USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-7283
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE SLOCUM, JR., a/k/a Jay,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:13-cr-00274-1; 2:17-cv- 03759)
Argued: March 21, 2024 Decided: July 1, 2024
Before DIAZ, Chief Judge, and QUATTLEBAUM and RUSHING, Circuit Judges.
Vacated and remanded by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Rushing joined. Chief Judge Diaz wrote a concurring opinion.
ARGUED: Salvatore Mills Mancina, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Joshua Clarke Hanks, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Erica Hashimoto, Director, Emily Webb, Student Counsel, Daniel Reid, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. William S. Thompson, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 2 of 20
QUATTLEBAUM, Circuit Judge:
Willie Slocum, Jr., appeals the district court’s denial of his 28 U.S.C. § 2255 motion
to correct, vacate or set aside his convictions and sentences based on ineffective assistance
of counsel. Slocum was indicted on two counts of drug conspiracy under 21 U.S.C. § 846,
but Slocum argues that the two charged conspiracies were really one. Insisting that he was
punished twice for the same conspiracy in violation of the Fifth Amendment’s Double
Jeopardy Clause, Slocum argues that his trial counsel rendered ineffective assistance by
failing to raise a double jeopardy challenge before the trial court.
While not dispositive, Slocum’s ineffective assistance claim invites us to consider
whether Slocum was put in double jeopardy in the first place. The district court determined
that he was not. In fact, the district court declined to hold an evidentiary hearing on
Slocum’s claim and denied his motion without ordering a response from the government.
But conducting a factual inquiry guided by the “totality of the circumstances” test from
United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986), and our multiple conspiracy
case law, Slocum was punished twice for a single conspiracy in violation of the Double
Jeopardy Clause. Still, whether trial counsel had a strategic reason for failing to raise a
double jeopardy challenge is unclear on this record. Slocum is entitled to an evidentiary
hearing under 28 U.S.C. § 2255(b) where the performance of his trial counsel can be
assessed. We, therefore, vacate the district court’s denial of Slocum’s § 2255 motion and
remand for an evidentiary hearing on Slocum’s ineffective assistance claim.
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I.
A federal grand jury returned a five-count indictment against Slocum. Relevant to
this appeal, Count One charged Slocum with conspiring under 21 U.S.C. § 846 to violate
21 U.S.C. § 841(a)(1) by distributing more than one kilogram of heroin, and Count Two
charged him with conspiring under § 846 to violate § 841(a)(1) by distributing a quantity
of oxycodone.1 The indictment charged both conspiracies as occurring “[f]rom before May
2012 through October 2013, at or near Charleston, Kanawha County, West Virginia, and
within the Southern District of West Virginia and elsewhere.” Compare J.A. 31, with J.A.
32.
Slocum proceeded to a three-day jury trial, where he was represented by counsel. In
its opening argument, the government told the jury that Slocum recruited “people to sell
drugs,” often drug addicts who sold “heroin and pills” to support their own addictions. J.A.
53–54. The government presented 16 witnesses in its case-in-chief. Many testified that they
sold both heroin and oxycodone for Slocum or knew others who did. Several also described
how they and others transported heroin and oxycodone for Slocum. They further testified
that Slocum and other members of the conspiracy sold the drugs to a network of people in
and around Charleston, who then both used and re-sold the drugs. In its closing argument,
1 Counts Three and Four charged Slocum with felon in possession offenses under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and Count Five charged him with witness tampering in violation of 18 U.S.C. § 1512(b)(1). 3 USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 4 of 20
the government summarized this evidence of “a big drug conspiracy.” J.A. 875. The jury
convicted Slocum on all counts.
The district court sentenced Slocum to 360 months’ imprisonment for the heroin
conspiracy count and a concurrent prison term of 240 months for the oxycodone conspiracy
count. Slocum received lower, concurrent terms on the remaining counts, resulting in a
total term of imprisonment of 360 months. The district court also imposed a five-year term
of supervised release on the heroin conspiracy count and concurrent three-year terms of
supervised release on each of the other counts. The district court ordered Slocum to pay a
total fine of $5,000 and $100 special assessments on each count of conviction.
Following his unsuccessful direct appeal, Slocum filed a pro se § 2255 motion.
