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United States Court of Appeals
Fifth Circuit
F I L E D
October 30, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT
Clerk
_____________________
No. 02-20889
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EARL CONLEY,
Defendant-Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before JOLLY and WIENER, Circuit Judges, and ROSENTHAL, District
Judge.*
E. GRADY JOLLY, Circuit Judge:
James Earl Conley contends that both his trial and appellate
counsel were ineffective in failing to object and argue that his
sentence was greater than the maximum set for the crime for which
he was convicted. We conclude that Conley was in fact sentenced to
a longer prison term than that authorized under the criminal
statute he violated, and that the performance of his counsel was
constitutionally ineffective. We therefore reverse the district
* District Judge of the Southern District of Texas, sitting by
designation.

court's denial of relief, vacate Conley's sentence and remand for
re-sentencing.
I
Conley was charged with conspiracy, mail fraud, and money
laundering in a fifteen-count indictment. A jury found Conley
guilty of one count of conspiracy and four counts of mail fraud,
but acquitted him on counts six through fifteen, which dealt with
money laundering. The district court, assuming that Conley had
been convicted under 18 U.S.C. § 1956(h), a money laundering
conspiracy statute, sentenced Conley to 121 months imprisonment on
Count One--even though the judgment specifies that he was convicted
only under 18 U.S.C. § 371, the general conspiracy statute with
respect to mail fraud and money laundering, carrying a maximum
sentence of 60 months imprisonment. (Conley also received
concurrent 60-month terms of imprisonment for the mail fraud
substantive counts.) Conley's attorneys did not realize the
sentencing error until their reply brief on appeal, at which point
this Court rejected their argument because it had not been properly
preserved and timely raised.
Conley soon initiated this proceeding under 28 U.S.C. § 2255
and moved the district court to vacate, set aside, or correct his
sentence. He argued that the 121-month term for the conspiracy
count exceeded the statutory maximum sentence for a conviction
under 18 U.S.C. § 371, and that his attorneys had rendered
ineffective assistance in failing to object to his sentence and
2

raise the issue on appeal. Conley submitted affidavits from his
attorneys acknowledging their failures. The district court
summarily denied the motion, and denied a Certificate of
Appealability ("COA"). Conley then filed for leave to appeal with
this Court. We granted a COA authorizing Conley to proceed with
his ineffective assistance claim.
II
We review a district court's conclusions with regard to a
petitioner's § 2255 claim of ineffective assistance of counsel de
novo. United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002);
United States v. Fabion, 19 F.3d 226, 228 (5th Cir. 1994).1
A
We first address the alleged error in sentencing. Conley
points out that the indictment, jury instructions, docket sheet,
and, importantly, the judgment itself, all make clear that the
conviction on the first count (conspiracy) was for no offense other
1Because Conley procedurally defaulted on this issue in the
criminal proceedings, ordinarily he would have to show both cause
for his procedural default and prejudice resulting from the error.
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc)
(quoting United States v. Frady, 456 U.S. 152, 165 (1982)). We
have previously held, however, that "a claim for 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 raised on direct appeal." Bass, 310 F.3d at 325.
The government does not contest that ineffective assistance of
counsel may constitute cause and prejudice sufficient to overcome
the procedural default doctrine. United States v. Gaudet, 81 F.3d
585, 589 (5th Cir. 1996); United States v. Pierce, 959 F.2d 1297,
1301 (5th Cir. 1992) (quoting United States v. Carrier, 477 U.S.
478, 488 (1986)).
3

