# McKinney v. United States

> District Court, W.D. North Carolina · January 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10255513

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** January 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00149-MR
(CRIMINAL CASE NO. 1:12-cr-00085-MR-DLH-1)

DONZELL ALI MCKINNEY, )
)
Petitioner, )
)
vs. ) ORDER
)
UNITED STATES OF AMERICA, )
)
Respondent. )
________________________________ )

THIS MATTER is before the Court on the Petitioner’s Motion to Vacate
Sentence under 28 U.S.C. § 2255 [CV Doc. 1]1 and the Government’s Motion
to Dismiss Petitioner’s Motion to Vacate [CV Doc. 9]. The Petitioner is
represented by Ann Hester of the Federal Defenders of Western North
Carolina.
I. BACKGROUND
In September 2011, the Petitioner Donzell Ali McKinney (“Petitioner”)
and his co-defendant, Clinton Hugo Wilson (“Wilson”), robbed a barbecue

1 Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV,” denoting that the document is listed on the docket in
the civil case file number 1:16-cv-00149-MR, or the letters “CR,” denoting that the
document is listed on the docket in the criminal case file number 1:12-cr-00085-MR-DLH.
restaurant in Asheville, North Carolina. [CR Doc. 13: PSR at 5-6]. The
Petitioner and Wilson approached two women outside of the restaurant. [Id.

at 5]. The Petitioner, armed with a pistol, hit one of the women in the head,
ordered both to the ground, and then beat on the restaurant’s door. When a
witness drove up, the Petitioner ordered her out of her car, “put a gun to her

head,” and “ordered her inside the restaurant.” [Id.].
When the restaurant’s manager went to the door to investigate the
noise, the Petitioner “pointed a black 9 mm handgun at” the manager “and
yelled, ‘Open the fucking door!’” [Id.]. When the manager did not move fast

enough, the Petitioner fired the gun in his direction. [Id.]. The robbers
ordered the manager to open the safe and retrieve the cash inside, which
amounted to $451. [Id.].

The Petitioner fled the scene in a car driven by a third co-defendant.
The police pursued the car, and the Petitioner jumped from the car during
the pursuit. Following an extensive manhunt, the police found the Petitioner
hiding in the bushes. [Id.]. They also found a 9mm pistol. [Id.]. The

Petitioner admitted to the robbery. [Id. at 6].
A grand jury in the Western District of North Carolina returned a Bill of
Indictment against the Petitioner and his two co-defendants. The Bill of

Indictment charged the Petitioner with three counts: one count of Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a) (Count One); one count of
conspiracy to commit a Hobbs Act robbery, in violation of 18 U.S.C. §

1951(a) (Count Two); and one count of possession of a firearm that was
discharged in furtherance of a “crime of violence,” that being the substantive
Hobbs Act robbery charged in Count One, all in violation of 18 U.S.C. §

924(c)(1)(A)(iii). [Criminal Case No. 1:12-cr-00012-MR-WCM, Doc. 1:
Indictment].
The Petitioner entered into a written Plea Agreement with the
Government, pursuant to which the Petitioner agreed to plead guilty to a

separate Bill of Information. [CR Doc. 1: Bill of Information; CR Doc. 2: Plea
Agreement]. The Bill of Information to which the Petitioner agreed to plead
guilty contained two counts: one count of conspiracy to commit Hobbs Act

robbery, in violation of 18 U.S.C. § 1951(a), and one count of possession of
a firearm that was discharged in furtherance of a “crime of violence,” in
violation of 18 U.S.C. § 924(c)(1)(A)(iii). [CR Doc. 1: Bill of Information].
Unlike the § 924(c) count set forth in Count Three of the Bill of Indictment,

Count Two of the Bill of Information alleged the predicate “crime of violence”
to be the Hobbs Act conspiracy charged in Count One of the Bill of
Information. [Id.]. The Petitioner faced a maximum term of twenty 20 years’

imprisonment for Count One, see 18 U.S.C. § 1951(a), and a mandatory
consecutive sentence of not less than 10 years to life for Count Two, see 18
U.S.C. § 924(c)(1)(A)(iii).

In exchange for the Petitioner’s guilty plea to these two counts, the
United States agreed to move at the appropriate time to dismiss the charges
contained in the Bill of Indictment filed in Criminal Case No. 1:12-cr-00012-

MR-WCM. [CR Doc. 2: Plea Agreement at 1]. In the Plea Agreement, the
Petitioner agreed to waive his right to appeal or collaterally attack his
conviction on any ground other than prosecutorial misconduct or ineffective
assistance of counsel. [Id. at 4].