Among other claims, Slocum argued that his trial counsel was ineffective in failing to
challenge his conspiracy charges, convictions, and sentences as violating the Double
Jeopardy Clause. Underlying this claim was Slocum’s assertion that the heroin and
oxycodone conspiracies for which he was charged and convicted amounted to the same
offense—a single conspiracy. Adopting a magistrate judge’s proposed findings and
recommendations, the district court determined that Slocum was “clearly not entitled to
relief.” J.A. 1542. It, therefore, neither ordered a response from the government nor held
an evidentiary hearing on Slocum’s ineffective assistance claim. In denying Slocum’s §
2255 motion, the district court reasoned that Slocum failed to show that the two charged
conspiracies constituted the same offense under either the “same evidence” test from
Blockburger v. United States, 284 U.S. 299 (1932), or the “totality of the circumstances”
test from our MacDougall decision. According to the district court, Slocum fell short under
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both tests, so he did not have a meritorious double jeopardy claim. Thus, the district court
concluded that, under Strickland v. Washington, 466 U.S. 668 (1984), trial counsel did not
deficiently perform by failing to raise a double jeopardy challenge. Slocum now appeals
that decision.2
II.
In reviewing a district court’s denial of a § 2255 motion, we review factual findings
for clear error and legal conclusions de novo. United States v. Dyess, 730 F.3d 354, 359
(4th Cir. 2013). To warrant habeas relief based on ineffective assistance of counsel, a
movant must satisfy the Supreme Court’s two-prong test in Strickland. Under that test, the
movant must show that (1) his counsel’s performance was deficient, and (2) his counsel’s
deficient performance prejudiced him. Strickland, 466 U.S. at 687. The deficient
performance prong requires the movant to show “that counsel’s representation fell below
an objective standard of reasonableness.” Id. at 688. And the prejudice prong requires him
to demonstrate “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.
III.
Whether Slocum’s trial counsel rendered ineffective assistance by failing to raise a
2 We issued a certificate of appealability as to the sole issue of whether trial counsel was ineffective in failing to raise a double jeopardy challenge. We have jurisdiction to hear Slocum’s timely appeal under 28 U.S.C. §§ 1291 and 2255(d). 5 USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 6 of 20
double jeopardy challenge hinges on the question of whether Slocum has sufficiently
alleged a double jeopardy violation. After all, if Slocum was not placed in double jeopardy,
he could not have been prejudiced by trial counsel’s failure to raise a double jeopardy
challenge. So, after summarizing the applicable law, we consider whether Slocum has
stated a meritorious double jeopardy challenge before turning to the merits of his
ineffective assistance claim.
A.
The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend.
V. This constitutional guarantee has two components. “The first provides protection against
the imposition of cumulative punishments for the ‘same offense’ in a single criminal trial;
the second against being subjected to successive prosecutions for the ‘same offense,’
without regard to the actual imposition of punishment.” United States v. Ragins, 840 F.2d
1184, 1187 (4th Cir. 1988) (citations omitted). This case concerns the former, as Slocum
argues that he was punished twice for the same conspiracy based on a multiplicitous
indictment.
A multiplicitous indictment is one that charges a single offense in multiple counts.
United States v. Burns, 990 F.2d 1426, 1438 (4th Cir. 1993). “[T]he ‘signal danger’ of a
multiplicitous indictment is that a defendant might thereby receive multiple punishments
for the same crime.” United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005). And
given that he was convicted and sentenced on both conspiracy counts, that is precisely the
danger that Slocum argues occurred. Indeed, the Supreme Court has made clear that a
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single conspiracy cannot be punished as multiple conspiracies. Braverman v. United States,
317 U.S. 49, 52–53 (1942); see also MacDougall, 790 F.2d at 1144 (“The double jeopardy
clause clearly prohibits the division of a single criminal conspiracy into multiple violations
of a conspiracy statute.”). Slocum, therefore, maintains that his trial counsel should have
challenged his indictment as multiplicitous or his subsequent conspiracy convictions as
violating his protection against double jeopardy.
