Argued: October 24, 2017
from the United States District Court for the Middle District
of North Carolina, at Greensboro. William L. Osteen, Jr.,
District Judge. (1:10-cr-00096-WO-1; 1:14-cv-00447-WO-LPA)
Katherine Grace Mims Crocker, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant.
P. Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Benjamin L. Hatch, MCGUIREWOODS LLP, Norfolk, Virginia, for
J. Hairston, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greensboro, North Carolina, for
MOTZ, KEENAN, and THACKER, Circuit Judges.
Vacated and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Motz and Judge Thacker joined.
BARBARA MILANO KEENAN, CIRCUIT JUDGE.
appeal, we consider the district court's dismissal of a
motion for post-conviction relief under 28 U.S.C. §
2255. We decide whether our decision on direct appeal, that a
sentencing court did not plainly err in designating a
defendant as a "career offender, " requires a
conclusion on collateral review that trial counsel did not
render ineffective assistance by failing to object to that
designation. Upon our review, we conclude that the standards
for plain error and ineffective assistance of counsel are
distinct and do not necessarily result in equivalent outcomes
for the defendant. Under the circumstances presented here, we
hold that the defendant's trial counsel rendered
ineffective assistance by failing to understand the required
legal analysis, and by failing to make an obvious objection
to the career offender designation. These failures by counsel
resulted in prejudice to the defendant by increasing his
sentence by more than seven years' imprisonment. We
therefore vacate the defendant's sentence, and remand the
case to the district court for resentencing.
2010, Jolon Devon Carthorne, Sr. entered a guilty plea to
possession with intent to distribute cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A),
and possession of a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i). In the presentence report (PSR), the
probation officer recommended designating Carthorne as a
career offender under the United States Sentencing Guidelines
(Guidelines) Section 4B1.1. The recommendation was based on
Carthorne's two prior convictions, including the one
conviction at issue here for Virginia assault and battery of
a police officer (ABPO), in violation of Virginia Code §
18.2-57(C). The probation officer concluded that ABPO
qualified as a "crime of violence" under Section
4B1.2(a) of the Guidelines, thereby qualifying Carthorne for
the career offender enhancement. The ABPO offense, committed
in 2002, occurred as a result of Carthorne spitting in the
face of a police officer without further altercation.
United States v. Carthorne, 726 F.3d 503, 508 (4th
Cir. 2013) (Carthorne I).
the career offender enhancement, the probation officer set
Carthorne's Guidelines range at between 322 and 387
months' imprisonment. Carthorne's retained trial
counsel did not object to the career offender designation, or
argue more specifically that ABPO failed to qualify as a
predicate offense. Nonetheless, during the sentencing
hearing, the district court engaged in the following colloquy
with Carthorne's counsel:
THE COURT: Let me ask you two things, Mr. Johnson. First of
all, what should I-conclusions, if any, should I reach over
these-this spitting on law enforcement officers conduct?
MR. JOHNSON: Judge, I have labored over that case long,
looked and researched for a long time trying to develop and
asking providence for a lucky break. I'm not a good
lawyer. Sometimes I just like to be lucky if I could [sic],
and I would like to have been lucky to have found a case that
says spitting on an officer is not an assault.
Notwithstanding the fact that he plead [sic] guilty, was
sentenced to it, notwithstanding the fact that the facts of
it are the officer is just walking down the street saying
"what's up, " you say "what's up,
" and you spit back on the officer. I'd like to take
an argument and say, well, he didn't strike the officer.
He didn't hurt him. There was no violence. But right now
I think the categorical approach that the-as I understand it,
the Supreme Court and the Fourth Circuit has taken would
render such an argument-
THE COURT: Without merit.
MR. JOHNSON: Yes, Your Honor. So I would rather argue, Judge,
that he was just a fool.
district court adopted the probation officer's
recommendation that the ABPO conviction qualified as a
predicate crime of violence under Section 4B1.2(a) of the
Guidelines. The court designated Carthorne as a career
offender, but varied downward 22 months below the Guidelines
range and imposed a sentence of 300 months' imprisonment.
district court had not held that the ABPO conviction
qualified as a crime of violence, Carthorne would not have
satisfied the conditions for career offender status and his
Guidelines range would have been between 181 and 211
months' imprisonment. Carthorne I, 726 F.3d at
508. The top of that range was almost ...