Petition for Writ of Certiorari — Maurice Baum, Petitioner v. United States

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Appeal: 17-6973

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Filed: 12/27/2017

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 17-6973

UNITED STATES OF AMERICA,

Plaintiff Appellee,

MAURICE BAUM, a/k/a Dog Pound,

Defendant Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Elizabeth City. Louise W. Flanagan, District Judge. (2:13-cr-00002-FL-1; 2:16-cv000 12-FL)

Submitted: December 21, 2017

Decided: December 27, 2017

Before WILKINSON and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Dismissed by unpublished per curiam opinion.

Maurice Baum, Appellant Pro Se. Jennifer P. May-Parker, Seth Morgan Wood, Assistant

United States Attorneys, Tobin Webb Lathan, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Maurice Baum seeks to appeal the district court's order accepting the

recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2255

(2012) motion. The order is not appealable unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). A certificate of

appealability will not issue absent "a substantial showing of the denial of a constitutional

right." 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the

merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would

find that the district court's assessment of the constitutional claims is debatable or wrong.

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,

336-38 (2003). When the district court denies relief on procedural grounds, the prisoner

must demonstrate both that the dispositive procedural ruling is debatable, and that the

motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at

484-85.

We have independently reviewed the record and conclude that Baum has not made

the requisite showing. Accordingly, we - deny a certificate of appealability and dismiss

the appeal. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process;

DISMISSED

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FILED: December 27, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 17-6973

(2:13-cr-00002-FL- 1)

(2:I6-cv-000 12-FL)

UNITED STATES OF AMERICA

Plaintiff Appellee

MAURICE BAUM, a/k/a Dog Pound

Defendant Appellant

JUDGMENT

In accordance with the decision of this court, a certificate of appealability is

denied and the appeal is dismissed.

This judgment shall take effect upon issuance of this court1s mandate in

accordance with Fed. R. App. P. 41.

Ls/ PATRICIA S. CONNOR. CLERK

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FILED: December 27, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 17-6973,

US v. Maurice Baum

2:13-cr-00002-FL- 1, 2: 16-cv- 000 12-FL

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please be

advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: To be timely, a petition for

certiorari must be filed in the United States Supreme Court within 90 days of this

the mandate. If a

court's entry of judgment. The time does not run from issuance of

from denial of

petition for panel or en bane rehearing is timely filed, the time runs

that petition. Review on writ of certiorari is not a matter of right, but ofjudicial

discretion, and will be granted only for compelling reasons.

(www.supremecourt.gov)

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED

COUNSEL: Vouchers must be submitted within 60 days of entry ofjudgment or

denial of rehearing, whichever is later. If counsel files a petition for certiorari, the

60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is

being made from CJA funds, counsel should submit the CJA 20 or CJA 30 Voucher

through the CJA eVoucher system. In cases not covered by the Criminal Justice

Act, counsel should submit the Assigned Counsel Voucher to the clerk's office for

payment from the Attorney Admission Fund. An Assigned Counsel Voucher will

be sent to counsel shortly after entry of judgment. Forms and instructions are also

available on the court's web site, www.ca4.uscourts.gov, or from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable,, who desires taxation of

(FRAP

costs, shall file a Bill of Costs within 14 calendar days of entry of judgment.

39, Loc. R. 39(b)).

17-697

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PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed Within 14 calendar days after entry of

judgment, except that in civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45 days after entry of judgment.

A petition for rehearing en bane must be filed within the same time limits and in the

same document as the petition for rehearing and must be clearly identified in the

title. The only grounds for an extension of time to file a petition for rehearing are

the death or serious illness of counsel or a family member (or of a party or family

member in pro se cases) or an extraordinary circumstance wholly beyond the

control of counsel or a party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en bane stays the

mandate and tolls the running of time for filing a petition for writ of certiorari. In

consolidated criminal appeals, the filing of a petition for rehearing does not stay the

mandate as to co-defendants not joining in the petition for rehearing. In

consolidated civil appeals arising from the same civil action, the court's mandate

will issue at the same time in all appeals.

A petition for rehearing must contain an introduction stating that, in counsel's

judgment, one or more of the following situations exist: (1) a material factual or

legal matter was overlooked; (2) a change in the law occurred after submission of

the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.Supreme Court, this court, or another court of appeals, and the conflict was not

addressed; or (4) the case involves one or more quôstions of exceptional

importance. A petition for rehearing, with or without a petition for rehearing en

banc, may not exceed 3900 words if prepared by computer and may not exceed 15

pages if handwritten or prepared on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless

the court shortens or extends the time, in all other cases, the mandate issues 7 days

after the expiration of the time for filing a petition for rehearing. A timely petition

for rehearing, petition for rehearing en bane, or motion to stay the mandate will stay

issuance of the mandate. If the petition or motion is denied, the mandate will issue 7

days later. A motion to stay the mandate will ordinarily be denied, unless the

motion presents a substantial question or otherwisesets forth good or probable

cause for a stay. (FRA.P 41, Loc. R. 41).

Respondent,

MAURICE BAUM, Petitioner, v. UNITED STATES OF AMERICA,

OF NORTH CAROLINA,

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT

NORTHERN DIVISION

2017 U.S Dist. LEXIS 110343

No. 2:13CR-2FL-1,No.2:16-CV-12-FL

July 17, 2017, Decided

July 17, 2017, Filed

Editorial Information: Prior History

15, 2017)

Baum v. United States, 2017 U.S. Dist. LEXIS 112384 (E.D.N.C.I May

For USA, Plaintiff (2:13-cr-00002-FL): Seth Morgan Wood, Tobin

Counsel

Lathan, LEAD ATTORNEYS, U.S. Attorney's Office, Raleigh, NC,

Maurice Baum, Petitioner (2:16cv12), Pro se, Edgefield. SC

USA.

Judges: LOUISE W. FLANAGAN, United States District Judge.

Opinion

Opinion by:

LOUISE W. FLANAGAN

Opinion

JI1

aside, or correct sentence under

This matter is before the court on petitioner's motion to vacate, set

(DE 67). Pursuant to 28 U.S.C. §

dismis

28 U.S.C. § 2255 (DE 60) and the government's motion

entered a memorandum and

II,

rs,

Numbe

636(b)(1)(B), United States Magistrate Judge Robert

court deny petitioner's motion

this

that

mende

recom

recommendation ("M&R") (DE 75), wherein it is

objections to the M&R. In

filed

ner

Petitio

dismis

to vacate and grant the government's motion

herein, this court adopts the

this posture, the issues raised are ripe for ruling. For the reasons stated

and grants the government's

recommendation of the M&R, denies petitioner's motion to vacate,

motion to dismiss.

BACKGROUND

ent, to the following:

On May 14, 2013, petitioner pleaded guilty, pursuant to a written agreem

more of cocaine base

grams

conspiracy to distribute and possess with intent to distribute 280

846, 841(b)(1)(A) (Count

§§

U.S.C.

