Dennis v. USA - 2255

Filing 2

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 5/5/2017. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MICHAEL DENNIS

v.

UNITED STATES OF AMERICA

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Criminal No. CCB-10-715
(Civil No. CCB-13-301)

MEMORANDUM
Michael Dennis is serving a 264-month sentence in the custody of the United States
Bureau of Prisons after pleading guilty to conspiracy to possess with the intent to distribute
cocaine base and heroin, possession of a firearm by a convicted felon, and possession of a
firearm in furtherance of a drug trafficking crime. He now attacks that sentence via a motion
brought under 28 U.S.C. § 2255, (ECF No. 70), arguing that his lawyer was constitutionally
ineffective.

In a separate motion, Dennis asks the court to equitably toll the statute of

limitations. (ECF No. 73.) Dennis also asserts, via a motion for leave to supplement and request
for appointment of counsel filed in 2013, (ECF No. 84), that his sentence is unlawful in light of
Descamps v. United States, 133 S. Ct. 2276 (2013), and Alleyne v. United States, 133 S. Ct. 2151
(2013). Finally, in briefing authorized by the court in 2015, Dennis argues that the court may
grant relief despite the Fourth Circuit’s decisions in Whiteside v. United States, 775 F.3d 180
(4th Cir. 2014) (en banc), cert. denied, 135 S. Ct. 2890 (2015), and United States v. Foote, 784
F.3d 931 (4th Cir. 2015), cert. denied, 135 S. Ct. 2850 (2015). (ECF No. 95.) No hearing is
necessary to the resolution of Dennis’s motions. See 28 U.S.C. § 2255(b). For the reasons
explained below, the § 2255 motion will be denied; the motion for equitable tolling will be
1

denied as moot; the motion for leave to supplement will be granted, but its arguments rejected as
a basis for relief; and the request for appointment of counsel will be denied.
BACKGROUND
Dennis was charged in a seven-count indictment alleging a series of drug trafficking and
firearm counts. (See Indictment, ECF No. 1.) After unsuccessfully moving to suppress much of
the evidence against him, Dennis pleaded guilty to three of the seven counts contained in the
indictment. (See Plea Agreement 1, ECF No. 57.) Specifically, Dennis pleaded guilty to
conspiracy to possess with the intent to distribute cocaine base and heroin in violation of 21
U.S.C. § 846, to possession of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1), and to possession of a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c). (See Plea Agreement 1–2; Judgment 1, ECF No. 60.) The plea agreement
specified that, on the basis of a pre-plea criminal history report, the government believed Dennis
to be a career offender and armed career criminal. (See Plea Agreement 5.) After a two-level
downward adjustment for acceptance of responsibility, the government calculated the applicable
advisory sentencing guideline range as 292 to 365 months of imprisonment.

(See Plea

Agreement 5.) Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Dennis and the
government agreed that a 264-month prison sentence would appropriately dispose of his case.
(See Plea Agreement 5.)
Before accepting that plea, the court carefully reviewed it with Dennis. During that
review, Dennis acknowledged, among other things, that he understood the maximum penalties
for each of the charges. (See Opp. § 2255 Mot., Ex. C (“Sent’g Tr.”) 7–8, ECF No. 81-3.) He
acknowledged that he had agreed with the government as to an appropriate sentence. (See Sent’g

2

Tr. 14–15, 19, 21.) Dennis acknowledged that no one “made any threats” to induce him to plead
guilty and that no one had promised him anything in exchange for that plea that was not
expressed in the written letter summarized for him by the court. (Sent’g Tr. 13–14, 21.) He
indicated that he was satisfied with his attorney. (Sent’g Tr. 14.) And he acknowledged that he
possessed several specific guns that affected interstate commerce, that he previously had been
convicted in Maryland of a crime punishable by a prison term greater than one year, and that he
had agreed with at least one other person to possess with the intent to distribute cocaine base and
heroin. (See Sent’g Tr. 15–17.) The court ultimately accepted Dennis’s guilty plea. (See Sent’g
Tr. 22.)
Pursuant to Dennis’s request, the court sentenced him on the same day he entered his
plea. (See Sent’g Tr. 22–23.) The court found that a guidelines range of between 292 and 365
months of imprisonment applied to him as an armed career criminal and career offender under
U.S.S.G. § 4B1.1. (See Sent’g Tr. 23–24.) The court nonetheless granted a downward variance,
imposing a total sentence of 264 months, consistent with Dennis’s plea under Rule 11(c)(1)(C).
(See Sent’g Tr. 30–31; Judgment 2.) The court imposed 204-month concurrent sentences for
violation of 21 U.S.C. § 846 and 18 U.S.C. § 922(g)(1), and a 60-month consecutive sentence for
violation of 18 U.S.C. § 924(c). (See Judgment 2.) 1 The judgment issued on December 19,
2011.
1

