United States v. Massey

Case: 20-10478 Document: 00516860553 Page: 1 Date Filed: 08/16/2023

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

____________ FILED
August 16, 2023
No. 20-10478 Lyle W. Cayce
____________ Clerk

United States of America,

Plaintiff—Appellee,

versus

Brenton Thomas Massey,

Defendant—Appellant.
______________________________

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-1973
______________________________

Before Jones, Willett, and Douglas, Circuit Judges.
Edith H. Jones, Circuit Judge:
Prisoner Brenton Massey brings ineffective-assistance-of-counsel
claims under 28 U.S.C. § 2255. He was convicted for conspiracy to possess
with intent to distribute methamphetamine in the Eastern District of Texas
and for being a felon in possession of a firearm in the Northern District of
Texas. His claims rest on the argument that his sentence for the latter offense
should have been adjusted to reflect the 13 months he had already spent in
prison for his first conviction.
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Massey brought this 2255 petition in the Northern District of Texas,
faulting his trial counsel for failing to adequately advocate for “back time” at
sentencing and faulting his appellate counsel for not raising the issue on
appeal. The magistrate judge recommended that relief be denied. The
district judge (the same judge who sentenced Massey in the Northern
District) adopted the recommendation, dismissed the claims, and denied a
certificate of appealability. This court granted a certificate of appealability,
and we now AFFIRM.
It is true that the Sentencing Guidelines call for credit for time served
if there are two related offenses. U.S.S.G. § 5G1.3(b). Both parties agree the
offenses are related here. Yet the Guidelines are not obligatory, and the judge
in the Northern District of Texas instead sentenced Massey under U.S.S.G.
§ 5G1.3(d). Thus, Massey’s sentences were treated as concurrent from the
day of the second sentencing but did not account for the 13 months of back
time.
None of this means that Massey’s lawyers were constitutionally
deficient. Massey’s trial counsel argued for the application of U.S.S.G.
§ 5G1.3(b) in a memorandum and noted the argument in open court; he was
not constitutionally obliged to do more. Massey’s appellate counsel was not
deficient for failing to raise the issue because the district court did not
contravene any binding case law. Further, even if one or both attorneys were
deficient, the district court’s subsequent actions make it clear that the
defendant was not prejudiced. 1

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1
“When evaluating the denial of a § 2255 motion, the court of appeals reviews
factual findings for clear error and conclusions of law de novo.” United States v. Phea,
953 F.3d 838, 841 (5th Cir. 2020) (citing United States v. Olvera, 775 F.3d 726, 728–29 (5th
Cir. 2015)). “A claim of ineffective assistance of counsel is a mixed question of law and

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I.
To establish ineffective assistance of counsel, a prisoner must make
two showings. First, he “must show that counsel’s performance was
deficient.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. Second, he “must show that the deficient
performance prejudiced the defense.” Id. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. “Surmounting Strickland’s high bar is
never an easy task.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770,
788 (2011) (quoting Padilla, 559 U.S. at 371, 130 S. Ct. at 1485).
In this case, the trial lawyer adequately presented in his briefing and
thereby preserved the argument that his client should be sentenced according
to U.S.S.G. § 5G1.3(b). While the argument was imperfect—counsel also
sought credit for time Massey spent in custody for a related state charge as
well, which Massey was already entitled to under 18 U.S.C. § 3585—it was
not constitutionally deficient. The argument put the district court on notice
of the back-time request and directed it to the applicable Guideline. Neither
the failure of this argument to persuade the district court nor the absence of
any further objection to the court’s decision suggests that the attorney’s
conduct was constitutionally deficient. Even “an unsuccessful defense”
must enjoy “a strong presumption” of reasonableness. Nix v. Whiteside,
475 U.S. 157, 165, 106 S. Ct. 988, 993 (1986). Further, counsel need not

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fact that this court reviews de novo.” Id. (citing United States v. Rivas-Lopez, 678 F.3d 353,
356 (5th Cir. 2012)).

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reassert sentencing arguments in order to preserve them for appellate review.
See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
Trial counsel’s adequate presentation and preservation of the
§ 5G1.3(b) issue sets this case apart from those where courts have found
ineffective assistance of counsel. In United States v. Smith, the defense never
raised any argument about how to apply the Guidelines. 454 F. App’x 260
(5th Cir. 2011). Neither party objected to the Guideline range calculated by
the probation office, and the defense failed to object when the district court
inadvertently departed from that range. Id. at 261. Similarly, the basis for
finding deficient performance of counsel in United States v. Carlsen was the
“attorney’s failure to advocate for the application of” § 5G1.3(b).
441 F. App’x 531, 535 (9th Cir. 2011). District court cases have followed a
similar trendline. 2
In fact, in every case we are aware of where counsel cited § 5G1.3(b),
his or her conduct has been found constitutionally adequate. See, e.g., United
States v. Hoang, 2016 WL 1392549, at *23 (S.D. Tex. Apr. 8, 2016) (rejecting
an argument of deficient performance where “the transcript of the
Sentencing Hearing shows that U.S.S.G. § 5G1.3(b) was [] addressed”);
Kriegbaum v. United States, 2017 WL 4222439, at *7 (W.D. Tex. Aug. 30,
2017). These analogous cases help guide our decision.
Thus, counsel was not constitutionally obliged to re-urge his argument
after the district court applied U.S.S.G. § 5G1.3(d). The issue was

