Robert Sheppard v. United States ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0625n.06
No. 17-6178
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ROBERT SCOTT SHEPPARD, ) FILED
) Dec 18, 2019
DEBORAH S. HUNT, Clerk
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
UNITED STATES OF AMERICA, ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
Respondent-Appellee. )
Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
PER CURIAM. Robert Scott Sheppard, a habeas petitioner, argues that he received
constitutionally deficient assistance of counsel when his trial attorney failed to object to a
sentencing enhancement. Sheppard’s petition for relief comes to us with a record that is inadequate
to permit review, so we vacate and remand for additional proceedings in the district court.
In December 2012, Sheppard shot an acquaintance, Johnny Hill, in the woods near
Sheppard’s farmhouse. Sheppard was a felon, so he could not legally possess a firearm. Neither
Hill nor Sheppard reported the shooting. Fourteen months later, police officers discovered
Sheppard, along with two loaded firearms and a bag of methamphetamine precursors—the raw
materials for producing methamphetamine—in the basement of another house that they suspected
was a meth lab. In the rest of the house, the officers found drug paraphernalia, more meth
precursors, a security-camera system and monitor, and nine more firearms. They arrested
Sheppard.
No. 17-6178, Sheppard v. United States
Sheppard admitted to the police that he had shot Johnny Hill in 2012. Sheppard said that
the “Hill Boys”—Johnny and his brother Melvin—had been stealing from him. The police
interviewed the Hill brothers. Johnny confirmed that Sheppard had shot him; Melvin said that he
stayed home the night of the shooting, but admitted that he bought meth from Sheppard regularly.
Melvin had also seen Sheppard produce meth—usually at the farmhouse—around 200 times.
According to Melvin, Sheppard had always been armed when they saw each other.
The government eventually charged Sheppard with two counts of being a felon-in-
possession of a firearm, in violation of 18 U.S.C. § 922(g), for shooting Johnny Hill and for
possessing firearms when he was arrested. Sheppard pled guilty to those charges.
Sheppard’s presentence report recommended that his sentence be enhanced on the ground
that his offenses collectively involved three firearms. See U.S.S.G. §§ 2K2.1(b)(1)(A), 3D1.2(b).
Sheppard’s counsel did not object; the district court adopted that enhancement and sentenced
Sheppard to 162 months in prison. This court affirmed. United States v. Cureton, 661 F. App’x
369, 381–83 (6th Cir. 2016).
Sheppard then petitioned for relief under 28 U.S.C. § 2255, arguing among other things
that his attorney’s failure to object to the number-of-guns enhancement violated Sheppard’s Sixth
Amendment right to effective counsel. The district court denied Sheppard’s petition without
holding an evidentiary hearing and before the government filed a response to the motion. This
appeal followed.
We review claims of ineffective assistance de novo. Logan v. United States, 910 F.3d 864,
868 (6th Cir. 2018). To prevail on an ineffective-assistance claim, a petitioner must prove that his
“counsel’s performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is
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No. 17-6178, Sheppard v. United States
deficient only if it falls “below an objective standard of reasonableness” evaluated from “counsel’s
perspective at the time.” Id. at 688–89.
We usually hear ineffective-assistance claims through a § 2255 motion, rather than through
a direct appeal, because that posture allows the district court “to develop[] the facts necessary to
determin[e] the adequacy of representation[.]” Massaro v. United States, 538 U.S. 500, 505
(2003). But for all practical purposes the record here is no different than it would be in a direct
appeal. We have no testimony from trial counsel that might explain whether “a seemingly unusual
or misguided action”—here, according to Sheppard, the failure to object—“had a sound strategic
motive or was taken because counsel’s alternatives were even worse.” Id. And the government
has asserted that, even if Sheppard’s counsel had objected to the enhancement, a different section
of the Guidelines, namely § 3D1.2(d), mandated an identical sentence to the one Sheppard
received. The district court is better situated than we are to pass on that question in the first
instance. We therefore vacate the district court’s judgment, and remand for the district court to
develop the record and otherwise to proceed as it sees fit.
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