There is an inconsistency between the sentence orally pronounced at the hearing and the one recorded on the
judgment. At the hearing, the court indicated that violation of 21 U.S.C. § 846 would be punished with a 240-month
sentence. (See Sent’g Tr. 31.) The judgment, however, indicated that the sentence for that crime would be 204
months. (Judgment 2.) “It is normally the rule that where a conflict exists between an orally pronounced sentence
and the written judgment, the oral sentence will control.” United States v. Osborne, 345 F.3d 281, 283 n.1 (4th Cir.
2003). Where the court’s oral pronouncements are ambiguous, however, the “written criminal judgment” serves “as
evidence of the sentencing court’s intent” and governs the sentence. Id. Such ambiguity exists here. At the hearing,
the court noted that Dennis’s sentence for violation of 18 U.S.C. § 924(c) would be consecutive to the sentences for
his two other crimes, “for a total of 264 [months].” (Sent’g Tr. 31.) If that 60-month sentence were consecutive to a
240-month term, however, then Dennis’s total period of incarceration would be 300 months. In light of this
ambiguity, the written judgment governs Dennis’s sentence.

3

Dennis did not appeal. On December 3, 2012, he deposited his § 2255 motion in the mail
system at the facility in which he was incarcerated. (See § 2255 Mot., Certificate of Service and
Mailing, ECF No. 70.) That motion, however, was incorrectly addressed and was thus returned
to him on January 7, 2013. (See Mot. Equitable Tolling, Ex. A, ECF No. 73-1.) The following
day, Dennis again deposited the motion in the prison mail system, alongside a motion to
equitably toll the statute of limitations, both of which were received on January 25. (See Mot.
Equitable Tolling, Certificate of Service and Mailing, ECF No. 73.) On July 31, 2013, he
deposited in the prison mail system a motion for leave to supplement his initial filing, asserting
claims under Descamps and Alleyne. (See Mot. Leave to Supplement, Certificate of Service and
Mailing, ECF No. 84.) On September 15, 2015, Dennis submitted additional briefing authorized
by the court, arguing, inter alia, that the Fourth Circuit’s decisions in Whiteside and Foote do not
foreclose relief. (See Suppl. Mot. to Vacate, ECF No. 95.)
ANALYSIS
I. Motion to Vacate Sentence
A. Statute of Limitations
Under 28 U.S.C. § 2255(f)(1), a federal prisoner must file his motion within one year of
“the date on which the judgment of conviction becomes final.” Here, Dennis’s judgment of
conviction became final on January 2, 2012, “when his time for appeal expired.” Whiteside, 775
F.3d at 182. Any motion under § 2255, then, was due by January 2, 2013. As noted, however,
Dennis did not successfully deposit his motion in the prison mail system until January 8, 2013,
and it was not received by the court until January 25. The government thus argues that it is
untimely and must be denied.