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2
See Cobb v. United States, 2019 WL 2607002, at *2 (E.D.N.Y. Jan. 11, 2019) (an
error regarding § 5G1.3(b) was “not raised at sentencing”); Schmitt v. United States,
2018 WL 10669774, at *3 (S.D. Ind. Feb. 26, 2018) (the “lawyer did not argue for” the
credit available under the Guidelines). Likewise, defense counsel appears to have made no
argument regarding the proper application of § 5G1.3(b) during the trial at issue in Jones v.
United States, No. 2:19-CV-291, 2019 WL 4060390, at *1 (M.D. Fla. Aug. 28, 2019).

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preserved. Moreover, even if we believed that the district court simply mixed
up the two provisions, trial counsel evidently did not agree. Applying the
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” this was a reasonable belief, as explained
below. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We decline to turn
Strickland’s “highly deferential” standard on its head by assuming that
counsel erred based on a debatable interpretation of the sentencing
transcript. Id. To find deficient performance under such circumstances
would unreasonably second-guess counsel’s conduct without any legal basis.
II.
Massey’s theory of prejudice rests on the assumption that the district
court meant to sentence Massey under § 5G1.3(b), but it mistakenly
sentenced him under § 5G1.3(d), despite having received a written
memorandum from counsel that cited subsection (b). Consequently, he
believes that the district court would have corrected itself if counsel had
objected. We disagree.
The district judge who sentenced Massey also ruled on this § 2255
motion. He adopted the magistrate judge’s report, which stated that the
district court “appropriately weighed all of [the] options under U.S.S.G.
§ 5G1.3, including the application of subsection (b) and the related
adjustment for time served, and decided to rely instead on subsection (d) to
achieve a reasonable punishment.” In other words, the district judge had the
chance to correct any previous confusion and resentence Massey according
to subsection (b). He instead adopted that report, which stated that he
“weighed all of [the] options under U.S.S.G. § 5G1.3” and chose to sentence
Massey under subsection (d).
This conclusion is bolstered by the legitimate reasons to apply
§ 5G1.3(d). First, a full application of subsection (b) would have led to a

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sentence below the mandatory minimum of fifteen years. 18 U.S.C. § 924(e).
Second, as the magistrate judge noted, Massey’s case involved time-credit
calculations that were difficult to predict. In such cases, the commentary for
§ 5G1.3 suggests using subsection (d). U.S.S.G. § 5G1.3 cmt. n.4(D).
All of this reinforces the strong presumption that the district judge
consciously exercised his sentencing discretion. Massey has not overcome
that presumption. He relies on the district court’s statement that the
sentence would be “fully concurrent” to support his argument that he was
prejudiced. But “fully concurrent” does not necessarily mean “according to
§ 5G1.3(b).” Subsection (d) permitted the sentences to be fully concurrent
going forward. If “fully concurrent” meant “giving full back time credit,”
then the district court legally could not have imposed a “fully concurrent”
sentence—giving back time would have led to a 175-month sentence, five
months below the mandatory minimum. In the face of this legal obstacle and
the district judge’s own later rulings, we decline to take the phrase “fully
concurrent” to mean that the judge confused subsections (b) and (d). Cf.
Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018) (“[T]he judge who
reviewed [the defendant’s] § 2255 motion is the same judge who sentenced
him. It is difficult to think of a better source of information about what
happened the first time around.”); Dimott v. United States, 881 F.3d 232, 237
(1st Cir. 2018) (“Although these findings were made during the collateral
review process, and not expressly stated at the time of sentencing, we give
them due weight because the habeas judge was describing his own decisions
at sentencing.”); United States v. Brito, 601 F. App’x 267, 273 (5th Cir. 2015)
(“Since the same judge presided over sentencing and the § 2255 proceeding,
she is in the best position to know what she meant by” an ambiguous
statement during sentencing).

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III.
Appellate counsel was not constitutionally ineffective, either. To
succeed, Massey would need to establish that the district court did not
exercise its legitimate sentencing discretion and that, if he appealed that
issue, the result would more than likely have been different. He attempts to
do so by faulting counsel for failing to argue that the district court should have
articulated reasons during sentencing as to why it applied § 5G1.3(d) instead
of § 5G1.3(b).
“Effective appellate counsel should not raise every nonfrivolous
argument on appeal, but rather only those arguments most likely to
succeed.” Davila v. Davis, 582 U.S. 521, 533, 137 S. Ct. 2058, 2067 (2017).
Appellate counsel is responsible for making “solid, meritorious arguments
based on directly controlling precedent.” United States v. Conley, 349 F.3d 837,
841 (5th Cir. 2003) (emphasis added). Importantly, “[s]uch directly
controlling precedent is rare. Often, factual differences will make authority
easily distinguishable, whether persuasively or not. In such cases, it is not
necessarily providing ineffective assistance of counsel to fail to construct an
argument that may or may not succeed.” United States v. Williamson,
183 F.3d 458, 463 n.7 (5th Cir. 1999).
The was no such “directly controlling” precedent. In 2003, this court
held in United States v. Rangel that (1) “subsection (b) is mandatory,”
(2) nevertheless, “the district court retains its discretion to impose a
sentence consecutively” through a departure, and (3) if it sentences
consecutively, the court “must offer reasons justifying the departure.”
319 F.3d 710, 715 (5th Cir. 2003). But that framework no longer applies to
§ 5G1.3(b) cases because the Supreme Court later ruled that the Guidelines
are advisory rather than mandatory. Booker, 543 U.S. at 245, 125 S. Ct. at
756. Thus, Rangel is not directly controlling for the purposes of finding

