Filed: Nov. 14, 2012
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7564 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN SMITH, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:07-cr-00019-nkm-mfu-1; 3:09-cv-80132- nkm-mfu) Argued: October 23, 2012 Decided: November 14, 2012 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished opinion. Judge D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-7564 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN SMITH, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, Senior District Judge. (3:07-cr-00019-nkm-mfu-1; 3:09-cv-80132- nkm-mfu) Argued: October 23, 2012 Decided: November 14, 2012 Before GREGORY, SHEDD, and DAVIS, Circuit Judges. Affirmed by unpublished opinion. Judge Da..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:07-cr-00019-nkm-mfu-1; 3:09-cv-80132-
nkm-mfu)
Argued: October 23, 2012 Decided: November 14, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Gregory joined. Judge Shedd wrote an opinion
concurring in the judgment.
ARGUED: Lara Nell Jensen, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Neal L. Walters, Evan C. Mix, Third Year Law Student, Jason C.
Lynch, Third Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, Nancy S. Healey, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DAVIS, Circuit Judge:
Kelvin Smith appeals the district court’s denial of
his motion under 28 U.S.C. § 2255, in which he asserted
ineffective assistance of counsel claims at sentencing.
Specifically, he argues that his attorney should have objected
to his criminal history calculation because the district court
scored a prior Virginia sentence for failure to appear; Smith
contends that the offense is similar to contempt of court, and,
thus, excludable under the advisory sentencing guidelines.
Although, unlike the district court, we doubt the reasonableness
of counsel’s failure to object, under the unusual circumstances
presented here, Smith has failed to show prejudice.
Accordingly, we affirm.
I.
On October 17, 2007, pursuant to a plea agreement,
Smith pled guilty to conspiracy to distribute cocaine, crack
cocaine, and marijuana, in violation of 21 U.S.C. § 846;
distributing cocaine, in violation of 21 U.S.C. § 841(a)(1); and
being an unlawful drug user in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(3). 1 In his plea agreement,
1
Smith also pled guilty to making a false statement to
purchase a firearm, in violation of 18 U.S.C. § 924(a)(1)(A),
(Continued)
3
Smith waived
all rights . . . to appeal whatever sentence . . . is
imposed, including any issues that relate[d] to the
establishment of the advisory Guideline range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guidelines range
that [wa]s established at sentencing . . .
S.J.A. 57. Smith also waived
all rights to contest the conviction or sentence . . .
in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting an appeal or
motion based upon grounds of ineffective assistance of
counsel . . . not known to [him] at the time of [his]
guilty plea.
Id. A separate provision stated that Smith “waive[d] any claim
[he] may have for ineffective assistance of counsel known and
not raised by [him] with the Court at the time of sentencing.”
Id. at 61.
At sentencing on February 28, 2008, the district court
assigned Smith two criminal history points under the advisory
sentencing guidelines because he had committed his offenses
during “a two year term of good behavior.” See J.A. 18
(district court adopting the Presentence Investigation Report,
“PSR”). Smith received two additional points for prior state
convictions: one point for a 2005 conviction for carrying a
concealed weapon; and one point for a 2006 conviction for
and brandishing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1).
4
failure to appear in court for an assault and battery charge.
Smith had been fined $50 for the failure to appear conviction.
The four criminal history points placed Smith in
criminal history category III. With an offense level of 28, the
advisory sentencing range for Smith’s conspiracy, distribution,
and firearm possession charges was 97–121 months in prison.
U.S. Sentencing Guidelines Manual Ch. 5 Pt. A (sentencing
table) (2007). Had Smith received three (rather than four)
criminal history points, he would have fallen within criminal
history category II, and the advisory sentencing range would
have been 87–108 months.
Smith’s counsel made no objections to the calculation
of the advisory sentencing range. The district court sentenced
Smith to concurrent terms of 109 months for the conspiracy,
distribution, and firearm possession charges. 2 In keeping with
his agreed appeal waiver, Smith did not file a direct appeal.
On February 13, 2009, however, Smith filed a timely
pro se motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. Smith argued that his attorney had
provided ineffective assistance of counsel by not objecting to
2
Smith was also sentenced to a concurrent 60-month sentence
for making a false statement to purchase a firearm, and a
consecutive 84-month term for brandishing a firearm in a drug
trafficking crime. Smith does not challenge these aspects of
his sentence.
5
the assessment of one criminal history point for his failure to
appear conviction. 3 He argued that the offense of failure to
appear was similar to contempt of court and, thus, should have
been excluded from his criminal history calculation pursuant to
§ 4A1.2 of the advisory sentencing guidelines 4 and United States
v. Tigney, 367 F.3d 200 (4th Cir. 2004). 5
On October 29, 2010, the district court granted the
Government’s motion to dismiss Smith’s motion under § 2255. The
court found that Smith had waived his claim of ineffective
assistance of counsel because he had not “allege[d] that he did
not know of these claims at the time of his sentencing.” J.A.