(crack) and five kilograms or more of cocaine, in violation

Two). On July 8,

(Count

)(i)

)(1)(13

1956(a

One); and money laundering, in violation of 18 U.S.C.

and 240 months

One

Count

nment

impriso

2014, this court sentenced petitioner to 273 month

the Fourth Circuit

and

led,

appea

ner

Petitio

rently.

imprisonment on Count Two, to be served concur

2015). Petitioner

CIr.

(4th

295

App'x

604

Baum,

States

Court of Appeals affirmed. See United

did not file a petition for certiorari with the Supreme Court.

ng four claims of ineffective

Petitioner filed the instant motion to vacate on March 14, 2016, asserti

ce to 221 months on

senten

er's

petition

reduce

court

assistance of counsel. On April 8, 2016, this

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ls Group. Al) rights reserved. Use of this product Is subject to the

@20118 Matthew Bender & Company, Inc., a member of the LwdsNex

Agreement

restrictions and terms and conditions of the Matthew Bender Master

On April 25, 2016, the government filed the instant

Count One, pursuant to 18 U.S.C. § 3582(c)(2).1

judge entered an M&R. Petitioner then filed

motion to dismiss, On May 15, 2017, the magistrate

a response in opposition.

objections to the M&R, to which the government filed

COURT'S DISCUSSION

Standard of Review

a magistrate judge's M&R to which specific

The district court reviews de novo those portions of

does not perform a de novo review where a party

objections are filed. 28 U.S.C. § 636(b). The court

do not direct the court to a specific error In the

makes only 'general and conciusory objections that

s." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cit.

magistrate's proposed findings and recommendation

court reviews only for "clear error," and need

1982). Absent a specific and timely-filed objection, the

ond v. Colonial Life & Accident Ins. Co., 416

not give any explanation for adopting the M&R. Diam

F.2d 198, 200 (4th Cir.1983). Upon careful

F.3d 310, 315 (4th Gir. 2005); Camby v. Davis, 718

modify, in whole or in part, the findings or

review of the record, "the court may accept, reject, or

U.S.C. § 636(b)(1).

recommendations made by the magistrate judge." 28

5 must show that "the sentence was imposed

A petitioner seeking relief pursuant to 28 U.S.C. §225

States, or that the court was without jurisdiction

in violation of the Constitution or laws of the United

in excess of the maximum authorized by law, or

to impose such sentence, or that the sentence was

2255(a) "Unless the motion and the files and

Is otherwise subject to collateral attack." 28 U.S.C. §

ner Is entitled to no relief, the court shall.

records of the case conclusively show that the priso

s and make findings of fact and conclusions of

grant a prompt hearing thereon, determine the issue

law with respect thereto." j. § 2255(b).

Analysis

See Objections (DE 76). Initially, petitioner

Petitioner makes three arguments In his objections.

tance of counsel by advising him to plead guilty

argues that his trial counsel provided ineffective assis

3-5. Next, petitioner argues that the M&R erred

to the money laundering charge (Count Two). Id. at

three-level role enhancement was not

in finding that his trial counsel's failure to object to the

petitioner argues that his trial counsel provided

ineffective assistance of counsel. Id. at 5-6. Finally,

and make arguments In support of a

ineffective assistance of counsel by failing to investigate

reduced drug quantity. Id. at 7-8.

a petitioner must satisfy a two-pronged test.

In order to establish ineffective assistance of counsel,

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under

See Strickland v. Washington, 466 U.S. 668, 687, 104

representation "fell below an objective

the first prong, a petitioner must show that his counsel's

be "highly deferential" to counsel's

standard of reasonableness." Id. at 688. The court must

the distorting effects of hindsight." j.. at 689.

performance and must make every effort to "eliminate

n that counsel's conduct falls within the wide

Therefore, the court must "indulge a strong presumptio

second prong requires a petitioner to show that

range of reasonable professional assistance." Ld. The

ing "a reasonable probability that, but for

he was prejudiced by the ineffective assistance by show

eding would have been different." Id. at 694.

counsel's unprofessional errors, the result of the proce

1. Advice regarding plea

ded ineffective assistance by advising him to

Initially, petitioner argues that his trial counsel provi

Two). See Objections (DE 76) at 3-5. Petitioner

plead guilty to the money laundering charge (Count

or innocence and merely recommended that

contends that his trial counsel ignored the issue of guilt

Id. at 4. Petitioner further contends that he was

he plead guilty to allow for favorable negotiations.

r than it would have been." j.ç at 5. Petitioner

prejudiced because his sentence was "19 months longe

lydcases

this product is subject to

Agreement.

restrictions and terms and conditions of the Matthew Bender Master

the

"animal fighting," which had far

concludes that his trial counsel should have had him enter a plea to

less sentencing exposure than money laundering. j.

ing, but rather submits an

Petitioner's objection does not challenge the magistrate judge's reason

l provided ineffective

counse

entirely new argument for why this court should conclude that his trial

see DE 78, this court

respon

assistance of counsel. Where the government had the opportunity

1118 (4th Cir. 1992)

1113,

F.2d

971

Will Oonsider the new argument. See United States v. George

on is made, a

objecti

proper

which

("[A]s part of its obligation to determine de novo any issue to

of whether they

less

regard

issue,

that

district court is required to consider all arguments directe

were raised before the magistrate.").

under the performance prong

This claim fails under both prongs of the Strickland standard. It falls

trial counsel's strategy.

his

because petitioner is essentially asking this court to second guess

d him to plead guilty to

advise

counse

According to petitioner's own description of events, his trial

This strategy benefitted

76)

(DE

ions

"gain favor in other parts of the negotiations." See Object

agreed to dismiss a

ment

govern

the

First,

petitioner and was reasonable for at least two reason

ation, which

Inform

unt

two-co

the

plea

guilty

er's

five-count indictment in exchange for petition

government

the

Secon

24)

(DE

ent

Agreem

Plea

involved less sentencing exposure.2 See

acceptance of

for

to three levels

agreed that petitioner was entitled to a downward adjustment of two

responsibility. Ld. at 8.

to sufficiently allege

This claim fails under the prejudice prong because petitioner has failed

er must allege that there

petition

plea,

guilty

prejudice. In order to state prejudice in the contex

d guilty and would

pleade

have

not

would

errors,

l's

is a reasonable probability that, but for counse

52, 59, 106 S. Ct. 366, 88 L. Ed.

have insisted on proceeding to trial. See. Hill v. Lockhart, 474 U.S.

Strickland standard, petitioner's

2d 203 (1985). Because this argument fails under both prongs of the

first objection must be overruled.

2. Failed to object to role enhancement

l's failure to object to the

Next, petitioner argues that the M&R erred in finding that his trial counse

(DE 76) at 5-6.

ions

Object

See

leadership role enhancement was not ineffective assistance.