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deficient performance. Cf. United States v. Lagos, 25 F.4th 329, 337 (5th Cir.
2022) (finding no deficient performance where a previously binding
precedent was “superseded by changes to the Guidelines”).
In the aftermath of that decision, this court stated in an unpublished
opinion that “sentencing judges must include [§ 5G1.3(b)] in the calculation
of the proper guideline sentence.” United States v. Figueroa, 215 F. App’x
343, 344 (5th Cir. 2007); see also United States v. Estrada, 312 F. App’x 664,
667 (5th Cir. 2009) (“Even though it was not mandatory for the district court
to comply with § 5G1.3(b), the court was still required to consider that
subsection as part of its determination of a reasonable sentence.”); United
States v. Young, 2021 WL 4515393, at *7 (5th Cir. Oct. 1, 2021) (vacating and
remanding because the district court failed to consider § 5G1.3(b)).
But unpublished opinions “are not precedent.” 5th Cir. R. 47.5.4.
Perhaps in some instances, counsel might fall below the constitutional
standard of effective advocacy even absent controlling precedent, if the point
of law were sufficiently obvious. Cf. United States v. Franks, 230 F.3d 811,
814 (5th Cir. 2000). But the standard requirement is to raise “arguments
based on directly controlling precedent.” Conley, 349 F.3d at 841. Where
only persuasive authority is cited, this court has generally declined to find
that counsel had to raise the argument. See, e.g., United States v. Slape,
44 F.4th 356, 360 & n.2 (5th Cir. 2022); Schaetzle v. Cockrell, 343 F.3d 440,
446 (5th Cir. 2003). 3

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3
For the reasons outlined above, Massey’s ineffective-assistance-of-counsel claims
cannot succeed. We therefore also conclude that the district court did not abuse its
discretion by denying an evidentiary hearing to Massey. See United States v. Cervantes,
132 F.3d 1106, 1110 (5th Cir. 1998) (denial of an evidentiary hearing is reviewed for abuse
of discretion).

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IV.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.

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Dana M. Douglas, Circuit Judge, dissenting:
Nearly four decades ago, Strickland v. Washington recognized a
narrow path to habeas relief: ineffective assistance of counsel. 466 U.S. 668
(1984). On this record, I would find that Massey should have been entitled
to habeas relief under Strickland and its progeny. Accordingly, I respectfully
dissent.
I. Background
To understand why, we must start at the beginning. On April 5, 2013,
Massey was arrested as part of a law enforcement investigation into
methamphetamine trafficking in the Dallas metro area. He was initially
charged with the Texas state offense of unlawful possession of a firearm by a
felon and held in state custody. The state charge was later dismissed. Massey
was also indicted in two federal districts—the Eastern District of Texas and
the Northern District of Texas—on federal charges arising from the same
underlying conduct. He was first indicted in the Northern District in August
2013 for the offense of felon in possession of a firearm. He was then indicted
in the Eastern District in September 2013 for the offense of conspiracy to
possess with intent to distribute methamphetamine. Massey was
represented by the same trial counsel in both federal proceedings. This
appeal involves Massey’s Northern District sentence.
The Eastern District case was resolved first. Massey pleaded guilty to
the drug charge and, on February 11, 2015, was sentenced to 168 months
imprisonment. Massey was then transferred to the Northern District, where
he pleaded guilty to the felon-in-possession charge in August 2015. Massey’s
Presentence Report (“PSR”) identified the Eastern District drug offense as
“relevant conduct” to the Northern District firearm offense, as Massey was
carrying the firearm in connection with the drug offense. Based on his prior
convictions, the PSR recommended that Massey be sentenced as an armed

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career criminal—subject to a 15-year mandatory minimum term of
imprisonment—pursuant to 18 U.S.C. § 924(e) and United States
Sentencing Guideline (“U.S.S.G.”) § 4B1.4(a). Massey objected that the
Armed Career Criminal Act (“ACCA”) enhancement should not apply to
him based on the nature of his prior convictions. The district court overruled
the objection, leaving Massey’s guidelines range at 188 to 235 months of
imprisonment.
Massey submitted a sentencing memorandum to the court asking for
a sentence at the bottom of the guidelines range; that the sentence “run
concurrent with his conviction for 168 months out of the Eastern District of
Texas for Drug Conspiracy as these offenses are related”; and that he “be
given back time credit for the instant offense back to the time of his arrest on
April 5, 2013.” In the memorandum, he cited U.S.S.G. § 5G1.3(b) as
“giv[ing] this Court authority to adjust a sentence it would otherwise impose
to reflect time a defendant spent in state custody prior to federal sentencing
‘if the court determines that such period of imprisonment will not be credited
to the federal sentence by the Bureau of Prisons’” and asked for “back time
credit for three years,” referring to the period between his April 2013 arrest
and the pending April 2016 sentencing. Massey’s PSR did not reference
§ 5G1.3(b), back time credit, or running the Eastern and Northern District
sentences concurrently.
At sentencing, Massey’s trial counsel did not explicitly reference
§ 5G1.3(b), but did twice reiterate his request for concurrent sentences with
“back time” credit:
We’re also asking, because this is part of that case out of the
Eastern District, that these cases be run concurrent. I’m also
asking the court to ensure that the Bureau of Prisons gives him
credit for back time going back to April 5th of 2013, when he

