Martedis McPhearson v. USA
OPINION and JUDGMENT filed: VACATED and REMANDED, decision for publication pursuant to local rule 206. Damon J. Keith, Danny J. Boggs, Karen Nelson Moore (AUTHORING), Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0092p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Petitioner-Appellant, No. 09-6509
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
Nos. 04-10038-001; 09-01118—James D. Todd, District Judge.
Argued: March 6, 2012
Decided and Filed: April 5, 2012
Before: KEITH, BOGGS, and MOORE, Circuit Judges.
ARGUED: Russell Burke, VANDERBILT LAW SCHOOL, Nashville, Tennessee, for
Appellant. James Powell, ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee. ON BRIEF: Alistair E. Newbern, VANDERBILT LAW
SCHOOL, Nashville, Tennessee, for Appellant. James Powell, ASSISTANT UNITED
STATES ATTORNEY, Jackson, Tennessee, for Appellee.
KAREN NELSON MOORE, Circuit Judge.
(“McPhearson”) appeals the denial of his motion to correct his sentence under 28 U.S.C.
§ 2255. In March 2007, a jury convicted McPhearson of knowingly possessing with the
intent to distribute approximately 4.9 grams of cocaine base in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2. Upon the conclusion of direct review, McPhearson
McPhearson v. United States
sought relief under § 2255, arguing that trial counsel was ineffective for failing to raise
at sentencing the contention that a portion of the 4.9 grams of cocaine base was for
McPhearson’s personal use and therefore should be excluded from the drug-quantity
calculation used by the district court in setting McPhearson’s sentence. The district
court held that McPhearson could not establish either deficient performance or prejudice
from trial counsel’s failure to make this argument because the court believed that the
jury’s conviction amounted to a rejection of McPhearson’s testimony that the 4.9 grams
of cocaine base found on his person was attributable to personal use. We hold that
because the jury’s verdict did not establish that all 4.9 grams were intended for
distribution, the district court erred in finding that counsel’s failure to raise personal use
at sentencing was not deficient performance. We are unable to determine whether
McPhearson suffered any prejudice, however, because the record is incomplete. We
therefore VACATE the district court’s order denying McPhearson relief and REMAND
for further proceedings consistent with this opinion.
McPhearson was arrested on December 12, 2003, after he allegedly made three
separate sales of cocaine base to a confidential informant in the amounts of .3 grams, .4
grams, and .3 grams.1 At the time of his arrest, officers searched McPhearson and found
a plastic bag in his pocket containing 4.9 grams of cocaine base. McPhearson was
indicted along with a co-defendant, and on November 15, 2004, a grand jury returned
a superseding indictment charging McPhearson with four separate counts of possession
with intent to distribute cocaine base, one for each of the purported sales in the amounts
of .3 grams, .4 grams, and .3 grams, respectively, and one count for the 4.9 grams found
on his person when he was arrested.2
The record indicates that McPhearson was arrested pursuant to a warrant not for the drug
transactions but for an unrelated assault charge.
The superseding indictment originally contained seven counts, but these four counts were the
only counts that proceeded to trial. McPhearson’s trial was severed from his co-defendant’s trial.