. U. at 6 (citing Mot.

motion

2255

his

Petitioner references two affidavits he submitted in suppor

ial fact in dispute."

"mater

create

its

affidav

Vacate (DE 60-2, 60-3)). According to petitioner, these

Id.

this court found that he was a

At sentencing, petitioner was given a three-level increase because

l activity, involved five or -more

manager or supervisor (but not an organizer or leader) and the crimina

U.S.S.

§ 3131.1(b)). The following

participants or was otherwise extensive. See PSR 1 70 (citing

d no less than three

directe

petition

evidence supports the application of this enhancemen

of his children by utilizing

mothe

the

exploit

individuals. See PSR 1 17. In particular, petition

17. According to multiple sources,

them to reside in and sell drugs from his stash houses. See PSR 1

d or one of his children's mothers

petitioner received orders for cocaine and then directed his girlfrien

statement, the women only sold

to complete the sale.,See PSR Addendum 1 11. According to one

that petitioner used the, mothers of his

crack. See PSR Addendum 111. Several witnesses confirmed

women. ,See PSR Addendum ¶

children to store drugs at stash houses by providing a home for the

ance of his criminal activities,

11. Petitioner also paid kennel workers to "work the dogs" in further

ner received $40,000 to

Petitio

12.

which included dog fights. See PSR Addendum ¶ 11; PSR 1

$50,000 for the dog fights he arranged. See PSR ¶ 12.

leadership role enhancement

Given the foregoing evidence, this court could have easily found the

v. Steffen, 741 F.3d 411, 414 (4th

applicable by a preponderance of the evidence, See United States

1 ydçases

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Agreement

restrictions and terms and conditions of the Matthew Bender Master

that-the

to prove by a preponderance of the evidence

air. 2013) ("The burden is on the government

role

the

ction

obje

). Thus, trial counsel's

sentencing enhancement should be applied."

to lodge a meritless objection does not amount

Failu

futile

enhancement would have been

that

ing

(hold

)

1999

Cir.

(5th

893

889,

ler, 167 F.3d

ineffective assistance. See United States v.Kim

ment.. cannot form the basis of a successf

"[a]n attorney's failure to raise a meritless argu

. Va.

v. United States, 934 F.Supp. 724, 731 (E.D

ineffective assistance of counsel clairn");Moore

argument can never amount to ineffectiv

1996) (holding that "[f]ailure to raise a meritless

ction must be overruled,

obje

assistance"). Consequently, petitioner's seco

3. Failed to object to drug weight

e by

his trial counsel provided Ineffective assistanc

In petitioner's final objection, he alleges that

tity.

quan

drug

his

cing

redu

e arguments in support of

ort

failing to investigate and make knowledgeabl

supp

men

argu

mad

sel

edes that his trial coun

See Objections (DE 76) at 7-8. Petitioner conc

that

ledg

know

the

lacke

sel

s that his trial coun

of a reduction in his drug quantity, but he claim

revealed. id at 7.

have

woul

facts

complete investigation into the

the magistrate judge's reasoning, but rather,

In this objection, petitioner does not challenge

ided

prov

sel

coun

trial

his

court should conclude that

submits an entirely new argument for why this

lee

ond,

resp

rtuni

oppo

government had the

ineffective assistance of counsel. Because the

its

part

("[A]

1118

See Georos, 971 F.2d

78, this court will consider the new argument.

h proper objection is made, a district court is

whic

issue

any

nova

obligation to determine de

that Issue, regardless of whether they were raise

required to consider all arguments directed to

before the magistrate.").

accountable

er determined that petitioner should be held

Prior to sentencing, the U.S. Probation Offic

grams of

97.7

43,9

and

ine,

16,650.78 grams of coca

for the following: 24.18 grams of marijuana,

PSR ¶ 17.

See

rams

kilog

21.2

valency of 160,446.

crack cocaine, which had a total marijuana equi

further

, this court noted that there had been "some

At petitioner's sentencing, held on July 8, 2014

See

first.

take

not

inued to the extent that it was

the

discussions" and that the case had been cont

allow

woul

that

ssion

discu

t asked counsel about

July 8, 2014 Tr. (DE 49) at 3:10-12. This cour

cour

the

ing

advis

onde

resp

sel

-15. Defense coun

case to move forward as scheduled. Id. at 3:13

be held

the drug quantity for which petitioner was to

that there had been some disagreement over

the

that

ding

rstan

unde

his

was

advised that

accountable. jc at 3:16-18. Defense counsel

drug quantity computed in the Presentence Repo

the

som

remo

government had agreed

was

fami

ncement for the utilization of friends and

and would further agree that the two-level enha

es agreed that the total drug weight in the

not appropriate. Id. at 3:20-25, 4:1-4. The parti

court asked

was 160,446.22 kilograms. Id. at 4:7-8. This

Presentence Report converted to marijuana

onded

resp

rnme

unt was. Id. at 4:11-12. The gove

the government what the readily provable amo

weight

drug

the

that

note

at 4:13-16. The government

that it was a "total of 18,253 [kilo]grams." Id.

ided

prov

and

iöfed

debr

were

multiple individuals who

came primarily from historical statements from

cour

the

askin

were

d that what the parti

information. Id. at 5:8-24. The government note

. The U.S. Probation Officer advised that his

6:1-4

5:25

Id.

was to remove two statements.

h equated

a equivalency of 18,170.727 kilograms, whic

resulting calculations revealed a total marijuan

to a base offense level of 36. Id. at 8:3-9.

rams of

would reduce the drug quantity to 18,253 kilog

This court noted that the parties' agreements

-13. This

8:10

Id.

rams

kilog

it calculated at 18,1

marijuana equivalency, and U.S. Probation had

nse

Defe

8:13

Id.

ation

rmin

dete

es agreed with this

court then proceeded to ask whether the parti

was the proper drug weight. ig, at 8:14. The

counsel responded that petitioner agreed that

tly,

at 8:15. Then, this court asked petitioner, direc

government also agreed that it was correct. ic1

lydcases

reserved. Use of this product is

member or the LexisNeds Group. AN rights

@2018 Matthew Bender & Company, Inc., a

ew Bender Master Agreement.

restrictions and terms and conditions of the Matth

subject to the

ner responded affirmatively.

whether he accepted that as the proper drug weight. id. 8:16-17. Petitio

at 8:18.

rd. Petitioner's trial counsel was able

This claim must fail under both prongs of the Strickland standa

ty. Moreover, because petitioner's

to secure a very significant reduction in petitioner's drug quanti

sed and rendered moot any

admission before this court that thz drug quantity was correct foreclo

ner's third objection must

petitio

additional, meaningful argument by hs trial counsel, Accordingly,

overruled.

C. Certificate of Appealability

showing of the denial of a

A certificate of appealability may issue only uper a "substantial

strate that reasonable jurists

demon

must

petition

constitutional right" 28 U.S.C. § 2253(c)(2). The

differently or that they are

decide

been

have

should

could debate whether the issues presented

El v. Cockrell; 537 U.S. 322, 336-38,

adequate to deserve encouragement to proceed further. MillerU.S. 473, 463-64, 120 S. Ct.

