RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0320p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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DESHAWN L. ADAMS,
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Petitioner-Appellant,
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No. 09-1176
v.
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Respondent-Appellee. -
UNITED STATES OF AMERICA,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
Nos. 04-20027-002; 05-10327-002—David M. Lawson, District Judge.
Argued: July 27, 2010
Decided and Filed: September 30, 2010
Before: NORRIS, ROGERS, and WHITE, Circuit Judges.
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COUNSEL
ARGUED: Kenneth R. Sasse, FEDERAL DEFENDER’S OFFICE, Flint, Michigan,
for Appellant. Patricia Gaedeke, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee. ON BRIEF: Kenneth R. Sasse, FEDERAL
DEFENDER’S OFFICE, Flint, Michigan, for Appellant. Patricia Gaedeke,
ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
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OPINION
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ALAN E. NORRIS, Circuit Judge. Petitioner DeShawn Adams appeals from the
denial of his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. In 2005
he pleaded guilty to a single count of conspiracy to distribute cocaine base, 21 U.S.C.
§ 846, and was sentenced to the statutory minimum of 120 months of incarceration. His
statutory minimum sentence was increased from five to ten years based upon an
1
No. 09-1176 Adams v. United States Page 2
acknowledgment that he had previously pleaded guilty in a Michigan court to the felony
of attempting to possess less than 50 grams of a controlled substance. On appeal, he
contends that defense counsel rendered ineffective assistance at sentencing by failing to
argue that the Michigan conviction should not have been used to calculate his federal
sentence because it did not constitute a “prior conviction for a felony drug offense [that]
has become final” as required under 21 U.S.C. § 841(b)(1)(B).
The district court denied the motion but granted a certificate of appealability on
this issue. For the reasons that follow, we affirm the judgment.
I.
In May 2004 petitioner and seven other individuals were indicted in federal court
for conspiracy to distribute 50 grams or more of cocaine base, 21 U.S.C. § 846, and for
intentional use of a cell phone to facilitate a drug-trafficking offense, 21 U.S.C. § 843(b).
Petitioner was appointed counsel and subsequently entered into a plea agreement with
the government. In exchange for dismissal of the section 843 count, petitioner pleaded
guilty to a lesser included offense of the drug-trafficking count by acknowledging that
he had distributed less than 50 grams of cocaine base. The agreement also stipulated that
“the defendant has been convicted of [a] felony drug offense which has become final.”
Four worksheets used to calculate a federal guidelines sentencing range were attached
to the plea agreement. Worksheet C, which details petitioner’s criminal history,
included the offense at issue on appeal: his conviction for distribution of less than 50
grams of a controlled substance, for which he was designated a “youthful trainee”
pursuant to Michigan’s Holmes Youthful Trainee Act (“YTA”), Mich. Comp. Laws
§§ 762.11-16, and placed on probation.
Petitioner committed the federal drug-trafficking offense while on probation. In
response, his Michigan probation officer applied for, and received, a bench warrant from
the Wayne County Circuit Court. An Order for Discharge from Probation was entered
on May 23, 2005, noting that petitioner had pleaded guilty to a probation violation on
May 14, 2005. An Order of Dismissal was entered on July 27, 2005.
No. 09-1176 Adams v. United States Page 3
The pre-sentence report (“PSR”) prepared in advance of petitioner’s federal
sentencing hearing calculated a guidelines range of between 108 and 135 months of
imprisonment. However, the PSR noted that 21 U.S.C. § 841(b)(1)(B) provides in part
as follows:
If any person commits such a violation after a prior conviction for a
felony drug offense has become final, such person shall be sentenced to
a term of imprisonment which may not be less than 10 years and not
more than life imprisonment . . . .
As mentioned earlier, had petitioner not committed a prior drug-trafficking offense, the
statutory minimum penalty would have been five years. During the guilty plea hearing,
the district court addressed the prior conviction in the following exchange:
Court: [W]ith respect to the penalty enhancement information,
you have a right to challenge that. For example, you
could question whether you, in fact, are the person that
was named in the old conviction. Or you could challenge
the fact that the prior crime was, in fact, a felony drug
offense. Maybe it was, maybe it wasn’t. But you have a
right to question that if you want to.
