IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARRY BAYS, §

#13101-027, §

MOVANT, §

§

V. § CASE NO. 3:22-CV-615-B-BK

§ (CRIMINAL NO. 3:13-CR-357-B-1)

UNITED STATES OF AMERICA, §

 RESPONDENT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this civil action was referred to the 

undersigned United States magistrate judge for case management, including the issuance of 

findings and a recommended disposition on the pro se motion to vacate, set aside, or correct 

sentence under 28 U.S.C. § 2255 filed by Movant Barry Bays. As detailed herein, the motion 

should be DENIED. 

I. BACKGROUND

A. Offense Conduct and Charges 

Bays founded Little Arm, Inc., (d/b/a B&B Distribution), a manufacturing and 

distribution facility for synthetic cannabinoid products. Crim. Doc. 445-1 at ¶ 25.

1

 Bays 

produced his own brands of synthetic marijuana and distributed them to smoke shops and 

convenience stores throughout the country. Crim. Doc. 445-1 at ¶ 25. Bays’ products were 

labeled as “incense,” “potpourri,” “air freshener,” “aromatherapy,” and “not for human 

1 Citations to documents from Bays’ criminal proceeding, United States v. Bays, 3:13-CR-357-B, 

are preceded with “Crim. Doc.” Citations to documents from this Section 2255 proceeding are 

preceded with “Doc.”

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 1 of 20 PageID 314
Page 2 of 20

consumption,” but Bays’ products were intended for human consumption. Crim. Doc. 445-1 at ¶ 

26. Bays marketed his products as compliant with DEA and state regulations, and every 

shipment contained a “Letter of Affirmation” in which Bays declared that the products were free 

of chemicals under the Controlled Substance Act and were also free of controlled substance 

analogues. Crim. Doc. 445-1 at ¶ 27. Between June 2011 and August 2013, B&B sold over $7 

million in synthetic cannabinoid products. Crim. Doc. 445-1 at ¶ 61.

Based on that conduct, Bays was arrested and charged in a fourth superseding indictment 

with: (1) conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; (2) conspiracy 

to commit mail fraud, in violation of 18 U.S.C. § 1349, as defined in 18 U.S.C. § 1341; (3) 

conspiracy to distribute a controlled substance analogue, in violation of 21 U.S.C. §§ 846, 

841(a)(1) & (b)(1)(C); (4) possession of a firearm in furtherance of a drug crime, in violation of 

18 U.S.C. § 924(c)(1)(A); and (5) using a communication facility to facilitate a drug felony, in 

violation of 21 U.S.C. § 843(b). Crim. Doc. 445-1 at ¶ 12. On October 27, 2014, a jury 

convicted Bays on all counts. Crim. Doc. 445-1 at ¶ 14. Bays’ advisory guideline range was 

life, capped at the combined statutory maximum terms for the offenses of conviction at 588 

months. Crim. Doc. 445-1 at ¶ 130. In April 2015, the Court sentenced Bays to an aggregate 

sentence of 425 months’ imprisonment. Crim. Doc. 488.

B. Bay’s First Appeal and Resentencing 

Bays filed a direct appeal. While Bays’ case was on appeal, the Supreme Court decided 

McFadden v. United States, 576 U.S. 186 (2015), a controlled substance analogue distribution 

case that rendered the jury instructions in Bays’ trial erroneous because they did not instruct the 

jury to find beyond a reasonable doubt that Bays knew that the products at issue were controlled 

substance analogues. In February 2017, the Court of Appeals for the Fifth Circuit affirmed 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 2 of 20 PageID 315
Page 3 of 20

Bays’ convictions on Counts 1 and 2, but reversed his convictions on Counts 3, 4, and 5 due to 

the intervening McFadden decision. See United States v. Bays, 680 F. App’x 303 (5th Cir. 2017)

(per curiam). 

On remand, the Court granted the Government’s motion to dismiss Counts 3, 4, and 5, 

and resentenced Bays as to Counts 1 and 2. Crim. Doc. 608 at 55-56, 155. The parties disputed 

whether there was actual or intended loss under USSG § 2B1.1, which provides for offense-level 

increases for fraud offenses based on the loss amount. Crim. Doc. 608 at 11-14. The parties also 

disagreed about whether the Court could consider that the products at issue were controlled 

substance analogues in determining the loss amount, even though Bays had not been properly 

convicted of the controlled substance charges. Crim. Doc. 608 at 24-30. The Court ultimately 

determined the involvement of controlled substances could be considered as a guidelines

sentencing factor by a preponderance of the evidence. Crim. Doc. 608 at 28, 30. Based on the

Section 3553 factors—particularly Bays’ leadership role, his lack of remorse, the dangerous 

nature of the drugs sold, his disturbing criminal record, and the need to deter similar conduct—

the Court varied upwards, imposing consecutive sentences of 60 months on Count One and 240 

months on Count Two, for an aggregate imprisonment term of 300 months. Crim. Doc. 608 at 

143-45. 