McPhearson v. United States
A jury trial was held in the United States District Court for the Western District
of Tennessee on March 26 and 27, 2007. The confidential informant testified that
McPhearson sold him the three smaller amounts of cocaine base on three separate
occasions. McPhearson testified in his own defense. McPhearson denied ever selling
the confidential informant cocaine base, but admitted that he possessed 4.9 grams of
cocaine base at the time of his arrest, which he claimed he purchased from a friend for
personal use. McPhearson explained that he had been in a severe car accident in late
2002, a year before his arrest, which required a lengthy hospital stay and caused
numerous injuries that left him in extreme pain.3 He testified that he began using
painkillers and other drugs, including cocaine, to help mitigate the pain from the
accident. His mother also testified that McPhearson’s injuries from the accident were
severe and left him in great pain. Counsel for McPhearson attempted to introduce
evidence of McPhearson’s medical records and photographs from the accident, but the
district court excluded them as irrelevant, stating that “if this becomes an issue, then
they’ll be part of the record at sentencing.” R. 181, Criminal Docket (Trial Tr. at 121:78). The district court also permitted the government to confront McPhearson on crossexamination with previously suppressed evidence to challenge his statements that the
drugs were for personal use. The relevant suppressed evidence consisted of 21.9 grams
of marijuana, scales, and small plastic bags that were found as the result of an illegal
search of his residence. Id. at 103:12-104:12. McPhearson denied knowledge of the
scales or the bags, stating they did not belong to him. Id. at 105:21-108:13. He testified
that the marijuana belonged to his cousin, who lived with him and with whom he had
smoked marijuana in the past. Id. at 105:1-20.
The district court instructed the jury that to convict McPhearson of violating
21 U.S.C. § 841(a)(1) for any of the four counts, the government had to prove beyond
a reasonable doubt: “[(1)] that the defendant possessed cocaine base, or crack cocaine;
[(2)] that the defendant knew that he possessed cocaine base, as alleged; And [(3)], that
According to McPhearson’s testimony, he went through the windshield of a car into the street,
breaking his legs, his arms, his collar bone, and his pelvic bone, collapsing his lungs, and causing extensive
internal bleeding and damage to other organs. R. 181, Criminal Docket (Trial Tr. at 97:15-21).
McPhearson v. United States
the defendant intended to distribute the cocaine base, as alleged.” R. 197, Criminal
Docket (Trial Tr. at 45:5-10). The district judge further explained these elements as
The first thing you must determine is whether the defendant possessed
cocaine base. That is, the government must prove that the material that
the defendant is charged with possessing with intent to distribute is, in
fact, cocaine base, also known as crack cocaine. . . . If you find that the
material involved in this case is cocaine base, you need not be concerned
with the quantity. So long as you find that the defendant knowingly
possessed cocaine base, the amount involved is not important.
If you find that the defendant knowingly possessed this controlled
substance, then you must decide whether the defendant intended to
distribute them. The government must prove beyond a reasonable doubt
that the defendant had control over the drugs with the state of mind or
purpose to transfer them to another person. . . .
Basically, what you’re determining is whether the drugs in the
defendant’s possession were for his personal use or for the purpose of
distribution. Often it’s possible to make this determination from the
quantity of drugs found in the defendant’s possession. For example, it
would be highly unlikely that a person with large amounts of controlled
substances possessed them all for personal consumption. The possession
of a large quantity of drugs does not necessarily mean that the defendant
intended to distribute them. On the other hand, a defendant may have
intended to distribute drugs even if he did not possess large amounts of
Id. at 45:17-47:13. On Count Four, the court instructed the jury on the lesser included
Now, on count 4, if you find the defendant not guilty of possession of
cocaine base with intent to distribute, or if, after making every reasonable
effort to reach a unanimous verdict on that charge, you find that you
cannot agree, then you must go on to consider whether the government
has proved the lesser charge of simple possession of cocaine base. The
difference between those two crimes is that to convict the defendant of
the lesser charge, the government does not have to prove that the
defendant intended to distribute the cocaine base. This is an element of
the greater charge but not the lesser charge.
McPhearson v. United States
Id. at 47:20-48:5. The district court did not ask the jury to make any specific finding of
fact regarding the amount of drugs intended for distribution or, alternatively, for personal
The jury convicted McPhearson on Count 4 of the indictment, relating to the 4.9
grams of cocaine base found on his person at the time of his arrest. The jury was unable
to reach a verdict on the three counts relating to the alleged sales to the confidential
informant in the amounts of .3 grams, .4 grams, and .3 grams, respectively. The district
court subsequently granted the government’s motion to dismiss those counts.
