Fourth Circuit Reverses District Court; §2255 Petitioner Entitled to Resentencing

United States v. Jolon Carthorne (No. 16-6515)

The defendant was convicted of possession of a firearm in furtherance of a drug trafficking crime. At sentencing, the probation officer’s presentence report indicated that defendant was subject to the career offender enhancement, due in part to his prior conviction for Assault and Battery of a Police Officer in Virginia. His trial-level attorney did not object to this enhancement, and as a result his guideline range was calculated between 322 and 387 months imprisonment. Had the career offender enhancement not applied, defendant would have received a guideline range of 181 to 211 months.

On direct appeal, the defendant argued that the district court erred in applying the career offender enhancement. However, because trial counsel did not object to the enhancement, the issue was subject only to plain error review on direct appeal. Noting that there was a circuit split on this very issue, the Fourth Circuit nevertheless affirmed defendant’s sentence, due to the stringent plain-error analysis.

Defendant then filed a motion under 28 U.S.C. § 2255, asserting that his trial-level attorney was constitutionally ineffective for failing to object to the career offender enhancement. The district court denied the motion, noting that the Fourth Circuit had not discerned plain error in defendant’s sentence.

As a preliminary matter, the Fourth Circuit is eager to point out that the inquiries under plain error review and a Strickland claim are different, and that they won’t necessarily dictate the same result in all cases.

Turning to the specifics of this case, the Fourth Circuit reasons that defendant’s Assault conviction did not qualify as a crime of violence for the purposes of career offender enhancement. Although at the time of defendant’s sentencing, the Fourth Circuit had not explicitly stated this, the Court reasons that the guiding precedents (including United States v. White, 606 F.3d 144, 148 (4th Cir. 2010) and United States v. Thornton, 544 F.3d 443, 449 (4th Cir. 2009)) “strongly suggested that Virginia assault and battery does not categorically present serious risks of physical injury,” which would remove the conviction from consideration under the career offender enhancement. The Court further noted that the colloquy at sentencing suggested that trial-level counsel failed to understand the basic legal analysis that was required in order to determine whether the Assault conviction would apply. In light of these facts, the Fourth Circuit concludes that there was no strategic basis for counsel’s failure to object. The Court vacates the defendant’s sentence and remands for resentencing.

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