than 18 U.S.C. § 371. The government counters that the body of the
conspiracy count cites to the money laundering statute, 18 U.S.C.
§ 1956(a)(1)(A)(I) (in addition to a mail fraud statute, 18 U.S.C.
§ 1341), as an underlying statutory basis for the charged
conspiracy. It also notes that, after enumerating certain overt
acts, the conspiracy count concludes: "In violation of Title 18,
United States Code, Sections 371 and 1956(h)." A conspiracy to
launder money under § 1956(h) carries the same maximum penalty as
the money laundering substantive offense under § 1956(a) (up to 20
years imprisonment). The government therefore argues that because
the money laundering statute was referenced, the jury convicted
under the conspiracy count as charged, and consequently, Conley's
sentence did not exceed the statutory maximum.
In the light of this Court's precedent, the government's
argument is unpersuasive. First, we have held that a lone
statutory reference is inadequate to charge a defendant in a
constitutionally permissible manner. United States v. Cabrera-
Teran, 168 F.3d 141, 147 (5th Cir. 1999).2 "The test of the
validity of an indictment is `not whether the indictment could have
been framed in a more satisfactory manner, but whether it conforms
2"[A] statutory citation, standing alone, cannot substitute
for including an element of the crime in an indictment." Although
United States v. Cotton, 535 U.S. 625 (2002), overruled part of the
Cabrera-Teran (holding that an omission from an indictment is a
"jurisdictional" defect, see Cotton, 535 U.S. at 629), it did not
affect the discussion of the sufficiency of a statutory citation
standing alone.
4

to minimal constitutional standards.' . . . [A] statutory citation
cannot, standing alone, meet this test." United States v. Wilson,
884 F.2d 174, 179 (5th Cir. 1989) (citation omitted). The Wilson
court emphasized that a defendant must be "fairly informed of what
charge he must be prepared to meet." Id. at 179 n.8. In accord
with our precedent, we find that Conley's conviction under §
1956(h) cannot be upheld because he was not adequately charged in
the indictment.3
Second, this Court's precedent dictates that, where a jury
verdict is ambiguous, a sentence imposed for a conviction on a
count charging violations of multiple statutes or provisions of
statutes may not exceed the lowest of the potentially applicable
maximums, which in this case is 60 months. United States v.
Cooper, 966 F.2d 936, 940 (5th Cir. 1992).4 Here the jury rendered
a general guilty verdict and did not specify the statutory
violation. Conley cannot therefore be subject to the higher
maximum penalty. Id.; see also United States v. Carbajal, 290 F.3d
277, 288 (5th Cir. 2002) (quoting Cooper, 966 F.2d at 940); United
States v. Fisher, 22 F.3d 574, 576 (5th Cir. 1994).
3Our conclusion that this conviction exceeded the statutory
maximum is further supported by the fact that neither Count One nor
the jury instructions presented the elements or the essence of §
1956(h).
4"[A] sentencing judge faced with a conviction on a count that
charged the violation of more than one statute, but where the jury
failed to specify the violation found, is limited to imposing a
sentence that does not exceed the maximum penalty under the statute
providing the least severe punishment." Cooper, 966 F.2d at 940.
5

The government's argument to the contrary is unconvincing. It
cites United States v. Green for the proposition that a judge can
impose the more severe sentence of a multiple-offense indictment
count if it is clear that the jury convicted on the offense with
the higher maximum. 180 F.3d 216, 226 (5th Cir. 1999). Yet here
it is not at all clear that the jury convicted Conley of conspiracy
to launder money, the offense with the higher maximum under the
conspiracy count. Indeed, it is more plausible that the jury did
not convict Conley for a money laundering conspiracy because it
actually acquitted Conley of the substantive counts of money
laundering.
Still further, the procedural posture of the present case is
different from both Green and sister circuit cases that the
government cites for support. All of these cases, which imposed
the higher of potential maximum sentences of multiple-offense
counts, depended upon conjunctive jury instructions; that is, the
court (or the indictment) made clear to the jury that a guilty
verdict would, by necessity, mean that all violations had
6