C. Bay’s Second Appeal and Resentencing

Bays again filed a direct appeal. The Fifth Circuit found that the Court erred in applying 

a 20-level increase based on loss amount because it failed to make “an explicit primary finding” 

that either fraud offense “in fact resulted in an actual loss, or, alternatively, that there was an 

intended loss to one or both offenses, as defined by application note 3(A),” and remanded the 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 3 of 20 PageID 316
Page 4 of 20

case accordingly. See United States v. Bays, 765 F. App’x 945, 952-53, 956 (5th Cir. 2019) (per 

curiam). 

Following the second remand, the probation officer issued a Fifth Addendum to the PSR. 

Crim. Doc. 635-1. The Fifth Addendum maintained that “there was an actual loss that resulted 

from the defendant’s offenses of conviction.” Crim. Doc. 635-1 at 1. Specifically, B&B’s 

products were sold to customers with materially false labeling of “incense,” “potpourri,” “air 

freshener,” or “aroma therapy,” and “not for human consumption,” when, in fact, B&B’s 

products were intended for human consumption. Crim. Doc. 635-1 at 2. Additionally, Bays 

defrauded customers by including the false “Letter of Affirmation” in every shipment, which 

misled customers into believing that the products were legal. Crim. Doc. 635-1 at 2.

However, the Fifth Addendum also included an alternative guidelines analysis, citing the 

Fifth Circuit’s decision in United States v. Stanford, 883 F.3d 500 (5th Cir. 2018). Crim. Doc. 

635-1 at 2. The Fifth Addendum grouped counts 1 and 2 together and began with the conspiracy 

to defraud the United States, USSG § 2X1.1, as the more serious count. Crim. Doc. 635-1 at ¶ 

73; see also USSG §§ 3D1.2, 3D1.3(a). Next, because the conspiracy charged an underlying 

violation of 21 U.S.C. §§ 331 and 333(a)(2), the Fifth Addendum moved to USSG § 2N2.1. 

Crim. Doc. 635-1 at ¶ 75. Under Section 2N2.1(c)(2), if the offense was committed in 

furtherance of, or to conceal, an offense covered by another offense guideline, the guideline for 

that second offense is applied. Crim. Doc. 635-1 at ¶ 75. The Fifth Addendum provided that, 

“[i]n this case, the introduction of misbranded synthetic cannabinoid products was done in 

furtherance and to conceal the distribution and sale of such.” Crim. Doc. 635-1 at ¶ 75. The 

Fifth Addendum further found that, because the misbranding offense was committed in 

furtherance of the distribution of a controlled substance, the drug trafficking guidelines of USSG 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 4 of 20 PageID 317
Page 5 of 20

§ 2D1.1 applied, resulting in an advisory guideline range of life, limited to the statutory 

maximum of 300 months. Crim. Doc. 635-1 at ¶ 75, 130. 

Bays objected to the Fifth Addendum, and the probation officer issued a Sixth Addendum 

that incorporated evidence of loss cited by the Government, explained that the Letters of 

Affirmation were used to further B&B product sales by furthering the claims of legality of the 

products, and citing evidence that Bays “lied to customers ‘all the time’ and provided inaccurate

information about what was in the product and shipped it anyway because the defendants did not 

want to throw away the product and lose money.” Crim. Doc. 643-1 at 2. The Sixth Addendum

provided further that “but for the affirmation letters and fraudulent representations, the customers 

may have not purchased the products at issue, and [] the defendant intended for the customers to 

continue to purchase the products in order for the defendant to reap the profits.” Crim. Doc. 643-

1 at 2.

The Sixth Addendum also repeated the alternative analysis under Section 2N2.1’s cross 

reference, maintaining that “[t]he evidence available reveals, to a preponderance of the evidence 

standard, the defendant was involved in the distribution of controlled substance analogues.” 

Crim. Doc. 643-1 at 2. It indicated that the conclusion was based on investigative materials 

provided by the DEA, summaries of evidence presented at trial, and interviews with case agents. 

Crim. Doc. 643-1 at 2-3. The Sixth Addendum also explained that a controlled substance 

analogue “is a controlled substance for purposes of the guideline applications.” Crim. Doc. 643-

1 at 3. 

At the second resentencing hearing, the Court first found that an actual loss occurred, that 

is, “a reasonably foreseeable pecuniary harm to result from the offense.” Crim. Doc. 668 at 58-

59. It also noted that, “the defendants intended pecuniary harm from their conspiracy to defraud 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 5 of 20 PageID 318
Page 6 of 20

the government or conspiracy to commit mail fraud and that either offense resulted in actual loss 

here.” Crim. Doc. 668 at 59. 