But you must mount that challenge before sentencing. If
you wait till after sentencing, you have waived your right
to do that, do you understand?
Petitioner: Yes.
As this colloquy makes clear, petitioner had an opportunity to weigh the possibility of
challenging his prior felony conviction. In the end, he elected to enter into a guilty plea.
Thus, the question is not whether he knew that a challenge to his prior conviction was
possible but whether his attorney’s failure to insist upon that course of action denied
petitioner his Sixth Amendment right to effective assistance of counsel.
Petitioner did not take a direct appeal. However, less less than a year after
sentencing, he filed a pro se motion to vacate his sentence, which was referred to a
magistrate judge, who recommended that a hearing be conducted. Counsel was then
appointed to represent petitioner. Although the magistrate judge convened a hearing on
the motion, no testimony was taken. After briefing by the parties, the magistrate judge
No. 09-1176 Adams v. United States Page 4
issued a report recommending that the motion be denied. The district court overruled
petitioner’s objections to the report and denied the § 2255 motion.
II.
A. Standard of Review
“In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo
standard of review to the legal issues and uphold the factual findings of the district court
unless they are clearly erroneous.” Hamblen v. United States, 591 F.3d 471, 473 (6th
Cir. 2009). In this case, no facts are at issue and our review is de novo.
B. Ineffective Assistance of Counsel
In order to prevail on a claim of constitutionally ineffective assistance of counsel,
a petitioner must show that counsel’s performance was deficient, and that the deficiency
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “To
establish deficient performance, a petitioner must demonstrate that counsel’s
representation ‘fell below an objective standard of reasonableness.’” Wiggins v. Smith,
539 U.S. 510, 521 (2003) (quoting Strickland 466 U.S. at 688). To meet that standard,
counsel must perform within the bounds of “prevailing professional norms.” Strickland
466 U.S. at 688. When assessing performance, courts must indulge a “strong
presumption” that counsel’s conduct “falls within the wide range of reasonable
professional assistance” by resisting the temptation to evaluate counsel’s representation
through the distorting lens of hindsight. Id. at 689.
C. The Holmes Youthful Trainee Act
This court has previously considered whether a conviction under the YTA can
constitute an aggravated felony under the federal Immigration and Naturalization Act.
Uritsky v. Gonzales, 399 F.3d 728 (6th Cir. 2005). In the course of holding that it could,
we summarized the YTA in these terms:
The YTA provides that “if an individual pleads guilty to a criminal
offense, committed on or after the individual’s seventeenth birthday but
No. 09-1176 Adams v. United States Page 5
before his or her twenty-first birthday, the court of record having
jurisdiction of the criminal offense may, without entering a judgment of
conviction and with the consent of that individual, consider and assign
that individual to the status of youthful trainee.” Mich. Comp. Laws
§ 762.11(1). Further, “If consideration of an individual as a youthful
trainee is not terminated and the status of youthful trainee is not revoked
as provided in section 12 of this chapter, upon final release of the
individual from the status as youthful trainee, the court shall discharge
the individual and dismiss the proceedings.” Mich. Comp. Laws
§ 762.14(1) (footnote omitted). Moreover, “An assignment of an
individual to the status of youthful trainee as provided in this chapter is
not a conviction for a crime and . . . the individual assigned to the status
of youthful trainee shall not suffer a civil disability or loss of right or
privilege following his or her release from that status because of his or
her assignment as a youthful trainee.” Mich. Comp. Laws § 762.14(2).
Id. at 730. The public policy behind the YTA is clear: to give youthful offenders a
chance to wipe their records clean provided that they do not violate their status as
“youthful trainees.”
The YTA contains the following provision for revocation of youthful training
status:
The court of record having jurisdiction over the criminal offense referred
to in section 11 of this chapter may, at any time, terminate its
consideration of the individual as a youthful trainee or, once having
assigned the individual to the status of a youthful trainee, may at its
discretion revoke that status any time before the individual’s final
release. . . . Upon termination of consideration or revocation of status as
a youthful trainee, the court may enter an adjudication of guilt and
proceed as provided by law. If the status of youthful trainee is revoked,
an adjudication of guilt is entered, and a sentence is imposed, the court
in imposing sentence shall specifically grant credit against the sentence
for time served as a youthful trainee in an institutional facility of the
department of corrections or in a county jail.