At sentencing, the district court calculated the relevant drug quantity as 5.9 grams
of cocaine base. R. 182, Criminal Docket (Sentencing Hr’g Tr. at 176:11-24). This
included the 4.9 grams from the Count 4 conviction and the district court’s
approximation that the other three dismissed counts should be included and amounted
to roughly one gram of cocaine base. McPhearson’s counsel argued that the marijuana
should be excluded because it was only for personal use, but counsel did not make a
similar argument for any of the cocaine base, arguing instead that no evidence supported
the inclusion of the three drug-sale amounts. The district court excluded the marijuana
quantity, finding its impact negligible on the relevant sentencing guidelines range, but
found that a preponderance of the evidence supported the confidential informant’s
testimony that McPhearson made the sales involved in the counts that the jury could not
agree on. The district court determined that McPhearson’s sentencing guidelines range
was 140 to 175 months and sentenced McPhearson to 140 months’ imprisonment.
Counsel for McPhearson did not introduce at sentencing any of the medical records or
photographs from his accident, nor did counsel make any arguments or objections with
respect to excluding amounts of cocaine base for personal use.
McPhearson raised three issues on direct appeal: (1) the trial court abused its
discretion in excluding medical records from trial; (2) the district court made
impermissible findings of fact at sentencing; and (3) the then-pending amendments
relating to cocaine-base offenses should be applied to his case. While his case was
pending, the Sentencing Commission made retroactive the first set of reductions to the
McPhearson v. United States
guidelines based on cocaine-base offenses. The Sixth Circuit remanded his case for
consideration of his motion for resentencing under 28 U.S.C. § 3582 and rejected his
remaining arguments. United States v. McPhearson, 303 F. App’x 310, 322 (6th Cir.
2008) (unpublished opinion). The district court granted his motion and reduced
McPhearson’s sentence to 120 months of imprisonment, the low end of his amended
guideline range. R. 194, Criminal Docket (Order).
In May 2009, McPhearson pro se filed a motion pursuant to 28 U.S.C. § 2255
arguing that his counsel was ineffective for failing to argue that the district court should
exclude any amounts of cocaine base attributable to personal use in sentencing him.4
The district court denied his petition without requiring the government to file a response
and denied a certificate of appealability. We granted McPhearson a certificate of
appealability and appointed him counsel on appeal.5
II. CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
We review a district court’s denial of a motion to correct a sentence under
28 U.S.C. § 2255 de novo, but we will accept the district court’s factual findings unless
they are clearly erroneous. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006).
To succeed on a § 2255 motion, a prisoner in custody must show “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the entire proceeding invalid.”
Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003) (internal quotation marks
omitted), cert. denied, 540 U.S. 1133 (2004). A claim of ineffective assistance of
counsel is a mixed question of law and fact that we review de novo. Short, 471 F.3d at
McPhearson also argued that the district court abused its discretion in failing to make a fact
finding on the issue of personal use at sentencing. This issue is not before us on appeal, however, because
McPhearson has conceded that this is not a cognizable claim in a post-conviction proceeding. Appellant
Br. at 2-3.
While this appeal was pending, the Sentencing Commission made retroactive additional
reductions to offense levels involving crack cocaine in light of the Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372. McPhearson filed a second motion to reduce his sentence pursuant to these
reductions, which the government did not oppose. The district court granted McPhearson’s motion on
March 9, 2012, and reduced McPhearson’s sentence to seventy months.
McPhearson v. United States
To establish ineffective assistance of counsel, a petitioner bears the burden of
showing: “(1) his trial counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defendant.” Mallett, 334 F.3d at 497 (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). The district court held that McPhearson failed
to establish adequately either deficient performance or prejudice from his counsel’s
failure to make a personal-use argument at sentencing because the jury had rejected
McPhearson’s testimony that the drugs found on his person were for personal use. R.
3 (D. Ct. Order at 8-9). We review each of the Strickland prongs in turn.
