091015P.pdf   07/13/2010  Bud Theus, III  v.  United States
   U.S. Court of Appeals Case No:  09-1015
   U.S. District Court for the District of South Dakota - Sioux Falls   
   [PUBLISHED] [Wollman, Author, with Riley, Chief Judge, and
   Shepherd, Circuit Judge]
   Prisoner case - habeas. For the court's opinion in Theus's direct
   appeal, see U.S. v. Theus, 230 Fed. Appx. 642 (8th Cir. 2007). Theus
   failed to show that his attorney's performance was deficient in failing to
   file a motion for new trial, as trial counsel acted competently when he
   decided to move for judgment of acquittal and forego filing a motion for
   new trial; Theus's substantial rights were not prejudiced when his
   attorney failed to file a supplemental brief ordered by this court; while the
   court recognized the jury's error in using spillover evidence to convict
   Theus of a conspiracy involving five kilos of crack, Theus's sentence
   must be vacated because the district court erred when it failed to sentence
   Theus based on the lesser included offense, conspiracy to possess with
   intent to distribute more than 500 grams of crack; as a result of the error
   Theus was improperly sentenced under a ten-year mandatory minimum
   rather than a five-year mandatory minimum. Chief Judge Riley
   concurring in part and dissenting in part.