Broomfield

MEMORANDUM **

A jury convicted Howard Broomfield of various narcotics-related charges, including engaging in a “continuing criminal enterprise” (“CCE”) in violation of 21 U.S.C. § 848 . One element of the offense requires that the defendant act “in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management.” Id. § 848(c)(2)(A). Broomfield appealed, arguing that two or three of the twelve potential supervisees listed in the indictment could not, as a matter of law, count toward the requisite five because they were merely customers. He claimed that the trial court’s failure to instruct the jury on this point warranted reversal. We affirmed the conviction and sentence, stating that in light of the unsettled governing law, the trial court’s failure to give the instruction sua sponte was not plain error. See United States v. Broomfield, No. 96-50349, 1998 WL 551971 , at *3-4, 1998 U.S.App. LEXIS 21165, at *9-12 (9th Cir. Aug. 27, 1998). Broomfield then filed a motion to vacate pursuant to 28 U.S.C. § 2255 , alleging ineffective assistance of counsel for failure to object to the…