United States v. Horey

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 23 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 02-6119

DARWYN RHON HOREY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 98-CV-1169-M & 96-CR-55-M)

Submitted on the briefs:

William H. Bock, Oklahoma City, Oklahoma, for Defendant-Appellant.

Robert G. McCampbell, United States Attorney, Leslie M. Maye and Sue Tuck
Richmond, Assistant United States Attorneys, Oklahoma City, Oklahoma, for
Plaintiff-Appellee.

Before LUCERO , McKAY , and BALDOCK , Circuit Judges.

McKAY , Circuit Judge.
 After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Darwyn Rhon Horey appeals from the district court’s order denying his

motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C.

§ 2255. We granted a certificate of appealability (COA) on a single issue:

whether his trial counsel was constitutionally ineffective under Strickland v.

Washington , 466 U.S. 668 (1984), for failure to object to an undisputedly

inapplicable career offender enhancement that increased both Mr. Horey’s total

offense level and his criminal history category by one level, increasing the

applicable guideline range minimums from 292 months to 360 months.

We reverse and remand for resentencing.

I.

In 1996, a jury convicted Mr. Horey on one count of possession and

distribution of approximately 240 grams of cocaine base and on two counts of

being a felon in possession of a firearm. The penalty for the drug possession

count was doubled to 240 months because of a prior felony drug conviction, and

his total offense level was 36 with a criminal history category of V, placing his

sentencing guideline range at 292-365 months’ imprisonment. But the

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government also successfully sought to enhance his sentence as a career offender

under United States Sentencing Guideline § 4B1.1. Although it is undisputed that

Mr. Horey’s prior conviction for possession of cocaine did not meet the definition

of a qualifying felony under the guideline, Mr. Horey’s counsel did not object to

application of this enhancement. Thus, his total offense level was adjusted to

level 37 and his criminal history category was raised to VI, giving a range of

360 months to life. Mr. Horey was sentenced to 360 months’ imprisonment, the

minimum sentence under the guidelines.

Mr. Horey’s appellate counsel did not raise the error on direct appeal.

But in 1998, Mr. Horey filed a timely motion to vacate his sentence, alleging,

inter alia , improper enhancement and ineffective assistance of counsel. The

district court correctly noted that his claim for relief would be procedurally barred

absent a successful showing of cause excusing his procedural default and

prejudice to his defense. See United States v. Cook , 45 F.3d 388, 392 (10th Cir.

1995) (holding that petitioner may establish requisite cause and prejudice by

demonstrating ineffective assistance of counsel, using the deficient performance

and prejudicial effect analysis set forth in Strickland ). Accordingly, the court

analyzed the merits of Mr. Horey’s ineffective assistance of counsel claim.

The government conceded in the district court that Mr. Horey’s prior

conviction did not trigger the career offender enhancement imposed at sentencing

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and that he was sentenced under an inappropriate guideline range. The

government argued, however, that counsel’s error was not prejudicial because

Mr. Horey was sentenced within the guideline range that would have applied

without the career offender enhancement. The government emphasized that the

sentencing court had expressed neither dissatisfaction with the guideline range

being harsh nor an inclination toward a lesser sentence.

Applying United States v. Kissick , 69 F.3d 1048, 1056 (10th Cir. 1995)

(holding that counsel’s failure to object to use of an inapplicable controlled

substance conviction to enhance a sentence under § 4B1.1 is deficient

performance under Strickland ), the district court found that Mr. Horey’s counsel’s

failure to object to the sentence enhancement was constitutionally deficient. But

the district court also concluded that Mr. Horey had failed to establish that “his

attorney’s deficient performance resulted in a ‘significantly greater sentence’ than

would have been the case absent the attorney’s errors.” Aple. Supp. App. at 88

(quoting Kissick , 69 F.3d at 1056). The district court thus concluded on

March 28, 2002, that Mr. Horey had failed to satisfy Strickland’s prejudice

requirement, and denied § 2255 relief.

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 II.

When reviewing the denial of a § 2255 motion, we review the district

court’s legal rulings de novo . United States v. Pearce , 146 F.3d 771, 774 (10th

Cir. 1998). In Kissick , we focused on the statement in Lockhart v. Fretwell ,

506 U.S. 364 (1993), that “a court may not set aside a . . . sentence solely because

the outcome would have been different absent counsel’s deficient performance.”

Kissick , 69 F.3d at 1055. We adopted the Seventh and Fifth Circuits’ conclusions

that a defendant must not only allege prejudice of being erroneously sentenced

under a higher guideline, but must also demonstrate that the error produced

“a large” or “significant” effect on the sentence. See id. at 1055-56 (citing

Durrive v. United States , 4 F.3d 548, 551 (7th Cir. 1993) (relying on Lockhart to

conclude that attorney error must produce a “large effect on the sentence” and

holding that minimum twelve-month reduction was insufficient to establish

prejudice), abrogated by Glover v. United States , 531 U.S. 198 (2001); and

Spriggs v. Collins , 993 F.2d 85, 88 (5th Cir. 1993) (holding that defendant must

show reasonable probability that, but for counsel’s errors, the “sentence would

have been significantly less harsh”), abrogated by Glover v. United States ,

531 U.S. 198 (2001)). Thus, we concluded that, “when counsel’s constitutionally

deficient performance results in the defendant’s improper classification as a

career offender and when that improper classification results in a significantly

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greater sentence, the prejudice element of Strickland is satisfied.” Kissick ,

69 F.3d at 1056.

This holding and its attendant analysis were abrogated in Glover v. United

States , 531 U.S. 198 (2001). There, the Court expressly rejected the Durrive

analysis, in which the Seventh Circuit had relied on Lockhart to engraft a

“substantial prejudice” requirement onto the Strickland prejudice analysis.

Glover , 531 U.S. at 202-04. The Court held that the Seventh Circuit had erred in

denying relief “because the sentence increase does not meet some baseline

standard of prejudice.” Id. at 203. Holding that “any amount of actual jail time

has Sixth Amendment significance,” the Court noted that “there is no obvious

dividing line by which to measure how much longer a sentence must be for the

increase to constitute substantial prejudice.” Id. Accordingly, the Court

concluded that, “the amount by which a defendant’s sentence is increased by

[counsel’s] particular decision . . . cannot serve as a bar to a showing of

prejudice.” Id. at 204 (also rejecting Spriggs and its “‘ significantly less harsh’”

requirement).

After we granted COA and ordered briefing, the government conceded in

its response brief that the portion of our Kissick opinion requiring a habeas

petitioner to demonstrate a “significantly greater sentence” in order to show

prejudice was likewise abrogated by Glover and is no longer good law. We agree

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with the Seventh Circuit that “ Glover does not announce a new rule of

constitutional law [but instead] clarifies the standards for analyzing the

longstanding right of effective counsel.” Taylor v. Gilkey , 314 F.3d 832, 834

(7th Cir. 2002) (quotation omitted). Thus, even though Glover was issued after

Mr. Horey filed his § 2255 motion, it controls the resolution of this appeal.

As there is an increase in the actual amount of jail time that may be served

using the improperly-applied guideline range, Mr. Horey has established

prejudice. Because his punishment has already been doubled on the drug count,

it is certainly possible that the district court may choose to sentence Mr. Horey to

the minimum range under the proper guideline, like it did before, which is still

a very long sentence. The district court erred in concluding that Mr. Horey has not

shown prejudice satisfying Strickland .

The judgment of the United States District Court for the Western District

of Oklahoma is REVERSED, and the case is REMANDED for vacation of the

sentence and for resentencing.

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