The Magistrate Judge accepted the Petitioner’s plea after conducting
a thorough colloquy under Rule 11 of the Federal Rules of Criminal
Procedure. [CR Doc. 5: Acceptance of Guilty Plea]. At the Rule 11 hearing,

the Magistrate Judge confirmed that the Petitioner was aware of and agreed
to the postconviction waiver set forth in the Plea Agreement [Id. at 9], and he
found that the Petitioner’s plea was “knowingly and voluntarily made” [Id. at
10].

A presentence report (“PSR”) was prepared in advance of the
Petitioner’s sentencing. The PSR detailed the Petitioner’s use and discharge
of a firearm in furtherance of the September 2011 robbery. [CR Doc. 13:

PSR at 5-6]. Although the Petitioner objected to the finding that he pointed
the gun at the witness who drove up or fired the gun at the restaurant’s
manager, he conceded that “he fired the weapon toward the ceiling.” [Id. at

20]. The Petitioner did not object to the other facts described in the PSR,
nor did he object to the conclusion that he “admits participation and accepts
responsibility for his involvement in the instant offense.” [Id. at 6].

In the PSR, the probation officer noted the mandatory ten years to life
consecutive sentence for Petitioner’s § 924(c) conviction. [CR Doc. 13 at ¶
73]. For Count One, the probation officer calculated a Total Offense Level
(TOL) of 25, which included a two-level enhancement for reckless

endangerment during flight under U.S.S.G. § 3C1.2. The probation officer
also calculated a Criminal History Category of IV. This yielded a Guidelines
Range calling for a term of imprisonment for Count One between 84 and 105

months, plus a mandatory consecutive sentence of not less than ten years
for Count Two. [Id. at ¶¶ 36, 43, 74].
The Petitioner’s sentencing hearing was held on March 30, 2013. At
the hearing, the Court found that the Petitioner was not subject to the

recommended two-level enhancement, the removal of which yielded a TOL
of 23 and a Guidelines Range of 70 to 87 months’ imprisonment for Count
One. [CR Doc. 23: Statement of Reasons]. The Court sentenced the

Petitioner to a term of imprisonment of 70 months on Count One, and a
consecutive term of 120 months on Count Two, for a total term of 190
months’ imprisonment. [CR Doc. 22 at 2: Judgment]. The Petitioner did not

file a direct appeal from this Judgment.
On June 13, 2016, the Petitioner filed the present Motion to Vacate
Sentence under 28 U.S.C. § 2255, arguing that his conviction under 18

U.S.C. § 924(c) is invalid under Johnson v. United States, 135 S. Ct. 2551
(2015). [CV Doc. 1]. Specifically, he argues that the residual clause of
section 924(c)’s definition of “crime of violence” — which includes any
offense that, “by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of
committing the offense,” 18 U.S.C. § 924(c)(3)(B) — is unconstitutionally
vague. He further argues that his Hobbs Act conspiracy offense does not

qualify as a crime of violence under the remaining parts of that definition. [Id.
at 3-5].
Upon the request of the Government, this matter was stayed pending
the Fourth Circuit’s decision in United States v. Ali, No. 15-4433, and United

States v. Simms, No. 15-4640. [CV Docs. 5, 6]. The Fourth Circuit then
ordered that Ali would be held in abeyance pending the Supreme Court’s
decision in United States v. Davis, No. 18-431. This Court, in turn, stayed

the matter pending Davis. [CV Doc. 7]. The Supreme Court decided Davis
on June 24, 2019. The next day this Court lifted the stay and ordered the
Government to respond to the Petitioner’s motion by August 23, 2019.

Petitioner subsequently filed a supplemental memorandum in support of his
Section 2255 motion. [CV Doc. 11]. The Government timely filed its
response [CV Doc. 12], and the Petitioner replied [CV Doc. 13].

Having been fully briefed, this matter is ripe for disposition.
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along with “any

attached exhibits and the record of prior proceedings” in order to determine
whether the petitioner is entitled to any relief on the claims set forth therein.
After examining the record in this matter, the Court finds that the motion to

vacate can be resolved without an evidentiary hearing based on the record
and governing case law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
III. DISCUSSION

In Johnson, the Supreme Court struck down the Armed Career
Criminal Act’s (ACCA) residual clause, 18 U.S.C. § 924(e)(2)(B)(ii), as
unconstitutionally vague and held that enhancing a sentence under the

ACCA’s residual clause violates due process. Johnson, 135 S. Ct. at 2563.
The ACCA residual clause defined a “violent felony” to include any crime
punishable by a term of imprisonment exceeding one year that “otherwise

involves conduct that presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). Accordingly, under Johnson, a
defendant who was sentenced to a statutory mandatory minimum term of

imprisonment based on a prior conviction that satisfies only the residual
clause of the “violent felony” definition is entitled to relief from his sentence.
The Supreme Court has held that Johnson applies retroactively to claims
asserted on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265

