IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 00-41224 __________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

KERRY L. BASS, also known as Kerry Lerron Bass Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court for the Southern District of Texas

___________________________________________________ October 16, 2002

Before WIENER and STEWART, Circuit Judges, and RESTANI*, District

Judge.

Wiener, Circuit Judge:

Defendant-Appellant Kerry L. Bass appears before this court a

second time, appealing the district court’s denial of his

motion to vacate, set aside, or correct his sentence. Bass

maintains that his counsel provided ineffective assistance at trial

and on direct appeal by failing to challenge (1) the sufficiency of

the evidence supporting his continuing criminal enterprise (“CCE”)

conviction and (2) on double-jeopardy grounds, his conspiracy and

CCE convictions. Concluding that Bass’s counsel was ineffective in

* Judge of the U.S. Court of International Trade, sitting by designation. failing to challenge the sufficiency of the evidence for his CCE

conviction, we vacate Bass’s conviction on that count. Doing so

makes moot his double jeopardy claim.

I. FACTS AND PROCEEDINGS

Bass is currently incarcerated in a federal penitentiary in

eastern Texas. His status as federal prisoner no. 66118-079 is the

culmination of a legal process that began on April 14, 1994, when

he was indicted on multiple counts of violating federal narcotics

statutes and failing to file income tax returns.1 Two other

individuals, Troy Donovan Bounds and Paul Anthony Alix, were named

in the indictment.

A jury trial commenced in October 1994. The government

presented evidence showing that Bass was implicated in a web of

drug commerce in several East Texas communities. Bass used his

legitimate chemical business, KLB Environmental Services (“KLB”),

in Houston, Texas, as a cover for his participation in that drug

1 The specific charges were as follows: conspiring from December 1988 to January 1993 to distribute more than 50 grams of cocaine base (count 1); conspiring from December 1988 to January 1933 to possess with the intent to distribute more than 5 kilograms of cocaine (count 2); engaging from December 1988 to January 1933 in a CCE, with counts 1-2 and counts 4-11 constituting the predicate offenses (count 3); on various occasions between October and December 1990, aiding and abetting possession with intent to distribute more than 5 grams of cocaine base (count 4-9); in January 1991, aiding and abetting possession with the intent to distribute more than 50 grams of cocaine base (count 10); from July 1989 through January 1990, aiding and abetting engaging in a monetary transaction in criminally derived property affecting interstate commerce (count 11); and failing to file income tax returns for the years 1988 through 1991 (counts 12-15).

2 commerce. He employed Bounds (one of his indicted co-conspirators)

at KLB, and he directed Bounds to deliver cocaine to numerous

persons in Houston.

During his involvement in the drug ring, Bass sold cocaine on

a regular basis——either personally or through Bounds——to Steven

Alix, Paul Alix, Bryan Kyles, Shawn Wade, and David Fischer. These

individuals converted the cocaine they purchased from Bass into

cocaine base (known in common parlance as “crack”), which they

resold in Victoria, Texas. They either sold the cocaine base

directly or supplied it to others, such as David Barefield, who

then resold it. Kyles testified that, from the many discussions

that he and Bass had concerning “everything that [they] were

doing,” including “cooking cocaine into ‘crack,’” Bass knew of the

conversion and resale of the cocaine base.

Bass’s knowledge of his purchasers’ activities was confirmed

by his renting of vehicles for Fisher so that Fisher could travel

to Victoria to sell the cocaine base. The car rental fees were

paid with the proceeds from Fisher’s sales. In addition, Bass

advised Fisher not to drive flashy cars lest he be noticed by the

police. When a Cadillac rented by Fisher was seized by police late

in December of 1990, Bass had Kyles drive both Bass and Bounds to

Victoria to retrieve the vehicle.

