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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

v. CAUSE NO. 1:91CR 1032-MMP-AK

JOHN COLLIER WIMS,

Defendant.

_____________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant’s motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255. Doc. 706. The Government has filed a response, Doc.

713, and Defendant has filed a reply. Doc. 720. Defendant has also filed a document entitled

“Judicial Notice,” in which he argues for application of Blakely. Doc. 764. This cause is

therefore in a posture for decision. Having carefully considered the matter, the Court

recommends that the motion to vacate be denied.

BACKGROUND

The basic facts of this case were outlined by the Eleventh Circuit following remand from

the United States Supreme Court:

John Collier Wims was indicted by a Northern District of Florida grand jury on

December 10, 1991. Wims was charged in seven of the eleven counts. Count

One charged Wims and six others with conspiracy to distribute cocaine and

cocaine base (crack cocaine) in violation of 21 U.S.C. 846 (by virtue of violating

21 U.S.C. §§ 841(a) and 841(b)(1)(A)); Counts Two through Six charged Wims

with five separate instances (from January to August 1989) of possession of, with

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the intent to distribute, a mixture containing cocaine, all in violation of 21 U.S.C.

§§ 841(a) and 841(b)(1)(A) and 18 U.S.C. § 2. Count Eleven was a forfeiture

count for drug proceeds....

Wims went to trial with four co-defendants; the other two co-defendants testified

for the Government at the trial. A jury found Wims guilty as charged on March 9,

1992. On May 22, 1992, the district court sentenced Wims to life imprisonment

on Counts One and Two, and to forty years’ imprisonment on each of Counts

Three through Six. All sentences were to be served concurrently.

Wims appealed, but his appeal was dismissed for want of prosecution. On

November 5, 1998, the district court, in a proceeding brought under 28 U.S.C. §

2255, granted Wims leave to prosecute an out-of-time appeal. We affirmed the

convictions and sentences. United States v. Wims, 207 F.3d 661 (11th Cir. Jan. 4,

2000) (per curiam) (unpublished table decision). The United States Supreme

Court granted Wims petition for a writ of certiorari, vacated our judgment, and

remanded for further consideration in light of Apprendi v. New Jersey....

United States v. Wims, 245 F.3d 1269, 1270-71 (11th Cir. 2001).

Following remand, the Eleventh Circuit first directed the parties to address the impact of

Apprendi. In a lengthy letter, appellate counsel from the Office of the Federal Public Defender

pointed out that Defendant had argued on direct appeal and in his petition for writ of certiorari

that his Fifth and Sixth Amendment rights had been violated by the failure of the indictment to

charge drug quantity and by the failure of the jury to determine that amount beyond a reasonable

doubt. Doc. 713, Ex. B at 2. In response to the court’s Apprendi directions, counsel, citing the

Fifth and Sixth Amendment rights to indictment by a grand jury and notice of the nature and

cause of charges, argued that the Apprendi error in Wims’ case was jurisdictional and

resentencing was warranted. Id. at 17. However, even if the court applied plain error or

harmless error review, resentencing was required, as “the life sentences and forty-year sentences,

as well as the dispute about the amount and the sources of information about the amounts,

demonstrate that Mr. Wims’ substantial rights have been impinged.” Id.

In its post-remand opinion, the Eleventh Circuit addressed one issue: “whether Wims’s

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sentences should be set aside because they violate the constitutional principle that every element

of a crime must be proven to a jury beyond a reasonable doubt.” Wims, 245 F.3d at 1271. The

court “adhere[d] to [its] previous disposition” of three other issues determined adversely to

Wims in the original opinion, namely whether there was insufficient evident to prove a

conspiracy, whether unreliable hearsay formed the basis for attributing drug quantity to Wims,

and whether the prosecutor’s closing argument to the jury was impermissible. Id. at 1271 n.3.

Using a plain error analysis, the court first found that there was an Apprendi error

because “Wims’s sentences of life imprisonment...and forty years’ imprisonment...exceed the

twenty year maximum prescribed in section 841(b)(1)(C).” Id. at 1272. The court noted

in passing that even though the indictment did not specify drug quantities, as

required...it charged Wims with crimes by alleging violations of section 841(a)

and put Wims on notice that he was subject to potential life imprisonment by

claiming that his actions violated section 841(b)(1)(A)....[which] served Wims

with notice that the Government was charging him with possessing (or conspiring

to possess) at least five kilograms of a mixture containing a detectable amount of

cocaine or at least fifty grams of a mixture containing cocaine base.