(2016).
Here, in his Section 2255 Motion to Vacate, the Petitioner argues that
his § 924(c) conviction is invalid under Johnson. [CV Doc. 1]. Section 924(c)

criminalizes the use of a firearm in furtherance of a “crime of violence.”
Under § 924(c), an offense qualifies as a crime of violence if it either “has an
element the use, attempted use, or threatened use of physical force against
the person or property of another,” (the “force clause”) or “by its nature

involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense” (the
“residual clause”). 18 U.S.C. § 924(c)(3). In short, the Petitioner argues that

because § 924(c)’s residual clause “is functionally indistinguishable from the
ACCA’ residual clause,” which was found to be unconstitutionally vague, the
predicate conviction in the Petitioner’s criminal proceedings, Hobbs Act

conspiracy, can qualify as a § 924(c) “crime of violence” only under the force
clause. [Doc. 1 at 3-4].
Three years after the Petitioner filed his original Section 2255 motion,

the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019).
In Davis, the Supreme Court specifically held the residual clause of §
924(c)’s definition of “crime of violence” is “unconstitutionally vague.” 139 S.
Ct. at 2336. As such, Davis made clear that Petitioner’s conviction on Count

Two is valid only if Hobbs Act conspiracy qualifies as a “crime of violence”
under § 924(c)’s force clause. The Fourth Circuit squarely addressed this
issue in United States v. Simms, concluding that Hobbs Act conspiracy does

not categorically qualify as a crime of violence under the force clause of §
924(c). 914 F.3d 229, 233-34 (4th Cir.), cert. denied, 140 S. Ct. 304 (2019).
The inquiry in this case, however, does not end there. In order to
assert a habeas challenge to his § 924 conviction predicated on Hobbs Act

conspiracy, the Petitioner must overcome the obstacles of procedural default
and waiver. The Court addresses each of these doctrines in turn.
A. Procedural Default
Generally, claims that could have been, but were not, raised on direct

review are procedurally barred by default. As the Supreme Court has
recognized, “[h]abeas review is an extraordinary remedy and will not be
allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614,

621 (1998) (citation and internal quotation marks omitted). Thus, in order to
collaterally attack a conviction or sentence based upon errors that could have
been pursued on direct appeal, a petitioner must show either (1) “cause” and
“actual prejudice” resulting from the errors complained of, or (2) that he is

“actually innocent.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th
Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).
To establish actual innocence, the Petitioner “must demonstrate that,

in light of all the evidence, it is more likely than not that no reasonable juror
would have convicted him.” United States v. Courtade, 929 F.3d 186, 191
(4th Cir. 2019) (quoting Bousley, 523 U.S. at 623), as amended (July 10,
2019), cert. denied, No. 19-428, 2020 WL 129578 (U.S. Jan. 13, 2020). In

the context of procedural default, the term “actual innocence” refers to
“factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.
This burden of demonstrating actual innocence extends not only to the

challenged count of conviction, but also to any “more serious charges” that
the Government decided to forego in exchange for the petitioner’s guilty plea.
Id. at 624 (“In cases where the Government has foregone more serious

charges in the course of plea bargaining, petitioner’s showing of actual
innocence must also extend to those charges.”).
Here, in exchange for the Petitioner’s guilty plea to one count of Hobbs

Act conspiracy and one count of carrying and using a firearm during and in
relation to a Hobbs Act conspiracy as set forth in the Bill of Information, the
Government agreed to dismiss the three counts in the original Bill of
Indictment, including Count Three, which charged the Petitioner with carrying

and using a firearm during and in relation to a Hobbs Act robbery. The
Petitioner argues that the § 924(c) charge contained in Count Three of the
Bill of Indictment is, at most, “equally serious” to the § 924(c) charge to which

he pled. As such, the Petitioner contends, Count Three is not a “more
serious charge” within the meaning of Bousley, and therefore, his obligation
to demonstrate his actual innocence does not extend to this dismissed count.
The fact that these two counts are both under § 924(c), however, does

not render them equal.2 Count Three of the Bill of Indictment was predicated

2 The Court notes that the Seventh Circuit has extended Bousley to charges that were
“as serious” as the count of conviction. Lewis v. Peterson, 329 F.3d 934, 937 (7th Cir.
2003). Following the logic of Lewis, the Petitioner would be required to demonstrate
actual innocence for the dismissed § 924(c) count because it was at least as equally
serious as the § 924(c) count of conviction. The Fourth Circuit has not specifically
adopted this line of reasoning, however, and therefore, the Court will limit its analysis to
upon a Hobbs Act robbery rather than a Hobbs Act conspiracy. The Fourth
Circuit has held that a Hobbs Act robbery is a crime of violence, see United