A. Deficient Performance
Trial counsel’s performance is deficient if his “representation fell below an
objective standard of reasonableness.” Strickland, 466 U.S. at 688. This standard is
highly deferential, and we apply a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. McPhearson
argues that his counsel was deficient because counsel failed to raise the argument at
sentencing that some of the 4.9 grams of cocaine base found on his person should be
excluded as related to personal use. On the record that we have available, we agree.
“A defendant facing the possibility of incarceration has a Sixth Amendment right
to counsel at all ‘critical stages’ of the criminal process, and a sentencing hearing is one
type of ‘critical stage’ at which the right to counsel attaches.” Benitez v. United States,
521 F.3d 625, 630 (6th Cir. 2008) (internal quotation marks and alterations omitted).
Counsel’s failure to object to an error at sentencing or failure to raise a viable argument
that would reduce his client’s sentence may constitute deficient performance. See United
States v. Thomas, 38 F. App’x 198, 203 (6th Cir.) (citing United States v. Soto, 132 F.3d
56, 58-59 (D.C. Cir. 1997)) (noting failure to move for a viable sentencing decrease may
constitute deficient performance), cert. denied, 537 U.S. 866 (2002); Garcia v. United
States, No. 99-1134, 2000 WL 145358, at *1 (6th Cir. Feb. 2, 2000) (same). We give
substantial deference to counsel’s decisions not to raise an argument, even a meritorious
argument, if the decision “‘might be considered sound trial strategy.’” Hodge v. Hurley,
426 F.3d 368, 385 (6th Cir. 2005) (quoting Strickland, 466 U.S. at 689). Therefore, as
McPhearson v. United States
in other circumstances, an omission by counsel at sentencing will not be deficient unless
his failure to raise the argument was objectively unreasonable.
McPhearson has maintained since his arrest that the cocaine base found on his
person was for personal use. Evidence was presented at trial, including his own
admission on the stand, that he was a frequent drug user, assertedly due to extraordinary
pain caused by multiple severe injuries. The law on the issue of personal use is clear and
is undisputed by the parties: Any drugs “possessed for personal consumption should not
be included when calculating the amount of drugs to enter into the drug quantity table
in U.S.S.G. § 2D1.1(c).” United States v. Gill, 348 F.3d 147, 153 (6th Cir. 2003). Gill
has been the clear law of this circuit and numerous others for many years, and a
personal-use argument has the potential to reduce substantially a defendant’s sentence.
See, e.g., id. at 156 (excluding purported amount for personal use yielded two-level
difference in offense level); United States v. Kipp, 10 F.3d 1463, 1465 (9th Cir. 1993)
(four-level difference); see also Glover v. United States, 531 U.S. 198, 203-04 (2001)
(holding any increase in actual jail time due to sentencing error is prejudicial and
remanding to determine if error was due to counsel’s deficient performance).
In Jansen v. United States, 369 F.3d 237, 243-44 (3d Cir. 2004),6 the Third
Circuit held that where the defendant had consistently maintained that he used cocaine
base, his counsel’s failure to raise a personal-use argument at sentencing constituted
ineffective assistance of counsel. Even though the Third Circuit itself had not yet held
that personal-use amounts could be excluded, the court reasoned that “[c]ompetent
counsel would have advanced at sentencing the contention that the drugs defendant
claimed were for personal use should not enter into the computation of the base offense
level.” Id. at 243. Despite the presumption of reasonableness, the court could identify
no discernible trial strategy to justify counsel’s failure to raise the issue. Id. at 244.
Then-Circuit Judge Alito concurred in Jansen, writing separately to urge the Sentencing
Commission to resolve the apparent circuit split on the issue. Jansen, 369 F.3d at 250 (Alito, J.,
McPhearson v. United States
We agree with our sister circuit’s reasoned analysis. On this record, we see no
discernible trial strategy that would explain counsel’s failure to raise the personal-use
issue at sentencing. See Soto, 132 F.3d at 59 (holding failure of counsel to raise a
potentially helpful sentencing provision was deficient performance); United States v.
