Brown v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DEANDRE BROWN, )

)

Movant, )

)

vs. ) Case No: 4:19CV1891 HEA

)

UNITED STATES OF AMERICA, )

)

Respondent.

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Movant’s Motion to Vacate, Set Aside or

Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United States of

America has responded to the motion pursuant to the Court’s Show Cause Order.

Movant has filed a reply to the Government’s response. For the reasons set forth

below, the Motion to Vacate is denied.

FACTUAL HISTORY

The factual history of this matter is set out by respondent in its response.

PROCEDURAL HISTORY

Movant was charged on September 23, 2015 by a federal grand jury with

one count of being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). DCD 1.1 Specifically, the indictment charged:

COUNT ONE

The Grand Jury charges that:

On or about July 27, 2015, in the City of St. Louis, within the Eastern

District of Missouri,

DEANDRE E. BROWN, a/k/a/ MICHAEL WHITE,

the Defendant herein, having been previously convicted of one or more

crimes punishable by a term of imprisonment exceeding one year, did

knowingly possess a firearm, which previously traveled in interstate or

foreign commerce during or prior to being in the Defendant’s possession.

In violation of Title 18, United States Code, Section 922(g)(1).

Movant proceeded to trial on the single-count indictment on June 20, 2016.

On June 22, 2016, the jury returned a verdict of guilty. The Court ordered a

Presentence Investigation Report, (“PSR”), which was completed on September

14, 2016. The PSR found Movant to be an Armed Career Criminal under the

Armed Career Criminal Act, 18 U.S.C. § 924(e). Because of this status, Movant

was subject to a 15 year mandatory minimum term of imprisonment.

Movant was sentenced on October 20, 2016. There were no objections to

the PSR filed. Accordingly, the Court adopted the factual findings and guideline

calculations found in the PSR. The Court imposed a sentence of 235 months

imprisonment and a term of three years supervised release.

Movant appealed his conviction. He argued on appeal that the Court abused

its discretion in admitting Rule 404(b) evidence as being offered to prove

Movant’s criminal propensity and the prejudicial effect of this evidence

substantially outweighed its probative value. The conviction was affirmed. United

States v. Brown, 727 Fed.App’x 902, 907-8 (8th Cir. 2018).

CLAIMS FOR RELIEF

Movant set out three grounds for relief: (1) the jury was not properly

instructed on the knowledge element in light of Rehaif v. United States, __ U.S. __,

139 S.Ct. 2191 (2019); (2) ineffective assistance of counsel for failing to object to

the introduction of evidence concerning the five years Movant was sentenced to for

his 2002 conviction; (3) ineffective assistance of counsel for failing to object to the

Government’s violation of Movant’s Due Process Rights; (4) ineffective

assistance of counsel for counsel putting on evidence that was inconsistent with

counsel’s Opening Statement and for asking SA Hoffman the percentage of cases

in federal court resulting in convictions.

STANDARD FOR RELIEF UNDER 28 U.S.C. §2255

A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on

the ground “that the sentence was imposed in violation of the Constitution or laws

of the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may move the court which imposed the

sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to

obtain relief under § 2255, the movant must allege a violation constituting “‘a

fundamental defect which inherently results in a complete miscarriage of justice.’”

United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States

v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).

Right to Evidentiary Hearing

The Court must hold an evidentiary hearing to consider claims in 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.’” Shaw v. United States, 24 F.3d

1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).

Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if

true, would entitle [the movant] to relief.’” Payne v. United States, 78 F.3d 343,

347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.

1986)). The Court may dismiss a claim “without an evidentiary hearing if the claim

is inadequate on its face or if the record affirmatively refutes the factual assertions

upon which it is based.” Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905

F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claims can

be conclusively determined based upon the parties’ filings and the records of the

case, no evidentiary hearing will be necessary.

Standard for Ineffective Assistance of Counsel

“The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L.E.2d 674 (1984), provides the framework for evaluating

[Movant’s] ineffective-assistance-of-counsel claim.” Anderson v. United

States, 762 F.3d 787, 792 (8th Cir. 2014). [Movant] “must show that his

counsel’s performance was deficient and that [he] suffered prejudice as a

result” to prove a violation of his Sixth Amendment rights. Id.

