U.S. v. Breckenridge

Decision Date20 August 1996
Docket NumberNo. 94-6516,94-6516
Citation93 F.3d 132
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William F. BRECKENRIDGE, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: William Michael Merone, Kenyon & Kenyon, Washington, D.C., for Appellant. Jean Barrett Hudson, Assistant United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Richard J. Bonnie, Kirk H. Hays, Third Year Law Student, Post-Conviction Assistance Project, University of Virginia School of Law, Charlottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Charlottesville, Virginia, for Appellee.

Before MOTZ, Circuit Judge, TRAXLER, United States District Judge for the District of South Carolina, sitting by designation, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.

Remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge TRAXLER and Judge PAYNE joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

William F. Breckenridge appeals from the district court's denial of his motion, made pursuant to 28 U.S.C. § 2255 (1988), to vacate, set aside, or correct his sentence. He asserts that his trial counsel's failure to point out that his prior offenses were related and thus not a basis for sentencing him as a career criminal constituted ineffective assistance of counsel. We remand for further proceedings.

I.

In 1991, Breckenridge was convicted of possession with intent to distribute .12 grams of crack cocaine. He was sentenced to 220 months imprisonment as a career offender. 1 At the core of Breckenridge's § 2255 claim is the question of whether his classification as a career criminal was proper. Without the career criminal classification, Breckenridge's total offense level would have been 12 and the applicable range for his sentence would have been 30 to 37 months imprisonment (2 1/2 to slightly over 3 years), rather than the 220 months (18 1/2 years) he received as a career criminal.

In determining that Breckenridge was a career offender, the sentencing court relied on a pre-sentence investigation report, which indicated that Breckenridge's criminal history included six prior felonies. Each felony was for breaking and entering and grand larceny of a private residence. The residences were located in close geographic proximity to each other and the offenses all occurred during the same one month period in 1987. Five burglaries occurred in the City of Charlottesville and one in adjoining Albemarle County, on the street bordering the two jurisdictions. 2 Similar items--video cassette recorders, jewelry, and guns--were stolen in each case.

The Charlottesville police investigated the first of these cases. When items from one of the robberies were traced to Breckenridge, the police targeted Breckenridge for a sting operation in which an informant attempted to purchase stolen items from him. Each transaction between the informant and Breckenridge was tape recorded by the informant. The transcript of the tapes reveals that the informant commissioned Breckenridge to obtain particular items--video cassette recorders and televisions--the next time he "went out." The sting operation was successful; the police were able to connect items sold to the informant by Breckenridge to all six burglaries. Breckenridge was then arrested and charged with five counts of breaking and entering and grand larceny in Charlottesville. A jury convicted Breckenridge of these five offenses and the Circuit Court of the City of Charlottesville sentenced him to five 18 month sentences to run concurrently. While Breckenridge was incarcerated and awaiting sentencing on the Charlottesville charges, the Charlottesville police notified the Albemarle County police that in the sting operation they had recovered items stolen by Breckenridge from an Albemarle County residence. Accordingly, Breckenridge was charged with, and pled guilty to, breaking and entering and grand larceny in the Circuit Court of Albemarle County and was sentenced to a six month suspended sentence for that crime.

In the pre-sentence investigation report compiled in connection with the sentence at issue here--the sentence for possession with intent to distribute .12 grams of cocaine--the probation officer recommended that the six breaking and entering offenses not be treated as "related" to each other and that Breckenridge receive an enhanced sentence as a career offender. See United States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov. 1995). 3 Although Breckenridge's trial attorney made various arguments as to why the suggested sentence was unfair or unconstitutional, he offered no argument to the court that the six breaking and entering offenses were "related" to each other and thus should not be counted as six separate offenses. Indeed, it was only after the district court ascertained that there were no "legal issues in dispute in the presentence report," that it sentenced Breckenridge as a career criminal.

