REBECCA BEACH SMITH, Chief Judge.
This matter comes before the court on Lamar Richard Lee's ("Petitioner") pro se
On January 16, 2013, a federal grand jury in the Eastern District of Virginia indicted the Petitioner on six counts. Counts One and Two charged the Petitioner with Possession with Intent to Distribute Cocaine Base and Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Indictment at 1-2, ECF No. 23. Count Three charged the Petitioner with Possession with Intent to Distribute Heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Id. at 3. Counts Four and Six charged the Petitioner with Possession of Firearms by a Person Previously Convicted of a Felony Crime, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Id. at 4, 6. Count Five charged the Petitioner with Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c). Id. at 5. The court appointed Bryan L. Saunders ("Saunders") to represent the Petitioner. CJA 20, ECF No. 20.
On March 18, 2013, the Petitioner pled guilty to Counts One, Two, Three, and Six of the Indictment. Plea Agreement, ECF No. 36. The court sentenced the Petitioner on June 14, 2013, to one hundred eighty-eight (188) months imprisonment, consisting of one hundred eighty-eight (188) months on the drug charges and one hundred twenty (120) months on the firearm charge,
The Petitioner timely appealed his sentence on June 28, 2013. Notice of Appeal, ECF No. 50. Saunders filed a brief, in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), certifying that there were no meritorious issues for appeal but arguing that the Petitioner's sentence was unreasonable. On March 7, 2014, the Court of Appeals for the Fourth Circuit affirmed
On October 27, 2014, the Petitioner filed the instant Motion, alleging that Saunders provided constitutionally ineffective assistance of counsel because, during the sentencing hearing, Saunders failed to challenge the court's Career Offender finding. The Petitioner contends that the failure to object to the use of his two prior state court convictions in determining Career Offender status rendered Saunders ineffective, and therefore the Petitioner is entitled to relief.
The right to effective assistance of counsel extends to the sentencing phase, a "critical stage of trial." United States v. Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996). A defense attorney's failure to object to an improper application of the Sentencing Guidelines may amount to ineffective assistance of counsel. Id. at 136. To prove ineffective assistance of counsel, the Petitioner must show by a preponderance of the evidence that 1) his attorney's performance was deficient, and 2) the attorney's deficient performance prejudiced the Petitioner by undermining the reliability of the judgment against him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because the Petitioner must satisfy both prongs of the ineffective assistance test, a failure to carry the burden of proof as to one prong precludes relief and relieves the court of the duty to consider the other. Id. at 697, 104 S.Ct. 2052.
In determining whether his representation of the Petitioner was deficient, Saunders' actions or omissions must be measured against what "an objectively reasonable attorney would have done under the circumstances existing at the time of the representation." Savino v. Murray, 82 F.3d 593, 599 (4th Cir.1996); see also Lawrence v. Branker, 517 F.3d 700, 708-09 (4th Cir.2008). A court's review of trial counsel's performance is subject to a "highly deferential" standard. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The court must attempt to "eliminate the distorting effects of hindsight," and instead "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
If the Petitioner could show that Saunders' performance was deficient, he would also have to demonstrate that he was prejudiced by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. However, because the Petitioner has failed to demonstrate that his attorney's performance was deficient, this court need not address the prejudice prong of Strickland.
The Petitioner specifically argues that his 2008 state court conviction for unlawful
The Petitioner first alleges that Saunders was ineffective for failing to challenge the court's application of his state court conviction for unlawful wounding in considering Career Offender status because, as the Petitioner contends, unlawful wounding is "not categorically a crime of violence." Mot. at 3. The Petitioner is incorrect.
Under the Sentencing Guidelines, a "crime of violence" includes any felony that "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) ... otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a). To determine whether a prior offense constitutes a crime of violence under this provision, the Fourth Circuit typically uses the "categorical approach." United States v. Seay, 553 F.3d 732, 737 (4th Cir.2009). This approach requires the court to consider the offense "generically,... in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Id. (citing Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). Thus, in order to qualify as a crime of violence, an "offense's full range of proscribed conduct, including the least culpable proscribed conduct," must fall within the definitions in U.S.S.G. § 4B1.2. United States v. King, 673 F.3d 274, 278 (4th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 216, 184 L.Ed.2d 111 (2012).
The Petitioner asserts that the court should have used a "modified categorical approach" in determining his Career Offender status. Mot. at 5. Such an approach is applicable only in "narrow circumstances" when it is "evident from the statutory definition of the state crime that some violations of the statute are `crimes of violence' and others are not." King, 673 F.3d at 278 (quoting United States v. Diaz-Ibarra, 522 F.3d 343, 348 (4th Cir. 2008)). In cases involving a "divisible" statute, or a statute "that set[s] out elements in the alternative and thus create[s] multiple versions of the crime," the court will apply a modified categorical approach. United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.2013) (citing Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2284, 186 L.Ed.2d 438 (2013)). Only then may a court "look beyond the generic elements of the offense to the specific conduct underlying that prior offense." King, 673 F.3d at 278.