Id. at 1272 n.6.

The court next found that the error was plain, as a “sentence that exceeds the statutory

maximum without regard to quantity is clear error under current law. This is sufficient for the

error to be considered ‘plain’ even though the law was different at the time of Wims’s conviction

and sentencing.” Id. at 1272.

The court found, however, that Wims could not satisfy the third prong of plain error

analysis, i.e., he failed “to show that the error affected his substantial rights.” Id. As to Counts

Three through Six, the court examined the trial testimony of a cooperating co-defendant who

testified that he “delivered two-kilogram quantities of cocaine to Wims in four successive

months in 1989....” Id.; see also id. at 1272 n.8. Thus,

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[b]ecause the amount of drugs was uncontested on Counts Three through Six, the

jury must have found that Wims possessed ‘500 grams or more of a mixture or

substance containing a detectable amount of’ of cocaine. Because conviction for

a violation of 841(b)(1)(B) carries a term of imprisonment between five and forty

years, Wims’s forty year sentences do not exceed the ‘prescribed statutory

maximum’ sentence in violation of Apprendi....Wims’s substantial rights were

therefore not affected by receiving forty year sentences on Counts Three through

Six.

Id. at 1273 (emphasis in original).

As to Count Two, the court stated:

The undisputed testimony at trial was that the amount of cocaine purchased on

January 18, 1989, was six one-kilogram packages; the only issue was whether the

drugs from this transaction belonged to the defendant. The jury’s guilty verdict

reveals that they did attribute the drugs to Wims, which necessarily means they

attributed six kilograms of cocaine to Wims. Wims failed to object, either at the

sentencing hearing or in his written objections to the PSI, to the quantity of drugs

from this transaction as six kilograms, providing further support for the

proposition that the amount was not at issue.

For Wims to be sentenced to life imprisonment on Count Two after Apprendi, we

must find that the jury, as a necessary part of its guilty verdict, determined

possession of at least five kilograms of cocaine....Because the jury necessarily

determined that Wims possessed six kilograms of cocaine when it convicted him

on Count Two, Wims’s substantial rights were not affected by a sentence of life

imprisonment, as authorized by [the statute].

Id. at 1273-74.

As to Count One, the conspiracy count, the court stated:

A finding of at least five kilograms of cocaine is required to authorize a life

sentence for Wims....The jury convictions on Counts Two through Six

demonstrate that the jury necessarily found at least five kilograms of cocaine, as

the substantive offenses in those counts all formed part of the conspiracy. 

Wims’s sentence of life imprisonment on Count One did not, therefore, affect his

substantial rights.

Id. at 1274.

Because Wims could not meet the third prong of plain error analysis, the court did not

address the fourth factor. Id. It then concluded that “[a]lthough there was error in Wims’s

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sentencing, his substantial rights were not affected by the error” and affirmed his convictions and

sentences. Id.

Defendant then filed a suggestion for rehearing en banc, in which he again argued that

“drug quantity is an essential element which must be alleged in the indictment” and the failure of

an indictment “to allege essential elements constitutes a jurisdictional defect under both the Fifth

and Sixth Amendment.” Doc. 713, Ex. C at 4. Defendant specifically focused on the court’s

relegation of the issue to a footnote and its failure to “address the issue squarely” in the opinion. 

In Defendant’s view, “This ruling is clearly contrary to the precedent of this Circuit and ignores

the Fifth Amendment aspect of this issue.” Id. at 7. Furthermore, he argued that “[i]n declining

to consider the argument Mr. Wims presented, the panel implicitly treated it as something less

than jurisdictional.” Id. at 8. Defendant also maintained that “but for a judicial finding of drug

quantity, Mr. Wims would have been sentenced as a first offender between 27-33 months, not

life.” Id. at 10 (emphasis in original). According to Defendant, this course clearly conflicted

with circuit law and required remand “to determine the proper application of the sentencing

guidelines....” Id. at 10-13. Defendant concluded: “Because the panel majority’s opinion

conflicts with precedent of the Supreme Court and of this Circuit, and also because these issues

are of critical importance to federal criminal law, bearing on a number of cases, this case should

be resolved by the Court en banc.” Id. at 15.