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To avoid that outcome, Dennis asserts that his motion is timely because it was filed on
December 3, 2012, well before the statute of limitations had run. A certificate of mailing and
service, which Dennis signed “under penalty of perjury” and attached to his § 2255 motion,
indicates that Dennis initially deposited that motion, with prepaid first class postage, in the
prison mail system on that date. (See § 2255 Mot., Certificate of Service and Mailing.) And that
certificate, in turn, is corroborated by a photocopy of the envelope in which that motion was
initially sent, which is postmarked December 3, 2012. (See Mot. Equitable Tolling, Ex. A.) As
the government points out, however, that photocopy also shows that the envelope was addressed
incorrectly; the zip code to the Baltimore courthouse is 21201, rather than 21202, the number
written on the envelope. The motion accordingly was returned to Dennis, who received it on
January 7, 2013. (See Mot. Equitable Tolling, Ex. A.) Although Dennis’s previous pro se filing
demonstrates that he was aware of the courthouse’s correct address, (see ECF No. 68), he acted
diligently upon learning of his error, depositing his motion in the prison mail system the day
after it was returned to him, along with a second motion to equitably toll the statute of
limitations.
Under the so-called prison mailbox rule, a prisoner’s filing “is timely if deposited in the
institution’s internal mailing system on or before the last day for filing.” Rule 3(d), Rules
Governing Section 2254 & 2255 Proceedings in the United States District Courts; see also
Houston v. Lack, 487 U.S. 266, 276 (1988). 2 Where, as here, a prisoner’s initial filing is
incorrectly addressed, courts have split on whether a pro se habeas petitioner is entitled to the
benefit of the mailbox rule. See Chandler v. United States, Crim. No. 06-107-01-M, 2011 WL
2

That rule also requires a prisoner mailing such a motion to use the prison’s legal mail system, if such a system is
available. Although Dennis invokes the mailbox rule in his tolling motion, (see Mot. Equitable Tolling 4–5), the
government does not address the argument and thus does not contest that Dennis employed the legal mail system at
the institution in which he was detained.

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6097378, at *4 (D. R.I. Dec. 6, 2011) (collecting cases). This court need not answer that difficult
question, however. As discussed below, even if Dennis’s motion were timely filed, it still would
fail on the merits.
B. Ineffective Assistance of Counsel Claims
When a petitioner alleges a claim of ineffective assistance of counsel, he must show both
that counsel’s performance was deficient and that the deficient performance prejudiced his
defense.

See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984).

To demonstrate

deficient performance, a petitioner must overcome the “‘strong presumption’ that counsel’s
strategy and tactics fall ‘within the wide range of reasonable professional assistance.’” Burch v.
Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689).

To

demonstrate prejudice, a petitioner “must show that 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. In the context of a plea bargain, that standard requires proof of “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Dennis first argues that his plea counsel rendered constitutionally deficient performance
by inducing him to agree to a plea “under the promise of a capped sentence, dismissal of charges,
and a threat of withdraw[al] from the case.” (§ 2255 Mot. 8.) During his plea colloquy,
however, Dennis expressly confirmed that he understood the terms of the plea—which did
include an agreed-upon and, in that sense, “capped” sentence, as well as dismissal of the charges
to which he did not plead guilty—and that his plea had not been induced by threat or any
promise that was not expressed in his written agreement. (See Sent’g Tr. 13, 19–20, 21–22.)

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“Absent clear and convincing evidence, to the contrary, [a defendant] is bound by the
representations he made during the plea colloquy.” Walton v. Angelone, 321 F.3d 442, 462 (4th
Cir. 2003). That standard recognizes that “[a] defendant’s solemn declarations in open court
affirming [a plea] agreement . . . ‘carry a strong presumption of verity.’” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (second alteration and omission in original)
(quoting United States v. White, 366 F.3d 291, 295 (4th Cir. 2004)). “Thus, in the absence of
extraordinary circumstances, allegations in a § 2255 motion that directly contradict the
petitioner’s sworn statements made during a properly conducted Rule 11 colloquy are always
‘palpably incredible’ and ‘patently frivolous or false’” and, accordingly, subject to summary
dismissal. Id. (internal citations omitted) (quoting Blacklege v. Allison, 431 U.S. 63, 76 (1977)).
As noted, Dennis’s sworn statements at his plea colloquy expressly contradict the factual
allegations supporting his ineffective assistance of counsel claim.

