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United States v. Mills

United States District Court, W.D. Virginia, Roanoke Division

May 27, 2016

CHRISTOPHER JAMES MILLS, Defendant. Civil Action No. 7:15CV80834


          Hon. Glen E. Conrad Chief United States District Judge

         Christopher James Mills, a federal inmate, has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Mills has . responded, making this matter ripe for consideration. Upon review of the record, the court concludes that Mills' claims lack merit and the government's motion to dismiss must be granted.


         On February 16, 2012, a grand jury returned an indictment charging Mills with conspiring to distribute and possess with the intent to distribute five kilograms or more of a mixture or substance containing a detectible amount of cocaine, in violation of 21 U.S.C. § 846. This charge stemmed from an investigation into cocaine trafficking in and around Roanoke, Virginia.

         Mills' first court-appointed attorney obtained two trial continuances, but moved to withdraw on June 18, 2012, due to trial strategy differences and strained relations. (Mot. to Withdraw at 1, ECF No. 26.) Mills' second court-appointed attorney obtained a third trial continuance, but also moved to withdraw on October 3, 2012, due to irreconcilable differences. (Mot. to Withdraw at 1, ECF No. 43.) Mills' third court-appointed attorney pursued multiple pre-trial motions. At a motions hearing, defense counsel argued that the evidence presented at trial should be limited to powder cocaine-and that all evidence of crack cocaine should be excluded-because the indictment refers to a "cocaine" distribution conspiracy. (Mot. Hr'g at 6, ECF No. 81.) The court concluded that evidence of crack cocaine sales would be admissible but that the defense could raise a multiple conspiracy defense to try and cast doubt on whether the charged conspiracy actually existed. (Id. at 25.) Counsel also argued that the timeframe of the conspiracy had recently shifted from the late 1990s to the early 1990s, which acted to constructively amend the indictment. (Id at 21.) The court held that the government was not seeking to amend the indictment but rather "fleshing out" the facts, which was permissible as the indictment did not establish a starting date for the conspiracy. (Id at 22.) In addition, counsel requested that any evidence that Mills may have been involved in a series of robberies and home invasions of other drug dealers be excluded from trial as prejudicial. This evidence dealt with Mills' relationship with George Fitzgerald, who had previously pleaded guilty to running a robbery scheme in which Fitzgerald targeted drug dealers. The court determined that the robbery evidence would be allowed to the extent that it showed with whom Mills associated and when he ended the conspiracy. (Id at 15, 24.)

         Prior to trial, the government filed a notice of enhanced punishment, pursuant to 21 U.S.C. § 851, based on Mills' prior state court conviction for distribution of cocaine in Roanoke. Pursuant to this notice, Mills was subject to a mandatory minimum sentence of 240 months' incarceration.

         Mills proceeded to trial on October 15, 2012. The government called four individuals to testify about buying drugs from and selling drugs to Mills. One individual, Edison James Alberty, testified that he sold cocaine to Mills in large quantities, totaling between fifteen and twenty-five kilograms over the course of their relationship. (Trial Tr. at 61, ECF No. 82) Alberty eventually started cooperating with the police and recorded a telephone conversation he had with Mills in which he arranged to sell Mills two kilograms of cocaine in March 2007. (Id. at 62.) Police stopped Mills on the way to this controlled buy and confiscated approximately $48, 000 from him and his vehicle. The police did not arrest Mills at that time. Following the seizure of his car and money, Mills' drug contacts refused to sell cocaine to him, thinking that he was involved with the police, so Mills' drug business "suffered." (Id. at 81.)

         Two other witnesses, Louis Delbert Brown, Jr. and Travis Lane Entsminger, testified that they had been friends with Mills from the time that they were children and originally got him involved in dealing crack cocaine. Defense counsel objected to this line of questioning asserting it was evidence of a separate conspiracy to sell and distribute crack cocaine, whereas the indictment charged Mills with conspiracy to distribute cocaine powder. The court overruled the objection but held a bench conference regarding the extent of the evidence that it would allow the government to present regarding a crack cocaine conspiracy. (Id. at 168-69.) The court concluded that the government could present evidence of crack cocaine sales only to show how Mills became involved in selling drugs, but not to establish a separate crack cocaine distribution conspiracy. (Id. at 168.)

         After the government rested, the defense did not present any evidence. Defense counsel made a motion for judgment of acquittal, arguing that the statute of limitations applied because much of the evidence pre-dated 2007; the government had not presented sufficient evidence to establish the existence of a cocaine powder conspiracy; and the government had attempted to show multiple conspiracies existed, without focusing on the cocaine powder conspiracy for which Mills was charged. The court denied the defense motion, concluding that if the jury were to credit certain testimony, it could find that Mills was engaged in a cocaine powder distribution conspiracy that continued after 2007. (Trial Tr. at 234, ECF No. 83.) In addition, the court concluded that whether or not the evidence presented could support a conviction for other types of conspiracies was immaterial, as long as the evidence proved that Mills was involved in the charged conspiracy, (Id. at 232-33.) The jury returned a guilty verdict.

         Mills retained counsel for sentencing. Mills' presentence investigation report ("PSR") recommended a total offense level of 36 and a criminal history category of III, resulting in a guidelines range of 235 to 293 months' imprisonment. (PSR ¶ 56, ECF No. 104.) However, Mills faced a mandatory minimum sentence of 20 years and a maximum term of life in prison under 21 U.S.C. § 841(b)(1)(A) based on his prior felony drug conviction. Accordingly, the PSR recommended an increase to the beginning of the applicable guideline range to 240 to 293 months.

         Mills' counsel filed objections to the PSR, arguing: that Mills should have received credit for acceptance of responsibility because even though he went to trial, he did so to preserve legal issues; that the drug weight attributable to Mills should have been less; and that evidence of a home invasion should not have been included in the PSR. (Id. at 14-15.) At the sentencing hearing, the court overruled the objections and adopted the PSR. (Sent. Tr. at 60, ECF No. 109.) The court sentenced Mills to 254 months' incarceration. (Id. at 69.)

         Mills unsuccessfully appealed his conviction and sentence on multiple grounds. United States v. Mills. 555 F.App'x 241, 244 (4th Cir. 2014). On April 7, 2015, pursuant to Amendment 782 of the United States Sentencing Guidelines and 18 U.S.C. § 3582(c)(2), the court reduced Mill's sentence from 254 months to the statutorily required 240 months' incarceration.

         In his § 2255 motion, Mills raises multiple ineffective assistance claims, alleging that: (1) trial counsel failed to adequately prepare for trial; (2) trial counsel failed to investigate the search and seizure of Mills' cash and automobile and the twenty-year time-frame of the conspiracy; (3) trial counsel had a conflict of interest that he failed to disclose; (4) trial counsel failed to argue multiple conspiracies existed; (5) sentencing counsel failed to object to the § 851 enhancement because it was relevant conduct; and (6) appellate counsel failed to object to the drug weight determination. Mills also alleges due ...

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