123 S. Ct. 1029, 154 L. Ed. 2d 931 (2O03); Slack v._McDaniel. 529

ted on collateral review in light of

1595, 146L. Ed. 2d 542 (2000). After reviewing the claims presen

lability is not warranted.

the applicable standard, the court finds that a certificate of appea

CONCLUSION

mendation of the magistrate judge.

Based on the foregoing reasons, this court ADOPTS the recom

ners motion to vacate, set aside,

Petjtio

The government's motion to dismiss (DE 67) Is GRANTED.

is also DENIED. The clerk is

lability

appea

or correct his sentence (DE 60) is DENIED. A certificate

DIRECTED to close this case.

SO ORDERED, this the 17th day of July, 2017.

IsJ Louise W. Flanagan

LOUISE W. FLANAGAN

United States District Judge

1 ydcases

ent.

ns and terms and conditions of the Matthew Bender Master Agreem

() 2018 Matthew Bender & Company, Inc., a member of the LexisNe

restrictio

the

Maurice Baum, Petitioner, v. United States of America, Respondent.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA,

NORTHERN DIVISION

2017 U.S. Dist. LEXIS 112384

No. 2:13-CR-00002-FL,No. 2:16-CV-0012-FL

May 15, 2017, Decided

May 15, 2017, Filed

Editorial Information: Subsequent History

Adopted by, Dismissed by, Post-conviction relief denied at, Certificate of appealability denied Baum v.

United States, 2017 U.S. Dist. LEXIS 110343 (E.D.N.C., July 17, 2017)

Editorial Information: Prior History

United States v. Baum, 604 Fed. Appx. 295, 2015 U.S. App. LEXIS 8740 (4th Cir. N.C., May 27, 2015)

For USA, Plaintiff (2:13-cr-00002-FL): Seth Morgan Wood, LEAD

ATTORNEY, U.S. Attorney's Office, Raleigh, NC; Tobin W Lathan, LEAD ATTORNEY, U. S.

Attorney's Office, Raleigh, NC.

Maurice Baum, Petitioner (2:16cv12), Pro se, Edgefield, SC

USA.

Judges: Robert T. Numbers, II, United States Magistrate Judge.

Counsel

Opinion

Opinion by:

Robert T. Numbers, II

Opinion

Memorandum & Recommendation

Petitioner Maurice Baum, proceeding under 28 U.S.C. § 2255, seeks to vacate the 273 month and

240 month concurrent sentences imposed in connection with his convictions for conspiracy to

distribute and possess with the intent to distribute 280 grams or more of cocaine base (crack) and

five (5) kilograms or more of cocaine (Count I) and concealment money laundering (Count II). D.E.

Baum argues that he is entitled to relief because his attorney (1) failed to challenge statements in his

Presentence Investigation Report ("PSR") about drug weight attributable to him; (2) informed him,

incorrectly, that if he did not accept the plea offer, the Government would file a superseding

information charging him with dog fighting, which would carry a greater sentence than the money

laundering charge; (3) advised him that it was possible to launder money from one criminal activity

into another criminal activity; and (4) failed to object to a three-level enhancement for his role as a

manager or supervisor in a criminal activity that involved five or more people. D.E. 60.

The Government maintains that Baum has failed to meet his burden of showing not only that

counsel's performance fell below an objectively reasonable standard of reasonableness, but also that

there is a reasonable probability that, but for counsel's deficiencies, the outcome of the proceedings

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

would have been different. D.E. 67, 68.

After reviewing the docket and the arguments of the parties, the undersigned has determined that

Baum is not entitled to the relief he seeks because he failed to demonstrate that he received

ineffective assistance from his counsel because the factual and legal allegations he advances to

support his claims are unsupported by the record. Therefore, the undersigned recommendsi that the

court deny Baum's Motion to Vacate (D.E. 60) and grant the Government's Motion to Dismiss (D.E.

67).

Background

In January 2013, a Grand Jury indicted Baum on five counts relating to possession and distribution of

cocaine and cocaine base (crack). D.E. 1. Subsequently, the Government filed a Superseding

Information charging Baum with conspiracy to distribute and possession with the intent to distribute

280 grams or more of cocaine base (crack) and five kilograms or more of cocaine (Count I) and

money laundering (Count II). D.E. 20. At his arraignment on the Superseding Information, Baum

pleaded guilty pursuant to a written Plea Agreement. D.E. 24.

The court held a sentencing hearing in July 2014. The PSR calculated Baum's converted drug

weight2 to be 160,446.22 kilograms of marijuana. D.E. 30 at ¶ 67. At sentencing, the Government

stated that only 18,253 kilograms could be attributed to Baum. D.E. 49 at 4:13-14. The parties

agreed to the amended, lower drug weight. Id. at 8:10-18. The Government also took the position

that a two-level enhancement for the use of friendship and affection to involve others should not

apply. Id. at 3:20-4:2. As a result of these concessions, Baum agreed to withdraw all other objections

he raised to the PSR.

After considering the parties' agreement, the district court calculated Baum's advisory guideline

range to be 324 to 405 months in prison. Ultimately, the court sentenced Baum to concurrent

sentences of 273 months on Count I and 240 months on Count II. D.E. 41.

Baum unsuccessfully appealed his sentence to the Fourth Circuit Court of Appeals and did not seek

a writ of certiorari from the Supreme Court. See United States v. Baum, 604 F. App'x 295 (4th Cir.

2015) (Mem.) (unpublished). In March 2016, he filed his Motion to Vacate, to which the Government

responded by filing a Motion to Dismiss. D.E. 60, 67. In April 2016, the court reduced Baum's

sentence on Count One to 221 months due to drug quantity table amendments. D.E. 65. But his

sentence on Count II remained at 240 months. Id. The original judgment remained unchanged in all

other respects. Id.

Analysis

A. Standard of Review for § 2255 Petitions

In order to prevail on his Motion to Vacate, Baum must show that (1) his sentence was imposed in

violation of the Constitution or laws of the United States; (2) the Court was without jurisdiction to

impose such sentence; or (3) that his sentence exceeded the maximum authorized by law. 28 U.S.C.

§ 2255(a). "Unless the motion and the files and records of the case conclusively show that the

grant a prompt hearing thereon, determine the

prisoner is entitled to no relief, the court shall

issues and make findings of fact and conclusions of law" regarding the petitioner's motion." 28

U.S.C. § 2255(b). However, ultimately, the petitioner must establish that he is entitled to relief by a

preponderance of the evidence. See, e.g., Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)

(per curiam).

...

The Federal Rules of Civil Procedure apply to the court's consideration of a § 2255 motion to the

extent that they do not conflict with any other statutory provisions or the procedural rules specifically

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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applicable to § 2255 motions. Rules Governing Section 2255 Proceedings, Rule 12. Therefore, in

reviewing the Government's Motion to Dismiss, the court will apply the standard that generally

applies to motions brought pursuant to Rule 12(b)(6).