No extraordinary

circumstances explain that contradiction. Compare White, 366 F.3d at 300. That argument thus
must be rejected without an evidentiary hearing.
Dennis next argues that his plea counsel rendered constitutionally deficient performance
by failing to investigate the prior felony convictions that supported his sentencing as an armed
career criminal and career offender. Had counsel undertaken such an investigation, Dennis
contends, his attorney would have discovered that his prior convictions were constitutionally
infirm. Dennis does not, however, specify the defects impairing those allegedly unconstitutional
prior convictions. There is thus no basis for determining whether the sentencing court would
have held those prior convictions unconstitutional or whether the government would have
offered Dennis a better deal on the basis of their supposed unconstitutionality. It follows that

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even if Dennis’s plea counsel were deficient—which this court need not and does not decide—
then his failing still would not establish prejudice.

For this reason, Dennis’s “conclusory

allegations are insufficient to establish the requisite prejudice under Strickland.” United States v.
Terry, 366 F.3d 312, 316 (4th Cir. 2004).
In his reply, Dennis offers two additional grounds for holding his plea counsel
ineffective, arguing both that his prior convictions “did not qualify as serious drug trafficking
offenses under 28 U.S.C. § 994(h)” and that his counsel failed to remind the court of its inherent
authority to vary downward from the sentencing range recommended by the Sentencing
Guidelines. (Reply § 2255 Mot., ECF No. 83.) “Typically, courts will not consider an argument
raised for the first time in a reply brief,” which deprives the opposing party of an opportunity to
respond. Chang-Williams v. Dep’t of the Navy, 766 F. Supp. 2d 604, 620 n.16 (D. Md. 2011).
Dennis thus forfeited these arguments by asserting them for the first time in his reply.
Alternatively, Dennis’s arguments fail on their merits. As to 28 U.S.C. § 994(h), that
provision “direct[s] the United States Sentencing Commission . . . to ‘assure’ that the Sentencing
Guidelines specify a prison sentence ‘at or near the maximum authorized for categories of’ adult
offenders who commit their third felony drug offense or violent crime,” United States v.
LaBonte, 520 U.S. 751, 752 (1997), which the Commission implemented via U.S.S.G. §§ 4B1.1–
.2. Dennis argues that his prior convictions do not constitute predicate offenses because they
were for violations of state statutes not listed in § 994(h). Although that provision is silent as to
the effect of prior state drug convictions, U.S.S.G. § 4B1.2 recommends enhanced sentences on
the basis of certain such offenses. 3 His plea counsel’s failure to assert that Dennis’s prior

3

Dennis does not argue that the guidelines’s inclusion of certain state drug crimes exceeded the scope of the
Commission’s statutory mandate. Nor could he, as that claim has been rejected by the Fourth Circuit, see United

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offenses were not described in § 994 was neither deficient nor prejudicial.
As to his counsel’s alleged failure to remind the court of its authority to vary downward
from the sentencing range recommended by the guidelines, the record forecloses that argument.
Indeed, the court did vary downward from the guidelines’s recommendation. Although the court
determined that the guidelines recommended a sentence of between 292 and 365 months, (see
Sent’g Tr. 24, 28), it ultimately sentenced Dennis to 264 months in prison, (see Sent’g Tr. 31).
The court did so pursuant to the Rule 11(c)(1)(C) plea agreement that Dennis’s counsel
negotiated on his behalf. And his attorney supported that agreement at sentencing by offering
affirmative reasons that a downward variance was justified. (See Sent’g Tr. 25–26.) There is
thus no basis for holding his counsel ineffective.
II. Motion for Leave to Supplement Under Descamps and Alleyne and Additional Briefing
Regarding the Effect of Whiteside and Foote
Dennis filed his motion for leave to supplement in late July 2013, slightly over a month
after the issuance of Descamps and Alleyne. He contends that he is entitled to relief under both
decisions, notwithstanding the Fourth Circuit’s subsequent decisions rejecting the claims of
career offenders in Whiteside and Foote. The court appreciates that the government has not
asserted as an affirmative defense the one-year limitations period, see United States v.
Blackstock, 513 F.3d 128, 133 (4th Cir. 2008) (characterizing the limitations period as an
affirmative defense), perhaps because it believes that 28 U.S.C. § 2255(f)(3) would permit
Dennis’s claims to proceed. In any case, those claims lack merit, for the reasons described
below.

