In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1404

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KIMANI LANIER FLEMING,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 3:07-CR-91—Robert L. Miller, Jr., Judge.

ARGUED SEPTEMBER 26, 2011—DECIDED APRIL 17, 2012

Before CUDAHY, POSNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge. Kimani Lanier Fleming was found

guilty by a jury of several serious drug and firearm

charges, for which he received a mandatory life sentence.

Fleming’s counsel appealed his conviction on evidentiary grounds, and this court affirmed. Fleming then filed

a petition under 18 U.S.C. § 2255 asserting that his

counsel had been constitutionally ineffective. In response to Fleming’s petition, the government admitted
2 No. 11-1404

that it had failed to file its notice of enhanced penalty

within the permitted time. This prompted the district

court to set aside Fleming’s mandatory life sentence and

to hold a hearing on the other issues raised in his § 2255

petition. Ultimately, the court resentenced him to a term

of 480 months’ imprisonment. Fleming has appealed

again, challenging both his conviction for possession of

cocaine base with intent to distribute and his revised

sentence. He has no certificate of appealability, however, permitting his appeal on the conviction, and we

decline to grant one. The only issue properly before us

is whether it was appropriate for the district court to

include routine drug purchases as relevant conduct

when it computed the revised sentencing guideline

range. Finding no clear error in that decision, we affirm

Fleming’s revised sentence.

I

Fleming (also known as “K” and Kamari Merryweather)

began selling significant quantities of crack cocaine

out of three properties in Elkhart, Indiana, in 2006. In

July 2007, federal agents began collecting evidence

about Fleming’s drug dealing operation. Using informants, the agents set up four controlled buys from

Fleming in August 2007; each one took place at a house

located at 403 9th Street, in Elkhart. The ruse succeeded:

Fleming sold 6.68, 13.84, 31.27, and 30.88 grams of

crack cocaine over the course of the four transactions.

Next, the agents obtained a search warrant for the 9th

Street property. Once there, they found firearms, powder
No. 11-1404 3

cocaine, marijuana, and materials used to cook and package crack cocaine.

At trial, several witnesses testified that Fleming sold

crack cocaine to them during 2006 and 2007. In addition,

Jason Lucas testified that he distributed Fleming’s crack

cocaine. He recounted that he traveled with Fleming

from Elkhart to Detroit, Michigan, about every eight

days during the months of December 2006 to April 2007.

Fleming typically purchased four to nine ounces of

powder cocaine per trip. Lucas and Fleming would

then cook the powder into crack after they returned to

Detroit. When one ounce of powder cocaine is cooked,

according to the South Bend Police, it yields a little

over one ounce of crack.

The jury convicted Fleming on December 13, 2007, on

all seven counts. Relevant to this appeal, he was convicted on Count 1, possession with intent to distribute

more than 50 grams of crack in violation of 21 U.S.C.

§ 841(a)(1). Fleming was sentenced on February 26, 2008,

to life imprisonment for Count 1, with varying sentences for the other convictions. The district court gave

Fleming a mandatory life sentence for Count 1 because

of Fleming’s prior criminal convictions.

Fleming appealed his convictions on evidentiary

grounds, but this court affirmed. United States v. Fleming,

290 F. App’x 946, 948 (7th Cir. 2008). Following his unsuccessful direct appeal, Fleming filed a petition (and, later,

an amended petition) under 28 U.S.C. § 2255 asserting

that he had received ineffective assistance of counsel

at trial. Among other things, he argued that his counsel
4 No. 11-1404

failed properly to challenge the government’s late notice

of sentence enhancement and that counsel should

have challenged his possession conviction because none

of the controlled buys individually involved 50 or more

grams of crack cocaine. The government admitted in

its response to Fleming’s petition that its written notice

of sentence enhancement was filed three days late. The

government was required under 21 U.S.C. § 851 to give

Fleming this notice before trial or the entry of a plea.

The jury trial began on December 11, 2007, but the government did not file its written notice until December 14, 2007.

The district court denied some of Fleming’s requests

summarily, and it held an evidentiary hearing to

consider others. During the hearing, it explored some

of Fleming’s ineffective assistance assertions; in the end,

it concluded that Fleming was entitled to be resentenced without the mandatory life sentence in light of

the government’s late § 851 notice. Relevant to this

appeal, the district court denied Fleming’s attempt

also to challenge his possession conviction, because

it deemed aggregation of drug quantities permissible

under Seventh Circuit precedent. It resentenced Fleming

to concurrent terms of 420 months for the conviction

for possession with intent to distribute 50 grams or

more and the three convictions for distribution of more

than five grams of crack, 240 months for the crack distribution conviction, 120 months for one firearm conviction, and a consecutive 60-month sentence for the

other firearm conviction, making a total of 480 months.

