IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-40922
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
TERRY DEWAYNE WILLIAMSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
August 17, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Terry Williamson appeals the denial of his I.
motion for collateral, post-conviction relief In a multi-count indictment brought against
under 28 U.S.C. § 2255. Concluding that his numerous co-conspirators, Williamson was in-
counsel on direct appeal rendered constitu- dicted and convicted of one count of
tionally ineffective assistance by failing to raise conspiring to possess approximately 1,542
recent, dispositive precedent that would have pounds of marihuana with the intent to
resulted in a lower base offense level under the distribute it, in violation of 21 U.S.C.
sentencing guidelines, we vacate Williamson's § 841(a)(1) and (b)(1)(B). The court
sentence and remand for further proceedings. sentenced Williamson to 360 months'
confinement, based on his status as a career
offender, pursuant to U.S.S.G. § 4B1.1, which that counsel had denied him his constitutional
increased his total offense level from 28 to 37 right to testify in his own defense, had failed to
and resulted in a sentence range of 360 months apprise him of a government plea offer, had
to life. For the career-offender enhancement, prevented him from presenting a defense theo-
the court relied on Williamson's conspiracy ry, and had failed to interview potential
conviction as the triggering offense, and witnesses.
numerous earlier conspiracy and substantive
drug convictions as the prior offenses. The court denied the motion. It determined
that the career o ffender enhancement
Williamson appealed, but, before he contention raised a challenge to the technical
submitted his brief, we decided United States application of the sentencing guidelines that
v. Bellazerius, 24 F.3d 698 (5th Cir. 1994). was not cognizable in a § 2255 motion. With
There, we determined that the Sentencing respect to the related ineffective assistance
Commission had acted beyond the scope of the claim, the court concluded that Williamson had
authority on which it relied, 28 U.S.C. not demonstrated that his counsel's actions fell
§ 994(h), when it included drug conspiracies in below the o bjective standard of
the list of offenses that trigger career offender reasonableness. The court also rejected
status, because those offenses did not appear Williamson's other claims.
in the statute. See id. at 702.1 Nonetheless,
Williamson's appellate counsel did not bring Williamson timely filed a notice of appeal
Bellazerius to our attention and did not argue and a request for a certificate of appealability
that it required finding error in Williamson's s- (“COA”), as required by the Anti-Terrorism
tatus as a career offender. We affirmed the and Effective Death Penalty Act of 1996
conviction sub nom. United States v. Valencia, (“AEDPA”).2 The district court explained that
No. 94-60156 (5th Cir. Aug. 7, 1995) it allowed the conspiracy conviction to act as
(unpublished). the triggering offense at the time when
ambiguity existed as to whether the provisions
In 1997, Williamson filed a § 2255 motion included conspiracy convictions. It then noted
to vacate, set aside, or correct his sentence. that we subsequently had held in Bellazerius
He first asserted that the district court's that conspiracy offenses could not serve as
reliance on his conspiracy conviction to trigger either triggering or prior offenses for the ca-
§ 4B1.1's career offender provisions violated reer offender provisions. Because it “had held
Bellazerius and that his counsel had rendered otherwise in applying the conspiracy
deficient assistance at trial and on appeal by conviction to the Career Offender Section
failing to challenge the career offender en- 4B1.1,” the court issued a COA on that issue
hancement on this ground. Williamson also alone and did not address any of Williamson's
claimed ineffective assistance on the ground other arguments.
1
The Commission has since amended the
Background Commentary to § 4B1.1 to expand the
2
authority on which the career offender provisions rely, Pub. L. No. 104-132, 110 Stat. 1214.
and those provisions now encompass conspiracy as AEDPA governs all § 2255 motions, such as this one,
triggering and prior offenses. See United States v. filed after its April 24, 1996, effective date. See Fisher
Lightbourn, 115 F.3d 291, 293 & n.5 (5th Cir. 1997). v. Johnson, 174 F.3d 710, 711 (5th Cir. 1999).
2
II. fact, we explicitly have held that a defendant
The question Williamson presents for our sentenced before Bellazerius may not later use
review, as permitted by the COA, is whether its holding to vacate his sentence in a § 2255
his claim regarding the misapplication of the motion. See United States v. Carmouche,
guidelines is cognizable under § 2255; and, if No. 95-30180, slip op. at 7 (5th Cir. Oct. 20,
not, whether he received ineffective assistance 1995) (unpublished) (and cases cited therein).3
because his counsel failed to challenge the ca- Williamson should have raised this argument
reer offender enhancement either at sentencing on direct appeal; it is not cognizable now.
or on appeal. When reviewing a denial of a
§ 2255 motion, we review factual findings for B.
clear error and conclusions of law de novo. This inaction is the gravamen of
See United States v. Jones, 172 F.3d 381, 383 Williamson's second claim. He avers that his
(5th Cir. 1999); United States v. Faubion, counsel rendered ineffective assistance by
19 F.3d 226, 228 (5th Cir. 1994). failing to challenge the career offender
enhancement on appeal, when it would have
A. been cognizable.4 We review an ineffective
Williamson attacks head-on the sentencing assistance of counsel claim de novo. See
court's application of § 4B1.1, triggered by his United States v. Flores-Ochoa, 139 F.3d
conspiracy conviction. As we explained in 1022, 1024 (5th Cir. 1998).