States v. Brown, 23 F.3d 839, 840–41 (4th Cir. 1994), abrogated on other grounds by Koon v. United States, 518
U.S. 81 (1996), as well as every other circuit to consider it, see, e.g., United States v. Stewart, 761 F.3d 993, 999
(9th Cir. 2014) (collecting cases).

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A. Descamps
Dennis challenges both his designation as a career offender and his sentencing under the
Armed Career Criminal Act (“ACCA”). To the extent Dennis challenges his designation as a
career offender under 28 U.S.C. § 2255, that claim is not cognizable. In Foote, the Fourth
Circuit held that a federal prisoner’s allegedly erroneous career offender designation could not be
heard under § 2255 where the prisoner did not assert his actual innocence of the predicate
offense, his sentence was imposed under the post-Booker advisory Sentencing Guidelines, and
his sentence did not exceed the maximum statutory penalty. 784 F.3d 931 at 940–44. The same
is true here. Dennis does not assert that he is factually innocent of the prior offenses. His
designation as a career offender was merely advisory, not mandatory. And his sentence for each
crime did not exceed the pertinent statutory maximum.

Further, even if his claim were

cognizable, it would fail for the same reasons as his challenge to application of the ACCA, as
explained below.
To determine whether a prior conviction constitutes a predicate offense for the purposes
of the career offender guidelines or the ACCA, “two types of analyses are potentially
applicable—known as the ‘categorical’ approach and the ‘modified categorical’ approach.”
United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009) (describing the approach to
determining whether an offense constitutes a “violent felony” under the ACCA), abrogated on
other grounds by United States v. Aparicio-Soria, 740 F.3d 152, 155–56 (4th Cir. 2014); see also
United States v. Carthorne, 726 F.3d 503, 511 & 523 n.6 (describing the approach to a “crime of
violence” under the career offender guidelines) (4th Cir. 2013). Under the categorical approach,
the “[s]entencing court[ ] may ‘look only to the statutory definitions’—i.e., the elements—of a

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defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’”
Descamps, 133 S. Ct. at 2283. So long as the statute of conviction has the same elements as the
generic crime listed in the guidelines or the ACCA—or, alternatively, more elements—then the
prior conviction constitutes a predicate offense. Id. Descamps clarified the application of the
modified categorical approach, reiterating that it “serves a limited function” relevant only to a
“‘narrow range of cases.’” Id. (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)).
Specifically, Descamps held that the modified approach applies exclusively where the statute of
conviction “is ‘divisible’—i.e., comprises multiple, alternative versions of the crime.” Id. at
2284. Dennis asserts that his sentence must be reevaluated in light of Descamps. For the
purpose of this motion, the court will assume that Descamps is retroactive.
The ACCA imposes a 15-year mandatory minimum sentence on defendants convicted of
violating 18 U.S.C. § 922(g) if such defendants “ha[ve] three previous convictions by any court
referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense . . . .” 18 U.S.C.
§ 924(e)(1). 4 The statute defines a serious drug offense as, among other things, “an offense
under State law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years
or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Similarly, under the guidelines, a
defendant is a career offender where, among other requirements, he “has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.”

U.S.S.G. §

4B1.1(a)(3). The guidelines define a “controlled substance offense” as “an offense under federal
or state law, punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance (or a
4

Section 922(g)(1) refers to “any court.” See 18 U.S.C. § 922(g)(1).

