US v. Jameal Gould

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to seal [999397621-2] Originating case number: 1:10-cr-00245-JFM-1,1:13-cv-00230-JFM Copies to all parties and the district court/agency. [999429234]. Mailed to: Jameal Gould. [13-7339]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-7339

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMEAL GOULD, a/k/a Milio,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:10-cr-00245-JFM-1; 1:13-cv-00230-JFM)

Submitted:

August 26, 2014

Decided:

September 4, 2014

Before DUNCAN and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Jameal Gould, Appellant Pro Se. Christine Marie Celeste, OFFICE
OF THE UNITED STATES ATTORNEY, Peter Jeffrey Martinez, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jameal

Gould

appeals

the

district

court’s

order

denying his 28 U.S.C. § 2255 (2012) motion to set aside, vacate,
or

correct

his

sentence.

We

granted

a

certificate

of

appealability (“COA”) only as to Gould’s claim that his second
attorney, Marcia Shein, was ineffective in failing to object to
the

computation

of

Gould’s

criminal

history

score.

Particularly, Gould asserts that Shein should have objected to
counting his two prior Maryland sentences separately, pursuant
to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2(a)(2)
(2010), because there was no intervening arrest, as that term is
defined in U.S.S.G. § 4A1.2(a)(2).
In
Government

our

to

file

which it has done.

order
an

granting
informal

a

brief

COA,

we

addressing

directed
this

the

issue,

The time for Gould to reply has lapsed, and

thus the appeal is ripe for disposition.
For the following reasons, we conclude the record does
not support the district court’s finding that an intervening
arrest justified counting Gould’s Maryland sentences separately.
However, because the record is also insufficient to allow us to
conclusively
considered

resolve
as

a

whether

“single”

these

sentence,

sentences
pursuant

should
to

be

U.S.S.G.

§ 4A1.2(a)(1)(B), we vacate the district court’s order as to the
denial of relief on this claim and remand this case to the
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district court for further proceedings on Gould’s ineffective
assistance claim.
I.
In

her

November

2011

sentencing

memorandum,

Shein

argued that two of Gould’s prior convictions identified in the
presentence
career

report

offender

(“PSR”)

purposes

course of conduct.

should

because

not

they

count
were

separately

part

of

for

the

same

Shein emphasized that, although there were

two separate criminal cases, the matters “were consolidated for
sentencing purposes” and the same sentence was imposed on both
charges.
According to the PSR, Gould was arrested on January 6,
2001 and charged in a Maryland state court with possession with
intent

to

execution

distribute
of

a

narcotics.

search

warrant

This
for

a

arrest
home

followed

where

Gould

sleeping, which yielded 7.3 grams of cocaine and $944.
pleaded

guilty

on

February

25,

2004,

and

was

for

this

conviction

was

was

Gould

sentenced

fifteen years in prison with ten years suspended.
number

the

“22K0101000176”

to

The case

(hereinafter

“Case Number 0176”).
The
identified

as

second

Maryland

conviction,

for

possession

with

intent

which
to

was

also

distribute

narcotics, arose from Gould’s arrest on February 23, 2001.

No

details regarding the circumstances of this arrest were recited
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in the PSR.

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Instead, the PSR merely noted that Gould pleaded

guilty on February 25, 2004, and was sentenced to fifteen years
incarceration with ten years suspended.
this

conviction

was

“22K01000180”

The case number for

(hereinafter

“Case

Number

0180”).
In addition to arguing that these convictions should
not count separately towards the career offender designation,
Shein also asked the court to “evaluate whether or not there are
two separate countable offenses” in terms of criminal history
points.
To support her argument, Shein included a transcript
from

Gould’s

February

25,

2004

state

court

plea

hearing.

According to this transcript, the charge in Case Number 0180 —
felony distribution of cocaine — was based on Gould’s sale of
cocaine to undercover police officers in October 2000.

But, in

reciting the factual basis for the guilty plea, the prosecutor
did not state that Gould was arrested on the day of the buy.
The date of Gould’s arrest for this charge was not identified.
Case

Number

0176,

which

was

a

charge

of

felony

possession of cocaine, was based on the evidence seized upon
execution of the search warrant on January 6, 2001.

According

to the prosecutor, the search warrant was obtained as a result
of the October 2000 controlled buy, as well as other controlled

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buys involving Gould.

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It is clear that Gould was arrested upon

the completion of the search.
Shein

succeeded

in

defeating

the

career

offender

designation, but she did not re-assert her objection to counting
the

Maryland

sentences

separately

Gould’s criminal history score.
the

PSR,

removing

the

career

in

terms

of

calculating

The probation officer revised
offender

calculations,

but

the

Maryland sentences were still scored separately, each resulting
in

three

criminal

history

points.

With

a

total

of

eleven

criminal history points, Gould was placed in criminal history
category V.

The district court imposed a 175-month sentence,

which was within the Guidelines range.

Gould did not appeal.

II.
The
assistance

Government

claim

was

argued

without

that

merit,

as

Gould’s
any

ineffective

objection

to

scoring of these sentences would have been unsuccessful.
Government

asserted

that

Gould

was

arrested

for

the

the
The

first

offense before he committed the second offense, for which Gould
was arrested on February 23, 2001.

Thus, counsel argued that

Shein’s declination to pursue this objection was reasonable.
Gould further refined his argument in response to the
Government’s opposition.

According to Gould, he was arrested on

February 23, 2001 for his participation in the controlled buy in
October 2000.

This is consistent with the record evidence:
5

the

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transcript from the state court plea colloquy establishes that
the basis for Case Number 0180 was the controlled buy in October
2000,

and

the

PSR

reported

that

Gould

was

arrested

in

Case

Number 0180 in February 2001.