Bass also used KLB in several other respects related to drug

commerce. First, Bass had Bounds sell cocaine for Bass in the

course of Bounds’s employment at KLB, and Bounds frequently drove

3 KLB-marked vehicles and wore a KLB uniform when making cocaine

deliveries for Bass. Second, Bass told Fisher, Wade, Steven Alix,

and Kyles that they could use KLB as an employment reference, even

though none of them worked there. Third, Bass placed Paul Alix on

the payroll at KLB, even though he did not work there; and when the

police arrested Paul Alix in Victoria, Texas, on December 27, 1991,

they found a KLB business card in his wallet.

The jury convicted Bass on all counts for which he was charged

in the indictment. Bass was sentenced to (1) nine terms of 360

months’ imprisonment, to be followed by five years of supervised

release for each of the conspiracy and distribution counts; (2) one

term of 360 months’ imprisonment, to be followed by five years of

supervised release for the CCE count; (3) one term of 120 months’

imprisonment, to be followed by three years of supervised release

for the criminally derived property count, and (4) one term of

twelve months’ imprisonment, to be followed by one year’s

supervised release for the income tax evasion counts. All terms

are being served concurrently. Bass was also ordered to pay

separate $50 assessments for each of the conspiracy, distribution,

and CCE counts, and separate $25 assessments for each of the tax

evasion counts, for a total of $650. We affirmed Bass’s conviction

and sentence on direct appeal.2

Bass subsequently filed a pro se

motion to

2 United States v. Alix,

(5th Cir. 1996).

4 vacate, set aside, or correct sentence. He alleged, inter alia,

that his counsel at trial and on appeal provided ineffective

assistance by failing to challenge (1) the sufficiency of the

evidence supporting his conviction for conspiring to distribute

cocaine base, (2) the quantity of cocaine base attributed to him

for sentencing purposes, (3) the sufficiency of the evidence

supporting his CCE conviction, and (4) on double-jeopardy grounds,

his conspiracy and CCE convictions. The government moved to

dismiss Bass’s § 2255 motion on the merits. Without holding an

evidentiary hearing, the district court dismissed the case with

prejudice, and denied Bass a certificate of appealability (“COA”).

Bass then sought a COA from this court, which we granted for

the sole purpose of a limited remand to the district court for it

to enter written reasons for the dismissal of Bass’s claim of

ineffective assistance of appellate counsel based on the failure to

challenge the sufficiency of the evidence supporting his CCE

conviction. We deferred ruling on Bass’s request for a COA for his

claim of ineffective assistance based on counsel’s failure to mount

a double-jeopardy challenge to Bass’s conspiracy and CCE

convictions, and we denied the COA for the other issues.

On remand, the district court issued an order explaining that

Bass’s appellate counsel was not ineffective for failing to

challenge the sufficiency of the evidence supporting Bass’s CCE

conviction, contending that there was in fact sufficient evidence.

The district court noted that the evidence adduced at trial showed

5 that Bass met the legal requirements for violating the CCE statute,

i.e., he (1) engaged in a continuing series of drug violations; (2)

organized, managed or supervised six individuals (Troy Bounds, Paul

Alix, David Fisher, Brian Kyles, Shawn Wade, and Steven Alix); and

(3) derived a substantial profit from the drug trafficking.

After the district court so ruled, we granted a COA and

ordered briefing with respect to the two issues on which Bass

claims ineffective assistance: his counsel’s failure (1) to

challenge, on direct appeal, the sufficiency of the evidence

supporting Bass’s CCE conviction, and (2) to challenge, on double-

jeopardy grounds, both at trial and on direct appeal, Bass’s

conspiracy and CCE convictions.

II. ANALYSIS

We first address the issue of the sufficiency of the evidence

supporting Bass’s CCE conviction. This requires us to answer two

questions: (1) whether the evidence is sufficient to support Bass’s

CCE conviction, and (2) if so, whether the failure of Bass’s

counsel to raise this issue on direct appeal was prejudicial. As

we shall explain, because we answer these questions in the

affirmative and vacate Bass’s CCE conviction, we need not address

Bass’s double jeopardy claim.