Headley, 923 F.2d 1079, 1084 (3d Cir. 1991) (holding counsel ineffective because “no
rational basis to believe that . . . counsel’s failure to argue [sentencing] adjustment was
a strategic choice”). The government argues on appeal that reasonable counsel for
McPhearson would not have raised a personal use argument at sentencing—despite his
client’s insistence early and often that the drugs were for personal use—because a
personal-use argument here would have conflicted with his client’s prior testimony and
would have conflicted with a purported jury finding that none of the drugs at issue were
for personal use. We are not persuaded by either of these arguments.
The government contends that defense counsel was not deficient for failing to
argue personal use at sentencing because doing so would have required his client to
testify, subjecting McPhearson to a charge of perjury and a possible enhancement for
obstruction of justice. The defendant bears the initial burden of production when raising
the issue of personal use at sentencing, and the defendant may meet that burden through
personal testimony. Gill, 348 F.3d at 156.7 However, the government bears the ultimate
burden of persuasion, and the defendant’s testimony is not the only means by which
personal use may be established. See id. At trial, McPhearson testified at length
regarding his use of cocaine base to alleviate extreme pain sustained from multiple major
injuries he suffered in a car accident a year earlier. Additional evidence could have been
presented to verify the extent of his injuries as counsel had first tried to do at trial;
individuals other than McPhearson could have testified to observing McPhearson’s
personal use of cocaine base; or experts could have been called to discuss the use of
cocaine base, marijuana, and other substances among those injured as a potential pain
reliever. Given the numerous ways the defendant could have satisfied his burden of
The government concedes in its brief that McPhearson’s trial testimony satisfied his burden of
production on this issue. Appellee Br. at 18. The only evidence the government points to in support of
its burden of persuasion is that the jury’s guilty verdict was a determination that McPhearson’s testimony
was not credible. Id.
McPhearson v. United States
production and the absence of any evidence from the government to rebut the
defendant’s claim that he was a drug user, we are not persuaded that the obstacles to
offering further testimony from McPhearson himself constitute an objectively reasonable
explanation for why counsel would decline even to raise the personal-use argument for
the cocaine base at all at sentencing.
We also see no support on this record for any presumption that McPhearson’s
counsel’s decision not to present the personal-use argument was tactical. Certainly,
counsel’s decision to skip an argument that would contradict his client’s prior testimony
may at times be strategic. Here, however, we know nothing about why defense counsel
declined to make the argument, and the government’s suggestion of a “contradiction”
is hardly plausible. McPhearson consistently claimed that he used cocaine base, and the
argument at sentencing would have been virtually the same as at trial. Counsel’s
apparent refusal to present any personal-use argument at sentencing arguably creates a
greater impression of conflict with his client’s prior testimony than if he had raised the
argument on the basis that at least some of the cocaine base was attributable to personal
use. Although he could no longer reasonably argue that all of the cocaine base was for
personal use, even if we were to consider that a conflict, there is no prohibition on his
counsel taking a potentially contrary position and offering alternative evidence in
support. See Mathews v. United States, 485 U.S. 58, 65 (1988) (“We do not think that
allowing inconsistency necessarily sanctions perjury.”).8
We turn then to the government’s argument relating to the impact of the jury’s
verdict. The government argues that because Count 4 contained a specific drug quantity,
a conviction for Count 4 necessarily required a finding by the jury that McPhearson
intended to distribute all 4.9 grams. We disagree. The government was not required to
establish any specific quantity, or any intent to distribute a specific quantity, in order to
The government also suggests that perhaps McPhearson confessed to his counsel that none of
the cocaine base was for personal use. Appellee Br. at 19. We decline to make such an assumption based
solely on counsel’s failure to raise an argument, particularly when the defendant has already testified to
the contrary. Regardless, should the district court hold an evidentiary hearing on remand, the government
would be entitled to offer testimony from McPhearson’s trial counsel regarding whether his decision was
McPhearson v. United States
establish guilt of possession with intent to distribute. United States v. Villarce, 323 F.3d
435, 439 (6th Cir. 2003) (internal quotation marks omitted) (“[T]he government need not
prove mens rea as to the type and quantity of the drugs in order to establish a violation
of § 841.”); see also Kipp, 10 F.3d at 1465 (rejecting argument that because defendant
pleaded guilty to “possession with intent to distribute 117.25 grams of cocaine” he could
not argue some of that quantity was related to personal use at sentencing).