The Court also found that the use of Section 2N2.1’s cross reference to Section 2D1.1 

was proper. Crim. Doc. 668 at 64. It determined that the substances Bays trafficked were 

controlled substances and that Bays knew that the substances were controlled substances or 

analogues of the same. Crim. Doc. 668 at 69, 71-72. The Court then adopted the PSR and all 

addenda, and calculated the guideline ranges for both the Section 2B1.1 and the alternative

Section 2N2.1/2D1.1 sentences. Crim. Doc. 668 at 81-85. Finally, the Court noted that it

considered the Section 3553 factors, specifically referencing Bays criminal history, the 

widespread nature of the offense, the dangerousness of the substances involved, Bays’ lack of 

remorse, and deterrence. Crim. Doc. 668 at 88-90. The Court explained that it would have 

imposed the same sentence under the Section 3553 factors even if the guideline calculations were 

incorrect. Crim. Doc. 668 at 92. 

D. Bay’s Third Appeal and the Instant Section 2255 Motion

Once again, Bays filed a direct appeal. Like his trial counsel, his appellate counsel 

argued that there was no loss and that the Court could not consider controlled substances under

Section 2B1.1 because a jury had not found Bays guilty of trafficking the same. United States v. 

Bays, 846 F. App’x 285, No. 20-10196 (5th Cir. 2021) (per curiam). But Bays’ appellate counsel

did not contest the alternative guideline analysis under Section 2N2.1, nor did she argue against 

the Court’s second alternative, upward variance based on the Section 3553 factors. See

Appellant’s Brief, United States v. Bays, 846 F. App’x 285, No. 20-10196 (5th Cir. 2021) (per 

curiam). 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 6 of 20 PageID 319
Page 7 of 20

The Fifth Circuit found that it need not consider the Section 2B1.1 calculation because: 

(1) the sentence could be affirmed on the alternative calculation based on Section 2N2.1 (which 

Bays failed to brief and therefore conceded), and (2) even if there was error, it was harmless 

since the Court stated that, alternatively, it would have imposed the same sentence based on the 

Section 3553 factors. Id. at 286-87.

Bays subsequently filed the instant 28 U.S.C. §2255 motion. Doc. 1, Doc. 12. The 

Government has responded. Doc. 23. Bays has filed a reply. Doc. 26. 

Bays raises these claims for relief:

1. His appellate counsel was ineffective for not challenging his sentence under Section 

2N2.1’s cross-reference;

 

2. His appellate counsel was ineffective for not challenging the Court’s reliance on the 

Section 3553 sentencing factors;

3. Count One of the indictment was duplicitous, in violation of the Sixth Amendment;

4. His right to present a complete defense was hampered because the McFadden “mens 

rea” instruction was omitted from his jury trial; and

5. His sentence was excessive and unreasonable.

Doc. 12 at 7-18. 

II. ANALYSIS

After conviction and exhaustion or waiver of the right to direct appeal, the court 

presumes that a petitioner stands fairly and finally convicted. See United States v. Cervantes, 

132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th 

Cir. 1991) (en banc)). Under 28 U.S.C. § 2255, a petitioner can collaterally challenge his 

conviction if: “(1) the sentence was imposed in violation of the Constitution or laws of the 

United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 7 of 20 PageID 320
Page 8 of 20

exceeds the statutory maximum sentence; or (4) the sentence is ‘otherwise subject to collateral 

attack.’” United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996) (citation omitted). Section 

2255, is “reserved for transgressions of constitutional rights and for that narrow compass of other 

injury that could not have been raised on direct appeal and, would, if condoned, result in a 

complete miscarriage of justice.” United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).

A. Ineffective Assistance of Counsel 

Bays claims that his appellate counsel was ineffective. Doc. 12 at 7-10, 19-20. To 

establish ineffective assistance of counsel, a movant must demonstrate counsel’s performance 

was deficient and that the deficient performance prejudiced his defense. Strickland v. 

Washington, 466 U.S. 668, 687-688 (1984). Failure to establish either deficient performance or 

prejudice defeats the claim. Id. at 697. 

To prove the deficient-performance prong of the Strickland test, the movant must show 

that counsel made errors so serious that counsel was not functioning as the counsel guaranteed 

by the Sixth Amendment. Id. at 687. The proper measure of attorney performance is 

reasonableness under prevailing professional norms. Id. at 688. That said, “[j]udicial scrutiny of 

counsel’s performance must be highly deferential.” Id. at 689. There is a strong presumption 

that counsel’s conduct fell within the wide range of reasonable professional assistance. Id.