Bellazerius, the Sentencing Commission expli-
citly relied on 28 U.S.C. § 994(h) in The entitlement to effective assistance does
promulgating § 4B1.1; but § 994(h) does not not end when the sentence is imposed, but ex-
list conspiracy to commit a controlled tends to one's first appeal of right. See Evitts
substance offense among the crimes that may v. Lucey, 469 U.S. 387, 394 (1985); Green v.
trigger or serve as prior offenses for career Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998).
offender status. See 24 F.3d at 700-01. We judge counsel's appellate performance un-
Because expressio unius est exclusio alterius, der the same two-prong test of Strickland v.
the Commission exceeded § 994(h)'s authority Washington, 466 U.S. 668 (1984), applicable
in including the offense in § 4B1.1. See id. at to trial performance. See Green, 160 F.3d
702. at 1043. To prevail, Williamson must
establish, first, that his attorney's
The district court correctly held, however, representation was deficient and, second, that
that Williamson may not raise this issue in a the deficient performance caused him
collateral attack. Section 2255 motions may prejudice. See Washington, 466 U.S. at 687-
raise only constitutional errors and other in- 88, 692; Jones v. Jones, 163 F.3d 285, 300
juries that could not have been raised on direct
appeal that will result in a miscarriage of jus-
3
tice if left unaddressed. See Faubion, 19 F.3d See also 5th CIR. R. 47.5.3 (stating that
at 233. Misapplications of the Sentencing unpublished decisions issued before 1996 have pre-
cedential value).
Guidelines fall into neither category and hence
are not cognizable in § 2255 motions. See 4
Williamson also claims ineffective
United States v. Segler, 37 F.3d 1131, 1134 assistance at sentencing. Because of our disposition
(5th Cir. 1994); Faubion, 19 F.3d at 233. In based on counsel's failure on appeal, we need not
address the same failure at sentencing.
3
(5th Cir. 1998). 1994). The cases squarely addressed an issue
exactly on point for Williamson's appeal.
Regardless of the standard of review we would
1. have employed, Williamson's counsel, by
To prove deficient performance, failing to cite directly controlling precedent,
Williamson must show that counsel's failure to rendered deficient assistance.7
raise the Bellazerius argument “fell below an
objective standard of reasonableness.” Id. 2.
at 301 (quoting Washington, 466 U.S. at 688). To prove prejudice from this deficient per-
Our review is deferential, presuming that formance, Williamson must demonstrate that
“counsel's conduct falls within the wide range “there is a reasonable probability that, but for
of reasonable professional assistance.” Id. counsel's unprofessional error[], the result of
(quotation omitted). Counsel does not need to the proceeding would have been different.”
“raise every nonfrivolous ground of appeal Jones, 163 F.3d at 302 (quoting Washington,
available.” Green, 160 F.3d at 1043.5 466 U.S. at 694). A reasonable probability is
Nonetheless, a reasonable attorney has an that which renders the proceeding unfair or
obligation to research relevant facts and law, unreliable, i.e., undermines confidence in its
or make an informed decision that certain outcome. See id.; Green, 160 F.3d at 1043
avenues will not prove fruitful. See (citing Lockhart v. Fretwell, 506 U.S. 364,
Washington, 466 U.S. at 690-91; Childress v. 369 (1993)).
Johnson, 103 F.3d 1221, 1227 (5th Cir.
1997).6 Solid, meritorious arguments based on We must examine, then, whether the failure
directly controlling precedent should be to raise the Bellazerius argument undermines
discovered and brought to the court's the result on direct appeal, making the
attention. sentence unfair or unreliable. This requires
that we counter-factually determine the
Williamson's appellate counsel did not pro- probable outcome on appeal had counsel
vide objectively reasonable assistance. An ob- raised the argument. Because counsel did not
jectively reasonable attorney, keeping abreast challenge the enhancement at trial, we would
of legal developments related to his case, as he have reviewed for plain error. A court plainly
should, would have discovered Bellazerius and errs when it commits (1) an error (2) that is
would have noticed that we had applied Bella- plain, i.e., clear and obvious, (3) that affects
zerius in another case decided before the defendant's substantial rights; even then,
Williamson's brief was submitted. See United we should exercise our discretion to correct
States v. Wallace, 32 F.3d 921, 931 (5th Cir.
7
Such directly controlling precedent is rare.
