US v. Kelvin Smith
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number:3:09-cv-80132-nkm-mfu,3:07-cr-00019-nkm-mfu-1 Copies to all parties and the district court/agency. [998980761].. [10-7564]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-7564
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.
Norman K. Moon,
Senior District Judge. (3:07-cr-00019-nkm-mfu-1; 3:09-cv-80132nkm-mfu)
Argued:
October 23, 2012
Decided:
November 14, 2012
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Gregory joined.
Judge Shedd wrote an opinion
concurring in the judgment.
ARGUED: Lara Nell Jensen, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.
Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.
ON BRIEF:
Neal L. Walters, Evan C. Mix, Third Year Law Student, Jason C.
Lynch, Third Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.
Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, Nancy S. Healey, Assistant United States Attorney,
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OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DAVIS, Circuit Judge:
Kelvin Smith appeals the district court’s denial of
his
motion
under
ineffective
28
U.S.C.
assistance
of
§ 2255,
counsel
in
which
claims
at
he
asserted
sentencing.
Specifically, he argues that his attorney should have objected
to his criminal history calculation because the district court
scored a prior Virginia sentence for failure to appear; Smith
contends that the offense is similar to contempt of court, and,
thus,
excludable
under
the
advisory
sentencing
guidelines.
Although, unlike the district court, we doubt the reasonableness
of counsel’s failure to object, under the unusual circumstances
presented
here,
Smith
has
failed
to
show
prejudice.
Accordingly, we affirm.
I.
On October 17, 2007, pursuant to a plea agreement,
Smith pled guilty to conspiracy to distribute cocaine, crack
cocaine,
and
marijuana,
in
violation
of
21
U.S.C.
§
846;
distributing cocaine, in violation of 21 U.S.C. § 841(a)(1); and
being
an
unlawful
drug
user
in
possession
violation of 18 U.S.C. § 922(g)(3). 1
1
of
a
firearm,
in
In his plea agreement,
Smith also pled guilty to making a false statement to
purchase a firearm, in violation of 18 U.S.C. § 924(a)(1)(A),
(Continued)
3
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Smith waived
all rights . . . to appeal whatever sentence . . . is
imposed, including any issues that relate[d] to the
establishment
of
the
advisory
Guideline
range,
reserving only the right to appeal from a sentence in
excess of the applicable advisory Guidelines range
that [wa]s established at sentencing . . .
S.J.A. 57. Smith also waived
all rights to contest the conviction or sentence . . .
in any post-conviction proceeding, including one
pursuant to 28 U.S.C. § 2255, excepting an appeal or
motion based upon grounds of ineffective assistance of
counsel . . . not known to [him] at the time of [his]
guilty plea.
Id.
A separate provision stated that Smith “waive[d] any claim
[he] may have for ineffective assistance of counsel known and
not raised by [him] with the Court at the time of sentencing.”
Id. at 61.
At sentencing on February 28, 2008, the district court
assigned Smith two criminal history points under the advisory
sentencing
guidelines
during
two
“a
year
because
term
of
he
had
good
committed
behavior.”
his
offenses
See
J.A.
18
(district court adopting the Presentence Investigation Report,
“PSR”).
Smith received two additional points for prior state
convictions:
concealed
one
weapon;
point
for
a
2005
and
one
point
conviction
for
a
2006
for
carrying
conviction
a
for
and brandishing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1).
4
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failure to appear in court for an assault and battery charge.
Smith had been fined $50 for the failure to appear conviction.
The
four
criminal
history
criminal history category III.
points
placed
Smith
in
With an offense level of 28, the
advisory sentencing range for Smith’s conspiracy, distribution,
and
firearm
U.S.
possession
Sentencing
table)
(2007).
charges
was
97–121
Guidelines
Manual
Had
received
Smith
Ch.
5
three
months
Pt.
A
(rather
in
prison.
(sentencing
than
four)
criminal history points, he would have fallen within criminal
history category II, and the advisory sentencing range would
have been 87–108 months.
Smith’s counsel made no objections to the calculation
of the advisory sentencing range.