The suggestion for rehearing en banc was summarily denied, United States v. Wims, 260

F.3d 628 (11th Cir. 2001), and the petition for writ of certiorari was also denied. Wims v. United

States, 535 U.S. 1098 (2002).

This motion to vacate ensued. On this occasion, Defendant attacks the effectiveness of

appellate counsel for failing “to raise on appeal that the indictment was constructively amended”

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and “to argue on appeal that the district court erred in sentencing Wims on the basis of a multiobject conspiracy since the district court did not find beyond a reasonable doubt that Wims

conspired to commit the greater object offense.” Doc. 706, Memorandum at 1. In the

Government’s view, these “latest arguments are a restatement of issues that were raised and

rejected on direct appeal, or have been subsequently disavowed by controlling precedent in this

Circuit, and thus do not serve as a basis for any claim of ineffective assistance of counsel.” Doc.

713 at 5.

DISCUSSION

Each of Defendant’s claims is based on ineffective assistance of appellate counsel. The

Eleventh Circuit applies the Strickland standards to this type of claim, and thus, the Court begins

with a consideration of that case. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To

prevail on a constitutional claim of ineffective assistance of counsel, a defendant must

demonstrate (1) that his counsel’s performance was below an objective and reasonable

professional norm, and (2) that he was prejudiced by this inadequacy. Strickland v. Washington,

466 U.S. 668, 686 (1984). The Court may dispose of the claim if a defendant fails to carry his

burden of proof on either the performance or the prejudice prong. Id. at 697. The Court need not

address the adequacy of counsel’s performance when a defendant fails to make a sufficient

showing of prejudice. Id. With regard to the performance prong of Strickland, a defendant must

provide factual support for his contentions that counsel’s performance was constitutionally

deficient. Smith v. White, 815 F.2d 1401, 1406-07 (11th Cir. 1987). The Court must consider

counsel’s performance in light of all of the circumstances at that time and indulge in a strong

presumption that counsel’s conduct fell within the wide range of reasonably professional

assistance. Strickland, 466 U.S. at 689-90. To show counsel’s performance was unreasonable, a

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defendant must establish that “no competent counsel would have taken the action that his counsel

did take.” Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “An

ambiguous or silent record is not sufficient to disprove the strong and continuing

presumption...that [counsel] did what he should have done and that he exercised reasonable

professional judgment.” Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)

(en banc), cert. denied, 531 U.S. 1204 (2001). With specific reference to assessing appellate

counsel’s performance, “the Sixth Amendment does not require appellate advocates to raise every

non-frivolous issues.” Heath, 941 F.2d at 1130-31. Rather, “effective advocates ‘winnow out’

weaker arguments even though the weaker arguments may be meritorious.” Id. at 1131. When

appellate counsel reviews the entire record, thinks about various claims, and then chooses to

pursue only certain issues on appeal, counsel has not rendered ineffective assistance. Id. 

Although a non-appealed issue might have been successful if it had been raised, appellate

advocacy must be “judged in its entirety.” Id.

To show prejudice, a defendant must show more than simply that counsel’s unreasonable

conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland,

466 U.S. at 693. Instead, a defendant must show 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 defined as a probability sufficient to undermine confidence in the

outcome.” Id. Additionally, prejudice is established only with a showing that the result of the

proceeding was fundamentally unfair or unreliable. Lockhart v. Hill, 506 U.S. 364, 370 (1993). 

When raised in the context of appellate counsel’s effectiveness, to determine prejudice, the Court

must review the merits of the neglected claim. Heath, 941 F.2d at 1132. “If the Court finds that

the neglected claim would have a reasonable probability of success on appeal, then...it is

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necessary to find ‘appellate counsel’s performance prejudicial because it affected the outcome of

the appeal.’” Id. (citation omitted). 

The Eleventh Circuit has recognized that given the principles and presumptions set forth

above, “the cases in which habeas petitioners can properly prevail...are few and far between.” 

Chandler, 218 F.3d at 1313 (11th Cir. 2000). This is because the test is not what the best lawyers

would have done or even what most good lawyers would have done, but rather whether a

reasonable lawyer could have acted in the circumstances as defense counsel acted. Williamson v.

Moore, 221 F.3d 1177, 1180 (11th Cir. 2000), cert. denied, 534 U.S. 903 (2001).

