United States District Court, W.D. Virginia, Big Stone Gap Division
M. Kulpa, Assistant United States Attorney, Charlottesville,
Virginia, for United States; John Roma Bryan, III, Defendant
P. Jones United States District Judge.
John Roma Bryan, III, proceeding pro se, filed a motion
seeking relief under 28 U.S.C. § 2255. The United States
moved to dismiss the § 2255 motion, and I granted the
government's motion to dismiss. United States v.
Bryan, No. 2:15CR00015-006, 2018 WL 6323080 (W.D. Va.
Dec. 4, 2018). Bryan appealed, and the court of appeals found
that I “did not rule on Bryan's claims challenging
the adequacy of the factual basis supporting his guilty plea
to the firearm offense and asserting that counsel was
ineffective at sentencing for failing to advise Bryan of
U.S. Sentencing Guidelines Manual § 5K2.23,
p.s. (2015), and to argue for a downward departure under that
Guidelines provision.” United States v.
Bryan, 784 Fed.Appx. 181, 181 (4th Cir. 2019)
(unpublished). The court of appeals dismissed Bryan's
appeal as interlocutory because I had not adjudicated all the
issues, and it remanded the case to me for further
interest of brevity, I will not restate the procedural
history, facts, and statements of law that I included in my
earlier opinion; they are incorporated here by reference. In
his Reply in Opposition to Government's Motion to Dismiss
3, ECF No. 967, Bryan contends, with respect to Ground Two,
that his statement to the Court that he “bought and
sold bath salts while in possession of a firearm, . . . was
not a sufficient factual basis to support a conviction under
[18 U.S.C. §] 924(c).” He offers no further
argument on this point and simply cites United States v.
Maye, 582 F.3d 622, 626-631 (6th Cir. 2009).
In his § 2255 motion, in relation to Ground One, Bryan
Furthermore, I am actually innocent of the 924(c) charge,
since I am not guilty of any drug trafficking crime prior to
March 7, 2014, [before alpha-PVP was listed as a controlled
substance] and only possessed the firearm for less than two
days while alpha-PVP was a controlled substance. During that
very short time period, I did not possess any alpha-PVP.
Therefore there was no temporal or spatial nexus between the
controlled substance and the firearm, and the firearm was not
possessed in furtherance of, or used or carried in connection
with, a drug trafficking crime.
§ 2255 Mot. Attach. 1, ECF No. 938-1. That argument is
intertwined with Bryan's contention that he was not
guilty because did not have the knowledge required under
McFadden v. United States, 135 S.Ct. 2298, 2305
(2015). I thoroughly addressed Bryan's McFadden
argument in my earlier opinion granting the government's
Motion to Dismiss. Bryan, 2018 WL 6323080, at *2.
his contention that there was insufficient factual support
for his § 924(c) conviction, as noted above, Bryan
stated under oath that he was guilty because “I bought
and sold bath salts while in possession of a firearm.”
Guilty Plea Hr'g Tr. 53, ECF No. 947. Additionally, the
prosecutor proffered that “from Mr. Bryan's cell
phone . . . there was discussion about trading alpha-PVP in
exchange for guns.” Id. at 57. Bryan expressly
stated that he did not contest this fact. Bartering a firearm
for a controlled substance analog or controlled substance
undoubtedly satisfies the elements of § 924(c)(1)(A),
which mandates a five-year minimum sentence for a person who
“during and in relation to any . . . drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance
of any such crime, possesses a firearm.” Offering or
accepting a firearm as payment for a controlled substance or
controlled substance analog clearly constitutes possessing a
firearm in furtherance of a drug trafficking crime. See,
e.g., United States v. Howard, 773 F.3d 519,
527 (4th Cir. 2014) (listing examples of evidence that could
lead a factfinder to conclude that a firearm was possessed in
furtherance of a drug trafficking crime). The prosecutor also
proffered, and Bryan did not contest, that he admitted that
he had been “participating in the distribution [of
alpha-PVP] and had a weapon on him when he was encountered by
law enforcement.” Guilty Plea Hr'g Tr. 57, ECF No.
947. This is plainly a sufficient factual basis for
concluding that Bryan carried a firearm during and in
relation to a drug trafficking crime, which also supports a
conviction under § 924(c).
Maye, the Sixth Circuit stated, “In ruling
that mere possession of a firearm on the same premises as a
drug transaction is insufficient to support a section 924(c)
conviction, we have previously held that the firearm must be
strategically located so that it is quickly and easily
available for use.” Maye, 582 F.3d at 626
(internal quotation marks and citation omitted). The facts in
Maye significantly differed from those in this case.
There, a sale of drugs took place “on the porch of a
nearby apartment, ” and an informant testified
“that he had seen a ‘chrome-plated revolver'
inside the defendant's apartment before leaving.”
Id. at 624. The court held that “such a
coincidental presence of a firearm in the vicinity of a crime
is insufficient to support a section 924(c)
conviction.” Id. at 630.
Bryan admitted that he carried a firearm on his person while
participating in the distribution of alpha-PVP. There was
also evidence that he discussed trading firearms for
alpha-PVP, a controlled substance analog and later a
controlled substance. This evidence goes well beyond what the
Maye court found to be insufficient.
Bryan was convicted in state court of possession of a firearm
as a convicted felon, a charge that was based upon the same
firearm, and the same March 2014 search of his home, that led
to the § 924(c) charge in this case. The fact that Bryan
possessed a firearm despite being prohibited from doing so is
additional evidence that he possessed the firearm in
furtherance of drug trafficking. See United States v.
Moore, 769 F.3d 264, 270 (4th Cir. 2014) (in finding
evidence sufficient to support § 924(c) conviction,
noting that “it was unlawful for Moore to possess any
firearm as a convicted felon”).
there was an adequate factual basis for his § 924(c)
conviction, Bryan cannot establish that his counsel was
ineffective in allowing him to plead guilty to that offense.
I will therefore grant the government's motion to dismiss
as to this claim.
Bryan's claim that his counsel “failed to attempt
to secure a downward adjustment to his federal sentence under
[U.S. Sentencing Guidelines Manual (“USSG”)]
Section 5K2.23, ” Reply 3, ECF No. 967, my analysis of
this issue is identical to my earlier analysis of his claim
that his attorney was ineffective for seeking a downward
adjustment under USSG § 5G1.3. See Bryan, 2018
WL 6323080, at *3-4. USSG § 5K2.23 provides,
A downward departure may be appropriate if the
defendant (1) has completed serving a term of imprisonment;
and (2) subsection (b) of § 5G1.3 (Imposition of a
Sentence on a Defendant Subject to Undischarged Term of
Imprisonment or Anticipated Term of Imprisonment) would have
provided an adjustment had that completed term of
imprisonment been undischarged at the time of sentencing for
the instant offense. A ...