A. Standard of Review; Test for Ineffective Assistance of Counsel

A district court’s conclusions concerning a § 2255

petitioner’s claims of ineffective assistance of counsel involve

6 mixed questions of fact and law, which we review de novo.3

In applying the same standards as the district court, we

recognize that a claim of ineffective assistance of counsel is

properly made in a § 2255 motion because it raises an issue of

constitutional magnitude and, as a general rule, cannot be resolved

on direct appeal.4 To obtain relief on a claim of ineffective

assistance of counsel, a defendant must demonstrate that (1)

counsel’s conduct was constitutionally deficient because it fell

below an objective standard of reasonableness, and (2) this

deficient performance prejudiced his defense.5 It is insufficient

for a defendant merely to prove that counsel’s conduct was

deficient; a defendant must have also been prejudiced by this

ineffective legal assistance. To prove prejudice, the defendant

must show “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.”6 Such a claim fails unless the defendant

establishes both deficient performance and prejudice.7

B. Sufficiency of the Evidence for the CCE Conviction

Bass alleges that his attorney performed deficiently and

3 United States v. Faubion,

(5th Cir. 1994). 4 United States v. Pierce,

(5th Cir. 1992). 5 Strickland v. Washington,

(1984). 6

. 7

.

7 prejudiced his defense in failing to challenge the sufficiency of

the evidence supporting his CCE conviction. We “review

sufficiency-of-the-evidence challenges to determine whether any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”8 In making this assessment,

“this Court views all evidence in the light most favorable to the

government with all reasonable inferences and credibility choices

to be made in support of the jury’s verdict.”9

Keeping in mind Bass’s substantial evidentiary burden, we

first address the CCE statute’s requirement that the government

prove beyond a reasonable doubt that (1) the defendant organized,

supervised, or managed at least five persons (2) in a continuing

series of drug violations (3) from which the defendant received

substantial income.10 Bass argued to the district court that there

was insufficient evidence to establish that he violated the first

element, to wit: that he organized, supervised, or managed five or

more persons.11 In rejecting Bass’s claim, the district court found

8 Alix,

. 9 United States v. Hinojosa,

(5th Cir. 1992). 10

(c); United States v. Garcia Abrego,

(5th Cir. 1998). 11 Bass asserts on appeal for the first time that there was insufficient evidence supporting the substantial-income element. This argument, however, is waived given his failure to raise it in his initial § 2255 motion. See Tabita Chem. Co. v. Westlake Styrene Corp.,

, 384 n.9 (5th Cir. 2001). We also find his additional claim that there was insufficient evidence

8 that the evidence showed that Bass controlled six individuals:

(1) Bounds: delivered cocaine for Bass; (2) Fisher: used vehicles rented by Bass to travel to Victoria to sell cocaine base derived from cocaine purchased from Bass, and listed KLB as an employment reference in an apartment rental application; (3) Kyles: purchased cocaine from Bass, which Kyles resold as cocaine base in Victoria, and also assisted Bass in locating the rental vehicle seized from Fisher; (4) Wade: purchased cocaine from Bass, which Wade resold as cocaine base in Victoria, and also used Bass as an employment reference with Bass’s permission; (5) Paul Alix: paid through the KLB payroll and resold cocaine base derived from cocaine purchased from Bass; and (6) Steven Alix: purchased cocaine from Bass, which Kyles resold as cocaine base in Victoria, and also used Bass as a reference with Bass’s permission.

On appeal, Bass urges his trial contention that his interaction

with these individuals occurred in the context of either friendship

or a buyer-seller relationship, neither of which is sufficient, he

insists, to establish the managerial, supervisory, or

organizational control required by § 848, the CCE statute.

Although § 848 is commonly referred to as the “King Pin

Statute”12 because “it is designed to apply to leaders of large-

supporting the continuing series of drug violations without merit; there were nine drug-trafficking convictions that served as the predicate offenses for Bass’s CCE conviction. This is far more than the three convictions needed to establish a “series of violations.” United States v. Lopez,

, 429 n.2 (5th Cir. 2001), cert. denied,

(2001) (recognizing that a “series of violations” consists of three or more violations of the federal narcotics statutes). 12 United States v. Johnson,

(5th Cir. 1978).

