCE statute——and thus to go beyond a mere buyer-seller
relationship——when they rented vehicles for others selling drugs,21
used salesmen to distribute drugs,22 used enforcers,23 used drug
19 United States v. Butler, 885 F.2d 195, 201 (4th Cir. 1989). See also United States v. Witek, 61 F.3d 819, 822 (11th Cir. 1995); United States v. Ward, 37 F.3d 243, 247 (6th Cir. 1994); United States v. Smith, 24 F.3d 1230, 1234 (10th Cir. 1994); United States v. Delgado, 4 F.3d 780, 783 (9th Cir. 1993). 20 Witek, 61 F.3d at 823. See also Ward, 37 F.3d at 248-49 (discussing that defendant’s providing instructions on meeting times and places for drug transactions, not profiting from the resale of drugs, and fronting cocaine to purchasers are all activities solely within the scope of the buyer-seller relationship). 21 Ward, 37 F.3d at 248. 22 Id. at 249; Smith, 24 F.3d at 1233; Butler, 885 F.2d at 201. 23 Ward, 37 F.3d at 249.
11 couriers,24 provided financial and logistical support to suppliers
and purchasers,25 and used collection agents to obtain drug
payments.26 Each of these activities falls squarely within the
common-sense meaning of managerial, supervisory or organizational
control over underlings.
Recognizing that these activities are distinguishable from
those of simply selling or purchasing drugs, we now join the other
circuits that have held expressly that a buyer-seller relationship
by itself, i.e., in the absence of some indicia of management,
supervision or organization, is insufficient to establish liability
under the CCE statute. This rule is consistent with the plain
meaning of the statute’s requirement that a defendant must act “in
concert with five or more other persons with respect to whom such
[defendant] occupies a position of organizer, a supervisory
position, or any other position of management.”27 “A contrary
interpretation would do violence to the common-sense meaning of the
words ‘organizer’ and ‘supervisor’ and extend § 848's reach beyond
24 Smith, 24 F.3d at 1233. 25 Butler, 885 F.2d at 201. 26 Witek, 61 F.3d at 823. 27 § 848(c). The rule we adopt today is also consistent with the rule of lenity if the statute’s terms are deemed ambiguous. United States v. Kozminksi, 487 U.S. 931, 952 (1988); Witek, 61 F.3d at 822 (noting in interpreting the management requirement of § 848 that “the rule of lenity requires us to construe that statute narrowly”).
12 the scope Congress intended.”28
In joining those other circuits and embracing this rule, we
are doing no more than making explicit that which we have
previously implied. In United States v. Gonzales, co-defendant
Stewart McGlinchey appealed his CCE conviction on the ground that
he had only “a simple buyer-seller relationship with his
customers.”29 The evidence revealed, however, that McGlinchey used
street salesmen to distribute his cocaine, used recruiters to bring
people into his drug ring, used former police officers for
intelligence and protection, employed drug couriers, controlled the
resale of the drugs that he sold to his distributers, provided bail
for members of his drug ring, rented vehicles and apartments for
subordinates, and used his legitimate business for drug deals and
for processing drug proceeds.30 In light of all that, we concluded
that there was “ample evidence to support the jury’s conclusion
that McGlinchey organized five or more people in a criminal
enterprise.”31 Our decision in Gonzales can be read to imply the
rule that § 848 requires a showing of control greater than that
involved in a mere buyer-seller relationship, given our
confirmation that the evidence contradicted McGlinchey’s claim of
28 Witek, 61 F.3d at 822. 29 Gonzales, 866 F.2d at 783. 30 Id. at 783-84. 31 Id. at 783.
13 only a buyer-seller relationship and affirmance of McGlinchey’s CCE
conviction.
In following the logic of Gonzales and construing the evidence
in this case in the light most favorable to the government,32 we
find that Bass managed, supervised, or organized only three
individuals——Bounds, Fisher and Kyles. Bounds actually was
employed by Bass’s legitimate business and delivered cocaine at
Bass’s direction. Fisher used vehicles rented by Bass in
furtherance of the activities of the drug enterprise, was directed
by Bass not to drive flashy automobiles, and listed KLB as his
employer in apartment rental applications. Kyles spoke with Bass
about the activities of the drug ring, was permitted to use Bass as
an employment reference, falsely told police that he was employed
at KLB, and was directed by Bass to locate and drive him to
retrieve the rental car seized from Fisher by the Victoria police.
All of these activities are the same or similar to those that
evidenced managerial control in the cases in which other courts
have applied the rule that more than a buyer-seller relationship is
required to establish CCE liability.
Even when we draw all reasonable inferences in favor of the
jury’s verdict, we are convinced that a rational trier of fact
could not have concluded that Bass’s involvement with the other
three drug dealers——Wade, Paul Alix, and Steven Alix——consisted of
32 See Alix, 86 F.3d at 435-36.
14 anything more than a buyer-seller relationship. The evidence shows
that these three men simply purchased cocaine from Bass and resold
it as cocaine base in Victoria. Bass did not receive any
additional monies or benefits from these resales as cocaine base.
There is no evidence that Bass controlled the resale activities of
these three individuals, such as by dictating the quantity, the
asking price, or to whom the cocaine base would be sold. Beyond
evidence of ordinary purchases and sales, the record is devoid of
evidence of any control by Bass whatsoever over these three
individuals’ drug activities. The district court’s conclusion to
the contrary constitutes clear error.
