UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4472
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KAREEM KABBAR WEBB,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:09-cr-00021-RLV-DCK-1)
Submitted: September 29, 2011 Decided: October 25, 2011
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Faith S. Bushnaq, BUSHNAQ LAW OFFICE, PLLC, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Mark A. Jones, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Kabbar Webb pleaded guilty pursuant to a
written plea agreement to drug and firearm offenses. Webb
agreed to waive all rights to appeal the conviction and sentence
with the exception of “(1) claims of ineffective assistance of
counsel or (2) prosecutorial misconduct.” He was sentenced as a
career offender to 262 months in prison. On appeal, Webb claims
that he received ineffective assistance of counsel when counsel
failed to challenge one of the predicate offenses used to
establish his status as a career offender. We affirm.
The probation officer applied the career offender
enhancement based on Webb’s North Carolina convictions for
common law robbery, for which Webb received a 15 to 18 month
sentence, and breaking and entering, for which he received a 10
to 12 month sentence. See U.S. Sentencing Guidelines Manual
§ 5C1.2 (2009). Counsel objected to application of the career
offender enhancement on the basis of the increased severity of
the sentence, but not based on the use of the predicate felonies
to determine career offender status. The court overruled Webb’s
objection and imposed a total sentence of 262 months.
Webb’s appeal is limited by the terms of his plea
agreement. His sole issue on appeal is whether he received
ineffective assistance of counsel when counsel did not object to
the use of the conviction for breaking and entering, for which
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he did not receive a sentence in excess of twelve months. Webb
argues that, in light of Johnson v. United States, 130 S. Ct.
1265 (2010), and United States v. Rodriquez, 553 U.S. 377
(2008), counsel should have argued that the conviction was not a
valid predicate offense.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant generally must bring his
claims in a 28 U.S.C.A. § 2255 (West Supp. 2011) motion. Id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
However, ineffective assistance claims are cognizable on direct
appeal if the record conclusively establishes ineffective
assistance. Massaro v. United States, 538 U.S. 1690, 1693-94
(2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999). To demonstrate ineffective assistance, a defendant must
show that his “counsel’s representation fell below an objective
standard of reasonableness,” and that the error was “prejudicial
to the defense” such that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 692, 694 (1984).
We conclude that, even if counsel’s representation
fell below an objective standard of reasonableness, Webb has not
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demonstrated that the alleged error was prejudicial. At the
time of Webb’s sentencing, whether a prior conviction qualified
as a felony for career offender purposes was determined by
considering “the maximum aggravated sentence that could be
imposed for that crime upon a defendant with the worst possible
criminal history.” United States v. Harp, 406 F.3d 242, 246
(4th Cir. 2005). While Webb’s appeal was pending, however, Harp
was overruled by the en banc decision in Simmons. See United
States v. Simmons, 649 F.3d 237, 2011 WL 3607266, at *3 (4th
Cir. Aug. 17, 2011). Simmons held that a prior North Carolina
offense was punishable for a term exceeding one year only if the
particular defendant before the court had been eligible for such
a sentence under the applicable statutory scheme, taking into
account his criminal history and the nature of his offense. Id.
at *8; see also N.C. Gen. Stat. § 15A-1340.17(c), (d) (2009)
(setting forth North Carolina’s structured sentencing scheme).
Under Simmons, Webb’s breaking and entering conviction
does not appear to be a crime punishable by imprisonment for a
term exceeding one year. We do not have the state court record
on appeal. However, in light of Webb’s 10-12 month sentences,
under the North Carolina sentencing table, it appears that Webb
could not have received a sentence of more than twelve months if
he had been sentenced in the presumptive range. See N.C. Gen.
Stat. § 15A-1340.17(c), (d).
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Simmons notwithstanding, at the time of Webb’s
conviction and sentencing, Harp was the law in the circuit.
Thus, even if counsel had objected, the court would have
overruled the objection because the maximum sentence any
defendant could have received was thirty months, thereby
satisfying the career offender requirement. Because the
sentencing outcome would have been the same, Webb cannot
demonstrate prejudice. Accordingly, counsel was not
ineffective.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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