United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Senior United States District Judge
D. Bailey, a federal inmate proceeding pro se, has moved to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government has filed a motion to dismiss, to
which Bailey has responded, making the matter ripe for
consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Bailey's motion to vacate will be denied.
was indicted by a federal grand jury in the Western District
of Virginia on February 19, 2015. Count One of the indictment
charged him with distribution of heroin, in violation of 21
U.S.C. § 841(a)(1). Bailey entered a plea of guilty to
that count on September 17, 2015. Under the terms of the
written plea agreement, Bailey acknowledged that he may be
sentenced as a career offender under § 4B1.1 of the
United States Sentencing Guidelines, "if the Court
determines [that he has] at least two prior convictions for
felony drug offenses and/or crimes of violence." Plea
Agreement 3, Docket No. 24.
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR") that
designated Bailey as a career offender. The designation was
based on a prior felony conviction in the Circuit Court for
the County of Roanoke for possession with intent to
distribute cocaine, a prior felony conviction in the Circuit
Court for the City of Salem for distribution of cocaine, and
a prior felony conviction in this court for distribution of
more than five grams of cocaine base. As a career offender,
Bailey was subject to an advisory Guidelines range of
imprisonment of 151 to 188 months. Defense counsel did not
file any objections to the PSR.
appeared for sentencing on May 6, 2016. At that time, the
court adopted the PSR and accepted the plea agreement. The
court also granted a substantial assistance motion filed by
the government. After considering the factors set forth in 18
U.S.C. § 3553(a), the court departed from the career
offender range and imposed a term of imprisonment of 75
months. The criminal judgment was entered on May 9, 2016.
Bailey did not appeal his conviction or sentence.
March 9, 2017, Bailey moved to vacate his sentence under 28
U.S.C. § 2255. Relying on the United States Supreme
Court's decision in Descamps v. United States,
133 S.Ct. 2276 (2013), Bailey argues that his attorney was
ineffective in failing to object to the career offender
designation at sentencing.
8, 2017, the government moved to dismiss Bailey's §
2255 motion. Bailey filed a response to the government's
motion on June 1, 2017. The matter is now ripe for review.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack his sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by law,
" or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). The
petitioner bears the burden of proof by a preponderance of
the evidence. Miller v. United States, 261 F.2d 546,
547 (4th Cir. 1958).
has moved to vacate his sentence on the basis that defense
counsel's failure to object to the career offender
designation violated his Sixth Amendment right to effective
assistance of counsel. Claims of ineffective assistance are
reviewed under the standard enunciated by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984).
"Under Strickland, a movant seeking collateral
relief from his conviction or sentence through an ineffective
assistance claim must show (1) that his counsel's
performance was deficient and (2) that the deficiency
prejudiced his defense." United States v.
Basham. 789 F.3d 358, 371 (4th Cir. 2015) (citing
Strickland. 466 U.S. at 687).
demonstrate deficient performance under Strickland,
the movant must "show that counsel's representation
fell below an objective standard of reasonableness"
measured by "prevailing professional norms." 466
U.S. at 688. In assessing whether counsel's actions were
unconstitutionally deficient, the court "must indulge a
strong presumption that counsel's conduct [fell] within
the wide range of reasonable professional assistance."
Id. "The Strickland standard is
difficult to satisfy, in that the 'Sixth Amendment
guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight.'" Basham,
789 F.3d at 371 (quoting Yarborough v. Gentry. 540
U.S. 1, 8 (2003)); see also Strickland. 466 U.S. at
689 (emphasizing that a "fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the
prejudice prong of the Strickland test inquires into
whether the alleged error by counsel affected the judgment.
See 466 U.S. at 691. The movant "must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. The
instant claim of ineffective assistance rests on the
assertion that Bailey was improperly designated as a career
offender. Bailey contends that his prior Virginia convictions
do not qualify as controlled substance offenses under the
career offender provisions of the Sentencing Guidelines, and
that counsel was ineffective in failing to challenge the
career offender designation on that ground. For the following
reasons, the court concludes that Bailey's claim does not
satisfy Strickland's stringent requirements.
to § 4B1.1 of the Sentencing Guidelines, a defendant
qualifies as a career offender if, among other requirements,
"the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense." U.S.S.G. § 4Bl.l(a). The term
"controlled substance offense" is defined as
"an offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that prohibits
the manufacture, import, export, distribution, or dispensing
of a controlled substance (or a counterfeit substance) or the
possession of a controlled ...