occurred.5 Here, as in Cooper, the jury instructions were
conspicuously disjunctive.6
In sum, Conley has shown that his sentence, resulting from a
conviction under 18 U.S.C. § 371 alone, exceeded the statutory
maximum.
B
Having determined that Conley was erroneously sentenced, we
turn to the question of whether this error resulted from
constitutionally ineffective counsel. To prove that his counsel
were ineffective, Conley must show that his attorneys' performance
was deficient and that he suffered prejudice from this deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Given our finding that this Court's precedent compels that we hold
a 60-month term of imprisonment to be the maximum allowable under
5See, e.g., United States v. Allen, 302 F.3d 1260, 1274-76
(11th Cir. 2002); United States v. Neuhauser, 231 F.3d 460, 468-70
(6th Cir. 2001); United States v. Watts, 950 F.2d 508, 514-15 (8th
Cir. 1991). The lone exception may be United States v. Tham, a
Ninth Circuit case. 960 F.2d 1391, 1400 (9th Cir. 1992) ("[W]here
the jury verdict fails to specify which of the charged offenses
were the object of the conspiracy, then the defendant may be
convicted of those object offenses which the court, were it sitting
as a trier of fact, would convict the defendant.") (citing U.S.S.G.
§ 1B1.2(d) comment. (n.5)). It is not at all clear that Tham is
analogous to the instant case, however, and its language is broad
and directly conflicts with our precedent as it applies to this
case. In any event, Tham is not enough to support the government's
position given our holdings in Cooper, Carbajal, Fisher, and Green.
6The relevant instructions here read: "The indictment charges
that the defendant conspired to commit two offenses. The
government must prove . . . that he conspired to commit at least
one of these offenses. . . . The government does not need to prove
that he conspired to commit both."
7

the first count, and that the error in sentencing was obvious, it
follows that Conley's trial and appellate counsel were ineffective
in failing to object at sentencing and then to raise the issue on
appeal.
First, counsel's assistance is deficient if it falls "below an
objective standard of reasonableness." Strickland, 466 U.S. at
688. We have described that standard as requiring that counsel
"research relevant facts and law, or make an informed decision that
certain avenues will not be fruitful." United States v. Phillips,
210 F.3d 345, 348 (5th Cir. 2000) (quoting United States v.
Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999)). "Solid,
meritorious arguments based on directly controlling precedent
should be discovered and brought to the court's attention." Id.
Conley's counsel failed to meet this standard in that they
admittedly failed to recognize and argue that Conley could not
receive more than 60 months imprisonment under Count One.
Second, 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.'" United States v. Bass, 310 F.3d 321, 325 (5th Cir.
2001) (quoting Strickland, 466 U.S. at 694). It is clear that,
"but for counsel's unreasonable failure . . . [Conley] would have
prevailed," Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001),
8

in obtaining a lesser sentence.7 And, of course, "any amount of
actual jail time has Sixth Amendment significance," Glover v.
United States, 531 U.S. 198, 203 (2001), which constitutes
prejudice for purposes of the Strickland test. See, e.g., United
States v. Franks, 230 F.3d 811, 815 (5th Cir. 2000) (three extra
months equals prejudice).
In sum, Conley's attorneys provided ineffective assistance,
and Conley was prejudiced as a result. He is entitled to the
habeas relief he seeks--to have his sentence on Count One set
aside.
III
For the foregoing reasons, the district court's judgment
denying relief under 28 U.S.C. § 2255 is REVERSED, Conley's
sentence is VACATED, and this case is REMANDED to the district
court for re-sentencing not inconsistent with this opinion.
REVERSED, SENTENCE VACATED, and REMANDED FOR RE-SENTENCING.
7As trial counsel made no objection to the unlawful sentence,
to demonstrate appellate counsel's deficiency, Conley must show
that the sentence amounted to plain error. United States v.
Williamson, 183 F.3d 458, 463-64 (5th Cir. 1999). Here, the error
was obvious, and under our holding in United States v. Sias, "a
sentence that exceeds the statutory maximum is an illegal sentence
and therefore constitutes plain error." 227 F.3d 244, 246 (5th
Cir. 2000).
9