96, 99. The court noted in a lengthy footnote, however, that
“even if his claims [had] not [been] waived, Smith’s claims
3
Smith also argued that his attorney had provided
ineffective assistance by not objecting to the amount of crack
cocaine attributable to him for sentencing purposes. This
second argument is not material to Smith’s appeal.
4
Section 4A1.2 provides that, in calculating a defendant’s
criminal history category, a district court should exclude prior
sentences for certain enumerated misdemeanor and petty offenses
--and “offenses similar to them, by whatever name they are
known”--unless “(A) the sentence was a term of probation of more
than one year or a term of imprisonment of at least thirty days,
or (B) the prior offense was similar to an instant offense.”
U.S. Sentencing Guidelines Manual § 4A1.2(c) (2007). The
enumerated offenses include contempt of court.
5
In Tigney, we held that the West Virginia offense of
failure to appear was similar to contempt of court, and, thus,
should have been excluded from the defendant’s criminal history.
Tigney, 367 F.3d at 200.
6
nevertheless fail[ed] on the merits”:
Smith has not demonstrated either deficient
performance or prejudice. Pursuant to [U.S. Sentencing
Guidelines Manual] § 4A1.2, sentences for misdemeanor
and petty offenses are counted, except for a list of
offenses provided in the section and offenses similar
to them. Failure to appear does not appear on that
list of excluded offenses. And, Smith does not allege
which of the listed offenses, his failure to appear
charge is similar to. Rather, Smith relies on
[Tigney,] a Fourth Circuit case that interprets West
Virginia statutes. However, Virginia statutes are
different than the West Virginia statutes at issue.
Therefore, the court cannot find that on the facts
presented in this case, Smith has demonstrated that
counsel’s failure to object was constitutionally
deficient. Further, Smith has not demonstrated that he
was prejudiced by counsel’s failure to object because
he has not shown that had counsel filed the objection,
the court would have sustained the objection and
removed the 1 point from Smith’s criminal history
calculation. In fact, in a prior case, United States
v. Rush, Criminal Case No. 3:06cr00013-1 (W.D. Va.
Sept. 5, 2006), this court overruled a similar
objection and the defendant had one point counted for
his failure to appear conviction.
Id. at 102. n.2.
On November 8, 2010, Smith appealed. On May 10, 2011,
we granted a certificate of appealability on “whether Smith’s
counsel provided ineffective assistance in failing to object to
the assessment of one criminal history point for Smith’s failure
to appear conviction in Virginia.” 6
6
Our order also granted a certificate of appealability on
whether Smith had waived his claim of ineffective assistance of
counsel, but the Government has abandoned its procedural
challenge to Smith’s claim.
7
II.
A.
We consider de novo “whether specific facts constitute
ineffective assistance of counsel.” United States v.
Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000). To establish
ineffective assistance of counsel, Smith must show that (1) his
attorney’s performance was deficient, and (2) the deficient
performance was prejudicial. See Strickland v. Washington,
466
U.S. 668, 687 (1984).
To establish deficient performance, Smith “must show
that counsel's representation fell below an objective standard
of reasonableness.” Id. at 688. We “must be highly deferential”
in our review, taking into account “the facts of the particular
case,” the “prevailing professional norms,” and “counsel’s
perspective at the time.”
Id. at 689–90. “Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]”
Id. at
689. But a defendant may rebut that presumption by “proving
that his attorney’s representation was unreasonable under
prevailing professional norms and that the challenged action was
not sound strategy.” Kimmelman v. Morrison,
477 U.S. 365, 384
(1986).
8
To establish prejudice, Smith must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Prejudice exists when an error results in a longer sentence
than would otherwise have been imposed. See Glover v. United
States,
531 U.S. 198, 202–04 (2001) (holding that Sixth
Amendment prejudice resulted from an asserted error that added
six to 21 months to the defendant’s sentence). “If the
defendant cannot demonstrate the requisite prejudice, a
reviewing court need not consider the performance prong.”
Fields v. Attorney Gen.,
956 F.2d 1290, 1297 (4th Cir. 1992)
(citing
Strickland, 466 U.S. at 697).
B.
Smith argues that his attorney provided ineffective
assistance by failing to object when the PSR assessed one
criminal history point for his prior Virginia conviction for
failure to appear. Opening Br. 9–12. He contends that a
conviction for failure to appear in a Virginia court is similar
to contempt of court, and therefore warrants no criminal history
points under the advisory sentencing guidelines. Id. at 9.
Smith essentially argues that, had counsel timely objected,
9
there is a reasonable probability that he would have been in a
lower criminal history category, thereby within a lower advisory
guidelines sentencing range, and consequently he likely would
have received shorter concurrent sentences for his conspiracy,
distribution, and firearm possession convictions.
In light of Tigney and the sentencing guidelines’
application notes, we have serious doubts about the
reasonableness of counsel’s failure to object. Although Tigney
involved the West Virginia offense of failure to appear, see
Tigney, 367 F.3d at 200–01, it was the most relevant Fourth
Circuit case at the time of Smith’s sentencing, and analyzed an
offense substantially similar to Smith’s. Like the West
Virginia statute, the Virginia statute “outlaws a particular
manner of disobeying [a court] order--by failing to appear in
court on the designated date,” 7 and “leave[s] the court with
discretion to fix the penalty.” 8
7
See Tigney, 367 F.3d at 202 (describing the West Virginia
statute); Va. Code Ann. § 19.2-128 (criminalizing willful
failure “to appear before any court as required”).