“Deficient performance is that which falls below the range of competence

demanded of attorneys in criminal cases.” Bass v. United States, 655 F.3d

758, 760 (8th Cir. 2011) (internal quotation omitted). “Strickland sets a

‘high bar’ for unreasonable assistance.” Love, 949 F.3d at 410 (quoting Buck

v. Davis, 137 S. Ct. 759, 775 (2017)). Only a performance “outside the wide

range of reasonable professional assistance” is constitutionally deficient. Id.

(internal quotation omitted). “We make every effort to eliminate the

distorting effects of hindsight and consider performance from counsel’s

perspective at the time.” Id. (internal quotation omitted).

“Prejudice requires the movant to establish ‘a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.’ ” Bass, 655 F.3d at 760 (quoting

Strickland, 446 U.S. at 694).

O'Neil v. United States of Am., 966 F.3d 764, 770-71 (8th Cir. 2020).

It is well-established that a petitioner’s ineffective assistance of counsel

claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal.

United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,

560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective

assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658

(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003).

Both parts of the Strickland test must be met in order for an ineffective

assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,

753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires

a “showing that counsel made errors so serious that counsel was not functioning as

the counsel guaranteed the defendant by the Sixth Amendment”. Id. Review of

counsel’s performance by the court is highly deferential, “and the Court presumes

counsel’s conduct falls within the wide range of reasonable professional

assistance”. Id. The court does not second-guess trial strategy or rely on the

benefit of hindsight, id., and the attorney’s conduct must fall below an objective

standard of reasonableness to be found ineffective, United States v. Ledezma-

Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged

deficient performance) would have been rejected, counsel's performance is not

deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to

“eliminate the distorting effects of hindsight” by examining counsel’s performance

from counsel’s perspective at the time of the alleged error. Id.

The second part of the Strickland test requires that the movant show that he

was prejudiced by counsel’s error, and “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different”. Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at

694). A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Strickland, 466 U.S. at 694. When determining if prejudice exists,

the court “must consider the totality of the evidence before the judge or jury”. Id. at

695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).

The first prong of the Strickland test, that of attorney competence, is applied

in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,

however, is different in the context of guilty pleas. Instead of merely showing that

the result would be different, the defendant who has pled guilty must establish that

“there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial”. Hill v. Lockhart, 474

U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.

Ground One

Movant claims that the jury was not properly instructed on the knowledge

element of his felon in possession status, in light of Rehaif. The Government

concedes that under Rehaif, the knowledge requirement applies not only to a

defendant’s possession of a firearm, but to defendant’s knowledge that at the time

of the possession, he knew he had been previously convicted of a crime punishable

by a term of imprisonment in excess of one year.

The Government argues Movant has procedurally defaulted his Rehaif

claim because he did not raise the issue at trial or on direct appeal. “In order to

obtain collateral review on a procedurally defaulted claim, a habeas petitioner must

show either that there was cause for his procedural default and actual prejudice, or

that he is actually innocent of the crime for which he was convicted.” Jennings v.

United States, 696 F.3d 759, 764 (8th Cir. 2012) (citing Bousley v. United States,

523 U.S. 614, 622 (1998)). Movant does not provide any opposition to the

Government’s procedural bar argument. Indeed, the record establishes that

Movant did not raise the knowledge element argument in this nor in the Appellate

Court. The claim is procedurally defaulted. As such, the Court will consider

whether Movant has established actual innocence or cause and actual prejudice to

overcome the default.

1. Actual Innocence

To establish actual innocence, Movant must show that “it is more likely than

not that no reasonable juror would have convicted him” had the jury been given the

correct instruction and the Government had the opportunity to submit evidence of

the omitted element. See Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513

U.S. 298, 327-28 (1995)). “‘[A]ctual innocence’ means factual innocence not mere

legal insufficiency.’” Id. “[A] petitioner must demonstrate actual factual innocence

of the offense of conviction, i.e., that petitioner did not commit the crime of which

he was convicted; this standard is not satisfied by a showing that a petitioner is

legally, but not factually, innocent.” United States v. Mikalajunas, 186 F.3d 490,

494 (4th Cir. 1999). Actual innocence claims require a movant to “support his

allegations of constitutional error with new reliable evidence – whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence – that was not presented at trial.” Weeks v. Bowersox, 119 F.3d

1342, 1351 (8th Cir. 1997) (quoting Schlup, 513 U.S. at 324). “This is a strict

standard; generally, a petitioner cannot show actual innocence where the evidence

is sufficient to support a ... conviction.” Johnson v. United States, 278 F.3d 839,

844 (8th Cir. 2002) (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th

Cir. 2001)). “Because such evidence is obviously unavailable in the vast majority

of cases, claim of actual innocence are rarely successful.” Weeks, 119 F.3d at 1351.