Strickland’s two-pronged approach to determining ineffective assistance of counsel 

claims also applies to claims against appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285

(2000). “Where, as here, appellate counsel presented, briefed, and argued one or more 

nonfrivolous grounds for relief on direct appeal and did not seek to withdraw his representation, 

the petitioner must satisfy both prongs of the Strickland test in connection with his IAC claim 

against appellate counsel.” Wells v. Lumpkin, Civil Action No. 4:21-CV-01384-O, 2023 WL 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 8 of 20 PageID 321
Page 9 of 20

7224191, at *23 (N.D. Tex. Nov. 2, 2023) (citing Roe v. Flores-Ortega, 528 U.S. 470, 477, 482 

(2000); Smith, 528 U.S. at 287-89). “Appellate counsel need not and should not raise every 

nonfrivolous claim or argument in merits briefing on appeal.” Id. (citations omitted). Instead,

appellate counsel should select from among them to maximize the likelihood of success on 

appeal. Id. (citing Davila v. Davis, 582 U.S. 521, 533 (2017); Smith v. Murray, 477 U.S. 527, 

536 (1986)). “Appellate counsel’s decision not to raise a claim or argument on direct appeal, 

therefore, does not give rise to a deficient performance unless that claim or argument was plainly 

stronger than those actually presented to the appellate court.” Id. (citing Davila, 582 U.S. at 

533); Smith, 528 U.S. at 288). 

Further, “where the ineffective assistance is based on counsel’s failure to raise an issue, 

the movant must show, ‘that the appeal would have had, with reasonable probability, a different 

outcome if the attorney adequately addressed the issue[,]’ and then ‘that the attorney’s deficient 

performance led to a fundamentally unfair and unreliable result.’” Pena-Sanchez v. United 

States, Civil Action No. 7:20-CV-0126, 2021 WL 11549914, at *7 (S.D. Tex. Mar. 1, 2021), rec. 

accepted 2021 WL 11549915 (S.D. Tex. Apr. 7, 2021) (citing United States v. Dovalina, 262 

F.3d 472, 474-75 (5th Cir. 2001)). A “reasonable probability” means “a probability sufficient to 

undermine confident in the outcome.” Strickland, 466 U.S. at 694. This “requires a 

‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen v. Pinholster, 563 

U.S. 170, 189 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 112 (2011)). Accordingly, a 

reviewing court “must counter-factually determine the probable outcome on appeal had counsel 

raised the argument.’” United States v. Reinhart, 357 F.3d 521, 530 (5th Cir. 2004) (quoting 

United States v. Phillips, 210 F.3d 345, 350 (5th Cir. 2000)). 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 9 of 20 PageID 322
Page 10 of 20

1. Failure to Challenge Application of Section 2N2.1(c)(2) on Appeal

Bays claims that appellate counsel was ineffective for failing to assign as error this 

Court’s application of Section 2N2.1’s cross-reference as was objected to by trial counsel. Bays 

fails to show that his appellate counsel was ineffective or how he was prejudiced if she was. 

A recap of how the Court reasoned the applicability Section 2N2.1’s cross-reference in 

calculating the guideline range is helpful:

• Counts 1 and 2—conspiracy to defraud the United States and conspiracy to 

commit mail fraud—were grouped together. The Court then moved to the 

guideline for the count resulting in the highest offense level, which was 

conspiracy to defraud the United States in violation of 18 U.S.C. § 371, as defined 

in 21 U.S.C. §§ 331 and 333(a)(2), i.e., the misbranding offense. See United 

States v. Dickson, 632 F.3d 186, 191 (5th Cir. 2011) (where counts are grouped 

together pursuant to Section 3D1.2(a)-(c), “the offense that produces the highest 

total offense level, not the highest base offense level, sets the level for the 

group”).

• The guideline for 18 U.S.C. § 371 is found in USSG § 2X1.1, which states that 

the base level is determined by the base offense level from the guideline for the 

substantive offense, along with any adjustments from such guideline for any 

intended offense conduct that can be established with reasonable certainty. USSG 

§ 2X1.1(a). The underlying offense is a violation of 21 U.S.C. §§ 331, 333(a)(2), 

the guideline for which is found at USSG § 2N2.1.

• Section 2N2.1 in turn contains a cross-reference provision that if the “offense was 

committed in furtherance of, or to conceal, an offense covered by another 

guideline,” then the guideline for the underlying offense should apply. See USSG 

§ 2N2.1.

• The Fifth Addendum explained that “the introduction of misbranded synthetic 

cannabinoid products was done in furtherance and to conceal the distribution and 

sale of such.” Crim. Doc. 635-1 at ¶ 75. Because “the offense was committed in 

furtherance of the distribution of a controlled substance (a violation of 21 U.S.C. 

§ 841(a)(1)), the guidelines for that offense, under USSG § 2D1.1 are applied.” 

Crim. Doc. 635-1 at ¶ 75.