The Supreme Court has explained that in order to withstand a motion to dismiss under Rule 12(b)(6),

"a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is

plausible on its face." Ashcroft v. lqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

Therefore, while a court must accept all the factual allegations contained in a complaint as true,

"[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements

do not suffice." Id. The court may also consider documents that are part of the public record, Philips

v. Pitt Cty. Mem'I Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion,

"the files and records of the case[,]" 28 U.S.C. § 2255(b).

After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part

test. First, the court must identify the allegations in the complaint that are not entitled to the

assumption of truth because they are conclusory in nature or nothing more than a formulaic

recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual

allegations as true, the court must determine whether the complaint "plausibly suggest[s] an

entitlement to relief." Id. If, after conducting this two-part analysis, "the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged

but it has not 'shown' 'that the pleader is entitled to relief" Id. If a party fails to show that they are

entitled to relief, the court must dismiss the deficient claims.

B. Ineffective Assistance of Counsel

Baum claims that his sentence was imposed in violation of the Constitution because his counsel's

performance was so inadequate that it violated his right to counsel under the Sixth Amendment to

the Constitution. The Government correctly asserts that Baum has not demonstrated that counsel's

performance was objectively unreasonable and that he suffered prejudice as a result of counsel's

actions.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right

to have the assistance of counsel for his defense." U.S. Const. amend. VI. A defendant's right to

assistance of counsel may be violated if his attorney fails to provide adequate legal assistance.

Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This right

applies at all stages of a criminal proceeding, including sentencing. Mempa v. Rhay, 389 U.S. 128,

134, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); United States v. Burkley, 511 F.2d 47,51(4th Cir.

1975).

In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish a

claim of ineffective assistance of counsel. 466 U.S. at 686-87. First, the petitioner must show that his

attorney's performance fell below an objective standard of reasonableness. Id. at 688. Second, the

petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693.

In regards to the reasonableness prong, courts must be "highly deferential" to counsel's performance

and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Therefore, the

court must "indulge a strong presumption that counsel's conduct falls within the wide range of

reasonable professional assistance." Id. In order to demonstrate prejudice, a petitioner must show

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. "A reasonable probability is a probability sufficient

to undermine confidence in the outcome." Id. Additionally, the difference in outcome as a result of

1ydcase

restrictions and terms and conditions of the Matthew Bender Master Agreement.

the unprofessional errors must have had an adverse effect on the petitioner. Id. at 693.

1. Drug Weight

Baum first contends that his trial attorney was ineffective in faili ng to challenge statements at

sentencing regarding drug weights attributed to him. Baum claims that statements from three

co-conspirators establishing the amount of drugs attributable to him were inconsistent and

implausible. Baum also asserts that the calculation of drug weights incorrectly includes periods of

time that he and two others, Desmond White and Develle Burch, were incarcerated. Thus, he

claims, regular purchases of narcotics by White and Bunch during these times was not factually

possible.

The PSR, relying on statements from a confidential informant ("Cl") and seven other individuals,

including Bunch, attributed cocaine and cocaine base that had a marijuana equivalency of over

160,446 kilograms to Baum. D.E. 40 at ¶ 67. This resulted in a base offense level of 38. Id.

Importantly, the PSR excluded from the drug weight calculation the periods of time Baum and the

respective witnesses, including Delton Mallory, Gevon Owens, Morris Kee, and Bunch, were

incarcerated. D.E. 30 at ¶j 12; D.E. 30, Addendum at ¶11 2, 3. Because the PSR does not include the

periods Baum or the witnesses were in custody in the calculation of drug weight, Baum's argument is

mistaken.

Additionally, although White is not identified as a witness offering a statement as to the drug quantity

issue, Baum appears to believe White was the Cl. The PSR notes that the Cl sold 3.5 grams of crack

per week for Baum from 1996 through 2000. In his petition, Baum asserts that White related selling

crack in the same amount during the same time period. D.E. 60-1 at 8-9. Thus, the court assumes,

for the purposes of this motion, that White is the Cl.

Baum contends that the crack attributed to him by this witness, 3.5 grams per week for four years, or

728 grams, is incorrect because White was incarcerated for eight months and Baum was

incarcerated for nine months during this period of time. The Government does not address whether

Baum and White were incarcerated during this time. However, Baum's PSR specifically factored

periods of incarceration into the drug quantity calculation, properly reflecting only time frames where

Baum and the respective witnesses were not in custody. D.E. 30 at ¶ 12; D.E. 30, Addendum at ¶IJ 2,

3. Additionally, the court has reviewed White's criminal background. While White incurred several

misdemeanor convictions between 1996 and 2000, these most often resulted in suspended

sentences and probation. The fact that White spent very little time in custody discredits Baum's

present argument that White was incarcerated for a substantial period of time between 1996 and

2000. Accordingly, Baum's claim lacks merit.

Baum also takes issue with Marcel Bowe's statements attributing 10,800 grams of cocaine and 1,200

grams of cocaine base to Baum between 2005 and 2010. D.E. 30 at 5. Baum contends that Bowe

testified at Demetrius Spence's trial that he had not purchased or sold more than five kilograms of

cocaine in his lifetime

The court notes, first, that 10,800 grams of cocaine would equate to 10.8 kilograms. Second,

although the Government did not address this issue, Spence's trial transcript does not support

Baum's argument. During Spence's trial on August 14, 2012, the following exchange occurred:

AUSA: Can you estimate on the low end how much crack cocaine you purchased from the

Defendant [Demetrius Spence]?

Bowe: Estimation. I never really sat down and calculated it up. I mean, I estimate anywhere

from, probably over the time period, how much, probably anywhere from five to six kilos.

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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AUSA: O what?

Bowe: Crack cocaine.Official Transcript of Jury Trial Day 2 at 245-46, United States v. Spence,

No. 2:11-cr-00004-D (Apr. 19, 2013), D.E. 109. Additionally, the court has reviewed Spence's

PSR and the drug weight attributed to him. The information contained therein contradicts Baum's

present argument.

Although neither Bowe's testimony nor his statements specifically addresses his purchase of cocaine

or crack from Baum, they undermine Baum's argument that Bowe never purchased more than five

kilograms of cocaine. His objections to Bowe's statements are wholly unsupported and contrary to

the record in the Spence case. Accordingly, Baum's argument on this matter also lacks merit.

Moreover, at Baum's sentencing, the parties agreed to remove the statements of two individuals,

Mallory and Owens, regarding drug weight. Official Tr. of Sentencing Hr'g Proceedings at 5:25-6:22,

D.E. 49. This yielded a drug weight with a marijuana equivalency of 18,170 kilograms, very near the

parties' stipulated amount of 18,253 kilograms. Id. at 8:3-13. This agreement lowered the drug weight

by approximately 140,000 kilograms and reduced Baum's base offense level from 38 to 36.

