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Cory Baker Kamerud v. United States of America

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Submitted: April 15, 2010

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

Cory and Brett Kamerud appeal the district court’s denial of their 28 U.S.C. § 2255 motions, challenging their 2001 jury convictions for conspiring to distribute and possessing with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, which resulted in identical 240-month sentences. Although the district court*fn1 denied relief, this court granted a certificate of appealability on the issue of whether “counsel was constitutionally ineffective for failing to argue there was a variance between the one conspiracy charged in the indictment and the two separate conspiracies allegedly proved at trial.” In their briefs, the Kameruds renew the claim that the district court erred when it determined that their attorneys were not ineffective for failing to challenge the superseding indictment due to a variance between the one conspiracy charged in the indictment and the two conspiracies they allege were proven at trial. They argue that, because the alleged second conspiracy was in South Dakota, venue was improper in the Northern District of Iowa, and they should be granted a new trial. We affirm.

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