Nonetheless, the government contends that by including an amount in the
indictment on Count 4, the jury’s verdict constitutes a finding that all of the facts as
alleged were true beyond a reasonable doubt. Count 4 charged McPhearson with
“knowingly possess[ing] with intent to distribute approximately 4.9 grams of cocaine
base.” R. 54, Criminal Docket (Superseding Indictment). Listing a quantity in the
indictment arguably ensures that a conviction includes a specific finding of fact from the
jury, as required under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because “[a]
jury’s verdict represents a finding that a crime was committed as alleged in the
indictment.” United States v. Tosh, 330 F.3d 836, 842 (6th Cir. 2003).9 However, we
do not look at the indictment and the conviction in a vacuum; we also must consider
what the jury was instructed to decide when considering what findings of fact were
determined beyond a reasonable doubt in rendering a conviction. United States v.
Neuhausser, 241 F.3d 460, 471 (6th Cir. 2001) (considering indictment and instructions
when determining facts found by jury in a general verdict).
We assume that jurors are “diligent in following the precise instructions given
to them.” Tosh, 330 F.3d at 842. Therefore, when the indictment specifies a quantity,
but the jurors are instructed to ignore questions related to quantity, a conviction on that
count does not contain a finding of fact by the jury as to the amount in the indictment for
sentencing purposes. See United States v. Jones, 437 F. App’x 445, 446 (6th Cir. 2011)
This argument is less persuasive when, as here, the amount charged in the indictment is an
approximation. In such cases we have been less quick to label a verdict a conclusive finding of fact on
quantity. See United States v. Flowal, 234 F.3d 932, 934 (6th Cir. 2001) (holding jury made no finding
on quantity when defendant charged and convicted of possession with intent to distribute “approximately
[5.2] kilograms of cocaine”), overruled on other grounds by United States v. Leachman, 309 F.3d 377,
382-83 (6th Cir. 2002).
McPhearson v. United States
(unpublished opinion) (holding jury made no finding on quantity “[d]espite the
testimony in regard to quantity and the indictment’s notation of quantity as to both
counts,” when the jury instructions specifically stated that the government did not need
to show amount); see also United States v. Gunter, 551 F.3d 472, 484-85 (6th Cir.)
(conviction constituted finding of fact by jury when jury was specifically instructed to
determine amount of drugs involved), cert. denied, 130 S. Ct. 194 (2009).
Here, despite the specification of an amount in the indictment, the judge’s
instructions to the jury made abundantly clear that the jury was not expected to make any
findings of fact as to quantity in this case to convict. The judge never instructed the jury
that they could acquit under Count 4 if they found some of the drugs were for personal
use, only if they found all of the drugs were for personal use. R. 197, Criminal Docket
(Trial Tr. at 47:2-13). The jury was never asked to determine whether any specific
amount was intended for distribution. Instead, the jury was instructed to determine that
the defendant possessed cocaine base, that he knew he possessed cocaine base, and that
he intended to distribute cocaine base. The judge explicitly instructed the jury: “If you
find that the material involved in this case is cocaine base, you need not be concerned
with the quantity. So long as you find that the defendant knowingly possessed cocaine
base, the amount involved is not important.” Id. at 46:2-6. Under these circumstances,
we hold that the jury made no finding of fact with respect to quantity and the district
judge was not bound by any factual finding with respect to quantity at sentencing.10 See
United States v. Williams, 247 F.3d 353, 359 (2d Cir. 2001) (holding district court erred
in relying on jury verdict as dispositive of drug amount at sentencing when defendant
was charged and convicted of possession with intent to distribute more than 50 grams
of cocaine base because judge explicitly instructed jury that the government need not
prove any specific amount). Any failure to raise the issue at sentencing based on an
erroneous belief that the jury verdict foreclosed the argument therefore also would be
We also reject the argument that our prior opinion in this case conclusively held that the jury
made a factual finding with respect to amount—an issue not before the court at the time—solely because
we stated that “the jury simply chose not to believe that the crack cocaine McPhearson admittedly
possessed in December 2003 was intended to alleviate his pain.” United States v. McPhearson, 303 F.