Mich. Comp. Laws § 762.12 (footnote omitted) (emphasis added). In this case,
petitioner’s Michigan probation officer moved the trial court for an order for discharge
of probation for these reasons:
No. 09-1176 Adams v. United States Page 6
A warrant for violation of probation was signed on 6/9/04, due to
Technical violations. On 5/14/05 the defendant pled guilty to violation
of probation and case was closed without improvement by Your Honor.
The trial judge signed an order of probation discharge. As already noted, an order of
dismissal was subsequently entered by the trial court. The Michigan trial court did not
follow up its dismissal with an adjudication of guilt as authorized by the YTA. There
is nothing in the record to indicate whether this was an oversight or whether the trial
court elected to abandon the case because petitioner was in federal custody and had
pleaded guilty to a felony drug charge. In any event, the government concedes that no
judgment appears to have been entered.
The federal statutory scheme for drug trafficking crimes requires that a prior
felony drug conviction has “become final” before it can be used to enhance the sentence.
21 U.S.C. § 841(b)(1)(B). We have observed that “a conviction becomes final for the
purpose of [federal] sentencing when the time for taking a direct appeal from the
judgment of conviction has expired.” United States v. Miller, 434 F.3d 820, 823 (6th Cir.
2006). Whether a prior conviction is “final” pursuant to 21 U.S.C. § 841(b)(1)(B) is a
question of federal law. Id. at 823-24. In Miller, we considered nearly the identical issue
that confronts us here: “whether a sentence of probation under Georgia’s first-offender
drug sentencing scheme constitutes a ‘prior conviction for a felony drug offense [that]
has become final,’ as provided in 21 U.S.C. § 841(b)(1)(A).” Id. at 821-22. We noted
that the Georgia courts had determined that first-offender status takes the place of a
“sentence” and renders the case final for purposes of appeal. Id. at 824. Thus, we upheld
the use of the Georgia statute to enhance the federal sentence despite the fact that
defendant had served his Georgia two-year probationary sentence without incident and
no “formal judgment was . . . entered in the Georgia case.” Id. at 823.
Likewise, no formal judgment was entered in this case, although the Michigan
trial court could have entered an adjudication of guilt after petitioner’s probation was
revoked. Mich. Comp. Laws § 762.12. Consistent with Miller, we hold that plea of guilty
to a felony drug offense qualifies as a prior conviction for federal sentencing purposes
when the defendant is assigned as a youthful trainee pursuant to the YTA. Indeed,
No. 09-1176 Adams v. United States Page 7
Michigan’s own sentencing scheme supports this view by defining “conviction” to
include assignment to youthful trainee status. Mich. Comp. Laws § 777.50(4)(a). If
Michigan authorizes the use of YTA adjudications to calculate a defendant’s prior
record, it makes sense to consider those adjudications as predicate felonies under
21 U.S.C. § 841(b)(1)(B), in accordance with Miller. With respect to whether a YTA
adjudication represents a “final” judgment, Michigan Court Rule 7.202(b)(6)(1)(i)
defines a “final judgment” or “final order” in a criminal case to include “an order
dismissing the case.” Mich. Ct. Rule 7.202(b)(6)(b). As already mentioned, the trial
court entered an Order of Dismissal in this case on July 27, 2005.
Finally, we emphasize that this case comes to us not on direct appeal but as a
motion to vacate based upon the claim of ineffective assistance of counsel. Given our
holding that the district court properly considered petitioner’s YTA adjudication in
calculating petitioner’s federal sentence, it follows that petitioner has not shown that he
was prejudiced by counsel’s failure to challenge the prior Michigan conviction as
“final.” See Strikland, 466 U.S. at 687. Moreover, counsel’s performance did not fall
below “an objective standard of reasonableness.” Wiggins, 539 U.S. at 521 (quoting
Strickland, 466 U.S. at 688). On the contrary, it appears that counsel negotiated a
favorable disposition for his client by not only securing the dismissal of the second count
of the indictment but by convincing the government to allow him to plead guilty to the
possession of a lesser amount of crack cocaine. In short, petitioner has demonstrated
neither ineffective representation nor prejudice.
III.
The judgment is affirmed.