The parties dispute which test applies to Slocum’s double jeopardy challenge. The
government contends that either the Blockburger “same evidence” test or the MacDougall
“totality of the evidence” test applies and that both lead to the conclusion that Slocum was
not placed in double jeopardy. In contrast, Slocum insists that only the MacDougall
“totality of the circumstances” test applies and that it reveals that his single conspiracy was
charged as two.
But there are problems with the parties’ arguments concerning both tests. To
explain, some unpacking is required. First, consider the Blockburger test. Under
Blockburger, “where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.” 284
U.S. at 304 (emphasis added). Based on this language, we have referred to the Blockburger
test as the “same evidence” test. See, e.g., United States v. Stewart, 256 F.3d 231, 247 n.10
(4th Cir. 2001). Yet, we have recognized that the Blockburger test “is essentially one of
legislative intent” and “focuses on the formal elements of the two crimes, finding them to
be different offenses if each requires proof of a fact which the other does not.” Ragins, 840
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F.2d at 1188; see also United States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010) (explaining
that the Blockburger test requires us to look to “the elements of the statutory provisions in
question, not the particular facts of the underlying case”) (internal quotes omitted). Thus,
we have also referred to the Blockburger test as the “same elements” test. See, e.g.,
Whittlesey v. Conroy, 301 F.3d 213, 217 (4th Cir. 2002).
Whatever name we use, the Blockburger test is a poor fit for a double jeopardy
challenge like Slocum’s, which concerns two counts alleging distinct violations of the same
statute. The Supreme Court has explained that the Blockburger test “is frequently used to
determine whether a single transaction may give rise to separate prosecutions, convictions,
and/or punishments under separate statutes.” Sanabria v. United States, 437 U.S. 54, 70
n.24 (1978) (emphasis added). Accordingly, the Blockburger test “applies only when the
government charges distinct offenses arising under ‘separate statutes.’” Stewart, 256 F.3d
at 247 n.10 (quoting Sanabria, 437 U.S. at 70 n.24); see also United States v. Rigas, 605
F.3d 194, 204 (3d Cir. 2010) (en banc) (“The Blockburger test is a tool for determining
whether Congress intended to separately punish violations of distinct statutory provisions,
and is therefore inapplicable where a single statutory provision was violated.”); United
States v. Asher, 96 F.3d 270, 273 (7th Cir. 1996) (“[B]y its very terms the Blockburger test
applies only where ‘the same act or transaction constitutes a violation of two distinct
statutory provisions.’” (quoting Blockburger, 284 U.S. at 304)).
In addition to the fact that Slocum’s double jeopardy challenge involves two alleged
violations of the same statute, our MacDougall decision provides another reason not to
apply the Blockburger test here. In MacDougall, we clarified that the Blockburger test does
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not apply when determining whether two conspiracies are the same offense for double
jeopardy purposes. MacDougall, 790 F.2d at 1144. We reasoned that the Blockburger test
“is of limited value in deciding double jeopardy claims raised with respect to successive
conspiracy prosecutions.” Id. We explained that “if the ‘same evidence’ test was the sole
standard for determining whether multiple conspiracies exist, then prosecutors could
carefully draw two indictments by choosing different sets of overt acts and make one
conspiracy appear to be two.” Id. We therefore joined several of our sister circuits in
concluding that “in conspiracy cases involving double jeopardy claims, a ‘totality of the
circumstances’ . . . test provides a more accurate analysis than the ‘same evidence test.’”
Id. We determined that the appropriate totality of the circumstances test involves the
flexible consideration of five factors:
1) time periods in which the alleged activities of the conspiracy occurred; 2) the statutory offenses charged in the indictments; 3) the places where the alleged activities occurred; 4) the persons acting as co-conspirators; and 5) the overt acts or any other descriptions of the offenses charged which indicate the nature and scope of the activities to be prosecuted.
Id. (first citing United States v. Thomas, 759 F.2d 659, 662 (8th Cir. 1985); and then citing
United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983)).
But because of its reliance on overt acts, there is also a problem with strictly
adhering to the MacDougall test. Five years after MacDougall, we held “that it is
unnecessary either to allege or prove an overt act in a conspiracy charged under 21 U.S.C.