Bays’ sentencing counsel argued that Bays’ involvement in the distribution of allegedly 

controlled substance analogues could not be considered in applying the cross-reference because 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 10 of 20 PageID 323
Page 11 of 20

he had not been convicted of it; indeed, the jury had never actually found that the substances 

were controlled substance analogues. Crim. Doc. 668 at 9, 15,16, 22. A contrary result, 

according to Bays’ sentencing counsel, would violate Bays’ due process rights and Supreme 

Court precedent. Crim. Doc. 668 at 21-22. 

The Court rejected those arguments and found, by a preponderance of the evidence, that 

(1) controlled substance analogues were part of the misbranding offense, (2) those analogues met 

the definition of controlled substances under the guidelines, (3) Bays knew that he was 

distributing controlled substance analogues, and (4) his misbranding was in furtherance of the 

distribution of those controlled substances. Crim. Doc. 668 at 64, 69-72, 81-85. Therefore, 

Section 2N2.1’s cross-reference was properly applied.

As pertinent here, Bays faults his appellate counsel for failing to raise the same 

arguments as his sentencing counsel on appeal. However, Bays has not demonstrated that those 

arguments have merit, much less a reasonable probability that the Fifth Circuit would have 

reversed his sentence if his appellate counsel had made them.

To start, the Fifth Circuit affirmed the use of Section 2N2.1’s cross-reference under 

similar facts in United States v. Stanford, 883 F.3d 500 (5th Cir. 2018). There, the defendant 

was involved in a conspiracy to distribute a synthetic cannabinoid and was later convicted by a 

jury of conspiracy to distribute a controlled substance analogue, conspiracy to introduce 

misbranded drugs into interstate commerce, and conspiracy to launder money. Id. at 503. As 

with Bays, the Fifth Circuit reversed the conspiracy to distribute a controlled substance analogue 

conviction following McFadden but affirmed the other convictions. Id. at 504. On remand, the 

district court imposed the same sentence, using Section 2N2.1 as the applicable guideline and 

applying its cross-reference because the misbranding was in furtherance of a controlled 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 11 of 20 PageID 324
Page 12 of 20

substance analogue drug conspiracy. Id. at 505, 511. The defendant argued on appeal that the 

district court erred in applying Section 2N2.1’s cross-reference because “offense,” as used in that 

guideline, requires two offenses of conviction, a requirement that the drug conspiracy conviction

could no longer satisfy. Id. at 511.

The Fifth Circuit rejected that argument under the plain-error standard of review. 

“Extrapolating” from reasoning provided in non-binding precedent that considered similar 

issues, the Court held that:

the predicate for application of U.S.S.G. § 2N2.1 is not necessarily another offense 

of conviction. Rather, it is sufficient that the offense for which the defendant is 

convicted—i.e., “the offense”—was committed “in furtherance of, or to conceal” 

another offense regardless of whether there is a jury conviction on the other offense. 

These interpretations of the Guidelines comport with the context that the decision 

of a cross reference, unless explicitly instructed otherwise, is made on the basis of 

relevant conduct principles.

Id. at 513-14. 

The Fifth Circuit’s determination in Stanford that it was not plain error to rely on the 

cross-reference under similar facts impedes Bays’ ability to show ineffectiveness because the noplain-error-determination implies that Bays’ legal position is either wrong or not clearly 

established. See United States v. Bishop, 603 F.3d 279, 281 n.5 (5th Cir. 2010) (“An error is not 

plain ‘unless the error is clear under current law’... [particularly where] [t]here are no published 

decisions in this Circuit that address [the issue].”). Either way, Bays cannot show that his 

counsel was ineffective for not challenging this Court’s use of Section 2N2.1. See, e.g., Jones v. 

Davis, 673 F. App’x 369, 375 n. 54 (5th Cir. 2016) (per curiam) (“Counsel’s failure to anticipate 

a rule of law that has yet to be articulated by the governing courts, and failure to raise a novel 

argument based on admittedly unsettled legal questions does not render his performance 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 12 of 20 PageID 325
Page 13 of 20

constitutionally ineffective.”) (quoting Ragland v. United States, 756 F.3d 597, 601 (8th Cir. 

2014)). 

Similarly, as to prejudice, the Fifth Circuit’s refusal to find that it was plain error for the 

district court to employ the cross-reference in Stanford precludes Bays from showing a 

“substantial likelihood” of a different result in his own appeal had his appellate counsel 

challenged application of Section 2N2.1’s cross-reference. The Stanford holding suggests that

the Fifth Circuit would have rejected the argument under any standard. 

Bays tries to distinguish Stanford by claiming that, although it also involved a conspiracy 

to defraud the United States, the overt acts of conspiracy were different. Doc. 26 at 5. Bays fails 

to explain why that matters though, and it is not evident to the Court. 

