United States District Court, D. Minnesota
A. Magnuson United States District Court Judge
matter is before the Court on Defendant's Motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 (Docket
No. 106), based on alleged ineffective assistance of counsel.
For the reasons that follow, the Motion will be denied.
Indictment charged Defendant with two crimes: possession of
an unregistered short-barreled shotgun, and felon in
possession of a firearm. Defendant entered pleas of not
guilty and proceeded to a jury trial in January 2015. The
jury found Defendant guilty of both crimes.
sentencing, the Probation officer prepared a Presentence
Report (“PSR”). To calculate Defendant's
sentencing range under the United States Sentencing
Guidelines, the PSR first looked to § 2K2.1(a)(3), which
applies to crimes involving the unlawful possession of a
firearm. That Section specifies the base offense level is 22
if (i) the offense involved a short-barreled shotgun and (ii)
the crime was committed after the defendant had been
convicted of a felony “controlled substance
offense.” U.S.S.G. § 2K2.1(a)(3)(A)(ii), (B).
Here, the crime of conviction involved a short-barreled
shotgun, and the PSR indicated Defendant was convicted in
2010 of a felony controlled-substance offense, namely,
“Third Degree Controlled Substance Crime - Sale of
Cocaine.” (PSR ¶¶ 13, 35.) Accordingly, the
PSR determined that Defendant's base offense level was
22, which was increased by two levels because the
short-barreled shotgun had been stolen. (Id.
¶¶ 13, 15.) Defendant's total offense level,
therefore, was 24.
the PSR determined Defendant's criminal-history category.
It recited Defendant's numerous prior brushes with the
law and assigned him 11 criminal-history points, based on
four particular convictions: the controlled-substance crime
mentioned above (three points); a 1999 forgery conviction
(three points); and two convictions on January 4, 2005 for
possession of marijuana (two points) and unlawful possession
of a firearm (three points). (PSR ¶¶ 27-36.)
Defendant also received two additional points for committing
the crimes charged in the Indictment while on probation for
the controlled-substance conviction. (Id. ¶
37.) With 13 total points, the PSR determined that Defendant
fell into criminal history category VI. (Id. ¶
total offense level of 24 and a criminal history category of
VI, the Guidelines yielded a sentencing range of 100-125
months' imprisonment. (Id. ¶ 77.) Defendant
lodged only one objection to this calculation, arguing that
he had never been convicted of battery, as noted in PSR
paragraph 28. (See PSR Addendum (Docket No. 82 at
19).) But because the PSR ascribed no criminal history points
to this alleged battery, his objection did not alter the
conclusion that his criminal history category was VI.
sentencing on December 15, 2015, the Court adopted the
PSR's Guidelines calculation without change. (Docket No.
80.) Nevertheless, the Court varied downward from the bottom
of the recommended range and sentenced Defendant to 96
months' imprisonment. (Docket No. 81.) Defendant appealed
but did not raise any sentencing issue, arguing only that the
Court erred in denying his motion to suppress. The Eighth
Circuit affirmed his conviction on December 22, 2016.
United States v. Patterson, 666 F. App'x 569
(8th Cir. 2016).
filed the instant Motion on August 3, 2017, asserting that
his counsel was ineffective in two ways. First, he claims
counsel should have objected to the calculation of his base
offense level. He argues that the Minnesota controlled
substance statute, Minn. Stat. § 152.023, which makes it
unlawful to sell a mixture containing a narcotic drug,
proscribes conduct that is broader than a “controlled
substance offense” under the Guidelines. Section
152.023 defines the term “sell” to include not
only selling a drug, but also offering to sell a drug, but
for purposes of the Guidelines, a controlled substance
offense involves only the sale of a drug. Defendant thus
argues that under the “categorical approach” of
Mathis v. United States, 136 S.Ct. 2243 (2016), his
drug conviction should not have counted when the PSR
calculated his base offense level. Second, Defendant claims
his counsel erred in failing to object to the calculation of
his criminal history category. Specifically, he argues that
he should not have received points for both of his January 4,
2005 convictions (for possession of marijuana and unlawful
possession of a firearm). Neither contention has merit.
order to be entitled to relief based on ineffective
assistance, a prisoner such as Defendant must show that (1)
his counsel's performance fell below an objective
standard of reasonableness and (2) there is a
“reasonable probability that, but for [his]
counsel's . . . errors, the result of the proceeding
would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). The Court
must evaluate a lawyer's performance without the benefit
of hindsight, and there is a “strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. A Defendant is entitled to competent representation, but
the Constitution “does not insure that defense counsel
will recognize and raise every conceivable” argument,
Anderson v. United States, 393 F.3d 749, 754 (8th
Cir. 2005), and the failure to assert a new or novel argument
on an unsettled legal question does not render counsel
constitutionally ineffective. Ragland v. United
States, 756 F.3d 597, 597 (8th Cir. 2014).
