Lucien Frank Sobolewski v. United States , 649 F. App'x 706 ( 2016 )


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  •               Case: 15-11727    Date Filed: 05/02/2016    Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 15-11727
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 5:14-cv-00301-WTH-PRL;
    5:13-cr-00020-WTH-PRL-1
    LUCIEN FRANK SOBOLEWSKI,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (May 2, 2016)
    Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.
    PER CURIAM:
    Lucien Frank Sobolewski appeals the district court’s denial of his 
    28 U.S.C. § 2255
     motion to vacate, set aside, or correct his sentence. Following a jury trial,
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    Sobolewski was convicted of being an unlawful user of a controlled substance in
    possession of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(3) and 924(a)(2). On
    appeal, Sobolewski argues that the district court erred in rejecting his claim that
    trial counsel rendered ineffective assistance by failing to introduce at trial certain
    evidence suggesting that he was not “an unlawful user of a controlled substance.” 1
    After careful review of the record and briefs, we affirm.
    I.      BACKGROUND
    A.     Offense Conduct
    On February 6, 2013, Zachary Nichols, a law enforcement officer with the
    United States Forest Service (“USFS”), pulled over Sobolewski’s truck in Ocala
    National Forest after observing that the driver, Sobolewski, and his passenger,
    Charlie McIntyre, were not wearing seatbelts. Officer Nichols asked Sobolewski
    whether he had anything illegal in his truck. Sobolewski responded that he had a
    gun and a concealed weapons permit. Sobolewski showed the concealed weapons
    permit to Officer Nichols.
    Officer Nichols then asked Sobolewski if he had any open containers or
    illegal substances in the truck. Sobolewski initially responded that he did not, but
    after Officer Nichols requested to search the truck, Sobolewski voluntarily
    1
    In a 
    28 U.S.C. § 2255
     proceeding, we review a district court’s legal conclusions de novo
    and factual findings for clear error. Devine v. United States, 
    520 F.3d 1286
    , 1287 (11th Cir.
    2008). A claim of ineffective assistance of counsel is a mixed question of law and fact that we
    review de novo. 
    Id.
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    admitted that he had marijuana in the glove box. Officer Nichols searched the
    glove box and found a plastic baggie containing 6.8 grams of marijuana. Officer
    Nichols also found rolling papers next to the driver’s seat, a gun behind the
    driver’s seat, two bullets attached to the gun’s holster, and three bullet casings in
    the driver’s side cup holder.
    After the search, Everett Bane, another law enforcement officer with the
    USFS, asked Sobolewski what he and McIntyre had been doing before the traffic
    stop. Sobolewski answered that they had been shooting at the shooting range.
    Officer Bane then asked whether they had smoked any marijuana that day.
    Sobolewski responded that they had smoked some marijuana earlier that day. The
    officers seized the marijuana and eventually let Sobolewski go free.
    B.    Indictment, Arrest, Drug Test, and Competency Hearing
    On March 20, 2013, 42 days after the traffic stop, a federal grand jury
    returned a single-count indictment charging Sobolewski with “being an unlawful
    user of a controlled substance” in possession of a firearm, in violation of 
    18 U.S.C. §§ 922
    (g)(3) and 924(a)(2). On April 18, 2013, Sobolewski was arrested.
    Sobolewski’s trial counsel advised Sobolewski to obtain an independent drug test.
    On May 1, 2013, 84 days after the traffic stop, Sobolewski obtained that
    independent drug test, which returned a “negative” result for the presence of drugs
    in his urine. Sobolewski provided trial counsel with the results of his drug test.
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    In August 2013, Sobolewski and his trial counsel executed a written plea
    agreement whereby Sobolewski pleaded guilty to the one count in the indictment.
    In September 2013, Sobolewski’s trial counsel filed an unopposed motion to
    determine Sobolewski’s mental competency prior to the entry of the written plea
    agreement. Trial counsel alleged that Sobolewski had a cyst in his brain, was
    being treating by a therapist, and had previously suffered head trauma in a
    December 2012 motorcycle accident. Trial counsel also alleged that Sobolewski’s
    primary physician and his therapist were both concerned about Sobolewski’s
    ability to understand the proceedings.
    The district court granted the competency motion and ordered Sobolewski
    to undergo a psychiatric examination. On September 17, 2013, Dr. Almari Ginory,
    an Assistant Professor of Forensic Psychiatry at the University of Florida,
    examined Sobolewski. Sobolewski told Dr. Ginory that he had previously used
    marijuana on a few isolated occasions, but was not a habitual marijuana user with
    symptoms of withdrawal or tolerance. Sobolewski told Dr. Ginory that he last
    used marijuana the night before his arrest in order to help him sleep.
    In her written report, Dr. Ginory cited to the definition of substance abuse
    found in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition,
    text revision (“DSM IV-TR”), and stated:
    According to the DSM IV-TR, substance abuse is defined as a
    maladaptive pattern of substance use which leads to impairment or
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    distress as manifested by at least one of the following symptoms.