Smith
to
concurrent
terms
of
109
The district court sentenced
months
for
distribution, and firearm possession charges. 2
the
conspiracy,
In keeping with
his agreed appeal waiver, Smith did not file a direct appeal.
On February 13, 2009, however, Smith filed a timely
pro se motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255.
Smith argued that his attorney had
provided ineffective assistance of counsel by not objecting to
2
Smith was also
for making a false
consecutive 84-month
trafficking crime.
his sentence.
sentenced to a concurrent 60-month sentence
statement to purchase a firearm, and a
term for brandishing a firearm in a drug
Smith does not challenge these aspects of
5
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the assessment of one criminal history point for his failure to
appear conviction. 3
He argued that the offense of failure to
appear was similar to contempt of court and, thus, should have
been excluded from his criminal history calculation pursuant to
§ 4A1.2 of the advisory sentencing guidelines 4 and United States
v. Tigney, 367 F.3d 200 (4th Cir. 2004). 5
On October 29, 2010, the district court granted the
Government’s motion to dismiss Smith’s motion under § 2255.
court
found
that
Smith
had
waived
his
claim
of
The
ineffective
assistance of counsel because he had not “allege[d] that he did
not know of these claims at the time of his sentencing.”
J.A.
96, 99.
The court noted in a lengthy footnote, however, that
“even
his
if
claims
[had]
not
[been]
waived,
Smith’s
claims
3
Smith also argued that his attorney had provided
ineffective assistance by not objecting to the amount of crack
cocaine attributable to him for sentencing purposes.
This
second argument is not material to Smith’s appeal.
4
Section 4A1.2 provides that, in calculating a defendant’s
criminal history category, a district court should exclude prior
sentences for certain enumerated misdemeanor and petty offenses
--and “offenses similar to them, by whatever name they are
known”--unless “(A) the sentence was a term of probation of more
than one year or a term of imprisonment of at least thirty days,
or (B) the prior offense was similar to an instant offense.”
U.S. Sentencing Guidelines Manual § 4A1.2(c) (2007).
The
enumerated offenses include contempt of court.
5
In Tigney, we held that the West Virginia offense of
failure to appear was similar to contempt of court, and, thus,
should have been excluded from the defendant’s criminal history.
Tigney, 367 F.3d at 200.
6
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nevertheless fail[ed] on the merits”:
Smith
has
not
demonstrated
either
deficient
performance or prejudice. Pursuant to [U.S. Sentencing
Guidelines Manual] § 4A1.2, sentences for misdemeanor
and petty offenses are counted, except for a list of
offenses provided in the section and offenses similar
to them. Failure to appear does not appear on that
list of excluded offenses. And, Smith does not allege
which of the listed offenses, his failure to appear
charge is similar to. Rather, Smith relies on
[Tigney,] a Fourth Circuit case that interprets West
Virginia statutes. However, Virginia statutes are
different than the West Virginia statutes at issue.
Therefore, the court cannot find that on the facts
presented in this case, Smith has demonstrated that
counsel’s failure to object was constitutionally
deficient. Further, Smith has not demonstrated that he
was prejudiced by counsel’s failure to object because
he has not shown that had counsel filed the objection,
the court would have sustained the objection and
removed the 1 point from Smith’s criminal history
calculation. In fact, in a prior case, United States
v. Rush, Criminal Case No. 3:06cr00013-1 (W.D. Va.
Sept. 5, 2006), this court overruled a similar
objection and the defendant had one point counted for
his failure to appear conviction.
Id. at 102. n.2.
On November 8, 2010, Smith appealed.
On May 10, 2011,
we granted a certificate of appealability on “whether Smith’s
counsel provided ineffective assistance in failing to object to
the assessment of one criminal history point for Smith’s failure
to appear conviction in Virginia.” 6
6
Our order also granted a certificate of appealability on
whether Smith had waived his claim of ineffective assistance of
counsel, but the Government has abandoned its procedural
challenge to Smith’s claim.
7
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II.
A.
We consider de novo “whether specific facts constitute
ineffective
assistance
of
counsel.”
United
Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000).
States
v.