§ 846.” United States v. Clark, 928 F.2d 639, 641 (4th Cir. 1991). Two years after that, the
Supreme Court agreed. United States v. Shabani, 513 U.S. 10, 17 (1993) (holding that proof
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of overt act is not required to establish a drug conspiracy in violation of 21 U.S.C. § 846).
These two cases undermine, if not render untenable, MacDougall’s emphasis on overt acts.
Despite these problems with the parties’ advancement of the Blockburger and/or
MacDougall tests, we have recently clarified that the Double Jeopardy Clause’s protection
against the imposition of cumulative punishments “attaches if the subject offenses ‘are in
law and in fact the same offense.’” United States v. Schnittker, 807 F.3d 77, 81 (4th Cir.
2015) (quoting United States v. Crew, 538 F.2d 575, 577 (4th Cir. 1976)). In the context
of multiple conspiracies charged under the same statute, the central question is whether the
counts involve the same or different conspiracies in fact. “A single conspiracy exists where
there is ‘one overall agreement,’ or ‘one general business venture.’” United States v.
Stockton, 349 F.3d 755, 762 (4th Cir. 2003) (quoting United States v. Leavis, 853 F.2d 215,
218 (4th Cir. 1988)). And that can be one overall agreement or general business venture to
commit multiple crimes. United States v. Broce, 488 U.S. 563, 570–71 (1989). For
instance, we have long recognized single conspiracies with multiple objects concerning
different controlled substances. See, e.g., United States v. Mackins, 315 F.3d 399 (4th Cir.
2003) (conspiracy to possess with intent to distribute cocaine, cocaine base, heroin and
marijuana); United States v. Banks, 10 F.3d 1044 (4th Cir. 1993) (conspiracy to distribute
heroin, cocaine and crack cocaine); United States v. Phillips, 593 F.2d 553 (4th Cir. 1978)
(conspiracy to manufacture, possess, distribute and dispense heroin and cocaine).
However, “multiple agreements to commit separate crimes constitute multiple
conspiracies.” Broce, 488 U.S. at 571. It is the factual circumstances that inform whether
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a defendant entered into one overall agreement to commit multiple crimes or, instead,
multiple agreements to commit separate crimes.
Notwithstanding its now-invalid focus on overt acts, much of MacDougall’s flexible
totality of the circumstances test remains useful in determining whether there is one overall
agreement or one general business venture.3 It considers the factual overlap between
charged conspiracies by comparing time periods, locations, co-conspirators, and the nature
and scope of the activities to be prosecuted. See 790 F.2d at 1144.4 And in the context of
multiple conspiracy jury instructions, we have recognized that “‘a single overall conspiracy
can be distinguished from multiple independent conspiracies based on the overlap in actors,
methods, and goals.’” United States v. Bartko, 728 F.3d 327, 344–45 (4th Cir. 2013)
(quoting Stockton, 349 F.3d at 762). These factors are consistent with MacDougall’s
consideration of co-conspirators and the nature and scope of the activities to be prosecuted.
Accordingly, under MacDougall and our multiple conspiracy case law, we analyze
Slocum’s double jeopardy claim by considering the overlap in time periods, locations, co-
3 To the extent that our unpublished, per curiam decision in United States v. Ivey, 722 F. App’x 336 (4th Cir. 2018), indicates that the Blockburger test applies to double jeopardy claims involving multiple conspiracy counts charged under the same statute, that decision does not comply with precedent from the Supreme Court and this Court. 4 MacDougall also identifies the “statutory offenses charged” as a factor to consider when assessing whether two conspiracies are really one. 790 F.2d at 1144. Here, the charged conspiracies were brought under the same drug conspiracy statute, 18 U.S.C. § 846, and allege similar objects—the distribution of drugs. The fact that these objects are closely related weighs in favor of a single conspiracy. See United States v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000) (explaining that existence of closely related objects of allegedly separate conspiracies weighs in favor of finding a single conspiracy). 11 USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 12 of 20
conspirators, as well as the nature and scope of the charged conspiracies, including methods
and goals.
B.
Applying those factors to Slocum’s case, we must determine whether the separately
charged heroin and oxycodone conspiracies were, in fact, separate conspiracies or were
really a single conspiracy. The level of overlap in the facts underlying the two charged
conspiracies leads us to conclude that there was one overall agreement with multiple
objects—to distribute more than a kilogram of heroin and to distribute a quantity of
oxycodone.