Faced with a defendant similarly involved in a drug ring, the
Sixth Circuit, in United States v. Ward,33 reversed a CCE conviction
on the basis of insufficient evidence. The defendant, Ward, was
implicated in a widespread drug ring in which he fronted cocaine to
his purchasers, rented vehicles used by his purchasers in their
resale activities, provided meeting instructions, and used
enforcers.34 Even though renting cars and using enforcers evidenced
managerial or supervisory control, the court ruled that Ward’s
fronting of drugs and providing meeting instructions were only
incidental to a buyer-seller relationship.35 Significantly, the
33 37 F.3d 243 (6th Cir. 1994), cert. denied, 514 U.S. 1030 (1995). 34 Id. at 248-49. 35 Id.
15 court also ruled that the resale of drugs with no pass-through of
profits back to Ward was insufficient evidence of the control
required by § 848.36 Distinguishing another case relied on by the
government, in which a defendant’s conviction under § 848 was
upheld on resale evidence,37 the Ward court noted that the evidence
in the prior case “reflected control of the distribution of the
drugs” throughout the entire drug enterprise, “whereas the evidence
here shows only that Ward supplied drugs to Hicks, who sold them to
any buyers he could find, not to buyers determined or identified by
Ward.”38
As in that case, Bass supplied Wade, Stephen Alix, and Paul
Alix with drugs, which they resold to whatever buyers they could
find in Victoria. This was done with Bass’s knowledge but not
under his control or at his direction.
As for the aforementioned Paul Alix, we acknowledge that it
might still be possible to draw a reasonable inference in favor of
the jury verdict that he was controlled by Bass. Paul Alix
received several payroll checks from KLB, despite not working
there. And it would be odd, to say the least, for Bass to pay Paul
Alix if he were nothing more than an ordinary buyer: in the typical
buyer-seller relationship, payments flow from purchaser to
36 Id. at 249. 37 See United States v. Adamo, 742 F.2d 927 (6th Cir. 1984). 38 Ward, 37 F.3d at 250.
16 supplier, not the other way around. These faux salary payments
therefore may have been compensation for Paul Alix’s activities in
the drug ring, which could lead to a reasonable inference of some
form of supervisory or organizational control by Bass.
Even if we assume arguendo that Paul Alix was under the
supervision and control of Bass, however, this would still total
only four individuals who were managed, supervised, or organized by
Bass: Bounds, Fisher, Kyles, and Paul Alix. This is one short of
§ 848's requirement that a defendant control “five or more other
persons.”39 Thus, by the plain terms of the CCE statute, the
evidence was insufficient to support Bass’s conviction.
It follows that, in failing to raise this issue on appeal,
Bass’s counsel performed deficiently. In fact, appellate counsel
for Bass’s two co-defendants, Bounds and Paul Alix, did challenge
the sufficiency of the evidence supporting their clients’ drug
conspiracy convictions.40 Yet Bass’s own appellate counsel failed
to challenge the sufficiency of that same evidence supporting
Bass’s CCE conviction.41
As for Strickland’s second prong, Bass was prejudiced by this
39 § 848(c) (emphasis added). 40 Alix, 86 F.3d at 435-36. 41 The evidence is sufficient to support Bounds’s and Paul Alix’s narcotics conspiracy convictions, see id., and it is sufficient to support Bass’s nine narcotics conspiracy convictions, but, as we indicate, this same evidence is insufficient to support Bass’s CCE conviction.
17 deficient performance, albeit minimally. As Bass is serving all of
his sentences concurrently, the sentencer did not impose a harsher
prison term as a result of the CCE conviction; Bass’s total time of
incarceration will not be shortened as a result of our decision
today to vacate his CCE conviction. In addition to prison,
however, Bass was sentenced to pay an additional $50 for his CCE
conviction——a sum that he would not have been ordered to pay were
it not for the CCE conviction.
C. Double Jeopardy
We also granted Bass a COA on his contention that his
counsel’s failure to mount a double-jeopardy challenge of his
convictions for both conspiracy and CCE constituted a deficient
performance and thus was ineffective assistance. Bass notes
correctly that conspiracy is a lesser included offense of a CCE
conviction.42 Consequently, he insists, separate convictions and
sentences for both conspiracy and CCE violates the Constitution’s
Double Jeopardy Clause.43 Today’s vacatur of Bass’s CCE conviction,
however, eliminates the basis of this claimed constitutional
defect, making moot the second issue of Bass’s COA.
III. CONCLUSION
As Bass’s CCE conviction was not supported by sufficient
evidence, his counsel’s performance was deficient in failing to
42 Wilson, 116 F.3d at 1087. 43 Gonazales, 866 F.2d at 786.
18 raise this issue on direct appeal. And, Bass was prejudiced by
that deficient performance when he was sentenced to pay an
additional $50 assessment. Accordingly, we must reverse the
district court’s dismissal of Bass’s § 2255 motion, vacate Bass’s
CCE conviction and sentence, and remand to the district court with
instructions to reduce his total assessment to $600 for the
remaining 14 counts for which Bass’s convictions stand.
DISMISSAL REVERSED; SENTENCE VACATED in part; REMANDED with instructions.