To establish
ineffective assistance of counsel, Smith must show that (1) his
attorney’s
performance
was
performance was prejudicial.
deficient,
and
(2)
the
deficient
See Strickland v. Washington, 466
U.S. 668, 687 (1984).
To establish deficient performance, Smith “must show
that counsel's representation fell below an objective standard
of reasonableness.” Id. at 688.
We “must be highly deferential”
in our review, taking into account “the facts of the particular
case,”
the
perspective
“prevailing
at
the
professional
time.”
Id.
at
norms,”
689–90.
and
“counsel’s
“Because
of
the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]”
689.
that
Id. at
But a defendant may rebut that presumption by “proving
his
attorney’s
representation
was
unreasonable
under
prevailing professional norms and that the challenged action was
not sound strategy.”
Kimmelman v. Morrison, 477 U.S. 365, 384
(1986).
8
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To establish prejudice, Smith must show a “reasonable
probability that, but for counsel’s unprofessional errors, the
result
of
the
proceeding
would
Strickland, 466 U.S. at 694.
have
been
different.”
“A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id. Prejudice exists when an error results in a longer sentence
than would otherwise have been imposed.
See Glover v. United
States,
(holding
531
U.S.
198,
202–04
(2001)
that
Sixth
Amendment prejudice resulted from an asserted error that added
six
to
21
months
defendant
cannot
reviewing
court
to
the
defendant’s
demonstrate
need
not
the
consider
sentence).
requisite
the
“If
the
prejudice,
performance
a
prong.”
Fields v. Attorney Gen., 956 F.2d 1290, 1297 (4th Cir. 1992)
(citing Strickland, 466 U.S. at 697).
B.
Smith
assistance
by
argues
failing
that
to
his
attorney
provided
object
when
PSR
the
ineffective
assessed
one
criminal history point for his prior Virginia conviction for
failure
to
appear.
Opening
Br.
9–12.
He
contends
that
a
conviction for failure to appear in a Virginia court is similar
to contempt of court, and therefore warrants no criminal history
points
Smith
under
the
essentially
advisory
argues
sentencing
that,
9
had
guidelines.
counsel
timely
Id.
at
9.
objected,
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there is a reasonable probability that he would have been in a
lower criminal history category, thereby within a lower advisory
guidelines sentencing range, and consequently he likely would
have received shorter concurrent sentences for his conspiracy,
distribution, and firearm possession convictions.
In
application
light
of
notes,
Tigney
we
and
have
the
serious
sentencing
guidelines’
doubts
reasonableness of counsel’s failure to object.
about
the
Although Tigney
involved the West Virginia offense of failure to appear, see
Tigney, 367 F.3d at 200–01, it was the most relevant Fourth
Circuit case at the time of Smith’s sentencing, and analyzed an
offense
Virginia
substantially
statute,
the
similar
to
Smith’s.
Virginia
statute
Like
“outlaws
a
the
West
particular
manner of disobeying [a court] order--by failing to appear in
court on the designated date,” 7 and “leave[s] the court with
discretion to fix the penalty.” 8
7
See Tigney, 367 F.3d at 202 (describing the West Virginia
statute); Va. Code Ann. § 19.2-128 (criminalizing willful
failure “to appear before any court as required”).
8
See Tigney, 367 F.3d at 203–04 (referring to the West
Virginia statute); Va. Code Ann. § 19.2-128 (defining failure to
appear in a Virginia court as a class 1 misdemeanor or class 6
felony); Va. Code Ann. § 18.2-11 (authorizing “either or both”
incarceration “for not more than twelve months and a fine of not
more than $2,500” for class 1 misdemeanors); Va. Code Ann. §
18.2-10 (authorizing, for class 6 felonies, “a term of
imprisonment of not less than one year nor more than five years,
or in the discretion of the jury or the court trying the case
(Continued)
10
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guidelines’
application
notes
also
counsel against counting Smith’s failure to appear conviction in
his criminal history.