The government admits that “significant factual overlap” exists between the charged
conspiracies, specifically with respect to time periods, locations and co-conspirators. Resp.
Br. at 11. And for good reason. In terms of time periods and locations, the indictment
charges both conspiracies as occurring “[f]rom before May 2012 through October 2013, at
or near Charleston, Kanawha County, West Virginia, and within the Southern District of
West Virginia and elsewhere.” J.A. 31–32. This overlap in time and place is supported by
witness testimony at trial. As for the co-conspirators, several witnesses testified to selling
or transporting both oxycodone and heroin for Slocum or knowing others who did. For
instance, Victoria Hagan and Kermit Ware testified to selling heroin and oxycodone for
Slocum. And Elissa Edwards testified to buying and using heroin and oxycodone from
individuals selling both drugs for Slocum. Moreover, Christopher and Alyssa O’Dell
testified to their involvement in transporting heroin and oxycodone for Slocum.
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Despite recognizing this significant factual overlap underlying the charged
conspiracies, the government insists that certain witness testimony evidences separate
conspiracies based on the two drugs. The government notes that witness Gabrielle Beeman
testified that she and others took a three-day trip outside of Charleston to sell oxycodone—
as opposed to heroin—for Slocum. But Beeman herself testified that she regularly
purchased oxycodone and heroin from Slocum to sell to others and that, during the trip,
she used both drugs obtained from Slocum. Also, Victoria Hagan testified that she
accompanied Beeman on the three-day trip, the purpose of which Hagan explained was to
sell both oxycodone and heroin for Slocum. Contrary to the government’s insistence,
Beeman’s testimony does not demonstrate separate agreements relating to each drug.
Instead, it reveals common co-conspirators, methods and goals between the charged
conspiracies; namely, that Beeman, like other co-conspirators, regularly obtained both
heroin and oxycodone for Slocum that she then sold to third parties on his behalf. So, read
in context, this evidence concerning Beeman suggests a single conspiracy, not two.
The government also claims that witness Adriana White’s testimony that she bought
oxycodone—but not heroin—from Slocum and re-sold it establishes that were two
conspiracies. But White did not testify to selling any drugs for Slocum; she only testified
to buying oxycodone for personal use. This was confirmed by Slocum’s appellate counsel
at oral argument. One buyer’s history of purchasing only oxycodone for personal use fails
to demonstrate separate agreements to distribute heroin and oxycodone. Thus, the evidence
pertaining to White likewise does not support a finding of two conspiracies.
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Ultimately, the substantial overlap in the time periods, locations, co-conspirators
and nature and scope of the prosecuted activities suggests there was one overall agreement
to distribute both heroin and oxycodone. In fact, the government identifies no evidence to
support a contrary finding. So, based on the totality of the circumstances, we conclude that
the heroin and oxycodone conspiracies were, in fact, one conspiracy. Because Slocum was
convicted and sentenced twice for the same offense charged in a multiplicitous indictment,
he has demonstrated a double jeopardy violation.
C.
While we have found that Slocum established a double jeopardy violation, that
determination does not resolve whether he is entitled to habeas relief based on the alleged
ineffective assistance of his trial counsel for failure to raise a double jeopardy challenge
before the trial court. The Sixth Amendment right to counsel “is the right to the effective
assistance of counsel.” Strickland, 466 U.S. at 686. To prove ineffective assistance under
Strickland, Slocum must prove that (1) his counsel’s performance was deficient and (2) his
counsel’s deficient performance prejudiced him. Id. At the first prong, our scrutiny of
counsel’s performance “must be highly deferential.” Id. at 689. We “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. Accordingly, “strategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Id. at 690. That said,
“a decision made by counsel cannot have been tactical ‘if it made no sense or was
unreasonable.’” United States v. Freeman, 24 F.4th 320, 330 (4th Cir. 2022) (quoting
Vinson v. True, 436 F.3d 412, 419 (4th Cir. 2006)).
