Filed: Sep. 04, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7339 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMEAL GOULD, a/k/a Milio, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:10-cr-00245-JFM-1; 1:13-cv-00230-JFM) Submitted: August 26, 2014 Decided: September 4, 2014 Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Vacated and remande
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7339 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMEAL GOULD, a/k/a Milio, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Senior District Judge. (1:10-cr-00245-JFM-1; 1:13-cv-00230-JFM) Submitted: August 26, 2014 Decided: September 4, 2014 Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior Circuit Judge. Vacated and remanded..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7339
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMEAL GOULD, a/k/a Milio,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cr-00245-JFM-1; 1:13-cv-00230-JFM)
Submitted: August 26, 2014 Decided: September 4, 2014
Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Jameal Gould, Appellant Pro Se. Christine Marie Celeste, OFFICE
OF THE UNITED STATES ATTORNEY, Peter Jeffrey Martinez, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jameal Gould appeals the district court’s order
denying his 28 U.S.C. § 2255 (2012) motion to set aside, vacate,
or correct his sentence. We granted a certificate of
appealability (“COA”) only as to Gould’s claim that his second
attorney, Marcia Shein, was ineffective in failing to object to
the computation of Gould’s criminal history score.
Particularly, Gould asserts that Shein should have objected to
counting his two prior Maryland sentences separately, pursuant
to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2(a)(2)
(2010), because there was no intervening arrest, as that term is
defined in U.S.S.G. § 4A1.2(a)(2).
In our order granting a COA, we directed the
Government to file an informal brief addressing this issue,
which it has done. The time for Gould to reply has lapsed, and
thus the appeal is ripe for disposition.
For the following reasons, we conclude the record does
not support the district court’s finding that an intervening
arrest justified counting Gould’s Maryland sentences separately.
However, because the record is also insufficient to allow us to
conclusively resolve whether these sentences should be
considered as a “single” sentence, pursuant to U.S.S.G.
§ 4A1.2(a)(1)(B), we vacate the district court’s order as to the
denial of relief on this claim and remand this case to the
2
district court for further proceedings on Gould’s ineffective
assistance claim.
I.
In her November 2011 sentencing memorandum, Shein
argued that two of Gould’s prior convictions identified in the
presentence report (“PSR”) should not count separately for
career offender purposes because they were part of the same
course of conduct. Shein emphasized that, although there were
two separate criminal cases, the matters “were consolidated for
sentencing purposes” and the same sentence was imposed on both
charges.
According to the PSR, Gould was arrested on January 6,
2001 and charged in a Maryland state court with possession with
intent to distribute narcotics. This arrest followed the
execution of a search warrant for a home where Gould was
sleeping, which yielded 7.3 grams of cocaine and $944. Gould
pleaded guilty on February 25, 2004, and was sentenced to
fifteen years in prison with ten years suspended. The case
number for this conviction was “22K0101000176” (hereinafter
“Case Number 0176”).
The second Maryland conviction, which was also
identified as for possession with intent to distribute
narcotics, arose from Gould’s arrest on February 23, 2001. No
details regarding the circumstances of this arrest were recited
3
in the PSR. Instead, the PSR merely noted that Gould pleaded
guilty on February 25, 2004, and was sentenced to fifteen years
incarceration with ten years suspended. The case number for
this conviction was “22K01000180” (hereinafter “Case Number
0180”).
In addition to arguing that these convictions should
not count separately towards the career offender designation,
Shein also asked the court to “evaluate whether or not there are
two separate countable offenses” in terms of criminal history
points.
To support her argument, Shein included a transcript
from Gould’s February 25, 2004 state court plea hearing.
According to this transcript, the charge in Case Number 0180 —
felony distribution of cocaine — was based on Gould’s sale of
cocaine to undercover police officers in October 2000. But, in
reciting the factual basis for the guilty plea, the prosecutor
did not state that Gould was arrested on the day of the buy.
The date of Gould’s arrest for this charge was not identified.
Case Number 0176, which was a charge of felony
possession of cocaine, was based on the evidence seized upon
execution of the search warrant on January 6, 2001. According
to the prosecutor, the search warrant was obtained as a result
of the October 2000 controlled buy, as well as other controlled
4
buys involving Gould. It is clear that Gould was arrested upon
the completion of the search.
Shein succeeded in defeating the career offender
designation, but she did not re-assert her objection to counting
the Maryland sentences separately in terms of calculating
Gould’s criminal history score. The probation officer revised
the PSR, removing the career offender calculations, but the
Maryland sentences were still scored separately, each resulting
in three criminal history points. With a total of eleven
criminal history points, Gould was placed in criminal history
category V. The district court imposed a 175-month sentence,
which was within the Guidelines range. Gould did not appeal.
II.
The Government argued that Gould’s ineffective
assistance claim was without merit, as any objection to the
scoring of these sentences would have been unsuccessful. The
Government asserted that Gould was arrested for the first
offense before he committed the second offense, for which Gould
was arrested on February 23, 2001. Thus, counsel argued that
Shein’s declination to pursue this objection was reasonable.