Movant makes no argument he is actually innocent of the charge. The

Government did not present evidence of Movant’s prior convictions because the

parties stipulated to the following:

The United States of America and the defendant, Deandre E. Brown, agree

and accept the following facts in this case to be proven: That prior to July

27, 2015, the defendant, Deandre E. Brown, had been convicted of one or

more crimes punishable by imprisonment for a term exceeding one year. So

stipulated.

Nor did the Government present evidence of Movant’s knowledge of his

relevant status, as Movant did not raise the issue and Rehaif had not yet been

decided. The relevant question is whether it is more likely than not that no

reasonable juror would have convicted him had the jury been given the correct

instruction and the Government had the opportunity to submit evidence of the

omitted element.

Movant does not present any evidence of his actual innocence. Indeed, his

argument appears to be based on a legal insufficiency rather than factual

innocence. However, the Court will address the merits of the argument. At trial,

Movant stipulated to the fact that he had been convicted of at least one felony

crime punishable by imprisonment for more than one year

Courts have held that a reasonable jury could infer the requisite knowledge

from a defendant's stipulation to a prior felony conviction. See United States v.

Conley, 802 F. App'x 919, 923 (6th Cir. 2020) (stating that while a stipulation to a

prior felony status “does not automatically establish knowledge of felony status, it

is strongly suggestive of it.”).

The Eighth Circuit has assumed that a defendant's stipulation does not

resolve the issue of whether he knew he was a felon. See United States v.

Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019) (“we will assume that

Hollingshed's stipulation does not resolve the issue of whether he knew he was a

felon.”).

Here, Movant has five prior felonies: (1) January 22, 1997, conviction in the

Howard County, Indiana Circuit Court for Dealing in Cocaine on or about June 7,

1996, in Cause No. 34C01-9606-CF-00041 (“1997 Indiana Conviction”); (2)

September 26, 2002, conviction in the St. Louis City, Missouri Circuit Court for

Unlawful Use of a Weapon- Carrying a Concealed Weapon on or about January 1,

2002, in Cause No. 22021-CR00002-01 (“2002 Missouri Conviction”); (3) January

23, 2006, conviction in the St. Louis County, Missouri Circuit Court for

Distribution for a Controlled Substance on or about November 8, 2003, in Cause

No. 2104R-03927-01 (“2006 Missouri Conviction”); (4) April 9, 2008, convictions

in the St. Louis City, Missouri Circuit Court for First-Degree Burglary and Second

Degree Domestic Assault on or about December 31, 2006, in Cause No. 0722-

CR00036-01 (“2008 Missouri Conviction”); and (5) April 23, 2014, conviction in

the Madison County, Illinois Circuit Court for Domestic Battery on or about

January 11, 2014, in Cause No. 14-CF-70 (“2014 Illinois Conviction”).

Movant actually served over a year in prison. Hollingshed and Owens are

persuasive as establishing a basis for his knowledge of his status as a felon. See

also United States v. Welch, 951 F.3d 901, 907 (8th Cir. 2020) (concluding it was

not reasonably probable that, if the Government had to prove defendant's

knowledge of a previous conviction for “a crime punishable by imprisonment for a

term exceeding one year,” he would have been acquitted given that he had received

and served several prison sentences longer than one year); Bugh, 459 F. Supp. 3d

at 1189-90 (concluding the government would undoubtedly have proven

defendant's knowledge of his status as a felon based on his 10 felony convictions,

for which defendant actually served more than a year in prison for most of those

convictions).

Movant has not demonstrated actual innocence to overcome his procedural

default. His argument is based on a legal insufficiency rather than factual

innocence. Even if this could be considered an appropriate basis to argue actual

innocence, his argument still fails. The Government's evidence as to his knowledge

of his status as a felon is sufficiently strong to make it unlikely that a reasonable

jury would have acquitted Movant. Movant’s procedural default is not excused by

a showing of actual innocence.

2. Cause and Actual Prejudice

With regard to cause and actual prejudice, Movant does not argue he had

cause for failing to raise the knowledge issue on direct appeal, but even if he were

to argue that he did not do so because the claim was “so novel that its legal basis

[was] not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984).