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A petitioner “can demonstrate ineffective assistance under Strickland if ‘existing
case law’ ‘sufficiently foreshadowed’ the double jeopardy challenge such that trial
counsel’s failure to raise it rendered his performance constitutionally deficient.” United
States v. Palacios, 982 F.3d 920, 925 (4th Cir. 2020) (quoting United States v. Morris,
917 F.3d 818, 824 (4th Cir. 2019)). “[C]ounsel need not identify all plausible arguments,
including those that have never been raised before or which would require an extension in
precedent.” Id. (citing Morris, 917 F.3d at 826). And “[i]t is not enough that the law on this
question was unsettled at the time or that an objection would have been plausible and non-
frivolous.” Id. (quoting Morris, 917 F.3d at 826) (cleaned up). However, “[c]ounsel must
raise an argument where ‘relevant authority strongly suggest[ed]’ it.” Id. (quoting United
States v. Carthorne, 878 F.3d 458, 466 (4th Cir. 2017)). Accordingly, whether trial
counsel’s failure to challenge Slocum’s multiple convictions and sentences as violating
double jeopardy amounts to deficient performance under Strickland largely depends upon
whether relevant authority at the time of Slocum’s trial “strongly suggest[ed]” that
challenge. See id.
Slocum urges us to find counsel’s assistance ineffective, arguing that MacDougall
and other authorities discussed above strongly suggested at the time of his trial that his
indictment was multiplicitous and that his subsequent conspiracy convictions and
sentences violated the Double Jeopardy Clause. But even if Slocum is right about the
relevant authority at the time of his trial, an ineffective assistance analysis requires deferral
to counsel’s strategic decisions made after investigating the law and facts. Strickland, 466
U.S. at 689, 691; Carthorne, 878 F.3d at 467 (recognizing that, “[o]f course, counsel may
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have a strategic reason for not raising a particular objection”). And since the district court
neither held an evidentiary hearing5 nor ordered a response to Slocum’s motion from the
government, there is nothing in the record from Slocum’s trial counsel that sheds light on
whether he had a strategic reason to not raise a double jeopardy challenge before the trial
court. Without any insight into trial counsel’s decision, we find it premature to decide
whether his performance was deficient under Strickland. In other words, Slocum has
presented a colorable Sixth Amendment claim in which disputed facts—namely trial
counsel’s reasoned strategy or lack thereof—remain beyond the record. See United States
v. Mayhew, 995 F.3d 171, 176–77 (4th Cir. 2021). Accordingly, we vacate the district
court’s denial of Slocum’s § 2255 motion and remand for an evidentiary hearing on
whether trial counsel’s performance was deficient. If the district court finds that trial
counsel’s performance was deficient, Slocum was necessarily prejudiced by that
performance given our recognition of a Double Jeopardy violation.
IV.
Considering the factual overlap in the charged conspiracies, as MacDougall and our
multiple conspiracy case law direct us to do, Slocum was punished twice for the same
conspiracy in violation of the Double Jeopardy Clause. But the record does not provide
sufficient information for us to determine whether his trial counsel’s performance was
5 A district court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see United States v. Mayhew, 995 F.3d 171, 176 (4th Cir. 2021). 16 USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 17 of 20
deficient due to his failure to raise that double jeopardy challenge. As a result, we vacate
the district court’s denial of Slocum’s § 2255 motion and remand for an evidentiary hearing
under § 2255(b) to determine whether Slocum’s trial counsel rendered deficient
performance, thereby prejudicing Slocum.
VACATED AND REMANDED
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DIAZ, Chief Judge, concurring:
I agree with my colleagues in the majority that Slocum’s indictment was
multiplicitous and that his subsequent conspiracy convictions and sentences violated the
Double Jeopardy Clause. And as the majority notes, 28 U.S.C. § 2255(b) requires the
district court to hold an evidentiary hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled to no relief.” So I agree that the
correct course is to remand to the district court to hold an evidentiary hearing, where
Slocum’s trial attorneys can explain their reasons for not objecting.
That said, the majority leaves it to the district court to also resolve whether “relevant
authority strongly suggest[ed]” the objection. See United States v. Palacios, 982 F.3d 920,
925 (4th Cir. 2020) (cleaned up). But in my view, “relevant authority” did “strongly
suggest” that Slocum had a meritorious objection based on the double jeopardy issue at the
time of his trial.