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was arrested for this offense. That’s basically three years
worth of back time.
...
What we’re asking of the court, and I think the government is
not opposing, is a low end guideline sentence, Your Honor,
that will run concurrent with his sentence out of the Eastern
District of Texas, and that he be given credit for back time
going back to April 5th, 2013.
The district court sentenced Massey to a term of imprisonment of 188
months, the bottom of the guidelines range, stating that the sentence was
“sufficient but not greater than necessary to comply with the purposes for
sentencing” and that “there are no factors under Section 3553(a), alone or in
combination, that require a sentence that is greater than the minimum
advisory guideline range sentence.” The court also stated:
I am going to be ordering the sentence to be served
concurrently with the Eastern District sentence when I
pronounce the sentence. The way that I will address the
request for back time, is that I will be imposing the concurrent
sentence pursuant to guideline 5G1.3D, which will indicate to
the Bureau of Prisons that the sentence is fully concurrent.
That’s the way the court will do that.
...
It is ordered that the sentence shall run concurrently with the
sentence imposed in Case Number 4:13-CR-00102-7 by the
United States District Court for the Eastern District of Texas,
Plano Division pursuant to United States Sentencing
Guideline 5G1.3D.
On the Judgment in a Criminal Case, the court included a note: “It is ordered
that the sentence shall run concurrently with the sentence imposed” in the
Eastern District case “pursuant to U.S.S.G. § 5G1.3(d).” In the “statement
of reasons” attached to the Judgment, the district court checked a box

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indicating that it had given Massey a sentence within the guidelines range and
had not departed or varied.
Despite the district court’s statement at sentencing that the Northern
District sentence was to be “fully concurrent” with the Eastern District
sentence, in fact the sentences were only partially concurrent. Due to the
method by which the Bureau of Prisons (“BOP”) calculates terms of
imprisonment, Massey did not receive credit toward the Northern District
sentence for the 13 months that he had already spent in federal prison serving
the Eastern District sentence. Thus, even though Massey’s Eastern District
sentence was 168 months, and his Northern District sentence was 188
months, he was actually sentenced to an aggregate term of 201 months—13
months longer than if the sentences were “fully concurrent.”
On direct appeal, Massey raised a single argument, claiming that he
was ineligible for the ACCA enhancement because his prior Texas conviction
for attempted taking of a weapon from a peace officer was not a qualifying
“violent felony.” This court rejected his argument and affirmed his
conviction and sentence. United States v. Massey, 858 F.3d 380 (5th Cir.
2017). Massey claims that he also alerted his appellate counsel to the § 5G1.3
issue. In any event, Massey did not challenge the district court’s application
of § 5G1.3 in his direct appeal.
Thereafter, Massey filed a pro se motion pursuant to 28 U.S.C. § 2255
seeking to vacate his sentence. In his motion, Massey asserted that (1) his
trial counsel was constitutionally ineffective for failing to object when the trial
court did not sentence him pursuant to § 5G1.3(b), with an adjustment for
time served; (2) the district court abused its discretion by instead sentencing
him pursuant to § 5G1.3(d); and (3) his appellate counsel was constitutionally
ineffective for failing to raise this sentencing issue on appeal.

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The motion was referred to a magistrate judge, who recommended
that the district court deny the motion. The magistrate judge correctly
observed that Massey’s claim that the district court misapplied the
Sentencing Guidelines was not cognizable on habeas review. See United
States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). As to Massey’s claim
of ineffective assistance of trial counsel, the magistrate judge recommended
that the motion be denied because, even assuming that trial counsel was
deficient, Massey had not shown that he was prejudiced. The magistrate
judge then concluded that appellate counsel had not been deficient. Finally,
having determined that Massey’s claims lacked merit, the magistrate judge
recommended that the district court deny Massey’s request for an
evidentiary hearing. Overruling Massey’s objections, the district court
adopted the magistrate judge’s recommendations, denied Massey’s § 2255
motion, and denied a certificate of appealability (“COA”).
Massey then sought a COA in this court, which granted a COA on two
issues: “(1) whether trial counsel rendered ineffective assistance in regard to
the calculation and imposition of Massey’s sentence, including the
application of U.S.S.G. § 5G1.3; and (2) whether appellate counsel rendered
ineffective assistance by failing to raise this sentencing issue on appeal.” The
court also clarified that a COA is not required to appeal the denial of an
evidentiary hearing. Additionally, the court appointed Massey pro bono
counsel.
II. Discussion
“To establish ineffective assistance, [a defendant] must show that his
attorney’s representation fell below an objective standard of reasonableness
and that there is a reasonable probability that the results of the proceedings
would have been different without the attorney’s errors.” United States v.