8
See Tigney, 367 F.3d at 203–04 (referring to the West
Virginia statute); Va. Code Ann. § 19.2-128 (defining failure to
appear in a Virginia court as a class 1 misdemeanor or class 6
felony); Va. Code Ann. § 18.2-11 (authorizing “either or both”
incarceration “for not more than twelve months and a fine of not
more than $2,500” for class 1 misdemeanors); Va. Code Ann. §
18.2-10 (authorizing, for class 6 felonies, “a term of
imprisonment of not less than one year nor more than five years,
or in the discretion of the jury or the court trying the case
(Continued)
10
The sentencing guidelines’ application notes also
counsel against counting Smith’s failure to appear conviction in
his criminal history. The application notes list five factors
for determining whether offenses are similar; two were critical
to our analysis in Tigney: the elements of the offenses, and the
respective penalties for each offense. 9 The three remaining
factors make clear that the Virginia offense is substantially
similar to contempt of court: neither offense involves a high
level of “perceived seriousness”; 10 both involve the same level
of culpability (conscious disregard of a court order); 11 and
without a jury, confinement in jail for not more than 12 months
and a fine of not more than $2,500, either or both”).
9
See Tigney, 367 F.3d at 200–04. Because of this, Tigney
remained highly relevant at the time of Smith’s sentencing, even
though the Tigney panel purported to apply an “elements” test--
comparing “the elements of the prior offense to the elements of
the relevant offense listed in Section 4A1.2(c)”--and the
advisory guidelines advocated a “common sense” approach. See
id.
at 201–02; U.S. Sentencing Guidelines Manual § 4A1.2, appl.
n.12(A) (2007).
10
Indeed, Smith received only a $50 fine for his failure to
appear.
11
See 18 U.S.C. § 401 (criminalizing disobedience of a
lawful official court order); Va. Code Ann. § 19.2-128
(criminalizing willful failure to appear). Although the federal
contempt provision does not expressly require intent, courts
have “engrafted . . . the requirement of both a contemptuous act
and a willful, contumacious, or reckless state of mind.” In re
Joyce, 506 F.2d 373, 378 (5th Cir. 1975). See also United States
v. Burstyn,
878 F.2d 1322, 1324 (11th Cir. 1989) (to support a
conviction under § 401, the government must prove that the
(Continued)
11
neither contempt of court nor failure to appear in a Virginia
court indicates a “likelihood of recurring criminal conduct.”
See U.S. Sentencing Guidelines Manual § 4A1.2, appl. n.12(A)
(2007).
Despite our doubt as to the reasonableness of
counsel’s failure to object, however, we are constrained, on the
unique facts before us, to affirm the denial of Smith’s claim
for lack of prejudice. The district court has made clear that,
had counsel challenged the calculation of Smith’s criminal
history at sentencing, the court would have overruled the
objection. See supra pp. 6-7. Even if this had been error,
Smith would have had no recourse: In his plea agreement, he
waived his right to appeal “any issues that related to the
establishment of the advisory Guideline range.” See supra p. 3. 12
Accordingly, given that any error by the district court in
overruling an objection by counsel would have been effectively
“quarantined” by Smith’s appeal waiver of “any issues that
relate[d] to the establishment of the advisory Guideline range,”
Smith cannot show that, but for counsel’s failure to object,
violation was willful)); Floersheim v. Engman, 494 F.2d 949, 952
(D.C. Cir. 1973) (“Criminal contempt is essentially reserved for
willful contumacy and not good faith disagreement.”).
12
Calculation of a criminal history category plainly is a
part of “establish[ing] the advisory Guideline range.”
12
there is a “reasonable probability” that he would have received
a shorter sentence. See Strickland, 466 U.S. at 694. 13
III.
For the reasons set forth, the judgment of the
district court is
AFFIRMED.
13
Cf. Glover, 531 U.S. at 204 (“Here we consider the
sentencing calculation itself, a calculation resulting from a
ruling which, if it had been error, would have been correctable
on appeal.”)(emphasis added)).
13
SHEDD, Circuit Judge, concurring in the judgment:
As the majority correctly notes, under Strickland v.
Washington, 466 U.S. 668, 687 (1984), a petitioner must make two
showings to prevail on a claim for ineffective assistance of
counsel in a habeas petition under 28 U.S.C. § 2255: first, he
must show that his counsel’s performance fell below an objective
standard of reasonableness, and second, that he was prejudiced
by that deficiency. When a petitioner fails to make one of
these showings, a court need not address the other.
Id. at 697
(“[T]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or
even to address both components of the inquiry if the defendant
makes an insufficient showing on one.”). Because I agree
completely with the majority’s reasoning as to why Smith cannot
show prejudice as required under Strickland, I would not address
whether the performance by his counsel was deficient. See
id.
14
