United States v. Carthorne, 122117 FED4, 16-6515

Docket Nº:16-6515
Opinion Judge:BARBARA MILANO KEENAN, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOLON DEVON CARTHORNE, SR., Defendant-Appellant.
Attorney:Katherine Grace Mims Crocker, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. Anand P. Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. Benjamin L. Hatch, MCGUIREWOODS LLP, Norfolk, Virginia, for Appellant. Sandra J. Hairston, Acting United States At...
Judge Panel:Before 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.
Case Date:December 21, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOLON DEVON CARTHORNE, SR., Defendant-Appellant.

No. 16-6515

United States Court of Appeals, Fourth Circuit

December 21, 2017

          Argued: October 24, 2017

         Appeal 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)

         ARGUED:

          Katherine Grace Mims Crocker, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant.

          Anand P. Ramaswamy, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

         ON BRIEF:

          Benjamin L. Hatch, MCGUIREWOODS LLP, Norfolk, Virginia, for Appellant.

          Sandra J. Hairston, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

          Before 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.

         In this 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.

         I.

         A.

         In June 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).1 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).

         Applying 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.

         The 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.

         If the 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 seven and one-half years less than the 300-month sentence imposed by the district court.

         B.

         Carthorne appealed from the district court's judgment in 2013. He argued that the court erred in determining that he was a career offender, because ABPO was not a crime of violence within the meaning of Section 4B1.2(a). We reviewed this claim for "plain error, " because the objection was not raised at sentencing. Id. at 515-17. We applied the version of the Guidelines in effect at the time of sentencing, which defined a crime of violence as any state or federal offense punishable by imprisonment for a term exceeding one year that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another [the force clause], or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives [the enumerated crimes clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].2

U.S.S.G. § 4B1.2(a).

         In our decision, we explained that under Virginia law, ABPO could be committed with the "slightest touching" of a police officer. Carthorne I, 726 F.3d at 512-13 (citing, for instance, Crosswhite v. Barnes, 124 S.E. 242, 244 (Va. 1924)). We held that ABPO therefore did not qualify categorically as a crime of violence under the force clause, because the crime did not include as an element the use of physical force. Id. at 513-15 (relying in part on Johnson v. United States, 559 U.S. 133, 139-42 (2010)). We also concluded that ABPO did not qualify as a crime of violence under the residual clause, because ABPO did not present a serious potential risk of injury in the ordinary case. Id.

         Nevertheless, we held that the district court did not plainly err in applying the career offender enhancement, because existing precedent did not require a conclusion that ABPO did not qualify as a crime of violence under the residual clause. Id. at 516. We further observed that at the time of Carthorne's appeal, there was a circuit split on the issue whether crimes involving an assault and battery of a law enforcement officer qualified under the residual clause. Id. at 516-17. Compare Rozier v. United States, 701 F.3d 681, 682 (11th Cir. 2012) (holding that battery against a law enforcement officer was a crime of violence under residual clause), United States v. Dancy, 640 F.3d 455, 470 (1st Cir. 2011) (same), and United States v. Williams, 559 F.3d 1143, 1149 (10th Cir. 2009) (same), with United States v. Hampton, 675 F.3d 720, 731 (7th Cir. 2012) (holding that making provocative physical contact with a law enforcement officer was not a crime of a violence under residual clause). Accordingly, we held that the district court did not plainly err at sentencing, and we affirmed the court's judgment. Carthorne I, 726 F.3d at 516-17.

         C.

         In May 2014, Carthorne timely filed in the district court a motion to vacate his sentence under 28 U.S.C. § 2255. Carthorne asserted that, by failing to object at sentencing to his classification as a career offender based on the ABPO conviction, his counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984) (holding that a claim of ineffective assistance of counsel must satisfy both a "performance prong" and a ...

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