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United States v. Bailey

United States District Court, W.D. Virginia, Roanoke Division

December 14, 2017

DWAYNE D. BAILEY, Defendant.


          Hon. Glen E. Conrad Senior United States District Judge

         Dwayne 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.


         Bailey 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.

         In 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.

         Bailey 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.

         On 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.

         On May 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.


         Section 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).

         Bailey 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).

         To 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 time").

         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.

         Pursuant 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 ...

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