The Government argues this exception does not apply because the question

presented in Rehaif was litigated in the appellate courts over the last three decades.

The Government contends contrary precedent does not constitute cause for

Movant’s failure to raise his Rehaif challenge at sentencing or on appeal. The

Supreme Court has held that “futility cannot constitute cause if it means simply

that a claim was unacceptable to that particular court at that time.” Bousley, 523

U.S. at 622. However, cause may be shown if the claim “is so novel that its legal

basis is not reasonably available to counsel.” Id.

In Bousley, the defendant pleaded guilty in 1990 to “using” a firearm in

violation of 18 U.S.C. § 924(c)(1). Bousley, 523 U.S. at 616. In 1995, the Supreme

Court held that the “use” prong under section 924(c)(1) required the Government

to show “active employment of the firearm.” Bailey v. United States, 516 U.S. 137,

144 (1995). When Bousley raised this issue on collateral relief, the court found it

was procedurally defaulted because the claim was reasonably available to counsel

on direct appeal. See Bousley, 523 U.S. at 622 (“Indeed, at the time of petitioner's

plea, the Federal Reporters were replete with cases involving challenges to the

notion that ‘use’ is synonymous with mere ‘possession.’”).

In Lindsey, the defendant pleaded guilty and was adjudicated a career

offender in 2006. Lindsey, 615 F.3d 998, 999 (8th Cir. 2010). He brought a § 2255

motion to argue he was improperly sentenced as a career offender under Begay v.

United States, 553 U.S. 137 (2008). When Lindsey entered his plea in 2006, the

Eighth Circuit had taken up the issue that was decided in Begay but reached the

opposite outcome. Because the issue was being litigated at the time Lindsey

entered his plea, and in the same timeframe that he filed his appeal, the Eighth

Circuit concluded he did not have cause for procedural default. 615 F.3d at 1000-

01.

A majority of courts have rejected Rehaif challenges. See United States v.

Bryant, No. 11-CR-765, 2020 WL 353424, at *3 (E.D.N.Y. Jan. 21, 2020) (“The

issue decided in Rehaif was percolating in the courts for years.”); United States v.

Catlett, Criminal Action No. 10-324-1, 2020 WL 5982266, at *2 (E.D. Pa. Oct. 8,

2020) (“it cannot be said that the question in Rehaif was novel where it was

repeatedly litigated in circuit courts.”); Dawkins v. United States, Case Nos. 20-

80987-CV-BLOOM, 17-80095-CR-BLOOM, 2020 WL 4936978, at *3 (S.D. Fla.

Aug. 24, 2020) (“Movant's Rehaif claim is not novel because the issue it presents

was repeatedly and thoroughly litigated in the courts of appeals for decades.”);

Ramsey v. United States, Case No. 4:19CV2643 SNLJ, 2020 WL 5230891, at *10

(E.D. Mo. Sept. 2, 2020) (“Rehaif was thoroughly and repeatedly litigated in the

courts of appeals over the last three decades, and as such, it does not qualify under

the novelty exception.”).

Given that the Rehaif issue was being litigated in other circuit courts of

appeal during the time that Movant went to trial and appealed his conviction, the

issue cannot be considered novel under Bousley. Therefore, Movant has not

demonstrated cause for his procedural default. Absent a showing of cause, there is

no need to consider whether Movant can establish actual prejudice.

Ground Two

Movant argues counsel was ineffective for failing to object to the

introduction of evidence concerning the five years Movant was sentenced to for his

2002 conviction. As the Government correctly argues, the Eighth Circuit Court of

Appeals upheld the admission of Movant’s prior conviction pursuant to Rule

404(b). Movant presents no authority for his argument that admission of the

judgment, including the sentence, to prove the conviction was in error.

Ground Three

For his third ground for relief, Movant argues counsel was ineffective for

failing to object to the Government’s violation of Movant’s Due Process Rights.

Movant claims Lieutenant Noland’s testimony was prejudicial because Noland

referenced Movant as an “inmate.” The Court agrees with the Government that the

limited references to Movant are not overly prejudicial. Lieutenant Noland’s

testimony was to authenticate the emails and phone call. In order to do so, he was

required to testify as to his occupation at the Lincoln County jail. Movant has not

presented any authority to establish that counsel’s failure to object to the “inmate”

references was “outside the wide range of professionally competent assistance.”

