United States District Court, E.D. Missouri, Eastern Division
CAROL E. JACKSON, District Judge.
This matter is before the court on the motion of Elmore George, III, to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has filed a response in opposition. Also before the court is George's motion to amend his motion to vacate in light of the recent decision in Descamps v. United States, ___ U.S. ___ , 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013).
After entering into a written plea agreement with the government, George pled guilty to conspiring to possess oxycodone with intent to distribute, in violation of 21 U.S.C. § 846. Among other things, the plea agreement contained the parties' recommendations as to the sentencing guidelines and their estimate of a total offense level of 25. At the guilty plea hearing, George was informed by the court that he faced a maximum sentence of 20 years in prison and that the court was not required to accept the parties' sentencing guideline recommendations.
In the presentence report, the Probation Office determined that George had two prior felony convictions for controlled substances offenses-a Western District of Kentucky conviction for possession with intent to distribute cocaine base and an Arizona conviction for "Attempted Transportation of Marijuana for Sale"- and that he was a career offender under U.S.S.G. § 4B1.1(a), resulting in a total offense level of 29. With a criminal history category of VI, the sentencing guideline range was 151-188 months. George's attorney objected to the presentence report, arguing that George's prior Arizona conviction was not a "controlled substance offense" as defined in U.S.S.G. § 4B1.2(b) and, therefore, it could not be counted as a predicate offense for the career offender designation. Alternatively, defense counsel argued for a downward departure based on U.S.S.G. § 4A1.3(b)(1), asserting that criminal history category VI substantially over-represented the seriousness of George's criminal history. The court overruled the career offender objection and denied the request for downward departure. George was sentenced to a 151-month term of imprisonment.
On appeal, defense counsel filed a brief under Anders v. California , 386 U.S. 738 (1967) and George filed a supplemental pro se brief. The court of appeals ruled that George was correctly designated a career offender and that there were no procedural or substantive sentencing errors. The appellate court also rejected George's pro se claims on appeal. The judgment was affirmed. United States of America v. Elmore George, III, No. 10-2283 (8th Cir. Nov. 23, 2010)(unpublished opinion).
A. Ineffective Assistance of Counsel
In the motion to vacate, George asserts claims of ineffective assistance of counsel at sentencing and on appeal. To prevail on a claim of ineffective assistance of counsel, a movant must show that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington , 466 U.S. 668, 687 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance. Id. at 689. When considering a claim of ineffective assistance of appellate counsel, the court must bear in mind that "appellate counsel... need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins , 528 U.S. 259, 288 (2000). In order to show prejudice in the context of a guilty plea, the movant must show that there is a reasonable probability that, but for counsel's errors, he would have not pleaded guilty, but instead would have proceeded to trial. Hill v. Lockhart , 474 U.S. 52, 59 (1985); United States v. Davis , 583 F.3d 1081, 1091 (8th Cir. 2009); United States v. Nesgoda , 559 F.3d 867, 870 (8th Cir. 2009). The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel's performance in the absence of prejudice. United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996).
The basis for George's ineffective assistance claims is that defense counsel failed to argue that the modified categorical approach should be used in determining whether the prior Arizona conviction was a controlled substances offense under § 4B1.2(b). It is undisputed that defense counsel did not present this argument at sentencing and did not assert it on appeal. However, the Court finds that these omissions do not establish deficient performance and George cannot demonstrate prejudice.
Section 4B1.1(a) of the Sentencing Guidelines provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions or either a crime of violence or a controlled substance offense.
The term "controlled substance offense" is defined in U.S.S.G. § 4B1.2(b) as follows:
The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a ...