9 scale narcotics operations,”13 a defendant need not have been the

single ringleader of a drug enterprise.14 It is sufficient if a

defendant has separate, individual relationships of control with at

least five persons.15 Furthermore, the defendant need not “have

directly or personally organized, supervised, or managed five

people, or even have had personal contact with each underling.”16

If a defendant delegates authority to lieutenants and enforcers to

do his managerial, supervisory, or organizational work, he is

nonetheless exercising control over the extended drug-ring

participants who are doing his bidding.17 Finally, in construing

the terms of the CCE statute, we have maintained that “[t]he terms

‘organized,’ ‘supervised,’ and ‘managed’ are not words of art and

should be interpreted according to their everyday meanings.”18

In appealing the district court’s finding that the evidence

13 United States v. Phillips,

, 1013 n.62 (5th Cir. Unit B 1981). 14 United States v. Sotelo,

(5th Cir. 1996).

F.2d at 1013. 16 United States v. Wilson,

(5th Cir. 1997) (citation omitted), rev’d in part on other grounds, United States v. Brown,

(5th Cir. 1998) (en banc). 17 See Hinojosa,

(noting that a defendant “may not insulate himself from CCE liability by carefully pyramiding authority so as to maintain fewer than five direct subordinates”) (quoting United States v. Ricks,

(4th Cir. 1989)). 18 United States v. Gonzales,

(5th Cir. 1989).

10 supporting his CCE conviction is sufficient, Bass raises an issue

that has not yet been addressed by this court, viz., whether, alone

and in the absence of additional indicia of control, a mere buyer-

seller relationship is sufficient to establish liability under §

848. Although we have not yet ruled on this question, a

substantial number of the other federal circuits have held that a

“mere showing of a buyer-seller relationship, without more, is not

sufficient under § 848” to satisfy the management, supervision, or

organization element of § 848.19 In these cases, activities that

were merely “incidental to the buyer-seller relationship” were held

insufficient to establish CCE liability.20 In contrast, defendants

have been found to possess the level of control prescribed by the

CCE statute——and thus to go beyond a mere buyer-seller

relationship——when they rented vehicles for others selling drugs,21

used salesmen to distribute drugs,22 used enforcers,23 used drug

19 United States v. Butler,

(4th Cir. 1989). See also United States v. Witek,

(11th Cir. 1995); United States v. Ward,

(6th Cir. 1994); United States v. Smith,

(10th Cir. 1994); United States v. Delgado,

(9th Cir. 1993). 20 Witek,

. See also Ward,

(discussing that defendant’s providing instructions on meeting times and places for drug transactions, not profiting from the resale of drugs, and fronting cocaine to purchasers are all activities solely within the scope of the buyer-seller relationship). 21 Ward,

. 22

; Smith,

; Butler,

. 23 Ward,

.

11 couriers,24 provided financial and logistical support to suppliers

and purchasers,25 and used collection agents to obtain drug

payments.26 Each of these activities falls squarely within the

common-sense meaning of managerial, supervisory or organizational

control over underlings.

Recognizing that these activities are distinguishable from

those of simply selling or purchasing drugs, we now join the other

circuits that have held expressly that a buyer-seller relationship

by itself, i.e., in the absence of some indicia of management,

supervision or organization, is insufficient to establish liability

under the CCE statute. This rule is consistent with the plain

meaning of the statute’s requirement that a defendant must act “in

concert with five or more other persons with respect to whom such

[defendant] occupies a position of organizer, a supervisory

position, or any other position of management.”27 “A contrary

interpretation would do violence to the common-sense meaning of the

words ‘organizer’ and ‘supervisor’ and extend § 848's reach beyond

F.3d at 1233. 25 Butler,

. 26 Witek,

. 27 § 848(c). The rule we adopt today is also consistent with the rule of lenity if the statute’s terms are deemed ambiguous. United States v. Kozminksi,

(1988); Witek,

(noting in interpreting the management requirement of § 848 that “the rule of lenity requires us to construe that statute narrowly”).