Defendant argues that his counsel should have pressed
Mathis's categorical approach to argue his prior
drug conviction was not a “controlled substance
offense” under the Guidelines. But Mathis was
decided more than a year after Defendant was sentenced. More
importantly, the law in this Circuit was not settled at the
time Defendant was sentenced. As Judge Patrick J. Schiltz
noted when denying habeas relief under similar circumstances,
“there were a few cases that . . . could have been
cited” to support Defendant's position, but at the
time he was sentenced, “there was no ‘clearly
controlling precedent' holding that [his] prior
conviction” was not a controlled substance offense
under the Guidelines. United States v. As-Sadiq,
Crim. No. 14-403, 2017 WL 4773113, at *2 (D. Minn. Oct. 20,
2017). When Defendant was sentenced in December 2015, the
Eighth Circuit had “never stated - in dicta or
otherwise - that a conviction under [Minnesota Statutes]
§ 152.023 . . . was not a ‘controlled substance
offense' for purposes of the Guidelines.”
Id. at *3. Accordingly, and because of the
presumption of competence attached to counsel's
representation, the failure to raise the argument cannot
constitute ineffective assistance. See Kelly v. United
States, 819 F.3d 1044, 1050-51 (8th Cir. 2016) (denying
relief under 28 U.S.C. § 2255 “[g]iven the absence
of a clearly controlling precedent requiring a different
course of action, and in light of the substantial deference
we afford trial counsel”); As-Sadiq, 2017 WL
4773113, at *3.
defense counsel err in failing to object to the calculation
of Defendant's criminal history category. As the
Government correctly notes, the Guidelines provide that
“[p]rior sentences always are counted separately if . .
. imposed for offenses that were separated by an intervening
arrest (i.e., the defendant is arrested for the first offense
prior to committing the second offense).” U.S.S.G.
§ 4A1.2(a)(2). That is precisely the case here. Even
though it appears Defendant pled guilty and was sentenced on
the same date for both of his January 2005 convictions
(possession of marijuana and unlawful possession of a
firearm), the PSR makes clear the marijuana charge stemmed
from an arrest on August 7, 2004, while the firearm charge
resulted from an arrest on August 14, 2004. (PSR ¶¶
33, 34.) Under these circumstances, there cannot have been
error in failing to object to the assignment of points for
cites United States v. Davis, 720 F.3d 215 (4th Cir.
2013), to support his argument, but that case is inapposite.
There, the defendant previously had been convicted of
multiple offenses but, in accordance with North Carolina law,
had received a “single judgment” and a
“consolidated sentence” limited to the statutory
maximum for the “most serious offense” for which
he was convicted. Id. at 218. Davis held
that under these circumstances, it was error for a federal
court to later conclude the defendant had multiple prior
convictions, rendering him a career offender under the
Guidelines. By contrast here, Defendant points to no Illinois
law suggesting his two January 2005 convictions resulted in a
“single judgment” or a “consolidated
sentence.” Indeed, the two offenses were charged
under different case numbers and related to wholly separate
conduct, and the sentences imposed for the two crimes-while
issued on the same day- were different. (See PSR
¶¶ 33, 34 (164-day sentence for marijuana
possession, 2-year sentence for firearm possession).)
Davis does not aid Defendant's cause.
of these reasons, the Court concludes Defendant is not
entitled to relief. The Court also declines to issue a
certificate of appealability. A defendant who seeks review of
an order denying a motion under 28 U.S.C. § 2255 must
obtain such a certificate, which will not be granted unless
he “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(1)(B),
(c)(2); accord, e.g., Williams v. United
States, 452 F.3d 1009, 1014 (8th Cir. 2006). He must
show the issues are “debatable among reasonable
jurists, ” that different courts “could resolve
the issues differently, ” or that the issues otherwise
“deserve further proceedings.” Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997). The Court
does not believe Defendant meets this exacting standard here.
on the foregoing, and all the files, records, and proceedings
herein, IT IS ORDERED that Defendant's
Motion under 28 U.S.C. § 2255 (Docket No. 106) is
DENIED. The ...