States v. Mathis, 932 F.3d 242, 266 (4th Cir.), cert. denied, Nos., 19-6423,
19-6424, 2019 WL 6689801, 2019 WL 6689802 (2019), while a Hobbs Act
conspiracy is not, see United States v. Simms, 914 F.3d 229, 233-34 (4th

Cir.), cert. denied, 140 S. Ct. 304 (2019). And there are many instances in
the law where a crime of violence is treated more seriously and more harshly
than a crime that is not violent. The more serious nature of a “violent” charge
even has implications beyond the current prosecution, as a conviction for a

crime of violence can form a basis for enhanced penalties in future cases
under the Armed Career Criminal Act or the Career Offender provision of the
Sentencing Guidelines.

Further, the nature of the two crimes are also substantively and
qualitatively different. For example, a Hobbs Act conspiracy may be
committed simply by providing a getaway car for a robbery. See United
States v. Strayhorn, 743 F.3d 917, 926 (4th Cir. 2014). A Hobbs Act robbery

conviction, on the other hand, requires a showing of some violent action in
committing the robbery. See Mathis, 932 F.3d at 266 (holding that Hobbs

whether the dismissed count could be considered “more serious” than the count of
conviction.
Act robbery is a crime of violence under the force clause of § 924(c)); 18
U.S.C. § 1951(b)(1) (defining robbery under the Hobbs Act as the taking of

personal property from another “by means of actual or threatened force, or
violence, or fear of injury, immediate or future, to his person or property”).
For all these reasons, the Court concludes that a § 924(c) charge predicated

on a Hobbs Act robbery is a “more serious” count than a § 924(c) charge
predicated on a Hobbs Act conspiracy.
Because the Government dismissed a more serious count in exchange
for the Petitioner’s guilty plea to the charges in the Bill of Information, the

Petitioner must demonstrate his factual innocence with respect to both the
challenged § 924(c) count of conviction and the dismissed § 924(c) count.
Such a showing is conclusively precluded by the record before the Court.

The PSR prepared in advance of the Petitioner’s sentencing detailed the
Petitioner’s use and discharge of a firearm in furtherance of the September
2011 robbery. [CR Doc. 13: PSR at 5-6]. Although the Petitioner objected
to the findings that he pointed the gun at the witness who drove up and that

he fired the gun at the restaurant’s manager, he conceded that “he fired the
weapon toward the ceiling” during his perpetration of the robbery. [Id. at 20].
The Petitioner did not object to the other facts described in the PSR, nor did

he object to the conclusion that he “admits participation and accepts
responsibility for his involvement in the instant offense.” [Id. at 6]. These
facts, which are undisputed by the Petitioner, conclusively establish that the

Petitioner is not factually innocent of the offense of using and carrying a
firearm during and in relation to a Hobbs Act robbery. Accordingly, the
Petitioner cannot establish the “actual innocence” necessary to overcome

his procedural default.
Because the Petitioner has failed to demonstrate his “actual
innocence,” his procedural default may be excused only if he can show both
cause and actual prejudice. “Cause” as used in this context requires the

Petitioner to show that the procedural default “turn[ed] on something external
to the defense, such as the novelty of the claim or a denial of effective
assistance of counsel.” United States v. Pettiford, 612 F.3d 270, 280 (4th

Cir. 2010). To show actual prejudice, the Petitioner must show “that the error
worked to his ‘actual and substantial disadvantage,’ not merely that the error
created a ‘possibility of prejudice.’” Satcher v. Pruett, 126 F.3d 561, 572 (4th
Cir. 1997) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)).

Here, the Petitioner cannot establish actual prejudice.3 If the Petitioner
had raised his constitutional challenge to the § 924 charge at or prior to

3 While the Court’s analysis focuses primarily on the fact that the Petitioner cannot
demonstrate prejudice under the circumstances of this case, the Court notes that the
Petitioner’s argument regarding the existence of “cause” is also problematic. Though the
sentencing, the Government would have withdrawn the plea agreement and
would not have dismissed the charges as set forth in the Bill of Indictment –

including the § 924(c) charge predicated on the Hobbs Act robbery. Thus,
the Petitioner still would have been sentenced on a Hobbs Act robbery or
Hobbs Act conspiracy charge along with a ten-year consecutive charge

under § 924(c). In other words, the Petitioner would have been in the same
position, regardless of his assertion of a constitutional challenge to the §
924(c) charge predicated on the Hobbs Act conspiracy.
Moreover, the Petitioner likely would have received the same

sentence, regardless of which § 924(c) charge he pled to. As recognized in
Dean v. United States, 137 S.Ct. 1170, 1175-76 (2017), district courts have
wide discretion in the type of information they may consider when fashioning

an appropriate sentence, including sentences imposed for other counts. And
courts routinely consider the sentence imposed for a § 924(c) conviction