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Franks, 230 F.3d 811, 813 (5th Cir. 2000) (citing Strickland v. Washington,
466 U.S. 668, 687–88 (1984)). In my view, Massey meets both requirements.
A. Deficient Performance
To begin with, Massey’s trial counsel’s representation was deficient.
“The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.” Strickland, 466 U.S.
at 688. “We assess reasonableness ‘from counsel’s perspective at the time
of the alleged error and in light of all the circumstances.’” United States v.
Scott, 11 F.4th 364, 369 (5th Cir. 2021), cert. denied, 142 S. Ct. 827 (2022)
(quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1986)). “[A] reasonable
attorney has an obligation to research relevant facts and law, or make an
informed decision that certain avenues will not prove fruitful.” Williamson,
183 F.3d at 462. Counsel’s failure to object to a district court’s erroneous
application of the Sentencing Guidelines can constitute deficient
performance. See Franks, 230 F.3d at 814; United States v. Smith, 454 F.
App’x 260, 261–62 (5th Cir. 2011); see United States v. Grammas, 376 F.3d
433, 437 (5th Cir. 2004) (counsel’s “lack of familiarity with the Guidelines”
fell below Strickland’s objective reasonableness standard).
While our court has yet to consider the precise circumstances
presented by this case, federal district courts in and out of this circuit have
considered similar ineffective-assistance-of-counsel claims involving
§ 5G1.3(b). For example, in Cobb v. United States, the defendant was
sentenced in two different federal districts for related criminal conduct, but
the second sentencing court did not adjust his sentence to account for time
already served on the first sentence. No. 1:09-CV-916, 2019 WL 2607002, at
*2 (E.D.N.Y. Jan. 11, 2019). On collateral review, the court ruled that
counsel’s failure to object when the district court did not adjust the
defendant’s sentence pursuant to § 5G1.3(b) “demonstrate[d] a lack of

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familiarity with the Guidelines sufficient to meet the first prong of
Strickland,” notwithstanding that counsel “was a zealous and otherwise
effective advocate.” Id. at *3; see also Jones v. United States, No. 2:19-CV-
291, 2019 WL 4060390, at *1–3 (M.D. Fla. Aug. 28, 2019) (finding deficient
performance and prejudice when district court erroneously calculated the
sentence adjustment for time served on a related state sentence under
§ 5G1.3(b) and counsel did not object, resulting in eight additional months of
imprisonment); Schmitt v. United States, No. 3:15-CV-5, 2018 WL 10669774,
at *2–3 (S.D. Ind. Feb. 26, 2018) (finding deficient performance when
counsel did not argue for credit for time served on related state sentence
pursuant to U.S.S.G. § 5K2.23, which is analogous to § 5G1.3(b) but applies
when the state sentence is already discharged); Kriegbaum v. United States,
No. 3:17-CV-252, 2017 WL 4222439, at *5–7 (W.D. Tex. Aug. 30, 2017)
(finding no ineffective assistance where counsel “vigorously argued” for
application of § 5G1.3(b)); Hoang v. United States, No. 4:15-CV-2451, 2016
WL 1392549, at *9–10, 16, 23 (S.D. Tex. Apr. 8, 2016) (finding no ineffective
assistance where counsel’s § 5G1.3(b) argument showed “familiarity with
the sentencing guidelines”).
The Ninth Circuit also considered this issue in United States v. Carlsen
and held that counsel performed deficiently by not making a § 5G1.3(b)
argument when the defendant was serving an undischarged state sentence for
a related offense at the time of his federal sentencing. 441 F. App’x 531, 534–
35 (9th Cir. 2011). Unlike the present case, however, in Carlsen the
government conceded that counsel had been ineffective by failing to raise the
argument. Id. at 535. Here, the government asserts that Massey’s counsel
did make a § 5G1.3(b) argument and therefore was not deficient. I agree that
counsel initially raised the issue, but this is not the end of the matter.
It is true that Massey’s counsel cited § 5G1.3(b) in a sentencing
memorandum to the court and argued for “back time credit for the instant

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offense back to the time of his arrest on April 5, 2013.” The sentencing
memorandum, however, referred to the district court’s “authority to adjust
a sentence it would otherwise impose to reflect time a defendant spent in state
custody prior to federal sentencing” (emphasis added), rather than referring
to the court’s authority to adjust a sentence to reflect time spent in federal
custody on a related federal sentence prior to sentencing. Pursuant to 18
U.S.C. § 3585 and BOP procedures, Massey was already entitled to credit for
time spent in custody from the date of his state arrest on April 5, 2013, to the
date of his first federal sentencing (the one imposed in the Eastern District)
on February 11, 2015. In the instant Northern District sentencing, then, the
issue was whether and how Massey would receive credit for time spent in
federal custody from February 11, 2015, to the date of his second federal
sentencing on April 1, 2016—an overlap of approximately 13 months. At
sentencing, counsel again referred to credit for back time going back to April
2013, the date of his state arrest. Counsel’s sentencing memorandum and
argument at sentencing therefore misstated the key issue by not specifying
the need for credit for the period served between his first and second federal
sentencings. Relatedly, counsel did not make a request for an adjustment of
a specific amount of time to account for time served on the Eastern District
sentence, but instead made a general request for credit for back time going
back to April 2013.
To make matters worse, counsel also failed to object when the district
court sentenced Massey pursuant to § 5G1.3(d), without calculating any
sentence adjustment for the time already served on the Eastern District
sentence that would not be credited by BOP, and without mentioning the
applicable guideline, § 5G1.3(b), at all, nor giving reasons for deviating from
it. Considering the circumstances, this specific omission—the failure to
object—was deficient and fell below an objective standard of reasonableness.