App’x 310, 318 (6th Cir. 2008) (unpublished opinion).
McPhearson v. United States
objectively unreasonable, if that was in fact the reason counsel declined to raise the
On the record before us, we see no reasonable tactical explanation for counsel’s
failure to raise a potentially viable personal-use argument in this case. The government,
however, never had the opportunity to file a response to McPhearson’s § 2255 motion.
On remand, the government should be permitted to respond to McPhearson’s motion and
raise any additional bases not already discussed for establishing that counsel’s
performance was not deficient under the Sixth Amendment.
Even when trial counsel’s performance is deficient under prevailing standards,
we grant relief only if “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694; Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). An
error by counsel at sentencing that amounts to any extra jail time is prejudicial under the
Sixth Amendment. Glover, 531 U.S. at 202-04 (“[A]ny amount of actual jail time has
Sixth Amendment significance.”). “When the district court sentences a defendant to the
low end of the guideline range, . . . the appellate court can reasonably infer that the
defendant might have received a lower sentence if the guideline range itself had been
lower.” Gill, 348 F.3d at 155.
Here, McPhearson was sentenced to 140 months of imprisonment based on a
range of 140 to 175 months. R. 182, Criminal Docket (Sentencing Hr’g Tr. at 156:23158:1; 185:21-23). Had the district court found that even a gram of the cocaine base was
for personal use, McPhearson’s then-applicable base offense level would have dropped
two levels, lowering his applicable guideline range to 120-150 months. See U.S.S.G.
2D1.1(c)(7) (2006). If two grams were for personal use, the range drops even further to
100-125 months. Therefore, if McPhearson had a plausible personal-use argument, he
was clearly prejudiced by his counsel’s failure to raise it. Jansen, 369 F.3d at 249 (“If
any significant portion of the drugs found in defendant’s pants was for personal use he
was prejudiced by the failure of his counsel to object to the inclusion of such drugs in
McPhearson v. United States
the computation of his base offense level.”). The district court’s ruling that counsel’s
performance caused McPhearson no prejudice was based on the same reasoning behind
its holding that counsel’s performance was not deficient—the jury’s verdict. R. 3 (D.
Ct. Order at 8-9). Because we do not believe that the jury’s verdict was a finding of fact
that none of the 4.9 grams were for personal use, we remand for further consideration
of whether there is a reasonable probability that McPhearson’s sentence would have
been different had counsel made the personal-use argument for the cocaine base at
Although the record suggests some evidence that could have been raised in
support of the personal-use argument, the record is not sufficiently developed for us to
determine wether McPhearson would have met his burden of production or whether the
government would have met its burden of persuasion. To the extent that an evidentiary
hearing is necessary for either party to present evidence on this issue, the district court,
in its discretion, should hold one. Given that McPhearson’s time served is rapidly
approaching his recently revised sentence of seventy months, we trust that the district
court will handle this matter expeditiously.
For the aforementioned reasons, we VACATE the district court’s judgment
denying McPhearson’s motion to set aside his sentence and REMAND to the district
court for further proceedings consistent with this opinion.
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