This appeal followed.
No. 11-1404 5

II

Fleming, urging again that the government never

proved that he distributed more than 50 grams at one

time, first would like to challenge the sufficiency of the

evidence to convict him on Count 1 for possession

with intent to distribute. As we noted, federal agents

coordinated four controlled buys of crack from Fleming. When aggregated, the quantities of crack exceed

50 grams, but no individual transaction reached that

threshold. The initial jury instructions stated only that

the jury should conclude that Fleming violated 21 U.S.C.

§ 841(a)(1) if it found that he possessed more than

50 grams. When the jury sent out a question asking

whether the 50-gram level could be reached by aggregating the individual amounts, the court answered

in the affirmative.

At the resentencing hearing that followed Fleming’s

petition under § 2255, he urged the district court to

follow United States v. Sandlin, 291 F.3d 875, 879 (6th

Cir. 2002), which prohibits such aggregation. The district

court, however, rejected this argument because it interpreted this court’s decision in United States v. Easter,

553 F.3d 519, 523 (7th Cir. 2009), to permit aggregation.

Fleming is now trying to appeal from that determination. The government asserts that this court lacks jurisdiction to pursue the point because Fleming did not

secure a certificate of appealability (CA) that would

have permitted an appeal of the district court’s partial

denial of his § 2255 petition. Fleming’s petition succeeded in part and failed in part: he obtained the relief
6 No. 11-1404

he sought—new sentencing—with respect to the validity

of his life sentence, but he did not persuade the court

that there was anything wrong with the aggregation of

the amounts of drugs he sold. Insofar as he is now appealing from the new sentence, he is essentially bringing

a direct appeal for which he needs no CA. The question

is whether he needs a CA for his challenge to the aggregation ruling, which is the part of the case that was

rejected in his § 2255 proceeding. Although we have not

had occasion to address this situation before, our sister

circuits have done so and have unanimously concluded that a CA is needed for the part of the case

that challenges the denial of collateral relief. See

United States v. Willis, 649 F.3d 1248, 1253 (11th Cir.

2011); Wall v. United States, 619 F.3d 152, 154 (2d Cir.

2010); United States v. Haden, 475 F.3d 652, 664 (4th Cir.

2007); United States v. Green, 242 F.3d 384 (9th Cir. 2000);

United States v. Johnson, 208 F.3d 227 (10th Cir. 2000);

United States v. Reese, 204 F.3d 1117, 1117 (5th Cir. 1999).

We see no reason to part company with them, and we

thus conclude that Fleming is not entitled to challenge

the adverse portion of the district court’s decision on his

§ 2255 motion without a CA. As of now, neither the

district court nor this court has granted one, and so

without further action, he is out of luck.

Anticipating the possibility of this conclusion, Fleming

has asked that we consider his present appeal as

including an implicit request for a CA. See FED. R. APP.

P. 22(b)(2). Before a CA may be granted, however, the

petitioner must present a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
No. 11-1404 7

He must have a constitutional claim (or an underlying

procedural argument on which a constitutional claim

depends), and he must “demonstrate that reasonable

jurists would find the district court’s assessment of his

constitutional claims debatable or wrong.” Tennard v.

Dretke, 542 U.S. 274, 281 (2004); see also Arredondo v.

Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008). A § 2255

petition is “not a substitute for a direct appeal.” Coleman

v. United States, 318 F.3d 754, 760 (7th Cir. 2003).

Fleming’s complaint about the manner in which

his drug quantities were treated does not meet that demanding standard. He did not challenge the jury instructions on his earlier direct appeal, and so he can avoid

procedural default only if we find that “failure to

consider the issue would amount to a fundamental miscarriage of justice.” Fountain v. United States, 211 F.3d

429, 433 (7th Cir. 2000). Fleming’s argument on this part

of the case has never rested on ineffective assistance of

counsel. He says only that the jury instructions were

improper. Indeed, Fleming does not mention his

former counsel once in his CA briefing.

Even if Fleming had argued that his former counsel

provided ineffective assistance for failing to raise the

aggregation challenge to his possession conviction, we

see nothing on this record that would support a finding

of a substantial showing of a denial of a constitutional

right. Under Strickland v. Washington, 466 U.S. 668 (1984),

Fleming had to show that his counsel’s “performance

was deficient, and that the deficiency prejudiced the

defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003); see
8 No. 11-1404

Brown v. Finnan, 598 F.3d 416, 419 (7th Cir. 2010). This is

not easy, because courts must presume that counsel is

effective. See Cullen v. Pinholster, 131 S. Ct. 1388, 1403

(2011); see also United States v. Trevino, 60 F.3d 333, 338

(7th Cir. 1995). While Fleming’s former counsel could

have challenged the jury instructions more aggressively, we cannot say that his decision not to object “fell

below the standard of competency.” Sandoval v. United

States, 574 F.3d 847, 852 (7th Cir. 2009). When the jury

submitted its aggregation question to the court, counsel

requested that the judge adhere to the instructions

without adding any explicit approval of aggregation.