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Our caselaw holds that it is error for a sentencing court to not consider
§ 5G1.3(b) when calculating the guideline sentence if the section is
applicable, as it was here. See United States v. Rangel, 319 F.3d 710, 714–15
(5th Cir. 2003); United States v. Figueroa, 215 F. App’x 343, 344 & n.1 (5th
Cir. 2007) (citing Booker, 543 U.S. 220 (2005)); see also United States v.
Estrada, 312 F. App’x 664, 667 (5th Cir. 2009) (“Even though it was not
mandatory for the district court to comply with § 5G1.3(b), the court was still
required to consider that subsection as part of its determination of a
reasonable sentence.”); United States v. Young, No. 20-30492, 2021 WL
4515393, at *7 (5th Cir. Oct. 1, 2021); cf. Franks, 230 F.3d at 814 (holding that
failure to object to sentencing enhancement fell below the objective standard
of reasonableness, even absent controlling Fifth Circuit precedent, because
three other circuits had held that enhancement was improper on same facts).
In such a case, if the sentencing court deviates from § 5G1.3(b), it must give
reasons. See Rangel, 319 F.3d at 715; see also Estrada, 312 F. App’x at 667–68.
Here, the district court did not indicate that it was deviating from the
guidelines, nor give reasons, but instead stated its intention that Massey
receive a “fully concurrent” sentence, which is what § 5G1.3(b) prescribes. 1
But the district court then cited § 5G1.3(d), not (b), and did not make the
adjustment necessary to render the sentence “fully concurrent.” Further,
the court stated that its reference to § 5G1.3(d) would “indicate to the
Bureau of Prisons that the sentence is fully concurrent,” when in fact the
BOP lacked the statutory authority to affect a fully concurrent sentence and

_____________________
1
As discussed further in the next section concerning prejudice, the district court
indicated that it was following the guidelines. Immediately prior to mentioning § 5G1.3,
the district court stated that a 188-month sentence, the bottom of the guidelines range, was
sufficient but not greater than necessary, and in its “statement of reasons,” the court
checked the box indicating that it had given Massey a sentence within the guidelines range
and had not departed or varied

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No. 20-10478

the district court lacked the authority to order it to do so. See 18 U.S.C.
§ 3585(b); United States v. Hankton, 875 F.3d 786, 792 (5th Cir. 2017); In re
United States Bureau of Prisons, Dep’t of Just., 918 F.3d 431, 439 (5th Cir.
2019). Given all the above circumstances, Massey’s counsel should have
objected at that point.
Though neither party briefed the issue before our court, the fact that
Massey was subject to a 180-month statutory minimum sentence does not
change the foregoing analysis. First, even with the statutory minimum,
§ 5G1.3(b) was still the applicable guideline and the district court still had
room to effectuate a § 5G1.3(b) adjustment of eight months. See Smith, 950
F.3d at 288–89; Hankton, 875 F.3d at 793–94. Second, the presence of the
statutory minimum does not change that the district court’s stated intent was
to follow the guidelines and give Massey a “fully concurrent” sentence, even
if, as explained above, the statutory minimum would have in fact prevented
the district court from doing so by limiting the § 5G1.3(b) adjustment to eight
months instead of 13 months.
Our court has found ineffective assistance on similar facts in the
context of other guidelines. For example, in United States v. Smith, the
district court gave no indication or notice of an intent to depart upward from
the guidelines, but then mistakenly sentenced the defendant to 12 years when
the guideline sentence was seven years. 454 F. App’x at 261. We held that
counsel’s failure to object to the 12-year sentence was constitutionally
deficient performance given that the clear language of the guidelines
mandated a sentence of seven years. Id. Similarly, here the district court did
not indicate that it was going to vary from the guidelines or depart upward,
but then sentenced Massey to more time than he would have served under
the guidelines. Counsel should have objected.

