United States v. Babcock

• Decision Date: 21 July 2022
• Docket Number: 20-4003
• Citation: 40 F.4th 1172
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Zachary Robert BABCOCK, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

40 F.4th 1172

UNITED STATES of America, Plaintiff - Appellee,

v.Zachary Robert BABCOCK, Defendant - Appellant.

No. 20-4003

United States Court of Appeals, Tenth Circuit.

FILED July 21, 2022

Benjamin C. McMurray, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public Defender, with him on the briefs), Salt Lake City, Utah, for the Defendant-Appellant.

Elizabethanne Stevens, Assistant United States Attorney (John W. Huber, United States Attorney, and Ryan D. Tenney, Assistant United States Attorney, with her on the briefs), Salt Lake City, Utah, for the Plaintiff-Appellee.

Before HARTZ, KELLY, and MURPHY, Circuit Judges.

HARTZ, Circuit Judge.

Defendant Zachary Babcock appeals the denial of his motion under 28 U.S.C. § 2255 to vacate and correct his sentence on the ground of ineffective assistance of counsel. He complains that his counsel failed to object to a sentencing-guidelines enhancement under USSG § 2K2.1(a)(4)(A) based on prior convictions of a "controlled substance offense" as defined by USSG § 4B1.2(b). The convictions were under a Utah statute that prohibits offers to sell controlled substances. This court has held that statutes of two States that prohibit a mere offer to sell a controlled substance—without requiring proof of intent to actually distribute or complete a sale—do not satisfy the definition of controlled substance offense . See United States v. Madkins , 866 F.3d 1136, 1145 (10th Cir. 2017) (Kansas statute); United States v. McKibbon , 878 F.3d 967, 973–74 (10th Cir. 2017) (Colorado statute). But guideline commentary states that an attempt to commit a controlled-substance offense is itself a controlled-substance offense, see USSG § 4B1.2 cmt. n.1, and our opinions have left open the possibility that an offer-to-sell statute could satisfy the conditions necessary to be considered an attempt-to-sell statute.

Defendant contends that his trial counsel should have argued at sentencing (1) that an offer to sell under the Utah statute is not necessarily an attempt to commit a controlled-substance offense and (2) that the guideline commentary stating that an attempt to commit a controlled-substance offense is also a controlled-substance offense improperly expanded the text of the guideline. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we affirm the judgment below. Counsel's failure to make those two arguments did not constitute deficient performance because the first argument lacks merit and the second would have been a stretch at the time.

I. BACKGROUND

Defendant was charged with possession of methamphetamine with intent to distribute, see 21 U.S.C. § 841(a)(1), and being a felon in possession of a firearm and ammunition, see 18 U.S.C. § 922(g)(1). In July 2017 he pleaded guilty to the firearm charge in the United States District Court for the District of Utah in exchange for dismissal of the drug charge. He also waived his right to appeal or collaterally challenge his sentence, except on the ground of ineffective assistance of counsel.

Defendant's presentence investigation report (PSR) calculated Defendant's base offense level as 20 by applying a guideline that provides an increased offense level for those who have previously been convicted of a felony "controlled substance offense." USSG § 2K2.1(a)(4)(A). After an additional enhancement and two reductions, Defendant's total offense level was 21, producing a guideline range of 70–87 months’ incarceration, and Defendant was sentenced to 70 months in prison and three years supervised release on October 3, 2017.

The guidelines define controlled-substance offense to mean:

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 counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.

USSG § 4B1.2(b). An accompanying application note states that the term controlled substance offense "include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such [an] offense[ ]." USSG § 4B1.2 cmt. n.1 (emphasis added).

To determine whether a prior conviction qualifies as a controlled-substance offense, we apply what is called the categorical approach, which requires us to "line up the elements of the prior conviction alongside the elements of the [guidelines] predicate offense" to make sure that the guidelines definition of the predicate offense does not have any elements absent from the offense of the prior conviction. Madkins , 866 F.3d at 1145 (brackets and internal quotation marks omitted). That is, a prior conviction under a statute "will qualify as a controlled substance offense only if [the violated statute] criminalizes no more conduct than the offenses listed in the Guidelines." United States v. Faulkner , 950 F.3d 670, 674 (10th Cir. 2019).¹ Our analysis focuses on "the elements of the statute of conviction and not on the particular facts underlying that conviction." Id. (brackets and internal quotation marks omitted).

