United States v. Carthorne
Decision Date | 21 December 2017 |
Docket Number | No. 16-6515,16-6515 |
Citation | 878 F.3d 458 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jolon Devon CARTHORNE, Sr., Defendant-Appellant. |
Court | U.S. Court of Appeals — Fourth Circuit |
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.
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.
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 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.
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 ( ). 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 ( ). 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) ( ), 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) ( ). 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.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ( ). The magistrate judge recommended that the district court deny the requested relief. The magistrate judge acknowledged that counsel’s alleged error satisfied the prejudice prong of Strickland because, if Carthorne’s attorney had challenged the ABPO predicate offense, this Court would have remanded for resentencing with a lower Guidelines range. However, the magistrate judge concluded that Carthorne did not satisfy the performance prong of Strickland "essentially for the same reasons that the Fourth Circuit found no plain (i.e., obvious) error on direct appeal."
Over Carthorne’s objection, the district court adopted the magistrate judge’s recommendation and denied Carthorne’s Section 2255 motion. We granted a certificate of appealability on this issue pursuant to Federal Rule of Appellate Procedure 22(b)(1), and now turn to address the merits of Carthorne’s Section 2255 motion.
Carthorne argues that the district court erred in concluding that the absence of plain error on direct appeal constituted a basis for denial of relief on collateral review for ineffective assistance of counsel. According to Carthorne, the district court conflated the two standards of review, and failed to examine the particular duties owed by an attorney to his client. Carthorne contends that his attorney’s deficient performance in failing to object to the career...
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