The application notes list five factors
for determining whether offenses are similar; two were critical
to our analysis in Tigney: the elements of the offenses, and the
respective penalties for each offense. 9
The
three remaining
factors make clear that the Virginia offense is substantially
similar to contempt of court: neither offense involves a high
level of “perceived seriousness”; 10 both involve the same level
of
culpability
(conscious
disregard
of
a
court
order); 11
and
without a jury, confinement in jail for not more than 12 months
and a fine of not more than $2,500, either or both”).
9
See Tigney, 367 F.3d at 200–04. Because of this, Tigney
remained highly relevant at the time of Smith’s sentencing, even
though the Tigney panel purported to apply an “elements” test-comparing “the elements of the prior offense to the elements of
the relevant offense listed in Section 4A1.2(c)”--and the
advisory guidelines advocated a “common sense” approach. See id.
at 201–02; U.S. Sentencing Guidelines Manual § 4A1.2, appl.
n.12(A) (2007).
10
Indeed, Smith received only a $50 fine for his failure to
appear.
11
See 18 U.S.C. § 401 (criminalizing disobedience of a
lawful official court order); Va. Code Ann. § 19.2-128
(criminalizing willful failure to appear). Although the federal
contempt provision does not expressly require intent, courts
have “engrafted . . . the requirement of both a contemptuous act
and a willful, contumacious, or reckless state of mind.” In re
Joyce, 506 F.2d 373, 378 (5th Cir. 1975). See also United States
v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (to support a
conviction under § 401, the government must prove that the
(Continued)
11
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neither contempt of court nor failure to appear in a Virginia
court indicates a “likelihood of recurring criminal conduct.”
See U.S. Sentencing Guidelines Manual § 4A1.2, appl. n.12(A)
(2007).
Despite
our
doubt
as
to
the
reasonableness
of
counsel’s failure to object, however, we are constrained, on the
unique facts before us, to affirm the denial of Smith’s claim
for lack of prejudice.
had
counsel
history
at
objection.
The district court has made clear that,
challenged
the
calculation
sentencing,
the
court
See supra pp. 6-7.
of
would
Smith’s
have
criminal
overruled
the
Even if this had been error,
Smith would have had no recourse: In his plea agreement, he
waived
his
right
to
appeal
“any
issues
that
related
to
the
establishment of the advisory Guideline range.” See supra p. 3. 12
Accordingly,
given
that
any
error
by
the
district
court
in
overruling an objection by counsel would have been effectively
“quarantined”
by
Smith’s
appeal
waiver
of
“any
issues
that
relate[d] to the establishment of the advisory Guideline range,”
Smith cannot show that, but for counsel’s failure to object,
violation was willful)); Floersheim v. Engman, 494 F.2d 949, 952
(D.C. Cir. 1973) (“Criminal contempt is essentially reserved for
willful contumacy and not good faith disagreement.”).
12
Calculation of a criminal history category plainly is a
part of “establish[ing] the advisory Guideline range.”
12
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there is a “reasonable probability” that he would have received
a shorter sentence. See Strickland, 466 U.S. at 694. 13
III.
For
the
reasons
set
forth,
the
judgment
of
the
district court is
AFFIRMED.
13
Cf. Glover, 531 U.S. at 204 (“Here we consider the
sentencing calculation itself, a calculation resulting from a
ruling which, if it had been error, would have been correctable
on appeal.”)(emphasis added)).
13
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SHEDD, Circuit Judge, concurring in the judgment:
As the majority correctly notes, under Strickland v.
Washington, 466 U.S. 668, 687 (1984), a petitioner must make two
showings to prevail on a claim for ineffective assistance of
counsel in a habeas petition under 28 U.S.C. § 2255: first, he
must show that his counsel’s performance fell below an objective
standard of reasonableness, and second, that he was prejudiced
by that deficiency.
When a petitioner fails to make one of
these showings, a court need not address the other.
(“[T]here
is
no
reason
for
a
court
deciding
an
Id. at 697
ineffective
assistance claim to approach the inquiry in the same order or
even to address both components of the inquiry if the defendant
makes
an
insufficient
showing
on
one.”).
Because
I
agree
completely with the majority’s reasoning as to why Smith cannot
show prejudice as required under Strickland, I would not address
whether the performance by his counsel was deficient.
14
See id.
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