Bays also notes that, in Stanford, the district court originally submitted an interrogatory 

to the jury asking whether it found that the defendant knew that the products were controlled 

substance analogues, and the jury answered in the affirmative. Doc. 26 at 5. According to Bays,

this shows that the Stanford court did not sentence the defendant based on unadjudicated 

conduct, as this Court did him. Doc. 26 at 5. That inference is unsupported, however, as the 

Fifth Circuit found that the special interrogatory did not save the otherwise improper jury 

instructions. See United States v. Stanford, 823 F.3d 814, 829, 834 (5th Cir. 2016). At bottom, 

in neither Stanford nor this case did a jury properly determine that the defendant conspired to 

traffic controlled substance analogues. 

Next, Bays argues that recent Supreme Court jurisprudence is incompatible with 

Stanford. He cites United States v. Haymond, 588 U.S. ---, 139 S. Ct. 2369 (2019) (plurality 

opinion) and United States v. Davis, 588 U.S. ---, 139 S. Ct. 2319 (2019). Neither decision is on

point, however.

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 13 of 20 PageID 326
Page 14 of 20

In Haymond, the Court ruled that a statute violated a defendant’s Sixth Amendment right 

to trial by jury and Fifth Amendment due process right by authorizing a new mandatory 

minimum prison sentence for a supervised release violation based on a judge’s fact-finding by a 

preponderance of the evidence. 139 S. Ct. at 2369. And, in Davis, the Court held that the 

residual clause of § 924(c), found at 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. 139 

S. Ct. at 2323-2324. Neither case dealt with sentencing or purported to overrule the principle 

that a sentencing court can consider conduct of a defendant of which he has been acquitted or, as 

in this case, conduct that is unadjudicated. See United States v. Watts, 519 U.S. 148, 156 (1997)

(court can consider acquitted conduct for sentencing purposes).

2

 Moreover, even if Bays could 

show that the district court erroneously relied on Section 2N2.1’s cross reference and that the 

Fifth Circuit would have been receptive to that argument, there are other reasons to believe that 

the Fifth Circuit would have nevertheless upheld the sentence. 

Importantly, the Section 2N2.1 guideline calculation was an alternative to the guideline 

calculation under Section 2B1.1 that the Fifth Circuit did not reach on direct appeal. So in 

addition to demonstrating that the objections to Section 2N2.1’s cross-reference would have had 

a reasonable probability of success, Bays also must show that the appellate court would have 

found persuasive an argument that the guideline calculations under Section 2B1.1 were likewise 

erroneous. Bays’ briefing here contains no argument on that issue. Thus, he fails in his burden

2 Bays references a proposed amendment Section 1B1.3 of the Sentencing Guidelines, Doc. 26 at 

8, is of no moment since such amendment was never enacted. See USSG § 1B1.3. Likewise, 

Bays’ argument in reliance on United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), that his 

conspiracy offense was not in furtherance of a controlled substances offense, Doc. 26 at 7, is 

misplaced since Dupree involved the definition of “controlled substance offense” for purposes of 

the career offender sentencing enhancement under USSG § 4B1.2(b), Id. at 1271, and has no 

bearing on whether Section 2N2.1’s cross-reference can apply to Bays. 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 14 of 20 PageID 327
Page 15 of 20

to show a reasonable probability that the Fifth Circuit would have accepted the no-actual-orintended-loss argument and found that this Court erred in using Section 2B1.1 as one of its 

alternative methods for calculating the sentence. As such, Bays cannot demonstrate prejudice in 

relation to the Court’s alternative application of Section 2N2.1. 

Finally, the Court emphasized that it would have issued the same statutory-maximum 

sentence under the Section 3553 factors even if the guidelines analysis was incorrect. Crim. 

Doc. 668 at 92. Bays fails to show any prejudice from his appellate counsel’s failure to argue the

Section 2N2.1 issue for this reason as well, as his sentence would have been the same even if the 

guideline range were incorrect. See, e.g., Deonarinesingh v. United States, 542 F. App’x 857, 

862 (5th Cir. 2013) (per curiam) (“The [sentencing] guideline error is harmless if the district 

court unambiguously expressed that it would have imposed the same sentence, even without the 

erroneous calculation.”) (citing United States v. Barne, 572 F.3d 1239, 1247 (11th Cir. 2009)); 

United States v. Dalton, 433 F. App’x 164, 167 (4th Cir. 2011) (per curiam) (“Even if there was 

error, we conclude the error would be harmless in light of the fact that the district court justified 

the sentence by reference to the 18 U.S.C. § 3553(a) sentencing factors.”).

In short, Bays fails to show that his counsel was ineffective for not challenging Section 

2N2.1’s cross-reference or that he was prejudiced by any ineffectiveness. 

2. Failure to Challenge Application of the Section 3553(a) Factors 

Bays also claims that his appellate counsel should have challenged this Court’s 

application of the Section 3553(a) sentencing factors in imposing a statutory maximum sentence. 