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counterfeit substance) or the possession of a controlled substance (or a counterfeit substance)
with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b).
At the time of Dennis’s prior convictions, as now, Maryland law included a generic
offense of manufacturing, distributing, possession with intent to distribute, or dispensing a
controlled dangerous substance, but it prescribed different penalties depending on the substance
at issue. See Md. Code Ann., Crim. L. §§ 5-602, 5-607, 5-608. 5 Because it is “thus impossible
to tell whether a defendant’s conviction qualifies as an ACCA [or career offender] predicate
from the statutory elements alone,” this statute is “divisible.” See United States v. Washington,
629 F.3d 403, 408 (4th Cir. 2011). The modified categorical approach therefore applies. See id.
Under the modified categorical approach, courts may consider only certain documents to
determine whether a prior conviction qualifies as a predicate offense. Descamps, 133 S. Ct. at
2284. Specifically, courts making such a determination are limited to documents that “approach[
] the certainty of the record of conviction.” Shepard v. United States, 544 U.S. 13, 23 (2005).
The Fourth Circuit has identified plea agreements and plea colloquy transcripts, among other
documents, as “Shepard-approved sources.” See United States v. Thompson, 421 F.3d 278, 281–
82 (4th Cir. 2005), cert. denied, 547 U.S. 1005 (2006). “The common denominator of the
approved sources is their prior validation by process comporting with the Sixth Amendment.
Excluded sources, such as transcripts of testimony or police reports, are not necessarily inherent
in the conviction.” Id.
A sentencing court may rely solely on a presentence report (“PSR”) under certain
circumstances. When the court uses the report to determine the fact of a conviction, as opposed
to its underlying circumstances, there is no need for it to consider additional Shepard-approved
5

Intervening amendments to these provisions have not changed their substance for purposes of this analysis.

12

documents. See United States v. Boykin, 669 F.3d 467, 471 (4th Cir. 2012) (reasoning that
information about the fact of a crime “would exist in an indictment or other Shepard-approved
source”). When the factual details of the PSR are at issue, however, the court must satisfy itself
that the PSR “bears the earmarks of derivation from Shepard-approved sources.” Id. (quoting
Thompson, 421 F.3d at 285); id. at 472. Here, the court relied on the pre-plea report to determine
that Dennis previously had been convicted of at least three felony drug offenses in Maryland:
distribution and conspiracy to distribute a controlled dangerous substance in Case No.
205286016 (“2005 offense”), possession with intent to distribute a controlled dangerous
substance in Case No. 107303027 (“2007 offense”), and possession with intent to manufacture,
distribute, or dispense a controlled dangerous substance in Case No. 109048015 (“2009
offense”). (See Sent’g Tr. 23; Pre-Plea ¶¶ 4, 9, 11, 17). 6 Dennis argues that the 2005 offense
does not qualify as a predicate conviction because his guilty plea resulted in a disposition of
probation before judgment, which does not constitute a “conviction” under Maryland law. 7
Dennis is correct on the law, but not on its application to his case. The Maryland statute
providing for probation before judgment states that a “court may enter judgment and proceed as
if the defendant had not been placed on probation” if the defendant violates a condition of
probation. Md. Code Ann., Crim. Proc. § 6-220(f); see also Shilling v. State, 577 A.2d 83, 87
(Md. 1990) (quoting Myers v. State, 496 A.2d 312, 316 (Md. 1985)) (explaining that, under a
previous version of the statute, “probation before judgment is a conviction if the defendant
6

Dennis does not argue that the rule for a pre-plea report differs from the rule for a PSR where, as here, the court
proceeded directly to sentencing after accepting the defendant’s guilty plea.
7
For the purposes of the ACCA, a “conviction” is defined by state law. See 18 U.S.C. § 921(a)(20); United States v.
Nash, 627 F.3d 693, 696 (8th Cir. 2010). As noted, the ACCA enhancement requires three predicate convictions,
while the career offender guideline requires two. Thus, the 2005 offense is not critical to Dennis’s career offender
status. Even if it were, however, the guidelines indicate that “[a] diversionary disposition resulting from a finding or
admission of guilt . . . in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not
formally entered . . . .” U.S.S.G. § 4A1.2(f); see also U.S.S.G. § 4B1.2 cmt. 3 (“The provisions of § 4A1.2 . . . are
applicable to the counting of convictions under § 4B1.1.”).