Importantly, the court specifically asked Baum if he accepted the reduced drug weight.

Court: Do the parties accept that as the drug weight?

Mr. Thompson: Mr. Baum does, Your Honor.

Mr. Lathan: We do, Your Honor.

Court: And Mr. Baum, I'll ask you too directly, do you accept that as the drug weight?

Defendant: Yes./d. at 8:13-18. Baum's unequivocally agreed to the reduced drug weight.

Accordingly, his statement at sentencing undermines his present argument.

Combining the Cl's reported amount of crack, having a marijuana equivalency of 5,595 kilograms,

with Bowe's crack purchases attributed to Baum, approximately 6,445 kilograms, yields 12,040

kilograms which Baum seeks to exclude from the drug weight for which he is responsible. However,

this argument neglects the favorable result to Baum stemming from counsel's negotiated agreement

with the Government to exclude drug amounts of Mallory and Owens. Mallory attributed crack with a

marijuana equivalency of 103,870 kilograms to Baum and Owens attributed crack with a marijuana

equivalency of 36,446 kilograms. Together, the two co-conspirators could implicate Baum for crack

with a marijuana equivalency of 140,315 kilograms. Excluding evidence from these two witnesses to

reduce the overall drug weight attributable to Baum left him in a much better position than the 12,040

kilogram reduction he now seeks to receive through the exclusion of drug totals reported by Bowe

and the Cl.

It is well-settled that trial counsel has discretion to make reasonable strategic and tactical choices,

and those choices are not used when determining whether counsel was ineffective. Rose v. Lee, 252

F.3d 676, 693 (4th Cir. 2001) (citing Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991)).

Here, Baum and his attorney collaborated with the Government to exclude certain witness

statements from the drug quantity tabulation. As a result of these negotiations, the court reduced

Baum's base offense level from 38 to 36. These circumstances can reasonably be viewed as sound

legal strategy to which the court must give deference. United States v. Higgs, 663 F.3d 726, 739 (4th

Cir. 2011). Given that Baum benefitted from counsel's agreements with the Government, he cannot

demonstrate his attorney's performance was deficient or professionally unreasonable.

The undersigned is also unable to conclude that counsel's failure to challenge the statements of

co-conspirators regarding drug weight adversely affected Baum. Baum's argument that statements

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

57082056

attributing drug quantities to him were incorrect is belied by his PSR, which excluded periods of

incarceration for both Baum and relevant witnesses from the drug quantity calculations. Most

significant, Baum's own statement at sentencing, that he accepted the drug weight with a marijuana

equivalent of 18,273 kilograms, undermines his present argument. Based on such statements, it is

difficult to conceive what basis counsel would have to challenge these findings so as to obtain an

outcome more favorable to Baum. In light of these facts, Baum has not shown that trial counsel's

failure to challenge statements from other witnesses prejudiced him. For these reasons, Baum has

failed to establish ineffective representation and the court should dismiss his claim on this issue.

2. Superseding Information with Added Charge for Dog Fighting

Baum next maintains that counsel informed him that, if he rejected the plea offer, he would face a

superseding information that substituted a dog fighting charge for the money laundering charge.

Baum contends that his attorney incorrectly advised him that a dog fighting charge exposed him to a

longer sentence than the money laundering charge. Baum asserts that had he known the dog fighting

charge carried a lesser sentence than money laundering, he would have rejected the plea offer and

elected to go to trial on a superseding information.

Baum points out that this argument does not assert that he was misadvised about the his guidelines,

but instead submits that this argument turns on the misinformation he was provided about statutory

maximum sentences he faced if he did not accept the plea deal. Believing that he would face

exposure to a longer sentence for dog fighting than for money laundering, Baum accepted the plea

offer. Had his attorney's representations correctly informed Baum that dog fighting carried a

maximum penalty of five years, compared to the 20 year maximum sentence for money laundering,

Baum contends he would have rejected the plea offer from the Government and gone to trial on a

superseding information that charged dog fighting and dropped the money laundering count.

The Government does not address whether Baum's arguments would constitute deficient

representation under the first prong of Strickland. Instead, it focuses its response arguing that Baum

is unable to establish that he suffered prejudice on this claim. It submits that the drug conspiracy

conviction in Count I "drove [Baum's] guidelines" and that replacing a dog fighting offense for a

money laundering charge would not have altered his advisory guideline range. Government's Mem.

in Supp. of Mot. to Dismiss. at 8, D.E. 68.

The court assumes, for purposes of this argument, that Baum's statement that counsel

misrepresented that statutory maximum sentences for dog fighting and money laundering is accurate

and that his counsel's performance was objectively unreasonable. But Baum cannot establish the

"prejudice" prong required under Strickland. As noted above, Baum originally received a sentence of

273 months on Count I (drug conspiracy) and 240 months on Count II (money laundering), to be

served concurrently. Baum successfully sought a reduction to his sentence on Count I based on the

amendments to the drug table. This resulted in Count l's sentence being reduced to 221 months.3

Clearly, then, after his resentencing, Count I no longer "drove" his sentence, as the Government

contends, because as Count II, in fact, yielded a longer term of incarceration.4

Nonetheless, Baum's sentence on Count I is below the statutory maximum sentence of life

imprisonment. Baum's sentence also falls below his reduced advisory guideline range of 262-327

months. The court sentenced Baum below the minimum advisory guideline term, which can be

viewed as successful advocacy by his attorney. See Bridgers v. United States, No.

5:13-CR-183-130-2, 2016 U.S. Dist. LEXIS 12956, 2016 WL 438966, at *3 (E.D.N.C. Feb. 3, 2016)

(fact that the court ultimately imposed a sentence below even the government's recommended range

underscores the strategy behind counsel's decision not to raise certain objections at sentencing and

undermines petitioner's claim of ineffective assistance), appeal dismissed, 653 Fed. Appx. 219 (4th

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

57U82O5(E

Cir. 2016).

Additionally, the court was not required to direct that Baum's sentences be served concurrently.

Presuming a dog fighting charge carrying a maximum sentence of five years replaced a money

laundering charge carrying a maximum sentence of 20 years, Baum still faced a sentence of 281

months had the sentences on drug conspiracy (reduced to 221 months) and dog fighting (60 months)

run consecutively. His 240 month sentence for money laundering on Count II of the Superseding

Information is well-below his potential exposure had the Government pursued another information

with substituted charges.

Baum concedes there were facts supporting his guilt of a dog fighting charge in his present motion.

D.E. 60-1 at 15 ("The Defendant knew that many people were aware of him fighting animals, thereby

leading him to conclude it would be easier to prove that he actually engaged in 7 U.S.C. § 2156 (dog

fighting))." Baum also admitted there were sufficient facts to establish his guilt on the drug

conspiracy charge.

Court: All right. Mr. Baum, how do you plead to Count One of the Information?