Again, Bays fails to show ineffectiveness or prejudice. 

“To determine whether a sentence is substantively reasonable, a district court should 

consider ‘the totality of the circumstances, including the extent of any variance from the 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 15 of 20 PageID 328
Page 16 of 20

Guidelines range.’” United States v. Hudgens, 4 F.4th 352, 358 (5th Cir. 2021) (citation 

omitted). “A non-Guideline sentence unreasonably fails to reflect the statutory sentencing 

factors [set forth in § 3553(a)] where it (1) does not account for a factor that should have 

received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) 

represents a clear error of judgment in balancing the sentencing factors.” United States v. Smith, 

440 F.3d 704, 708 (5th Cir. 2006). The appellate court’s “review for substantive reasonableness 

is ‘highly deferential,’ because the sentencing court is in a better position to find facts and judge 

their import under the § 3553(a) factors with respect to a particular defendant.” United States v. 

Diehl, 775 F.3d 714, 724 (5th Cir. 2015).

The Court explained in detail how the Section 3553(a) sentencing factors supported the 

sentence:

Mr. Bays, in determining the sentence, I’ve considered the advisory guideline 

range, as well as the statutory factors considered in 3553(a)—that’s all of them, I’m 

not leaving any out—but safety of the community, you know, promote respect for 

law enforcement and all of them. And the sentence will be sufficient but not greater 

than necessary to achieve the Court’s sentencing objectives of punishment, 

deterrence, protection of the public. Even if the guideline calculations are not 

correct, this is the sentence that the Court would otherwise impose under 3553. 

Okay. Mr. Bays, I still have not seen really any remorse from you. You know, I’m 

looking for it, I haven’t seen it. And I think I already told you at the last sentencing 

that—just a minute—that your criminal history, the widespread nature of this 

offense, widespread nature, the dangerousness of the substance involved—we 

could get into hours of that, but they are so dangerous to people and to kids really. 

And all these, I think the examples that were given to us during the trial, all add up 

to how dangerous it is. Because it seems like these people that get on it go crazy a 

little bit as opposed to, you know, some of the other drugs. And deterrence. I think 

that the 3553 factors all add up to a 300-month sentence. 

Crim. Doc. 668 at 89. 

Bays does not persuasively argue how his counsel could have challenged that analysis. 

He only suggests that a sentence of 120 months would be “more in line with a reasonable and 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 16 of 20 PageID 329
Page 17 of 20

just punishment for convictions of the white-collar, non-violent offender under Count one and 

Count Two.” Doc. 12 at 19. But Bays’ mere disagreement with how the Court weighed the 

sentencing factors does not establish error, much less reversible error. See, e.g., United States v. 

Bonilla-Ponce, 470 F. App’x 408, 409 (5th Cir. 2012) (per curiam) (“As for his suggestion that 

his state and immigration detentions should have operated to reduce his sentence and his 

argument that the district court overstated the seriousness of the offense, these complaints 

amount to a mere disagreement with the weight the district court gave to the various sentencing 

factors and thus are insufficient to warrant reversal.”) (citing Gall, 552 U.S. at 51); see also 

United States v. York, 600 F.3d 347, 361-62 (5th Cir. 2010). 

Because Bays cannot show any error in the Court’s application of the sentencing factors, 

he cannot show that his appellate counsel was ineffective for not arguing that this Court erred in 

applying them. Nor can he show a reasonable probability that the Fifth Circuit, under an abuse 

of discretion standard, would have accepted such an argument and reversed his sentence. See, 

e.g., Munoz v. United States, No. 1:16-CV-352, 2019 WL 5887086, at *1 (E.D. Tex. Nov. 12, 

2019) (“Counsel does not perform deficiently by failing to pursue an argument that has no 

validity or hope of success.”) (citing United States v. Gaudet, 81 F.3d 585, 591 (5th Cir. 1996)).

B. Defective Indictment 

Bays claims that his Sixth Amendment rights were violated by a “duplicitous indictment 

and improper jury instructions.” Doc. 12 at 11. He alleges that the indictment “lists two separate 

and distinct crimes that cannot be read as a single count,” and therefore allowed the jury to 

render a non-unanimous verdict. Doc. 12 at 11-14. Bays procedurally defaulted this claim. 

“A defendant can challenge his conviction after it is presumed final only on issues of 

constitutional magnitude and may not raise an issue for the first time on collateral review without 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 17 of 20 PageID 330
Page 18 of 20

showing both ‘cause’ for his procedural default, and ‘actual prejudice’ resulting from the error.” 

United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). Bays did not raise the duplicitous 

indictment issue in any of his direct appeals. See Appellant’s Brief and Reply Brief, Bays, 846 

F. App’x 285 (No. 20-10196); Appellant’s Brief and Reply Brief, Bays, 765 F. App’x 945 (No. 

17-10920); Appellant’s Brief and Reply Brief, Bays, 680 F. App’x 303 (No. 15-10385).