The Supreme Court has long prohibited punishing one conspiracy as two. See
Braverman v. United States, 317 U.S. 49, 52–53 (1942). Plus, by the time of Slocum’s
indictment, we had held that a totality of the circumstances test applies to successive drug
conspiracy prosecutions. See United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.
1986).
We hadn’t applied MacDougall’s test to a multiplicitous drug conspiracy indictment
rather than a successive prosecution. But by Slocum’s trial, five circuit courts had held in
published opinions that a court should apply a MacDougall-like multifactor test to
determine whether the defendant’s indictment, charging two separate drug conspiracy
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counts, was multiplicitous. See United States v. Gomez-Pabon, 911 F.2d 847, 860–61 (1st
Cir. 1990); United States v. Powell, 894 F.2d 895, 898–99 (7th Cir. 1990); United States
v. Travillion, 759 F.3d 281, 295–98 (3d Cir. 2014); United States v. Vasquez-Rodriguez,
978 F.2d 867, 870–72 (5th Cir. 1992); United States v. Kienzle, 896 F.2d 326, 328–29 (8th
Cir. 1990). That these courts had adopted Slocum’s argument strongly suggests that an
objection on this issue was warranted. See United States v. Morris, 917 F.3d 818, 824 (4th
Cir. 2019) (assuming that the defendant could show deficient performance because “the
only federal circuit court to have squarely addressed this question had adopted precisely
his argument”); Jansen v. United States, 369 F.3d 237, 243 (3d Cir. 2004) (holding that
counsel was deficient for not objecting to the calculation of Guidelines offense level, when
the calculation was contrary to the decisions of two other circuit courts).
Though the Eleventh Circuit had held that the Blockburger test should instead apply,
it did so in an unpublished, per curiam opinion. See United States v. Carson, 447 F. App’x
925, 927 (11th Cir. 2011) (per curiam). We’ve recognized that a single “unpublished and
non-binding decision rejecting a defendant’s position may not in all cases establish that
counsel has no obligation to raise that position,” if the “totality of relevant precedent”
otherwise suggests it. Morris, 917 F.3d at 826.
So despite Carson, the “totality of relevant precedent” at the time of Slocum’s trial
suggested that a Double Jeopardy objection could be meritorious, considering the five on-
point, out-of-circuit cases (plus MacDougall and Braverman) and the overlap between the
personnel, locations, methods, and timing of the two alleged conspiracies.
19 USCA4 Appeal: 21-7283 Doc: 65 Filed: 07/01/2024 Pg: 20 of 20
Of course, trial counsel may have had a strategic reason for failing to object, even
though relevant authority strongly suggested that they should. Perhaps Slocum wanted a
quick resolution to the case. We can’t know until there’s an evidentiary hearing.
But trial counsel’s justifications for failing to raise the objection is a question of
fact. The relevant authority question, conversely, is one of law. So I can’t see how an
evidentiary hearing on that legal question would be helpful. See United States v. Magini,
973 F.2d 261, 263 (4th Cir. 1992) (“When a colorable Sixth Amendment claim is
presented, and where material facts are in dispute involving inconsistencies beyond the
record, a hearing is necessary.” (emphasis added)); United States v. Mayhew, 995 F.3d
171, 176–77 (4th Cir. 2021) (“Although whether to hold a hearing ordinarily is a matter of
district court discretion, a hearing is required when a movant presents a colorable Sixth
Amendment claim showing disputed facts beyond the record, or when a credibility
determination is necessary to resolve the claim.” (emphases added) (cleaned up)).
And because it’s an objective inquiry, it doesn’t matter if trial counsel thought that
relevant authority didn’t suggest the objection. Slocum has met his burden to show that
the state of the law was sufficiently settled.
Finally, I note that we’ve previously decided the relevant authority question, even
when the district court has declined to hold an evidentiary hearing. See United States v.
Carthorne, 878 F.3d 458, 467–69 (4th Cir. 2017) (holding, in the first instance, that
relevant authority strongly suggested an objection).
For these reasons, I would remand only on whether Slocum’s counsel had a strategic
reason for failing to raise the objection.