Defendant: Guilty.

Court: Mr. Baum, did you, as the Government alleges in count one of the Information, beginning

on a date no later than in or around 2005, and continuing up to and including on or about June

18, 2012, in the Eastern District of North Carolina and elsewhere, knowingly and intentionally

combine, conspire, confederate and agree to commit the following offense against the United

States, that is, to knowingly and intentionally distribute and possess with the intent to distribute

280 grams or more of cocaine base (crack) and five kilograms or more of cocaine, Schedule II

controlled substances, in violation of 21 U.S. Code 841(a)(1) and 846; did you do all of that?

Defendant: Yes, sir.Official Tr. of Arraignment Proceedings at 5:25-6:22, D.E. 35. The court

found that Baum's plea was supported by an individual factual basis containing each essential

element of the offenses charged. Id. at 26:8-15. Baum's statement at his arraignment and in his

filings in this action leave little doubt of his guilt of the drug conspiracy charge, and establish that

the Government would have been able to prove a dog fighting count at trial.

Moreover, had Baum gone to trial on drug conspiracy and dog fighting charges, as he now claims, he

would not be eligible for the departure he received for acceptance of responsibility. See United

States v. Hicks, 438 F. App'x 216, 220 (4th Cir. 2011) ("[A] reduction for acceptance of responsibility

is appropriate "[i]f the defendant clearly demonstrates acceptance of responsibility for the offense"; it

"is not intended to apply to a defendant who puts the government to its burden of proof at trial by

denying the essential factual elements of guilt, is convicted[.]"); USSG § 3E1.1 cmt. n.2 ("This

adjustment is not intended to apply to a defendant who puts the government to its burden of proof at

trial by denying the essential factual elements of guilt[.]"). This would have resulted in a higher

advisory guideline range as originally determined and as calculated as a result of the drug table

amendments.

Importantly, Baum has presented no evidence that the Government intended to seek a superseding

information substituting a dog fighting charge for money laundering. His argument presumes many

factors-that the money laundering count would be dropped, that a dog fighting count would be added,

that the remaining four narcotics charges in the original Indictment would not be included, and that

he would prevail in his challenges to the PSR-with little factual support. Nothing in the record

suggests such a result.

In sum, Baum cannot demonstrate that he was prejudiced by counsel alleged misadvice with respect

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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to the statutory maximum sentences for dog fighting and money laundering. Accordingly, his claim of

ineffective counsel on this issue lacks merit and should be dismissed.

3. Money Laundering

Baum next argues that counsel provided incorrectly advised him that money laundering included

acts where funds are directed from one criminal activity into another criminal activity, not only where

one directs money towards a legitimate, or "clean," endeavors. Baum maintains that the traditional

understanding of a money laundering charge includes using money derived from criminal activity

and placing it into a lawful business or purpose in an attempt to legitimize the lucre. By his

understanding of the money laundering laws, Baum asserts that his use of proceeds from the sale of

narcotics for his dog fighting and gambling operation does not constitute a money laundering offense

since both ventures represent criminal activity. However, Baum's interpretation of the money

laundering offense is mistaken. The relevant statutory language does not distinguish between

financial transactions involving legitimate and illegal enterprises. Because the elements of the

offense are established in the guilty plea, Baum's argument is factually unsupported and should be

denied.

Baum contends that he would not have pled guilty if his attorney had informed him that he had an

available defense to the money laundering charge-that the funds were directed into another criminal

activity (dog fighting) and not "cleaned" through diversion to a legitimate endeavor. Baum's

argument is flawed, however, because it presumes, incorrectly, that directing funds from one criminal

enterprise to another criminal enterprise, rather than towards a lawful operation, does not constitute

money laundering under 18 U.S.C. § 1956.

The relevant statute provides in applicable part that:

(a)(1) Whoever, knowing that the property involved in a financial transaction represents the

proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial

transaction which in fact involves the proceeds of specified unlawful activity--

(B) knowing that the transaction is designed in whole or in part(i) to conceal or disguise the nature, the location, the source, the ownership, or the control of the

proceeds of specified unlawful activity .... will be subject to criminal penalties. 18 U.S.C. §

1956(a)(1)(B)(i).

Baum's challenge focuses on the requirement that he "conduct[] or attempt[] to conduct such a

financial transaction which in fact involves the proceeds of specified unlawful activity." Id. For

purposes of the money laundering statute, a financial transaction includes "a transaction which in any

way or degree affects interstate or foreign commerce involving the movement of funds by wire or

other means...... Id. § 1956(c)(4)(A)(i). This term is defined broadly and includes "[a]lmost any

exchange of money between two parties...." See United States v. Blair, 661 F.3d 755, 764 (4th Cir.

2011). A review of the plain language of the statute establishes that there is no requirement that the

proceeds of an illegal activity be invested in a legitimate activity in order to constitute money

laundering. See also United States v. Reed, 77 F.3d 139 (6th Cir. 1996) (en banc) (holding that

transfer of drug proceeds to courier for the purpose of purchasing additional drugs and paying drug

debts constituted a transfer under the money laundering statute).

...

Because the money laundering statute lacks a requirement that the money must be laundered

through legitimate enterprise, Baum's reinvestment of drug proceeds to another illegal endeavor, dog

fighting, is not a defense to money laundering. Thus, his counsel's failure to pursue it as a defense

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

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was not an error. See United States v. Kim/er, 167 F.3d 889, 893 (5th Cir. 1999) (stating that "[a]n

attorneys failure to raise a meritless argument cannot form the basis of a successful ineffective

assistance of counsel claim because the result of the proceeding would not have been different had

the attorney raised the issue"); Moore v. United States, 934 F. Supp. 724, 731 (ED. Va. 1996)

("[T]here can be no claim of ineffective assistance where, as here, counsel is alleged to have failed

to raise a meritless argument"). Accordingly, Baum cannot establish the first prong under Strickland

with respect to his arguments on this issue.

...

Moreover, Baum's sworn testimony supports his guilt on Count II, money laundering. At his

arraignment, Baum represented to the Court that he understood his rights, he understood the Plea

Agreement, and its language and terms. D.E. 35 at 21:17-22:1. He further stated that he had

discussed the Plea Agreement with his attorney, that no one had persuaded him or induced him to

accept the Plea Agreement and plead guilty, and that he had answered all questions truthfully. Id. at

21:9-22:24. After the elements of money laundering were set forth, the following exchange occurred:

Court: Mr. Baum, how do you plead to count two of the Information?

Defendant: Guilty.