Strickland, 46 U.S. at 690. See also, United States v. Johnson, 624 F.3d815, (7th

Cir. 2010); United States v. Cross, 888 F.3d 985, 990 (8th Cir.), cert. denied, 139

S. Ct. 351(2018)(“As the district court noted, neither the government's witnesses

nor the recording alluded to Cross being incarcerated. Whatever the jury might

have inferred from the recording was a far cry from the prejudice that resulted

from having to wear prison garb in Williams, which was ‘likely to be a continuing

influence throughout the trial.’ Id. at 505, 96 S.Ct. 1691; see United States v.

Johnson, 624 F.3d 815, 821–22 (7th Cir. 2010).”).

Movant also objects to the admission of his email. The email, as the

Government argues is admissible without the notice requirements of Rule 404(b)

because it is intrinsic evidence as it can be construed as consciousness of guilt.

United States v. Frost, 234 F.3d 1023, 1025 (8th Cir. 2000). As such, failure to

object to the admission is not ineffective assistance of counsel. Movant can show

no prejudice by the failure to object.

Ground Four

Movant argues that counsel was ineffective for putting on evidence that was

inconsistent with counsel’s Opening Statement and for asking SA Hoffman the

percentage of cases in federal court resulting in convictions.

The Eighth Circuit gives great deference to counsel's judgment in selecting

witnesses. Hanes v. Dormire, 240 F.3d 694, 698 (8th Cir.2001). The decision

whether to call witnesses ... may be a matter of trial strategy. Hall v. Lubbers, 296

F.3d 685, 694 (8th Cir.2002); Battle v. Delo, 19 F.3d 1547,1556 (8th Cir.1994).

Counsel’s decision to call the witnesses, which was made after meeting with them

is a matter of trial strategy and will not be disturbed. Strickland, 466 U.S. at 690.

Movant also argues counsel was ineffective for asking Agent Huffman if he

knew that the federal government wins "Ninety-seven to 99 percent" of its cases

against defendants. Movant claims this question improperly projected to the jury

that Government's evidence against a defendant--in almost all cases--is sufficient

of guilt beyond a reasonable doubt. Movant presents no authority for this

argument; the argument is mere speculation on Movant’s part and fails to establish

any prejudice for counsel’s question. Indeed, counsel may have had a different

reason for asking the question which counsel thought would benefit Movant’s

defense. Without any other evidence or authority, the Court cannot engage in

similar speculation.

CONCLUSION

For the reasons discussed above, the motion under 28 U.S.C. § 2255 is

denied as to all claims.

CERTIFICATE OF APPEALABILITY

In a § 2255 proceeding before a district judge, the final order is subject to

review on appeal by the court of appeals for the circuit in which the proceeding is

held. 28 U.S.C. § 2253(a). However, unless a circuit judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals. § 2253(c)(1)(A).

A district court possesses the authority to issue certificates of appealability under §

2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d 518, 522

(8th Cir. 1997). Under § 2253(c)(2), a certificate of appealability may issue only if

a movant has made a substantial showing of the denial of a constitutional right. See

Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); Tiedeman, 122 F.3d at 523. To

make such a showing, the issues must be debatable among reasonable jurists, a

court could resolve the issues differently, or the issues deserve further proceedings.

See Miller-El, 537 U.S. at 335–36 (reiterating standard).

Courts reject constitutional claims either on the merits or on procedural

grounds. “ ‘[W]here a district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: [t]he [movant]

must demonstrate that reasonable jurists would find the district court's assessment

of the constitutional claims debatable or wrong.’ ” Miller-El, 537 U.S. at 338

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). When a motion is

dismissed on procedural grounds without reaching the underlying constitutional

claim, “the [movant must show], at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” See Slack, 529 U.S. at 484.

Having thoroughly reviewed the record in this case, the Court finds that

Movant has failed to make the requisite “substantial showing.” See 28 U.S.C. §

2253(c)(2); Fed. R. App. P. 22(b). Accordingly, a certificate of appealability will

not issue.

Accordingly,

IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct

Sentence, is DENIED.

IT IS FURTHER ORDERED that this Court will not issue a Certificate of

Appealability as Movant has not made a substantial showing of the denial of a

federal constitutional right.

A separate judgment is entered this same date.

Dated this 7“ day of December, 2020.

HENRY EDWARD AUTREY

UNITED STATES DISTRICT JUDGE

19