Defendant's prior convictions were under Utah Code § 58-37-8(1)(a)(ii), which makes it unlawful to "knowingly and intentionally ... distribute a controlled or counterfeit substance, or to agree, consent, offer , or arrange to distribute a controlled or counterfeit substance." (emphasis added). The government has argued that the state statute requires all the elements of an attempt to commit a controlled-substance offense, so the enhancement under the guidelines was proper.

Defendant, however, argues that the government's argument fails on two counts. First, he argues that for the state offense to constitute an attempt to commit a controlled-substance offense, the offender must make a bona fide offer to distribute a controlled substance, and, in his view, the Utah statute does not require that the offer be bona fide, so the state offense cannot be a predicate offense for application of the guidelines enhancement. Second, Defendant argues that even if the Utah offense is equivalent to an attempt to commit a controlled-substance offense, the Sentencing Commission lacked authority to use its commentary to expand the guidelines definition to include attempts. Defendant raised neither of these arguments until he filed his § 2255 motion.

The district court rejected both of Defendant's arguments and denied a certificate of appealability (COA) to allow Defendant to appeal to this court. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of motion under § 2255 ). We then granted a COA on these two issues.² Our task is to determine whether counsel's failure to raise these arguments at sentencing constituted ineffective assistance of counsel.³

II. DISCUSSION

A. Standard of Review

In a § 2255 appeal, "[w]e review the district court's legal rulings ... de novo and its findings of fact for clear error." United States v. Holloway , 939 F.3d 1088, 1097 (10th Cir. 2019) (internal quotation marks omitted). Because there are no disputed historical facts, our review is de novo. Cf. id . (reviewing claim of ineffective assistance of counsel de novo).

B. Ineffective Assistance of Counsel

To establish an ineffective-assistance-of-counsel claim, one must show both deficient performance and resultant prejudice to the defendant. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We may reject a claim under either prong without reviewing the other. See id. at 697, 104 S.Ct. 2052.

Deficient performance is representation that falls "below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. We start with the presumption that "absent a showing to the contrary, ... an attorney's conduct is objectively reasonable because it could be considered part of a legitimate trial strategy." Bullock v. Carver , 297 F.3d 1036, 1047 (10th Cir. 2002). But even when, as was apparently true here,⁴ "an attorney's ignorance of relevant law and facts precludes a court from characterizing certain actions as strategic ..., the pertinent question under the first prong of Strickland remains whether, after considering all the circumstances of the case, the attorney's representation was objectively unreasonable." Id. at 1050–51.

"[C]ounsel's failure to raise or recognize a potential legal argument does not automatically render counsel's performance constitutionally deficient." United States v. Harms , 371 F.3d 1208, 1212 (10th Cir. 2004). Rather, we must ask whether "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland , 466 U.S. at 690, 104 S.Ct. 2052. In answering this question we must recognize that life is short. Realistically, counsel do not have the time, and therefore are not required, to do everything possible to help their clients. They are not ineffective because they fail to conceive, research, and raise every novel argument that has a chance to prevail. See New v. United States , 652 F.3d 949, 952 (8th Cir. 2011) (failure to raise argument that a warrantless entry into defendant's hospital room was a search violating the Fourth Amendment did not constitute deficient performance where there was a split of authority among state courts and the Eighth Circuit had not yet addressed the issue). In particular, if an argument is meritless, it is likely that the failure to raise it was not deficient performance. But in any event, the lack of merit establishes that the defendant was not prejudiced by the failure to argue the point, thereby defeating the ineffective-assistance claim. See, e.g. , United States v. Orange , 447 F.3d 792, 797 (10th Cir. 2006) (assuming counsel's performance was deficient but holding that ineffective-assistance claim failed because defendant was not prejudiced by omission of argument that "would have failed on the merits").

Because the merit of...