Thus, Gould argued, because he

was

instance

arrested

on

the

second

of

criminal

conduct

(stemming from the contraband seized during execution of the
search warrant in January 2001) prior to being arrested on the
first

instance

October

of

2000),

criminal

there

was

conduct
no

(the

controlled

intervening

arrest

buy

in

and

these

district

court

sentences should not count separately.
In
accepted

dismissing

the

Gould’s

Government’s

intervening arrest.

motion,

contention

the
that

there

was

an

Gould timely noted this appeal.
III.

This

court

conclusions de novo.
(4th Cir. 2008).
evidentiary

reviews

the

district

court’s

legal

United States v. Stitt, 552 F.3d 345, 350

Because the district court did not conduct an

hearing

on

the

motion

prior

to

denying

it,

“the

nature of the court’s ruling is akin to a ruling on a motion for
summary judgment.

In such a circumstance, we review the facts

in the light most favorable to the § 2255 movant.”
States

v.

Poindexter,

492

F.3d

(internal citation omitted).

6

263,

267

(4th

Cir.

United
2007)

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Gould’s

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ineffective

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assistance

of

counsel

claim

is

governed by the familiar standard set forth in Strickland v.
Washington, 466 U.S. 668, 687-88, 691-94 (1984).
court

analyzed

Shein’s

failure

to

object

in

The district
terms

of

the

strength of the objection, and concluded that it was not viable
because there was an intervening arrest. 1

But the record, in its

current state, does not support this conclusion.
The Sentencing Guidelines provide that:
Prior sentences always are counted separately if the
sentences
were
imposed
for
offenses
that
were
separated
by
an
intervening
arrest
(i.e.,
the
defendant is arrested for the first offense prior to
committing the second offense).
If there is no
intervening
arrest,
prior
sentences
are
counted
separately unless (A) the sentences resulted from
offenses contained in the same charging instrument; or
(B) the sentences were imposed on the same day. Count
any prior sentence covered by (A) or (B) as a single
sentence.
U.S.S.G. § 4A1.2(a)(2) (emphasis added).

1

In terms of Strickland’s prejudice prong, if Gould’s
argument prevails, his criminal history score would be reduced
from eleven points to eight points, resulting in his placement
in criminal history category IV.
This, coupled with his total
adjusted offense level of twenty-nine, would reduce Gould’s
advisory Guidelines range from 140-175 months to 121-151 months.
See U.S.S.G. ch. 5, pt. A (sentencing table). That Gould’s 175month sentence is well above this revised range satisfies the
prejudice requirement.
See Glover v. United States, 531 U.S.
198, 202–04 (2001) (holding that Sixth Amendment prejudice
resulted from an asserted error that added six to twenty-one
months to the defendant’s sentence).

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The Government, in its informal response, simply cites
the PSR, which reported the February 23, 2001 arrest, and posits
that this establishes that “Gould was arrested for the first
offense prior to committing the second offense.”

The Government

has not provided any documents relevant to these sentences or
the documentation upon which the probation officer relied in
scoring them.
In our view, the only evidence in the record that is
germane
arrest

to

the

was

critical

predicated

issue

on

of

conduct

whether
that

the

February

occurred

prior

2001

to

the

January 2001 arrest is the transcript from Gould’s state court
plea hearing.

Viewing this evidence in the light most favorable

to Gould, the transcript supports Gould’s contention that there
was no intervening arrest, as that term is used in U.S.S.G.
§ 4A1.2(a)(2),

because

Gould

was

not

arrested

offense prior to committing the second offense.
the

district

court’s

contrary

factual

on

the

first

As such, while

conclusion

is

somewhat

understandable, given the PSR, it nonetheless amounts to error.
This, however, does not end our inquiry.

We must next

consider whether the two Maryland sentences were imposed on the
same

day

for

separately,

if

they

despite

the

were

not,

lack

of

8

the

an

sentences

intervening

would
arrest.

count
See

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U.S.S.G. § 4A1.2(a)(2)(B). 2

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Although the district court noted in

its order denying § 2255 relief that “Gould was sentenced on
these convictions on the same day,” the PSR does not bear this
out. 3

Shein had asserted that the “cases were consolidated for

sentencing

purposes”

and

that

“[t]he

sentences

on

these

two

cases were imposed at a later date[,]” but she did not identify
that date.

Gould, for his part, does not offer any evidence to

establish when these sentences were imposed.
That the guilty pleas were taken on the same day and
that Gould received the same sentence for each charge is strong
indicia

that

the

sentences

were

imposed

on

the

same

day;

however, the record does not conclusively establish this fact.
Thus,

the

present

record

neither

supports

the

basis

for

the

district court’s rejection of Gould’s claim nor permits us to
verify the court’s assertion that the Maryland sentences were
imposed on the same day.

2

Gould’s sentences could not be treated as a “single”
sentence under U.S.S.G. § 4A1.2(a)(2)(A) because they did not
result
“from
offenses
contained
in
the
same
charging
instrument.”
3

The PSR could be understood to suggest that Gould both
pled guilty and was sentenced on the same day--February 25,
2004--as this is the lone date identified in the paragraphs
relevant to the Maryland convictions. However, the state court
transcript establishes that sentencing was deferred until March
10, 2004, at the earliest, which leads us to conclude that
sentencing occurred on a date that is not identified in the PSR.

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Accordingly,
denying

relief

on

we

this

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vacate
claim

the

and

district

remand

district court for further proceedings.

this

court’s
case

order
to

the

On remand, the parties

should provide the district court with evidence regarding when
the

Maryland

sentences

were

imposed.

Once

this

factual

uncertainty is resolved, the district court should then address
whether Shein was ineffective for failing to object to counting
these

sentences

separately.

We

dispense

with

oral

argument

because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
VACATED AND REMANDED

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