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Jones v. United States, a Florida federal district court case involving
§ 5G1.3, provides another useful comparison. In Jones, the defendant was
already serving a 72-month state sentence for related conduct at the time of
his federal sentencing. The district court, seeking to run the federal sentence
“concurrent and coterminous” with the state sentence, determined the
appropriate sentence based on the guidelines range, subtracted time already
served on the state sentence, imposed the adjusted federal sentence, and
noted on the judgment that the sentence adjustment was pursuant to
§5G1.3(b). 2019 WL 4060390, at *1. In doing so, the district court attempted
to follow the guidelines. But the district court’s adjustment inadvertently did
not account for the fact that the BOP would not credit the defendant’s federal
sentence with the eight months of time served between his first appearance
in federal court and his sentencing, and counsel did not object to the district
court’s calculation. Id. at *2. Upon discovering that his federal sentence
would end eight months after his state sentence, not “concurrent and
coterminous,” defendant filed a § 2255 motion asserting that counsel was
ineffective for failing to object to the district court’s miscalculation at
sentencing. Id. The district court granted the § 2255 motion and explained
that it was ineffective assistance for counsel to not object when the district
court imposed a sentence that did not comport with its stated intent of a
“concurrent and coterminous” guideline sentence. Id. at *3.
Massey’s case shares material similarities with Jones. In both cases,
counsel was deficient specifically for failing to object to the district court’s
imposition of the sentence, rather than for failing to raise the sentencing issue
altogether. And, in both cases, the basis for counsel’s objection would have
been that the sentence imposed did not align with the sentencing court’s
stated intent of a sentence that followed the guidelines: In Jones, the district
court miscalculated by eight months the § 5G1.3(b) adjustment needed to
render the federal sentence “concurrent and coterminous” with the state

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No. 20-10478

sentence; here the district court did not make any § 5G1.3(b) adjustment, but
instead stated that a § 5G1.3(d) sentence would indicate to the BOP that the
sentences were “fully concurrent,” when in fact the BOP did not have the
ability to make the sentence “fully concurrent.” Like counsel in Jones,
Massey’s counsel was deficient for failing to object to the district court’s
sentence because it is clear from the guidelines and caselaw that a § 5G1.3(d)
sentence, with no adjustment, would result in a longer sentence than if the
district court had sentenced Massey under § 5G1.3(b), with an adjustment,
which would have also been consistent with the guidelines and the district
court’s stated intent of a “fully concurrent” sentence. 2
As is apparent from this caselaw, “[c]onfusion sometimes arises . . .
when a defendant requests that the district court award credit for time
served” given the complicated interaction between the BOP’s statutory
authority, its computation manual, the Sentencing Guidelines, and the
district court’s residual authority to exercise discretion in crafting an
appropriate sentence. See In re United States Bureau of Prisons, Dep’t of Just.,
918 F.3d at 439.
The majority opinion nevertheless attempts to distinguish Massey’s
case, pointing out that his counsel at least raised the § 5G1.3(b) issue in his
sentencing briefs. However, we measure attorney competence based on “all
the circumstances”—not “mechanical rules” or “checklist[s] for judicial
evaluation.” Strickland, 446 U.S. at 688, 696. Yet the majority opinion
insists on just that. It says that counsel’s cursory mention of Section 5G1.3(b)

_____________________
2
As discussed above, this is so even though § 924(e)’s statutory minimum would
have limited the § 5G.3(b) adjustment to eight months and prevented the district court
from achieving its stated intent of a “fully concurrent” sentence.

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No. 20-10478

in his briefing—no matter how “imperfect”—preserved the issue for appeal.
Maj. Op. at 3-4. And that was enough under Strickland. Maj. Op. at 4-5.
I do not agree. No client or jurist would expect an attorney’s duty to
vigorously defend their client to end when an issue is briefed. Nor is there
any reason to read these cases so narrowly. Take Smith and Carlsen, for
example. Neither case rested its decision on counsel’s failure to brief the
issue; Smith doesn’t even mention this failure anywhere in the opinion. And
it is not hard to see why. At bottom, Strickland teaches that “the ultimate
focus of inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged.” Strickland, 466 U.S. at 696. The failure to object
to an error in a proceeding impugns its fairness no matter the briefing.
In sum, I have little doubt that counsel—who represented Massey in
both the Eastern District and Northern District proceedings—was “a
zealous and otherwise effective advocate.” See Cobb, 2019 WL 2607002, at
*3. Nonetheless, under the circumstances and for all the reasons discussed
above, I would hold that counsel was deficient for failing to object when the
district court did not sentence Massey pursuant to subsection (b) with an
adjustment for time served.
B. Prejudice
Massey was also prejudiced by trial counsel’s failure to object. Even
a day that is spent incarcerated is enough to establish prejudice. See
Grammas, 376 F.3d at 437. If Massey received credit for time served under
Section 5G1.3(b), he would have spent 8 months less in prison.
The majority opinion responds that the district judge may have
nevertheless had “legitimate reasons to apply § 5G1.3(d)” instead, since
Massey’s case was complex. Maj. Op. at 6; see U.S.S.G. § 5G1.3(d) cmt.,
n.3(D).

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I disagree. At issue were two convictions: trafficking
methamphetamine and being a felon in possession. Those charges are not
unusual in this circuit. Nor is it “difficult to predict” Massey’s credit for
time served. Maj. Op. at 6. There is no suggestion that his terms of
incarceration would “call for the application of different rules.” U.S.S.G. §
5G1.3(d) cmt., n.3(D). All the district court would need to do is calculate the
time Massey spent in prison for his drug crime (13 months), subtract that
figure from the sentence he received for being a felon in possession (188
months) and, if the resulting total falls below the statutory minimum (180
months), increase it accordingly. That is hardly a complicated exercise in
arithmetic.
This conclusion is bolstered by the fact that the district court did not
mention § 5G1.3(b) at sentencing at all and did not provide reasons to justify
deviating from the applicable guideline as required and applying § 5G1.3(d)
instead. Rather, the sentencing transcript suggests that the district court
intended to follow the guidelines; the court stated that “a sentence at the
bottom of the advisory guideline range of 188 months is sufficient but not
greater than necessary to comply with the purposes for sentencing” and that
“there are no factors under Section 3553(a), alone or in combination, that
require a sentence that is greater than the minimum advisory guideline range
sentence.” In the same vein, the “statement of reasons” attached to the
Judgment suggests that the district court thought it was following the
guidelines—because the court checked the box indicating that it had given
Massey a sentence within the guidelines range and had not departed or
varied—when it had actually deviated from the applicable guideline by
applying subsection (d) instead of (b). On the whole, the record suggests that