Court: And did you as the Government alleges in count two, beginning on a date no later than in

or around 2005, and continuing up to and including on or about June 18, 2012, in the Eastern

District of North Carolina and elsewhere, knowingly conduct and attempting to conduct a

financial transaction involving one or more monetary instruments, to wit, purchasing dogs and

supplies for training dogs to fight, which involved the proceeds of a specified unlawful activity,

that is, illegal distribution of controlled substances, knowing that the transaction was designed in

whole, and in part, to conceal and disguise the nature, location, source, proceeds and control of

the proceeds of said specified unlawful activity, and that while conducting or attempting to

conduct such financial transaction, that you knew that the property involved in the financial

transaction represented the proceeds of some form of unlawful activity, all in violation of Title 18,

U.S. Code, Section 1956(a)(1)[(B)(i)]; did you do all of that?

Defendant: Yes.Official Tr. of Arraignment Proceedings at 23:16-24:12, D.E. 35. Thus, Baum

conceded, under oath, that he is guilty of money laundering as charged in the Superseding

Information. Additionally, the Plea Agreement itself represents Baum's acknowledgement of guilt

on Count II, money laundering. D.E. 24 at 5. These statements are sufficient to support his

conviction and sentence for Count II of the Superseding Information, money laundering. United

States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005) ("[I]n the absence of extraordinary

circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively

established, and a district court should. dismiss any § 2255 motion that necessarily relies on

allegations that contradict the sworn statements.").

. .

Absent a showing of either deficient representation or prejudice under Strickland, and Baum's

acknowledgement of guilt to the money laundering charge, his present claim lacks merit and should

be rejected.

4. Enhancement for Role as Supervisor or Manager

Baum next contends his attorney was ineffective for failing to challenge the three level enhancement

he received for his role as a manager or supervisor of a criminal activity involving five or more

people. See D.E. 30 ¶ 70. The United States Sentencing Guidelines § 31311.11 (b) provides for a

three-level enhancement "[i]f the defendant was a manager or supervisor (but not an organizer or

leader) and the criminal activity involved five or more participants or was otherwise extensive." U.S.

Sentencing Guidelines Manual § 3131.1(b) (U.S. Sentencing Guidelines Comm'n 2012). Baum states

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restrictions and terms and conditions of the Matthew Bender Master Agreement.

57O8? 056

that his children's mothers were willing to testify that he did not manage or supervise them in the

possession and distribution of drugs.

The Government points out that Baum abandoned his objection to this sentencing enhancement as

part of an agreement between the parties. It therefore contends that counsel's decision not to pursue

a challenge to the three level enhancement for use of friendship or affection was a strategic decision

which the court should not second-guess. Mem. in Support of Mot. to Dismiss at 12-13, D.E. 68.

Counsels decision benefitted Baum because it removed a two-level enhancement for the use of

friendship or affection to involve others that the PSR found was applicable. As noted above, a

reduced drug weight was also part of the agreement between the Government and the defense,

which resulted in a lower base offense level for Baum. Therefore, counsel's decision to withdraw any

objection to the three level enhancement in exchange for removal oll the two-level enhancement

coupled with a downward adjustment of the drug weight can be reasonably viewed as a tactical

decision. Given the benefit to Baum, it is difficult to view this approach as deficient representation.

Accordingly, Baum has shown neither objective unreasonable performance by counsel or that he

suffered prejudice to satisfy his burden under Strickland for an ineffective assistance of counsel

claim.

Further, as explained in the Addendum to the PSR, "multiple sources" remarked that when Baum

received an order, he would direct his girlfriend or one of his children's mothers to complete the sale.

Id. at 21-22. Additionally, Isiah Gasby stated that the women only sold crack and that Baum only

dealt directly with individuals who ordered powdered cocaine or one ounce or more of crack cocaine.

Id. The Addendum further notes that multiple sources stated that Baum used his children's mothers

to store drugs at stash houses by providing a home for these women. Id. Thus, even if, as Baum

alleges, his children's mothers would testify that he did not supervise or manage them in the criminal

activity, Gasby's statement to the contrary is sufficient for a fact-finder to conclude that he did, in

fact, direct them in completing the drug sales. Accordingly, the factual basis for the three-level

enhancement has been established.

Baum's motion seeks the benefit of the agreement between the parties regarding the applicable

sentencing factors and asks the court to presume he would have prevailed on all objections he

wanted to raise at sentencing. This argument ignores the fact that Baum was only entitled to the

benefit of the agreement because he agreed to forego some of his objections at sentencing. The

premise of Baum's argument lacks factual or legal support.

Again, Baum has shown neither that counsel's performance was deficient nor that he suffered

prejudice. As he has failed establish an ineffective assistance of counsel claim with respect to the

application of the sentencing enhancement, the court should dismiss this claim.

Ill. Conclusion

For the foregoing reasons, the undersigned recommends that the court deny Baum's Motion to

Vacate, Set Aside or Correct Sentence (D.E. 60) and grant the Government's Motion to Dismiss

(D.E. 67).

Furthermore, the court directs that the Clerk of Court serve a copy of this Memorandum and

Recommendation on each of the parties or, if represented, their counsel. Each party shall have until

14 days after service of the Memorandum and Recommendation on the party to file written

objections to the Memorandum and Recommendation. The presiding district judge must conduct his

or her own review (that is, make a de novo determination) of those portions of the Memorandum and

Recommendation to which objection is properly made and may accept, reject, or modify the

determinations in the Memorandum and Recommendation; receive further evidence; or return the

lydcases

restrictions and terms and conditions of the Matthew Bender Master Agreement.

_1. r

matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1): Fed. R. Civ. P.

72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b),

E.D.N.C.

If a party does not file written objections to the Memorandum and Recommendation by the

foregoing deadline, the party will be giving up the right to review of the Memorandum and

Recommendation by the presiding district judge as described above, and the presiding

district judge may enter an order or judgment based on the Memorandum and

Recommendation without such review. In addition, the party's failure to file written

objections by the foregoing deadline will bar the party from appealing to the Court of Appeals

from an order or judgment of the presiding district judge based on the Memorandum and

Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).

Dated: May 15, 2017

1sf Robert T. Numbers, II

Robert T. Numbers, II

United States Magistrate Judge

Footnotes

The district court referred this matter to the undersigned united States Magistrate Judge for the entry

of a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1).

The united States Sentencing Guidelines ("uSSG") include a Drug Quantity Table that provides

base offense levels that correspond to certain quantities of enumerated controlled substances.

u.s.s.G. § 2D1.1. For controlled substances not on the Drug Quantity Table, the Guidelines include

Drug Equivalency Tables, which convert the weight of the substances to an "equivalent quantity" of

marijuana. Id; see United States v. Bell, 667 F.3d 431, 441 (4th Cir. 2011).

The amendments to the drug table reduced Baum's sentencing range on count I to 262-327 months.

His previously-calculated range of 324-405 resulted in a sentence of 273 months, which reflects a

reduction of approximately 16% on count I. His new sentence on count I, 221 months, represents a

sentence reduction comparable to his previously imposed term of incarceration.

The court notes that the Government's motion to dismiss and supporting brief were filed subsequent

to Baum's sentence reduction.

lydcases

restrictions and terms and conditions of the Matthew Bender Master Agreement.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.