Price v. United States ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0734n.06
Filed: October 11, 2007
No. 06-6313
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BARRY LAMONT PRICE, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF TENNESSEE
)
UNITED STATES OF AMERICA, )
) OPINION
Respondent-Appellee. )
BEFORE: COLE and COOK, Circuit Judges; and FROST, District Judge.*
GREGORY L. FROST, District Judge. Petitioner-Appellant, Barry Lamont Price,
appeals from the denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255 and a
related motion to alter or amend that judgment. Price argues that he is entitled to habeas relief
because his trial counsel was ineffective in failing to attack an underlying federal sentence he
received that included an armed career criminal enhancement. For the reasons that follow, the
Court AFFIRMS.
I. BACKGROUND
*
The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.
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Following a jury trial, Price was convicted in late 2001 of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g). Citing three prior drug convictions in state
court, the district court classified Price as an armed career criminal pursuant to 18 U.S.C. §
924(e) and sentenced him to 264 months of imprisonment. Price timely appealed, and this Court
affirmed his conviction in United States v. Price, 329 F.3d 903 (6th Cir. 2003).
In April 2004, Price filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
The district court denied that motion in August 2006. Price then filed a motion for
reconsideration that the trial court construed as a motion to alter or amend the judgment of
denial. The district court also denied the motion to alter or amend judgment in September 2006.
Price successfully moved to proceed in forma pauperis and obtained a certificate of
appealability, which led to the filing of this appeal. He now argues that his three prior
convictions for the sale of cocaine were insufficient to support application of the armed career
criminal enhancement and that his counsel was ineffective for not raising this issue both at
sentencing and in his direct appeal.
II. ANALYSIS
A. Standard of Review
Under 28 U.S.C. § 2255, “[a] prisoner in custody under sentence of a [federal] court . . .
claiming the right to be released . . . may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” In order to prevail on his § 2255 motion, the prisoner must
assert as a basis for relief: “ ‘(1) an error of constitutional magnitude; (2) a sentence imposed
outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the
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entire proceeding invalid.’ ” Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)
(quoting Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001)).
This Court conducts a de novo review of a district court’s denial of a prisoner’s § 2255
motion and examines the district court’s findings of fact for clear error. Id. Claims of ineffective
assistance of counsel are mixed questions of law and fact, however, and receive de novo review
on appeal. Id. (citing Strickland v. Washington, 466 U.S. 668, 698 (1984)).
B. Discussion
Title 18 U.S.C. § 924(e)(1) provides:
In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on occasions different from one
another, such person shall be fined under this title and imprisoned not less than
fifteen years, and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person with respect
to the conviction under section 922(g).
See also U.S.S.G. § 4B1.4(a). Section 924 also provides that the term “serious drug offense”
means “an offense under State law involving manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance . . . for which a maximum term of
imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Price argues that the district court erred in applying this sentencing enhancement to him
because his three state court convictions for the sale of cocaine involved only .3 grams of cocaine
each, which under Tennessee law at the time of his federal conviction carried maximum penalties
of six years each. Thus, Price reasons, because the state court convictions failed to qualify as
serious drug offenses, his trial counsel was ineffective under the Sixth Amendment for failing to
raise this issue in regard to the presentence report and at sentencing. The end result was that the
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district court found a total offense level of 33 with a criminal history category of VI under the
Sentencing Guidelines, resulting in a guidelines range of 235 to 293 months, rather than an
offense level of 24 with a criminal history category of VI, for a range of 100 to 125 months.
The government argues that Price cannot assert his ineffective assistance and sentencing
arguments on collateral attack because he waived his assertion of incorrect sentencing by
withdrawing it from his direct appeal. Price in turn denies such waiver and contends that the
government cannot rely on waiver on appeal because it did not do so in the district court. This
Court need not resolve the waiver issue, however, because even assuming, without deciding, that
Price can advance this basis for habeas relief, his argument for such relief fails on the merits.