I. Failure to raise constructive amendment of indictment. 

In his first claim for relief, Defendant maintains that because he was “convicted and

sentenced for a greater offense than charged in the indictment, there is at least a ‘reasonable

probability’ that had counsel raised the issue of ‘constructive amendment’ on appeal, relief

would have been granted.” Doc. 706, Memorandum at 8. Defendant reaches this conclusion

based on his interpretation of several Supreme Court cases and on his argument that 21 U.S.C. §

841“defines at least three separate offenses,” not a single offense with levels of penalties based

on certain factors, including drug types and quantities. Id. at 5-6.

In response, the Government maintains that Defendant’s position not only is at odds with

United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001), but also is rebutted by the record which

shows that appellate counsel raised the issue with the Eleventh Circuit, albeit by different

phrasing, on three separate occasions. Doc. 713 at 7-8.

Constructive amendment of an indictment occurs when the essential elements of the

indicted offense are altered so as to broaden the possible bases for conviction beyond what was

actually charged in the indictment. United States v. Singer, 2005 WL 2605400, at *2 n.2 (11th

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Cir. Oct. 14, 2005). The issue of constructive amendment arises most frequently when the

evidence presented at trial or the court’s instructions to the jury so modify the elements of the

offense alleged in the indictment that a defendant may have been convicted for a crime not

charged by the grand jury. Id. Constructive amendment of an indictment is per se reversible

error because it violates a “fundamental principle stemming from [the Fifth Amendment]...that a

defendant can only be convicted for a crime charged in the [grand jury’s] indictment.” United

States v. Keller, 916 F.3d 628, 633 (11th Cir. 1990).

It cannot be disputed that appellate counsel did not use the phrase “constructive

amendment” at any time on appeal. However, it is clear that counsel repeatedly attempted to

focus the appellate court’s attention on the Fifth Amendment aspects of her arguments and cited

the same Supreme Court cases on which Defendant now relies. Compare, e.g., Doc. 713, Ex. C

at 4-9 (Suggestion for Rehearing En Banc prepared by counsel, citing and discussing Jones v.

United States, 526 U.S. 227 (1999) and Stirone v. United States, 361 U.S. 212 (1960)), with Doc.

706, Memorandum at 7 (Defendant’s argument: “Since precedent such as Jones and Stirone,

among others, were reasonably available to counsel, counsel’s failure to raise this issue on

appeal was unreasonable....”). Counsel’s failure to use the term “constructive amendment” does

not diminish the gist of her argument which was that Defendant was convicted and being

punished for something with which the grand jury did not charge him. Counsel could not be

expected to foresee that one Eleventh Circuit judge, in a footnote in a concurring opinion, would

use the phrase “constructive amendment” in an Apprendi context. See Sanchez, 269 F.3d at 1307

n.6 (Barkett, J., concurring in result only) (“If we are required to treat drug quantity as an

element, then we ought to consider cases in which an element...was omitted from an indictment,

and act accordingly, treating drug quantity the same way. Constructive amendment of the

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indictment cases like...Stirone provide the best guide”) (emphasis omitted). The fact that the

appellate court did not find persuasive the Fifth Amendment arguments presented is not

ineffective assistance of counsel.

II. Failure to argue that Court erred in sentencing Defendant for multi-object conspiracy.

This ground fails based on the simple fact that counsel did in fact argue in the very first

ground on appeal that “the Government charged a single conspiracy, and its misguided view of

the case was that everyone with any connection to drugs in Gainesville was part of the

conspiracy; the evidence instead showed that there were many separate drug operations rather

than one single enterprise.” Doc. 713, Ex. A at iii & 15-21. There was no omission of this issue

on appeal, as Defendant suggests. See Doc. 706, Memorandum at 11. It was argued and

rejected. 

CONCLUSION

Defendant’s Blakely argument must also fail. Following its decision in Blakely v.

Washington, which involved the constitutionality of state sentencing guidelines, the United

States Supreme Court determined that Blakely applies to the Federal Sentencing Guidelines as

well. United States v. Booker, ____ U.S. ____, 124 S.Ct. 2519, 159 L.Ed. 2d 442 (2004). 

However, the Eleventh Circuit has determined that Booker is not retroactively applicable to cases

on collateral review, as “Booker’s constitutional rule falls squarely under the category of new

rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review.” 

Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005).

Having found that appellate counsel did not render ineffective assistance, it is

respectfully RECOMMENDED that the motion to vacate, set aside, or correct sentence, Doc.

706, be DENIED.

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IN CHAMBERS at Gainesville, Florida, this 20th day of October, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

 

 

 

 

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