In his pro se § 2255 motion, Breckenridge asserted that because all six breaking and entering offenses were "related" to each other, he should not have received an enhanced sentence as a career offender and that his trial counsel was ineffective for failing to raise this "relatedness" claim. The district court found that: "the six offenses are best described as part of a similar course of conduct rather than as part of a single common scheme or plan." Without ruling on Breckenridge's claim that the five Charlottesville offenses were related to each other, the court concluded that the "Albemarle County conviction was correctly counted as a separate offense" for purposes of determining Breckenridge's status as a career criminal. For this reason, the court held that Breckenridge failed to demonstrate that his counsel "was constitutionally ineffective."

II.

Breckenridge contends that he was deprived of his Sixth Amendment right to effective assistance of counsel during the sentencing phase of his trial. We have previously noted that sentencing is a critical stage of trial at which a defendant is entitled to effective assistance of counsel, and a sentence imposed without effective assistance must be vacated and reimposed to permit facts in mitigation of punishment to be fully and freely developed. United States v. Iaquinta, 719 F.2d 83, 85-86 n. 5 (4th Cir.1983); United States v. Burkley, 511 F.2d 47, 51 (4th Cir.1975)- . The failure of counsel to object to an improper application of the sentencing guidelines may amount to ineffective assistance of counsel. See, e.g., United States v. Kissick, 69 F.3d 1048, 1056 (10th Cir.1995); Auman v. United States, 67 F.3d 157, 161 (8th Cir.1995); United States v. Acklen, 47 F.3d 739, 743 (5th Cir.1995); United States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir.1991); Smith v. United States, 871 F.Supp. 251, 255 (E.D.Va.1994). Cf. Prichard v. Lockhart, 990 F.2d 352, 354 (8th Cir.1993) (failure to object to improper use of prior offense under similar state law provisions).

Of course, to prove that ineffective assistance of counsel violates the Sixth Amendment, a petitioner must satisfy a two-pronged test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Bell v. Evatt, 72 F.3d 421, 427 (4th Cir.1995), cert. denied sub nom. Bell v. Moore, --- U.S. ----, 116 S.Ct. 2533, 135 L.Ed.2d 1056 (1996). A petitioner must show that "(1) his counsel's performance fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2) 'there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.' " Bell, 72 F.3d at 427 (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. at 2064-65, 2068).

Breckenridge maintains that his counsel's failure to make any argument whatsoever that his prior offenses were related and that he was therefore not qualified for career offender classification was both constitutionally deficient and prejudicial. With regard to prejudice, Breckenridge notes that he was prejudiced by his attorney's error because his sentence would have been reduced by approximately 15 years (or would have been approximately one-sixth the sentence he did receive) if his prior offenses had been considered related. In response, the government does not claim that the defense counsel's failure to make the relatedness argument, if error, would not have satisfied the prejudice prong of the Strickland test.

Rather, the government's entire argument is directed to the first prong of the Strickland test, specifically urging that there is no merit to Breckenridge's relatedness claim. Thus, the government contends that because Breckenridge's offenses were not related, his attorney's failure to argue relatedness did not fall below an objective standard of reasonableness. The government does not attribute defense counsel's failure to argue relatedness in this case to trial strategy or tactics. See Luchenburg v. Smith, 79 F.3d 388, 392 (4th Cir.1996) (rejecting the government's argument in a § 2255 case that defense counsel's error was a "tactical decision"). Moreover, the government concedes that in some circumstances, a lawyer's failure to object to the improper grouping of offenses under the Guidelines "should sustain an ineffectiveness claim," but simply asserts that in this case, any claim by defense counsel that the offenses were related would have been "frivolous." Brief of Appellee at 26.

Thus both parties agree that Breckenridge's ineffective assistance of counsel claim turns on, and is inextricably linked with, the validity of the relatedness claim. Accordingly, we now consider that issue.

III.

The United States Sentencing Guidelines provide that a defendant is a career offender, subject to enhanced punishment, if:

(1) the defendant was at least eighteen...

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