12 the scope Congress intended.”28

In joining those other circuits and embracing this rule, we

are doing no more than making explicit that which we have

previously implied. In United States v. Gonzales, co-defendant

Stewart McGlinchey appealed his CCE conviction on the ground that

he had only “a simple buyer-seller relationship with his

customers.”29 The evidence revealed, however, that McGlinchey used

street salesmen to distribute his cocaine, used recruiters to bring

people into his drug ring, used former police officers for

intelligence and protection, employed drug couriers, controlled the

resale of the drugs that he sold to his distributers, provided bail

for members of his drug ring, rented vehicles and apartments for

subordinates, and used his legitimate business for drug deals and

for processing drug proceeds.30 In light of all that, we concluded

that there was “ample evidence to support the jury’s conclusion

that McGlinchey organized five or more people in a criminal

enterprise.”31 Our decision in Gonzales can be read to imply the

rule that § 848 requires a showing of control greater than that

involved in a mere buyer-seller relationship, given our

confirmation that the evidence contradicted McGlinchey’s claim of

28 Witek,

. 29 Gonzales,

. 30

. 31

.

13 only a buyer-seller relationship and affirmance of McGlinchey’s CCE

conviction.

In following the logic of Gonzales and construing the evidence

in this case in the light most favorable to the government,32 we

find that Bass managed, supervised, or organized only three

individuals——Bounds, Fisher and Kyles. Bounds actually was

employed by Bass’s legitimate business and delivered cocaine at

Bass’s direction. Fisher used vehicles rented by Bass in

furtherance of the activities of the drug enterprise, was directed

by Bass not to drive flashy automobiles, and listed KLB as his

employer in apartment rental applications. Kyles spoke with Bass

about the activities of the drug ring, was permitted to use Bass as

an employment reference, falsely told police that he was employed

at KLB, and was directed by Bass to locate and drive him to

retrieve the rental car seized from Fisher by the Victoria police.

All of these activities are the same or similar to those that

evidenced managerial control in the cases in which other courts

have applied the rule that more than a buyer-seller relationship is

required to establish CCE liability.

Even when we draw all reasonable inferences in favor of the

jury’s verdict, we are convinced that a rational trier of fact

could not have concluded that Bass’s involvement with the other

three drug dealers——Wade, Paul Alix, and Steven Alix——consisted of

32 See Alix,

.

14 anything more than a buyer-seller relationship. The evidence shows

that these three men simply purchased cocaine from Bass and resold

it as cocaine base in Victoria. Bass did not receive any

additional monies or benefits from these resales as cocaine base.

There is no evidence that Bass controlled the resale activities of

these three individuals, such as by dictating the quantity, the

asking price, or to whom the cocaine base would be sold. Beyond

evidence of ordinary purchases and sales, the record is devoid of

evidence of any control by Bass whatsoever over these three

individuals’ drug activities. The district court’s conclusion to

the contrary constitutes clear error.

Faced with a defendant similarly involved in a drug ring, the

Sixth Circuit, in United States v. Ward,33 reversed a CCE conviction

on the basis of insufficient evidence. The defendant, Ward, was

implicated in a widespread drug ring in which he fronted cocaine to

his purchasers, rented vehicles used by his purchasers in their

resale activities, provided meeting instructions, and used

enforcers.34 Even though renting cars and using enforcers evidenced

managerial or supervisory control, the court ruled that Ward’s

fronting of drugs and providing meeting instructions were only

incidental to a buyer-seller relationship.35 Significantly, the

33

(6th Cir. 1994), cert. denied,

(1995). 34 Id. at 248-49. 35 Id.