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violates the probation order and judgment is then entered for the crime for which he had been
previously found guilty”). According to the pre-plea report, that is exactly what happened here.
Dennis “pled guilty [to the 2005 offense] . . . and was granted 3 years Probation Before
Judgement (PBJ),” but his probation subsequently was revoked, “and [he] was sentenced to 3
years from January 27, 2009, concurrent with [the sentence in another case].” (Pre-Plea ¶ 4.)
In any case, both the government and Dennis have provided independent, Shepardapproved documents that corroborate the information in the pre-plea report. The government
attached certified copies of Dennis’s three state-court convictions to its opposition to Dennis’s
motion for leave to supplement and request for appointment of counsel. (See Opp. to Mot. Leave
to Supplement, Exs. A–C, ECF Nos. 86-1–86-3.) And Dennis submitted, among other records, a
transcript of state-court proceedings before Judge George Russell III on June 9, 2009, which
shows that the court entered judgment and sentenced Dennis to imprisonment on all three
offenses at issue—the 2005 offense, the 2007 offense, and the 2009 offense—pursuant to an
agreement between Dennis and the state, in which Dennis pled guilty to the 2007 and 2009
offenses and admitted to a violation of probation regarding the 2005 offense, to which he
previously had pled guilty. (See Mot. Leave to Supplement, Ex. B (“6/9/09 State Tr.”) 5–6, 17–
19 (2007 offense), 19–22 (2009 offense), 22–23, 27, 28–30 (2005 offense), ECF No. 84-2; see
also Mot. Leave to Supplement, Ex. A (“1/19/07 State Tr.”), ECF No. 84-1 (2005 offense).)
Thus, both the pre-plea report and independent, Shepard-approved records confirm that
Dennis was convicted of the three offenses upon which the sentencing court relied in designating
him an armed career criminal and career offender. Although there is no indication in the record
that the court considered the records of conviction or state-court transcripts at the time of

14

sentencing, any error is harmless, as the documents conclusively show that Dennis was convicted
of the required predicate offenses. Reviewing courts are permitted to take judicial notice,
pursuant to Federal Rule of Evidence 201, of court records from prior proceedings that were not
submitted to the sentencing court. See United States v. McDonald, 617 Fed. App’x 255, 258 (4th
Cir. 2015) (“Nonetheless, to remove any doubt created by McDonald’s factual claim [regarding
the nature of his conviction], and because the accuracy of the state judgments included in the
addendum to the Government's brief is not disputed, we conclude that it is in the interest of
justice to take judicial notice of the judgments.”); 8 see Colonial Penn Ins. Co. v. Coil, 887 F.2d
1236, 1239 (4th Cir. 1989) (“We note that the most frequent use of judicial notice of
ascertainable facts is in noticing the content of court records.”) (internal quotation marks and
alteration omitted).
The remaining question is whether these convictions do, in fact, qualify as predicates for
ACCA and career offender purposes.

Applying the modified categorical approach, see

Washington, 629 F.3d at 408, there is no dispute that each offense involved cocaine or heroin, an
observation corroborated by the transcripts of Dennis’s state plea proceedings, (see 1/19/07 State
Tr. 15–16; 6/9/09 State Tr. 17–19, 19–22). The elements of those crimes are identical to those of
the generic offense described in the ACCA, see Md. Code Ann., Crim. L. § 5-602, and offenses
involving cocaine or heroin are felonies punishable by a maximum term of imprisonment of 10
years or more (specifically, a maximum of 20 years and at least 10 years for a second offense),
see Md. Code Ann., Crim. L. § 5-608; see also Md. Code Ann., Crim. L. §§ 5-101(z)–(aa), 5402(c)(1)(xv), 5-403(b)(3)(iv). 9 Accordingly, they constitute predicate offenses for the purposes

8

Unpublished opinions are cited for the soundness of their reasoning, not for any precedential effect.
As noted, intervening amendments to these provisions have not changed their substance for purposes of this
analysis.