5
See also Reese v. Delo, 94 F.3d 1177, 1185 Often, factual differences will make authority easily
(8th Cir. 1996) (holding that “counsel has discretion to distinguishable, whether persuasively or not. In such
abandon losing issues on appeal”). cases, it is not necessarily providing ineffective
assistance of counsel to fail to construct an argument
6
See also Trass v. Maggio, 731 F.2d 288, 293 that may or may not succeed. But failure to raise a
(5th Cir. 1984) (holding that ignorance of relevant law discrete, purely legal issue, where the precedent could
constitutes an “identifiable lapse in constitutionally not be more pellucid and applicable, denies adequate
adequate representation”). representation.
4
the error only if leaving it uncorrected 1544, 1548-49 (1997). 8 Bellazerius was
seriously would affect the fairness, integrity, or circuit law at the time we decided Williamson's
public reputation of judicial proceedings. See appeal, making the error obvious at that time.
United States v. Olano, 507 U.S. 725, 731-36 Hence, the district courtSSalbeit under-
(1993); United States v. Calverley, 37 F.3d standablySScommitted plain error.
160, 162 (5th Cir. 1994) (en banc).
The error obviously affected Williamson's
By sentencing Williamson as a career substantial rights. If he was classified as a
offender when the guidelines exceeded their career offender, the guidelines provided for a
stated authority by including conspiracy as a sentence of 360 months to life. Under his
triggering event, the district court relied on an original base offense level, absent the
erroneous provision. It should have sentenced enhancement, his guidelines imprisonment
him without the career offender enhancement. range would have been 140 to 175 months.
An increase in his sentence from fewer than 15
Of course, the court did not have the years to 30 years indisputably and prejudicially
benefit of Bellazerius. In fact, at the time of affects his rights.
sentencing, the guidelines required that the
court sentence him as a career offender, We also conclude that we would have ex-
because he was convicted of a controlled- ercised our discretion to correct the errorSSa
substance conspiracy offense. Although one simple task that would not have required a
circuit had found that § 4B1.1 exceeded its hearing or the introduction of evidence.9 More
identified statutory authority by including fundamentally, leaving Williamson incarcerated
conspiracies, see United States v. Price, 990 for 30 years when he should have been
F.2d 1367 (D.C. Cir. 1993), other circuits had sentenced to no more than 15 under existing
upheld the provision, see United States v. precedent, especially when we gave the benefit
Heim, 15 F.3d 830, 831-32 & n.1 (9th Cir. of the legal rule to others appealing their
1994) (and cases cited therein). None of our convictions during that time, seriously would
cases had questioned the provision, and in one affect the fairness, integrity and public
we had upheld the sentence of a career reputation of judicial proceedings by
offender, designated as such based on a
conspiracy conviction, without any hint that
the enhancement provision might not be able
to include conspiracies. See United States v.
Williams, No. 93-8099 (5th Cir. Aug. 30, 8
See also, e.g., United States v. Jobe,
1993) (unpublished). 101 F.3d 1046, 1062 (5th Cir. 1996) (permitting plain
error review based on intervening change in law);
But that does not preclude us from finding United States v. Knowles, 29 F.3d 947, 951 (5th Cir.
plain error. “Where the law at the time of trial 1994) (applying recent newly announced rule to re-
was settled and clearly contrary to the law at verse conviction on direct appeal under plain error
review).
the time of appealSSit is enough that an error
be 'plain' at the time of appellate considera- 9
Cf. Crawford v. Falcon Drilling Co.,
tion.” Johnson v. United States, 117 S. Ct. 131 F.3d 1120, 1129 (5th Cir. 1997) (holding
simplicity of correcting plain error on remand favors
exercising discretion to correct it).
5
undermining the rule of law.10
We can provide relief in these collateral
proceedings by correcting the error now. We
REVERSE the court's denial of Williamson's
§ 2255 motion, VACATE the sentence, and
REMAND for resentencing under the then-
applicable guidelines without the career
offender enhancement.11
10
See United States v. Aderholt, 87 F.3d 740,
744 (5th Cir. 1996) (finding plain sentencing
calculation errors seriously affected the fairness and
integrity of the judicial proceeding); United States v.
Franks, 46 F.3d 402, 405 (5th Cir. 1995) (finding
“substantially longer sentence” of 63 months longer
than defendant should have received “seriously
affected” the fairness and integrity of judicial
proceedings); United States v. Cabral-Castillo, 35
F.3d 182, 189 (5th Cir. 1994) (finding, in fairness, that
district court should correct plain sentencing errors on
remand).
11
We do not reach the other alleged errors
that Williamson briefed. The district court did not
grant a COA on these issues; nor did Williamson
request that we review them until his reply brief.
Merely briefing issues does not bring them before us in
the absence of a COA, especially where the district
court has certified other issues. See United States v.
Kimler, 150 F.3d 429, 431 & n.1 (5th Cir. 1998).
6