Gould further refined his argument in response to the
Government’s opposition. According to Gould, he was arrested on
February 23, 2001 for his participation in the controlled buy in
October 2000. This is consistent with the record evidence: the
5
transcript from the state court plea colloquy establishes that
the basis for Case Number 0180 was the controlled buy in October
2000, and the PSR reported that Gould was arrested in Case
Number 0180 in February 2001. Thus, Gould argued, because he
was arrested on the second instance of criminal conduct
(stemming from the contraband seized during execution of the
search warrant in January 2001) prior to being arrested on the
first instance of criminal conduct (the controlled buy in
October 2000), there was no intervening arrest and these
sentences should not count separately.
In dismissing Gould’s motion, the district court
accepted the Government’s contention that there was an
intervening arrest. Gould timely noted this appeal.
III.
This court reviews the district court’s legal
conclusions de novo. United States v. Stitt, 552 F.3d 345, 350
(4th Cir. 2008). Because the district court did not conduct an
evidentiary hearing on the motion prior to denying it, “the
nature of the court’s ruling is akin to a ruling on a motion for
summary judgment. In such a circumstance, we review the facts
in the light most favorable to the § 2255 movant.” United
States v. Poindexter,
492 F.3d 263, 267 (4th Cir. 2007)
(internal citation omitted).
6
Gould’s ineffective assistance of counsel claim is
governed by the familiar standard set forth in Strickland v.
Washington, 466 U.S. 668, 687-88, 691-94 (1984). The district
court analyzed Shein’s failure to object in terms of the
strength of the objection, and concluded that it was not viable
because there was an intervening arrest. 1 But the record, in its
current state, does not support this conclusion.
The Sentencing Guidelines provide that:
Prior sentences always are counted separately if the
sentences were 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). If there is no
intervening arrest, prior sentences are counted
separately unless (A) the sentences resulted from
offenses contained in the same charging instrument; or
(B) the sentences were imposed on the same day. Count
any prior sentence covered by (A) or (B) as a single
sentence.
U.S.S.G. § 4A1.2(a)(2) (emphasis added).
1
In terms of Strickland’s prejudice prong, if Gould’s
argument prevails, his criminal history score would be reduced
from eleven points to eight points, resulting in his placement
in criminal history category IV. This, coupled with his total
adjusted offense level of twenty-nine, would reduce Gould’s
advisory Guidelines range from 140-175 months to 121-151 months.
See U.S.S.G. ch. 5, pt. A (sentencing table). That Gould’s 175-
month sentence is well above this revised range satisfies the
prejudice requirement. 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 twenty-one
months to the defendant’s sentence).
7
The Government, in its informal response, simply cites
the PSR, which reported the February 23, 2001 arrest, and posits
that this establishes that “Gould was arrested for the first
offense prior to committing the second offense.” The Government
has not provided any documents relevant to these sentences or
the documentation upon which the probation officer relied in
scoring them.
In our view, the only evidence in the record that is
germane to the critical issue of whether the February 2001
arrest was predicated on conduct that occurred prior to the
January 2001 arrest is the transcript from Gould’s state court
plea hearing. Viewing this evidence in the light most favorable
to Gould, the transcript supports Gould’s contention that there
was no intervening arrest, as that term is used in U.S.S.G.
§ 4A1.2(a)(2), because Gould was not arrested on the first
offense prior to committing the second offense. As such, while
the district court’s contrary factual conclusion is somewhat
understandable, given the PSR, it nonetheless amounts to error.
This, however, does not end our inquiry. We must next
consider whether the two Maryland sentences were imposed on the
same day for if they were not, the sentences would count
separately, despite the lack of an intervening arrest. See
8
U.S.S.G. § 4A1.2(a)(2)(B). 2 Although the district court noted in
its order denying § 2255 relief that “Gould was sentenced on
these convictions on the same day,” the PSR does not bear this
out. 3 Shein had asserted that the “cases were consolidated for
sentencing purposes” and that “[t]he sentences on these two
cases were imposed at a later date[,]” but she did not identify
that date. Gould, for his part, does not offer any evidence to
establish when these sentences were imposed.
That the guilty pleas were taken on the same day and
that Gould received the same sentence for each charge is strong
indicia that the sentences were imposed on the same day;
however, the record does not conclusively establish this fact.
Thus, the present record neither supports the basis for the
district court’s rejection of Gould’s claim nor permits us to
verify the court’s assertion that the Maryland sentences were
imposed on the same day.
2
Gould’s sentences could not be treated as a “single”
sentence under U.S.S.G. § 4A1.2(a)(2)(A) because they did not
result “from offenses contained in the same charging
instrument.”
3
The PSR could be understood to suggest that Gould both
pled guilty and was sentenced on the same day--February 25,
2004--as this is the lone date identified in the paragraphs
relevant to the Maryland convictions. However, the state court
transcript establishes that sentencing was deferred until March
10, 2004, at the earliest, which leads us to conclude that
sentencing occurred on a date that is not identified in the PSR.
9
Accordingly, we vacate the district court’s order
denying relief on this claim and remand this case to the
district court for further proceedings. On remand, the parties
should provide the district court with evidence regarding when
the Maryland sentences were imposed. Once this factual
uncertainty is resolved, the district court should then address
whether Shein was ineffective for failing to object to counting
these sentences separately. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED
10