This action amounted to an objection to the supplemental instructions that the court gave. Following the

conviction, Fleming’s counsel appealed evidentiary

rulings, choosing to exclude the aggregation instruction

from the appeal. We cannot say that counsel’s strategic

decision deviated from prevailing professional norms,

particularly because this circuit had not laid down a

clear rule on the issue. Strickland, 466 U.S. at 690 (stating

that “strategic choices made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable”). We conclude that Fleming

has not persuaded us to grant a CA based on alleged

ineffectiveness of counsel.

III

This leaves Fleming’s claim that he was improperly

resentenced; as we noted earlier, because he succeeded

in this aspect of his § 2255 petition and he won a new

sentencing hearing, this is in effect his direct appeal and
No. 11-1404 9

no CA is necessary. We review the district court’s calculation of drug quantity for clear error. United States

v. Cox, 536 F.3d 723, 728 (7th Cir. 2008). The district

court found that Fleming’s course of conduct involved

more than 4.5 kilograms of crack cocaine during the

year leading up to his arrest in 2007. It based its finding

on the Presentence Report prepared by the probation

officer, although that report included the more aggressive recommendation that Fleming should be held responsible for 5.11 kilograms of crack. Lucas testified

that he and Fleming obtained four to nine ounces of

powder cocaine in Detroit approximately once a week

from December 2006 to April 2007. The court concluded

that Fleming likely had engaged in this activity

(although probably not rigidly) both before meeting

Lucas in December 2006 and after Lucas’s incarceration

in April 2007, all the way up to Fleming’s arrest in

August 2007. In essence, the court extrapolated Lucas’s

testimony about weekly quantities to the full year

before Fleming’s arrest. The court found that this

estimate was reasonable, given that Fleming had about

90 grams of cocaine in his possession in August 2007.

The estimate found further support in the testimony

from Fleming’s customers about the amount of crack

they observed in his possession.

Fleming takes exception to the court’s extrapolation

of Lucas’s account. He argues that the court erred by

treating Lucas’s testimony as “indicative of how much

powder cocaine Mr. Fleming needed every week or two

to supply his customers with crack cocaine.” Fleming

believes that he should be held responsible only for 1.703
10 No. 11-1404

kilograms, which represents the quantity Lucas directly

witnessed.

“Relevant conduct” under U.S.S.G. § 1B1.3(a)(2) includes

acts “that were part of the same course of conduct

or common scheme or plan as the offense of conviction.”

The “same course of conduct” includes offenses that are

“sufficiently connected or related to each other as to

warrant the conclusion that they are part of a single

episode, spree, or ongoing series of offenses.” U.S.S.G.

§ 1B1.3, App. Note 9(B). Characteristics of offenses that

are pertinent to a finding of “same course of conduct”

include “the degree of similarity of the offenses, the

regularity (repetitions) of the offenses, and the time

interval between the offenses.” Id. The government may

request that the court enhance a defendant’s sentence

for uncharged conduct, so long as it shows that such

conduct occurred by a preponderance of the evidence.

United States v. Johnson, 643 F.3d 545, 551 (7th Cir.

2011). The district court must make its determination

on the basis of reliable evidence. Id.

This court has previously stated that drug quantity

evidence must be based on something more than mere

“nebulous eyeballing.” United States v. Hollins, 498 F.3d

622, 631 (7th Cir. 2007) (internal quotations omitted).

Nevertheless, the Sentencing Guidelines allow the district court to use reasoned “speculation and reasonable

estimation” of drug quantity. Id.; see also U.S.S.G. § 2D1.1,

App. Note 12. The district court may also “take witness’

estimates of the amount of drugs they purchased and

multiply that by the minimum quantity sold on each
No. 11-1404 11

occasion, as well as extrapolate drug quantities from the

amount of money used to purchase the drugs.” United

States v. Durham, 211 F.3d 437, 444 (7th Cir. 2000).

Contrary to Fleming’s claim, the district court did not

simply assume, based exclusively on Lucas’s testimony,

that the conduct Lucas described continued unabated

for the year in question. The evidence presented at trial

showed that Fleming was a regular drug dealer during

at least the period covered by much of 2006 and 2007

and that he needed at least four grams of crack cocaine

approximately every eight days to meet his customers’

demand. The district court reasonably relied in part on

Lucas’s testimony as an indication of the amount of

cocaine powder Fleming was moving.

We AFFIRM the judgment of the district court, and we

DENY Fleming’s implicit request for an expanded CA.

4-17-12