Petitioner argues that raising a vagueness challenge to the residual clause of § 924(c)
would have been “futile,” the Court notes that this vagueness argument was nothing new
at the time of the Petitioner’s sentencing. In fact, Johnson – on which the Petitioner
greatly relies – was making its way through the Circuit Court by the time that Petitioner
was sentenced. See United States v. Johnson, 526 F. App’x 708 (8th Cir. 2013), rev’d,
Johnson v. United States, 135 S. Ct. 2551 (2015). In view of the development of the
vagueness argument at the time of the Petitioner’s sentencing, the Petitioner’s argument
that raising such an argument would have been futile is questionable. The Court need
not decide this issue, however, as the record in this case clearly demonstrates that the
Petitioner cannot show actual factual innocence, and that he has failed to show actual
prejudice.
when calculating the just sentence for the predicate count. This is usually
done by determining an adequate sentence for the aggregate offense

conduct and then dividing that term between the mandatory consecutive
sentence for the § 924(c) count, thereby leaving the balance as the term of
incarceration for the underlying charge.

In fact, § 3553(a) instructs that the sentencing court follow such an
analytical approach. The review of the § 3553(a) factors should yield a
sentence that is “sufficient but not greater than necessary, to comply with the
purposes set forth in” the factors stated therein, including such factors as

“the nature and circumstances of the offense” and the need “to afford
adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(1), (2)(B).
The existence of a mandatory, consecutive sentence for a related § 924(c)

is undoubtedly relevant to crafting an appropriate sentence for the underlying
predicate offense. See Dean, 137 S. Ct. at 1176. The Petitioner has
presented nothing to indicate otherwise.
Applying those § 3553(a) factors here, the Petitioner’s offense conduct

was uncontroverted, and it remains uncontroverted to this day. Thus,
presumably the Petitioner’s aggregate sentence for that conduct would have
been the same even if the Petitioner had raised his constitutional challenge

to his § 924(c) conviction to the Court.
For all these reasons, the Court concludes that the Petitioner has failed
to demonstrate the prejudice necessary to excuse his procedural default.

B. Waiver
As noted, the Petitioner’s Plea Agreement contained an explicit waiver

of the Petitioner's right to challenge his sentence or conviction in appellate
or post-conviction motions except for claims of ineffective assistance of
counsel or prosecutorial misconduct. The Fourth Circuit has recognized that
“a criminal defendant may waive his right to attack his conviction and

sentence collaterally, so long as the waiver is knowing and voluntary.”
United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). The Petitioner
does not challenge the validity of his waiver, nor does he assert any claims

of prosecutorial misconduct or ineffective assistance of counsel.
The Court will not enforce a valid waiver, however, “if to do so would
result in a miscarriage of justice.” United States v. Adams, 814 F.3d 178,
182 (4th Cir. 2016). “A proper showing of ‘actual innocence’ is sufficient to

satisfy the ‘miscarriage of justice’ requirement.” Wolfe v. Johnson, 565 F.3d
140, 160 (4th Cir. 2009). For the reasons discussed above, the Court
concludes that the Petitioner cannot make such a showing here. Because

the Petitioner cannot establish his actual innocence of the more serious §
924(c) charge that the Government dismissed in exchange for his plea, the
Court concludes that the Petitioner’s knowing and voluntary waiver of his

right to collaterally attack his conviction and sentence also bars him from
raising this claim.
IV. CONCLUSION

For the reasons stated herein, the Court denies and dismisses the
motion to vacate.
The Court further finds that Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §

2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in
order to satisfy § 2253(c), a “petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims

debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)). Petitioner has failed to demonstrate both that this Court’s dispositive
procedural rulings are debatable, and that the Motion to Vacate states a
debatable claim of the denial of a constitutional right. Slack v. McDaniel, 529

U.S. at 484-85. As a result, the Court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255 Proceedings
for the United States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [CV Doc. 9] is GRANTED, and the Petitioner's Motion to Vacate
Sentence under 28 U.S.C. § 2255 [CV Doc. 1] is DENIED.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: January 29, 2020
A Reidinger ie Re
United States District Judge Aa

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10255513. Public record. Not legal advice.