9

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of sentencing under the ACCA and the career offender guideline.
B. Alleyne
Alleyne held that, under the Sixth Amendment, “any fact that increases the mandatory
minimum is an ‘element’ [of the charged crime] that must be submitted to the jury.” 133 S. Ct.
at 2155. In so doing, it overruled Harris v. United States, 536 U.S. 545 (2002), which had come
to the contrary conclusion. For the purpose of resolving this motion, the court will assume that
Alleyne applies retroactively.
Dennis argues first that the court sentenced him on count I to a mandatory minimum
sentence of 20 years, premised on a conspiracy to distribute quantities of drugs greater than what
he acknowledged possessing in his plea, in violation of the Sixth Amendment as construed in
Alleyne. Not so. On count I, the court sentenced him to a 204-month term under 21 U.S.C.
§ 841(b)(1)(C), a determination that was not premised on his participation in a conspiracy to
distribute a specified quantity of cocaine base or heroin. (See Judgment 1.) Dennis expressly
acknowledged agreeing to distribute an unspecified quantity of drugs in his plea agreement. (See
Sent’g Tr. 16–17.) There is thus no violation of Alleyne, which reaffirmed a sentencing court’s
“discretion in selecting a punishment ‘within limits fixed by law.’” 133 S. Ct. at 2161 n.2
(quoting Williams v. New York, 337 U.S. 241, 246 (1949)).
Dennis also argues that the court sentenced him on the basis of prior convictions to which
he did not stipulate in his plea. That is arguably correct but legally irrelevant. 10 Alleyne, 133 S.
Ct. at 2160 n.1, expressly preserved the rule established by Almendarez-Torres v. United States,
523 U.S. 224, 247 (1998), which “held that the Sixth Amendment permits a judge to find the fact
of a prior conviction by a mere preponderance of the evidence, even if this fact raises the
10

Dennis’s counsel agreed at sentencing that he qualified as a career offender. (See Sent’g Tr. 18, 24.)

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statutory maximum or minimum penalty for the current offense,” United States v. McDowell,
745 F.3d 115, 123 (4th Cir. 2014) (summarizing Almandarez-Torres). “Almandarez-Torres
remains good law.” Id. at 124. The court thus did not violate the Sixth Amendment by
sentencing Dennis on the basis of prior convictions to which he did not expressly stipulate during
his guilty plea.
C. Other Claims
Dennis argues that the court may grant him relief despite the Fourth Circuit’s decisions in
Whiteside and Foote. 11 In Whiteside, the Fourth Circuit refused to equitably toll a § 2255
petition where changes in circuit precedent meant that the defendant no longer qualified as a
career offender. 649 F.3d at 187. In Foote, the Fourth Circuit held that claims related to the
application of the career offender guideline are not cognizable under § 2255. 784 F.3d at 940.
Dennis concedes that these decisions affect his career offender arguments, but he offers several
alternative paths to relief. For example, he urges the court to grant relief under 28 U.S.C. § 2241
on the basis that his designation as an armed career criminal and career offender constitutes a
miscarriage of justice. He also relies on United States v. Newbold, 791 F.3d 455 (4th Cir. 2015),
for the principle that a defendant who is incorrectly sentenced as an armed career criminal, and
thus receives a longer sentence the law authorizes, is entitled to resentencing.
Each of Dennis’s theories requires the court to conclude that he was incorrectly
categorized as an armed career criminal or career offender. For the reasons discussed above,
however, there was no error in this classification. Thus, none of the remaining claims entitle him

11

Because Dennis’s remaining claims fail on the merits, the court need not consider the government’s argument that
they are procedurally defaulted and time-barred.

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to relief. 12
III. Certificate of Appealability
After a district court denies the entirety of a motion under 28 U.S.C. § 2255, a prisoner
may appeal that decision only if a “judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B); see also Fed. R. App. P. 22(b)(1). Accordingly, “[t]he district court must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule
11(a), Rules Governing Section 2254 & 2255 Proceedings in the United States District Courts.
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, a
district court rejects on the merits a prisoner’s claims, that standard is met if the prisoner
“demonstrate[s] that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented are adequate to
deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Dennis’s claims do not meet that standard. Accordingly, no
certificate of appealability will issue.
CONCLUSION
For the reasons stated above, Dennis’s § 2255 motion will be denied; the motion for
equitable tolling will be denied as moot; the motion for leave to supplement will be granted, but
its arguments rejected as a basis for relief; the request for appointment of counsel will be denied;
and a certificate of appealability will not issue.
12

As the government notes, Dennis’s sentence on count IV, possession of a firearm by a convicted felon, is
concurrent with, and shorter than, his consecutive sentences on count I, conspiracy to possess with intent to
distribute cocaine base and heroin, and count V, possession of a firearm in furtherance of a drug trafficking crime.

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A separate order follows.

5/5/17
Date

/S/
Catherine C. Blake
United States District Judge

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