The Fourth Circuit has held that a conviction for unlawful wounding under Virginia Code § 18.2-51 constitutes a "violent felony" under the Armed Career Criminal Act ("A.C.C.A."), which includes identical language to the Sentencing Guidelines' definition of "crime of violence."
Only one court has held that a prior conviction under § 18.2-51 is not categorically a "crime of violence" under the Sentencing Guidelines. United States v. Lopez-Reyes, 945 F.Supp.2d 658, 665 (E.D.Va.2013) (Ellis, J.). However, in Lopez-Reyes, the court relied upon the definition of "crime of violence" in U.S.S.G. § 2L1.2, Appl. Note 1(B)(iii), which is limited to offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another." The definition applicable in this case is instead found in U.S.S.G. § 4B1.2(a), and while it includes the same definition as in the commentary following § 2L1.2, it also provides that a crime of violence may be defined as "conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). Based on the plain meaning of the Virginia statute, a conviction under § 18.2-51 requires evidence of "bodily injury [to the victim], with the intent to maim, disfigure, disable, or kill." Va.Code Ann. § 18.2-51. Thus, a violation of this statute clearly "presents a serious potential risk of physical injury to another" as required under U.S.S.G. § 4B1.2(a). Accordingly, the Petitioner's unlawful wounding conviction categorically qualifies as a prior felony
The Petitioner also alleges that Saunders was ineffective for not challenging the use of his state court conviction for possession with intent to distribute cocaine to determine Career Offender status. While this conviction is clearly a "controlled substance offense" under U.S.S.G. § 4B1.1(a), the Petitioner contends that, because he entered an Alford plea to the charge, and did not admit to the offense's underlying facts, his conviction cannot support the court's Career Offender finding. Mot. at 7. This argument is also wrong.
In denying the Petitioner's appeal in this case, the Fourth Circuit noted that Alford pleas do count in calculating criminal history. Lee, 559 Fed.Appx. at 252 (citing King, 673 F.3d at 281-83). The case of United States v. Alston, 611 F.3d 219 (4th Cir.2010), on which the Petitioner primarily relies to support his argument, Mot. at 7, is not to the contrary, and indeed, is inapplicable to the Petitioner. In Alston, the prior offense at issue was second-degree assault, rather. than a controlled substance offense, as in the instant case. Alston, 611 F.3d at 222. The relevant state law "encompasse[d] several distinct crimes, some of which qualif[ied] as violent felonies [for purposes of sentencing enhancement] and others of which d[id] not." Id. at 223. The state court conviction for second-degree assault thus fell into the "narrow range of cases," King, 673 F.3d at 278, in which the sentencing court could apply the "modified categorical approach" and look beyond the generic elements of the conviction. Alston, 611 F.3d at 223.
In Alston, the defendant had entered an Alford plea in the relevant prior state offense. There, the "state prosecutor's proffer of the facts that the State would have presented at trial indicated that [the defendant] had committed a violent felony, but also that [he] never agreed to those facts." Id. at 220. It was therefore improper for the trial court to rely upon the state's proffer of facts, which the trial court was not required to find in order to accept the defendant's plea and return a conviction. Id. at 227. In vacating the defendant's sentence, the Fourth Circuit explained that the state's proffer of facts for the Alford plea could not "establish, with the requisite certainty, that the conviction for second-degree assault ... was a conviction for a violent felony" for purposes of enhancing the defendant's federal sentence. Id. at 228. Alston therefore merely bars a "prosecutor's proffer of the factual basis for an Alford plea [from being] later ... used ... to identify the resulting conviction as [a] predicate" for purposes of sentencing enhancement. Id. at 227. It does not, however, "categorically prohibit the use of a conviction obtained from an Alford plea as a predicate offense for a statutory enhancement." United States v. Mouzone, 687 F.3d 207, 221 (4th Cir.2012). Where the fact of conviction itself is sufficient to determine that a prior conviction qualifies as a predicate offense, there is no need to consider the underlying facts. Id.
Because the Petitioner's plea of guilt for Possession with Intent to Distribute Cocaine involved a felony
For the reasons stated herein, the Motion is
U.S.S.G. § 4B1.1(a). The grounds on which Petitioner seeks relief in his Motion arise solely from § 4B1.1(a)(3).