Further, Bays does not argue that cause excuses the procedural default or that he has been

prejudiced because of the alleged Sixth Amendment violation. Doc. 26 at 2-3. He instead argues 

that the Court should review his claims under a “plain error” standard Doc. 26 at 2. He is incorrect, 

as “plain error” is not the appropriate standard of review for procedurally defaulted claims on 

collateral review. United States v. Fray, 456 U.S. 152, 166-67 (1982) (citations omitted). The 

movant must show cause and actual prejudice to excuse a procedural default. See id. Because 

Bays fails to do so, his Sixth Amendment duplicitous indictment claim should be denied. See, e.g., 

United States v. Samuels, No. 09-123, 2017 WL 2402580, at *2 (E.D. La. June 2, 2017)

(confirming that the movant procedurally defaulted his claim that the indictment was duplicitous 

because he did not raise that claim on direct appeal). 

C. Deprivation of Complete Defense 

As noted previously, the jury charge omitted instructions tasking the Government with 

proving that Bays knew that the substances at issue were “controlled substances,” which the Fifth 

Circuit later found invalidated the drug offense convictions. Bays, 680 F. App’x at 309. Bays 

now argues that excluding the mens rea instruction also hampered his right to present a complete 

defense in relation his other convictions. Doc. 12 at 15. 

But Bays procedurally defaulted this claim, too. He failed to raise it in any of the three 

prior appeals. See Appellant’s Brief and Reply Brief, Bays, 846 F. App’x 285 (No. 20-10196); 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 18 of 20 PageID 331
Page 19 of 20

Appellant’s Brief and Reply Brief, Bays, 765 F. App’x 945 (No. 17-10920); Appellant’s Brief and 

Reply Brief, Bays, 680 F. App’x 303 (No. 15-10385). And he fails to show cause and prejudice 

here to excuse the procedural default. Because this claim is procedurally defaulted, it should be 

denied. 

D. Excessive Sentence 

Bays argues that the Court imposed an excessive and unreasonable sentence. Doc. 12 at 

17. But a movant can only collaterally challenge his conviction on constitutional or jurisdictional 

grounds under Section 2255. See, e.g., United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)

(citing Hill v. United States, 368 U.S. 424, 428 (1962)). A movant’s disagreement with the trial 

court’s application of the sentencing guidelines or the Section 3553 factors does not warrant relief 

under Section 2255. See, e.g., Eastman v. United States, Civil Action No. W-10-CA-00256, 2011 

WL 13201786, at *1 (W.D. Tex. Apr. 12, 2011) (“In this case, Eastman’s claim does not meet the 

established standards of collateral attack under § 2255. Her sole complaint is that her sentence 

was excessive in light of her cooperation with law enforcement and her co-defendant’s sentence. 

However, as long as the sentence imposed was within the statutory limits, errors in calculating the 

sentence are not grounds for relief under § 2255. Application of the sentencing guidelines does 

not implicate any constitutional or jurisdictional issue, and misapplication would not give rise to a 

complete miscarriage of justice if left uncorrected. Therefore, Eastman cannot challenge the 

severity of her sentence under § 2255.”) (citing United States v. Cervantes, 132 F.3d 1106, 1109 

(5th Cir. 1998); United States v. Patterson, 739 F.2d 191, 196 (5th Cir. 1984)). 

Thus, Bays’ claim that his sentence is excessive and unreasonable is not cognizable in this 

Section 2255 proceeding and should be denied. 

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 19 of 20 PageID 332
Page 20 of 20

E. Evidentiary Hearing 

In his reply, Bays requests an evidentiary hearing. Doc. 26 at 5. But “[w]hen the files and 

records of a case make manifest the lack of merit of a section 2255 [motion], the trial court is not 

required to hold an evidentiary hearing.” United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 

1981). Accordingly, because Bays’ claims lack merit for the reasons stated above, he is not entitled 

to an evidentiary hearing. 

III. CONCLUSION

Bays’ Section 2255 motion should be DENIED, and this case should be DISMISSED 

WITH PREJUDICE. 

SO RECOMMENDED on December 20, 2023. 

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation will be served on all parties in the manner provided by 

law. Any party who objects to any part of this report and recommendation must file specific 

written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); An 

objection must identify the finding or recommendation to which objection is made, the basis for 

the objection, and the place in the magistrate judge’s report and recommendation the disputed 

determination is found. An objection that merely incorporates by reference or refers to the briefing 

before the magistrate judge is not specific. Failure to file specific written objections will bar the 

aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge 

that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass 

v. United Services Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996), modified by statute on 

other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections to 14 days).

Case 3:22-cv-00615-B-BK Document 30 Filed 12/20/23 Page 20 of 20 PageID 333