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No. 20-10478

the district court’s reliance on subsection (d) instead of (b) may have been
inadvertent. 3
Thus, I agree with Massey that there is at least a reasonable probability
that the court would have applied subsection (b) and he would have received
a shorter sentence had counsel objected at sentencing. Therefore, Massey
has also shown prejudice, and is entitled to relief on his claim of ineffective
assistance of trial counsel.
C. Ineffective Assistance of Appellate Counsel
I would also find that appellate counsel gave deficient performance.
“The entitlement to effective assistance does not end when the sentence is
imposed, but extends to one’s first appeal of right.” Williamson, 183 F.3d at
462. Claims of ineffective assistance of appellate counsel are analyzed using
the same two-part Strickland test applicable to trial counsel. Id.
“Appellate counsel is not deficient for not raising every non-frivolous
issue on appeal,” United States v. Reinhart, 357 F.3d 521, 525 (5th Cir. 2004),
but “[s]olid, meritorious arguments based on directly controlling precedent
should be discovered and brought to the court’s attention.” Williamson, 183
F.3d at 463. “Thus, to determine whether [Massey’s] appellate counsel’s
performance was substandard, we must consider whether [his] challenge . . .
has sufficient merit such that his counsel was deficient in failing to raise the
issue on appeal.” Reinhart, 357 F.3d at 525. Under our caselaw, a sentencing
court’s failure to consider § 5G1.3(b) at sentencing is reversible error. See
Rangel, 319 F.3d 710, 714–15; Figueroa, 215 F. App’x at 344 & n.1; Estrada,
_____________________
3
Massey also characterizes the district court’s statements at sentencing as being
“sympathetic” towards him. The record supports his interpretation. At one point, the
district court gave Massey “words of encouragement.” At another, the court spoke
favorably about Massey’s chances for rehabilitation. Though these statements are not
dispositive in determining the district court’s intent, they provide additional context.

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No. 20-10478

312 F. App’x at 667; Young, No. 20-30492, 2021 WL 4515393, at *7. By
failing to raise this clearly meritorious issue, appellate counsel performed
deficiently. See Williamson, 183 F.3d at 463 (finding deficient performance
when “cases squarely addressed an issue exactly on point” and appellate
counsel “fail[ed] to cite directly controlling precedent”).
It is true that these authorities are unpublished. However, “the
absence of directly controlling precedent does not preclude a finding of
deficient performance.” United States v. Phea, 953 F.3d 838, 842 (5th Cir.
2020) (per curiam); see United States v. Juarez, 672 F.3d 381, 387, 389 (5th
Cir. 2012) (even where there was “[n]o Fifth Circuit case law” in support,
counsel’s failure to look up persuasive, non-binding out-of-circuit
authority—both published and unpublished—was deficient considering
prevailing professional norms); Franks, 230 F.3d at 814 (counsel’s failure to
research and argue persuasive, out-of-circuit authority amounted to deficient
performance).
The Guidelines also require sentencing courts to consider § 5G1.3(b).
To be sure, the Guidelines are advisory under United States v. Booker, 543
U.S. 220, 225-26 (2005). But Booker only excised the “duty to apply the
guidelines, [not] the duty pursuant to § 3553(a) to ‘consider’ the sentencing
range established” by the Guidelines. United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005) (emphasis added). That duty is mandatory and set by
statute. See 28 U.S.C. § 3553(a)(4) (stating that sentencing courts “shall
consider,” among others, “the kinds of sentence and the sentencing range .
. . set forth in the [sentencing] guidelines.” (emphasis added)).
That is why, post-Booker, we require “district courts [to] properly
calculate the applicable guidelines range before imposing a sentence.”
United States v. Olarte-Rojas, 820 F.3d 798, 805 (5th Cir. 2016). Section
5G1.3(b) is key to that calculation. To determine the “guideline range as set

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No. 20-10478

forth in . . . 18 U.S.C. § 3553(a)(4),” the Guidelines point to “Parts B through
G of Chapter Five”—which includes Section 5G1.3(b). U.S.S.G. §
1B1.1(a)(8).
Further, Massey was prejudiced by appellate counsel’s deficient
performance. Had Massey’s appellate counsel raised the issue on direct
appeal, there is a reasonable probability that our court would have vacated
and remanded for resentencing. See Figueroa, 215 F. App’x at 344 & n.1;
Young, No. 20-30492, 2021 WL 4515393, at *7. Therefore, in my view,
Massey has also shown a meritorious claim of ineffective assistance of
appellate counsel that independently warrants relief.
III. Conclusion
In sum, I believe Massey should have been entitled to habeas relief. I
thus respectfully dissent.

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