15 court also ruled that the resale of drugs with no pass-through of

profits back to Ward was insufficient evidence of the control

required by § 848.36 Distinguishing another case relied on by the

government, in which a defendant’s conviction under § 848 was

upheld on resale evidence,37 the Ward court noted that the evidence

in the prior case “reflected control of the distribution of the

drugs” throughout the entire drug enterprise, “whereas the evidence

here shows only that Ward supplied drugs to Hicks, who sold them to

any buyers he could find, not to buyers determined or identified by

Ward.”38

As in that case, Bass supplied Wade, Stephen Alix, and Paul

Alix with drugs, which they resold to whatever buyers they could

find in Victoria. This was done with Bass’s knowledge but not

under his control or at his direction.

As for the aforementioned Paul Alix, we acknowledge that it

might still be possible to draw a reasonable inference in favor of

the jury verdict that he was controlled by Bass. Paul Alix

received several payroll checks from KLB, despite not working

there. And it would be odd, to say the least, for Bass to pay Paul

Alix if he were nothing more than an ordinary buyer: in the typical

buyer-seller relationship, payments flow from purchaser to

36 Id. at 249. 37 See United States v. Adamo,

(6th Cir. 1984). 38 Ward,

.

16 supplier, not the other way around. These faux salary payments

therefore may have been compensation for Paul Alix’s activities in

the drug ring, which could lead to a reasonable inference of some

form of supervisory or organizational control by Bass.

Even if we assume arguendo that Paul Alix was under the

supervision and control of Bass, however, this would still total

only four individuals who were managed, supervised, or organized by

Bass: Bounds, Fisher, Kyles, and Paul Alix. This is one short of

§ 848's requirement that a defendant control “five or more other

persons.”39 Thus, by the plain terms of the CCE statute, the

evidence was insufficient to support Bass’s conviction.

It follows that, in failing to raise this issue on appeal,

Bass’s counsel performed deficiently. In fact, appellate counsel

for Bass’s two co-defendants, Bounds and Paul Alix, did challenge

the sufficiency of the evidence supporting their clients’ drug

conspiracy convictions.40 Yet Bass’s own appellate counsel failed

to challenge the sufficiency of that same evidence supporting

Bass’s CCE conviction.41

As for Strickland’s second prong, Bass was prejudiced by this

39 § 848(c) (emphasis added). 40 Alix,

. 41 The evidence is sufficient to support Bounds’s and Paul Alix’s narcotics conspiracy convictions, see

and it is sufficient to support Bass’s nine narcotics conspiracy convictions, but, as we indicate, this same evidence is insufficient to support Bass’s CCE conviction.

17 deficient performance, albeit minimally. As Bass is serving all of

his sentences concurrently, the sentencer did not impose a harsher

prison term as a result of the CCE conviction; Bass’s total time of

incarceration will not be shortened as a result of our decision

today to vacate his CCE conviction. In addition to prison,

however, Bass was sentenced to pay an additional $50 for his CCE

conviction——a sum that he would not have been ordered to pay were

it not for the CCE conviction.

C. Double Jeopardy

We also granted Bass a COA on his contention that his

counsel’s failure to mount a double-jeopardy challenge of his

convictions for both conspiracy and CCE constituted a deficient

performance and thus was ineffective assistance. Bass notes

correctly that conspiracy is a lesser included offense of a CCE

conviction.42 Consequently, he insists, separate convictions and

sentences for both conspiracy and CCE violates the Constitution’s

Double Jeopardy Clause.43 Today’s vacatur of Bass’s CCE conviction,

however, eliminates the basis of this claimed constitutional

defect, making moot the second issue of Bass’s COA.

III. CONCLUSION

As Bass’s CCE conviction was not supported by sufficient

evidence, his counsel’s performance was deficient in failing to

F.3d at 1087. 43 Gonazales,

.

18 raise this issue on direct appeal. And, Bass was prejudiced by

that deficient performance when he was sentenced to pay an

additional $50 assessment. Accordingly, we must reverse the

district court’s dismissal of Bass’s § 2255 motion, vacate Bass’s

CCE conviction and sentence, and remand to the district court with

instructions to reduce his total assessment to $600 for the

remaining 14 counts for which Bass’s convictions stand.

DISMISSAL REVERSED; SENTENCE VACATED in part; REMANDED with instructions.

19