    Recurrent use resulting in a failure to fulfill major obligations,
    recurrent use in situations where it is physically hazardous, recurrent
    legal problems, and/or continued use despite recurrent interpersonal
    problems caused by the effects of the substance.
    Dr. Ginory opined that Sobolewski “does not meet criteria for cannabis abuse as he
    does not have recurrent impairment due to substance use.” Dr. Ginory also opined
    that Sobolewski was mentally competent to stand trial.
    Based on Dr. Ginory’s report, the district court found that Sobolewski was
    mentally competent to stand trial. Sobolewski informed the court that he wished to
    proceed to trial.
    C.    Trial and Evidence of Prior Drug Use
    At trial, Officers Nichols and Bane offered testimony describing the
    February 6, 2013 stop and search of Sobolewski’s truck. The government then
    called three witnesses to testify about Sobolewski’s history of marijuana use.
    Courtney McCrae, a special agent with the USFS, testified that he conducted
    an interview with Sobolewski and McIntyre immediately after the officers
    searched Sobolewski’s truck. During the interview, Sobolewski admitted that he
    began using marijuana because of relationship problems with his fiancée.
    Sobolewski also executed a written affidavit after the interview. In the affidavit,
    Sobolewski testified that he had been smoking marijuana “off and on” since he was
    19 years old. Sobolewski further testified that he had been “using” marijuana more
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    recently as a form of self-medication to alleviate headaches that developed after his
    December 2012 motorcycle accident. Sobolewski admitted that he smoked
    marijuana the day before and the day of the offense.
    McIntyre testified that he first met Sobolewski in December 2012. McIntyre
    testified that over the course of two or three weeks he saw Sobolewski use
    marijuana “[m]aybe every other day,” and that Sobolewski would replace the bag
    of marijuana in his glove box “[m]aybe every other day.” McIntyre also testified
    that Sobolewski would frequently give marijuana to McIntyre’s sister, Angelina
    McIntyre, and she and Sobolewski would smoke it together.
    Angelina McIntyre testified that she first met Sobolewski in October 2012
    and eventually began working for him in late December 2012. She testified that
    from late December 2012 until Sobolewski’s arrest in April 2013, she and
    Sobolewski went into the woods every day after work to smoke marijuana
    together. Sobolewski always provided the marijuana.
    Sobolewski called two witnesses to testify in his defense. Crystal Colbert,
    the mother of Sobolewski’s niece, testified that she had known Sobolewski for
    three years and had interacted with him on a regular basis during that time.
    Colbert testified that she went into the woods with Angelina McIntyre and
    Sobolewski on at least 10 occasions. According to Colbert, on those occasions,
    she and Angelina McIntyre would smoke marijuana, but Sobolewski would not.
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    Colbert further testified that she had never seen Sobolewski smoke marijuana in
    the three years that she had known him.
    George Asbate testified that he knew both Charles McIntyre and
    Sobolewski, but had not been friends with Sobolewski since 2011. Asbate testified
    that he spoke to Charles McIntyre in December 2013 to discuss the investigation
    that ensued after the February 2013 search of Sobolewski’s truck. Asbate testified
    that Charles McIntyre told him that he had never seen Sobolewski consume
    marijuana.
    Sobolewski’s trial counsel did not call Dr. Ginory to testify, nor did counsel
    attempt to introduce into evidence Dr. Ginory’s psychiatric evaluation report.
    Sobolewski’s trial counsel also did not introduce into evidence Sobolewski’s
    negative post-arrest drug test.
    Prior to deliberations, the district court instructed the jury that Sobolewski
    was charged with being an “unlawful user of a controlled substance” in possession
    of a firearm. The district court further instructed that an “unlawful user of a
    controlled substance” meant “a person who, at the time he possessed or received a
    firearm or ammunition, was actively and regularly engaged in the ongoing use of a
    controlled substance or substances over a period of time that is sufficient to
    establish a pattern of conduct as distinguished from isolated and disconnected
    usages.”
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    The jury found Sobolewski guilty of the one count charged in the
    indictment. In April 2014, the district court sentenced Sobolewski to serve a year
    and a day in prison. Sobolewski did not appeal his conviction or sentence.
    D.    Section 2255 Motion to Vacate
    In May 2014, Sobolewski filed a motion to vacate, set aside, or correct his
    sentence under 
    28 U.S.C. § 2255
    . Sobolewski alleged, inter alia, that his trial
    counsel was ineffective for failing to introduce as evidence at trial:
    (1) Dr. Ginory’s opinion that Sobolewski did not meet the criteria for cannabis
    abuse, and (2) Sobolewski’s negative post-arrest drug test. Sobolewski contended
    that this evidence would have bolstered his argument at trial that he was not an
    “unlawful user” of marijuana under 
    18 U.S.C. § 922
    (g)(3), as it tended to show
    that he was not actively and regularly engaged in the ongoing use of a controlled
    substance. He alleged that counsel’s failure to introduce the evidence at trial
    constituted deficient performance resulting in prejudice.
    The district court denied Sobolewski’s § 2255 motion. This appeal
    followed.
    II.    DISCUSSION
    Under 
    18 U.S.C. § 922
    (g)(3), it is unlawful for any person “who is an
    unlawful user of or addicted to any controlled substance” to possess a firearm.
    
    18 U.S.C. § 922
    (g)(3) (emphasis added). The term “unlawful user” is not defined
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    in the statute. However, in the context of interpreting a sentencing enhancement
    under the United States Sentencing Guidelines, this Court has defined the term
    “unlawful user,” as used in § 922(g)(3), as a person whose drug use is “regular,
    ongoing, and contemporaneous with his firearm possession.” United States v.
    Edmonds, 
    348 F.3d 950
    , 953-54 (11th Cir. 2003).
    We evaluate claims of ineffective assistance of counsel under the two-prong
    test set forth in Strickland.2 Hunt v. Comm’r, Ala. Dep’t of Corr., 
    666 F.3d 708
    ,
    721 (11th Cir. 2012). To establish constitutionally ineffective assistance of
    counsel, a defendant must show that (1) his attorney’s performance was deficient
    and (2) the deficient performance prejudiced the defendant. Strickland v.
    Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 2064 (1984).
    Under the prejudice prong of Strickland, the defendant must show a
    “reasonable probability that, but for counsel’s unprofessional errors, the result of
    the proceeding would have been different.” Osley v. United States, 
    751 F.3d 1214
    ,
    1222 (11th Cir. 2014) (quotation marks omitted). “A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” 
    Id.
     (quotation
    marks omitted). The defendant must carry his burden on both Strickland prongs to
    demonstrate ineffective assistance of counsel. 
    Id.
    Here, we need not decide the deficient performance issues because
    2
    Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
     (1984).
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    Sobolewski has failed to show prejudice in any event. See Holladay v. Haley, 
    209 F.3d 1243
    , 1248 (11th Cir. 2000) (“[T]he court need not address the performance
    prong if the defendant cannot meet the prejudice prong.”). Dr. Ginory’s written
    report and potential testimony show only that Sobolewski did not meet the clinical
    criteria for marijuana abuse. However, this Court has recognized that the
    disjunctive form of § 922(g)(3) prohibits either unlawful users of controlled
    substances or addicts from possessing firearms. 3 See United States v. Corona, 
    849 F.2d 562
    , 562-63 nn.1-2 (11th Cir. 1988). In this case, the indictment only charged
    Sobolewski with being an “unlawful user” of a controlled substance, not an addict.
    Consistent with instructive Eleventh Circuit precedent, the district court charged
    the jury to determine whether Sobolewski was an “unlawful user” because he
    “regularly engaged in the ongoing use of [marijuana].” A diagnosis that
    Sobolewski does not meet the clinical criteria for marijuana abuse does not show
    that he was not an “unlawful user” of marijuana. Further, Dr. Ginory’s evaluation
    occurred on September 17, 2013, which was over seven months after the February
    6, 2013 traffic stop. Because § 922(g)(3) criminalizes regular drug use that is
    3
    Federal regulations define the phrase “[u]nlawful user of or addicted to any controlled
    substance” as “[a] person who uses a controlled substance and has lost the power of self-control
    with reference to the use of the controlled substance; and any person who is a current user of a
    controlled substance in a manner other than as prescribed by a licensed physician” as evinced by
    a “recent use or possession of a controlled substance or a pattern of use or possession.” See
    
    27 C.F.R. § 478.11
    . The regulations are consistent with and support our holdings in Corona and
    Edmonds that being an “unlawful user” is distinct from being an addict, and only requires proof
    of regular and ongoing use of a controlled substance. See Edmonds, 
    348 F.3d at 953-54
    ; Corona,
    
    849 F.2d at
    562-63 nn.1-2.
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    contemporaneous with possessing a firearm, the relevant timeframe here is
    Sobolewski’s unlawful use of marijuana at the time he possessed a firearm—which
    was during the traffic stop—not seven months later. See Edmonds, 
    348 F.3d at 953-54
    .
    In fact, the government presented evidence that Sobolewski had been
    consuming marijuana on a regular basis from December 2012 (the period
    surrounding his motorcycle accident) through February 6, 2013 (the date of his
    firearm offense conduct). Indeed, Sobolewski admitted that he began “using”
    marijuana again after his motorcycle accident to treat headaches and had smoked
    marijuana on the day of the traffic stop and the day before. Additionally, there is
    not a reasonable probability that the jury would have reached a different verdict
    had it known about the belated negative drug test taken on May 1, 2013.
    In sum, Dr. Ginory’s expert opinion and Sobolewski’s negative drug test
    were not probative of whether Sobolewski was an “unlawful user” of marijuana
    during the time he possessed his gun on February 6, 2013. Even if this evidence
    was relevant, Sobolewski failed to demonstrate a reasonable probability that the
    result of the proceeding would have been different had trial counsel introduced it to
    the jury. See Osley, 751 F.3d at 1222. Accordingly, Sobolewski did not satisfy
    Strickland’s prejudice prong, and we affirm.
    AFFIRMED.
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