The district court reasoned below that the government had to show that Price’s three drug
offenses were serious drug offenses at the time of his state court sentencing. This Court has
previously explained that the government was required to prove that the offenses were serious
drug offenses based on the sentencing laws of Tennessee at the time of Price’s federal
sentencing. James v. United States, 217 F. App’x 431, 440 n.3 (6th Cir. 2007) (citing United
States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994)). If, however, the permissible record before
the sentencing court made it impossible to conclude how Price would have been sentenced for
his state court convictions at the time of his federal sentencing–a condition the district court
found to be true here–then the government indeed was required to show only that the offenses
were serious drug offenses based on the sentencing laws of Tennessee at the time of Price’s state
sentencing. Mallett, 334 F.3d at 503.
The district court’s correct conclusion arose from its reasoning that it was bound by the
“categorical approach.” Under this approach, a court looks “ ‘only to the statutory definitions of
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the prior offenses, and not to the particular facts underlying those convictions’ to determine
whether a sentence should be enhanced.” United States v. Flores, 477 F.3d 431, 434 (6th Cir.
2007) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). This approach teaches in fact
that “ ‘it is not only impermissible, but pointless, for the court to look through to the defendant’s
actual criminal conduct.’ ” United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006)
(quoting United States v. Butler, 207 F.3d 839, 843 (6th Cir. 2000)).
In making such a “categorical approach” inquiry, the United States Supreme Court has
explained what types of materials a court can traditionally consider:
In Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607
(1990), we held that a court sentencing under the [Armed Career Criminal Act] could
look to statutory elements, charging documents, and jury instructions to determine
whether an earlier conviction after trial was for generic burglary. The question here
is whether a sentencing court can look to police reports or complaint applications to
determine whether an earlier guilty plea necessarily admitted, and supported a
conviction for, generic burglary. We hold that it may not, and that a later court
determining the character of an admitted burglary is generally limited to examining
the statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the defendant
assented.
Shepard v. United States, 544 U.S. 13, 16 (2005). By analogy, a district court conducting an
inquiry into whether a prior drug conviction constitutes a serious drug offense is arguably
similarly limited to the same type of material. See United States v. Brandon, 247 F.3d 186, 188-
89 n.1 (2001) (applying Taylor’s categorical approach to serious drug offense inquiries). But see
United States v. Moore, 286 F.3d 47, 49-50 (2002) (holding that a “serious drug offense” analysis
is more limited than other Armed Career Criminal Act inquiries and involves looking only at the
statutory definition of a crime).
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Assuming arguendo that a court can look beyond the state criminal statute involved in
Price’s Tennessee convictions, the laboratory reports Price offered in the court below fail to fall
within the categories recognized as viable in Taylor and Shepard. The reports lack any stamp or
seal of any state court, and the record does not indicate that they were otherwise incorporated in
the charging papers underlying the state court convictions. See United States v. White, No. 06-
4563, 2007 WL 1988480, at *1 (4th Cir. July 6, 2007) (rejecting, under the categorical approach,
a statement of probable cause as supporting armed career criminal enhancement because it lacked
such indicia of incorporation into state conviction proceedings).
A notably similar set of facts exists in United States v. Allen, 282 F.3d 339 (5th Cir.
2002). There, a defendant attacked a district court’s classification of his state conviction as a
serious drug offense by pointing to information contained within a police report involved in that
case. The report was the only material that set forth the quantity of drugs involved in the state
conviction, and the amount of drugs involved in that case affected the maximum term of
imprisonment possible. Id. at 342-43. Citing the narrow scope of the categorical approach, the
Fifth Circuit held that consideration of the report went beyond the bounds set forth in Taylor.
The Allen court explained:
We read Taylor as allowing the sentencing court to consider only the statutory
definition of the offense, the charging paper and jury instructions. Any different rule
raises the possibility of mini-trials to determine the facts underlying a prior offense.
Such an “elaborate factfinding process regarding the defendant’s prior offenses,” is
specifically barred by Taylor.
Id. at 343. Because the mandated narrow inquiry precluded consideration of the amount of drugs
involved in the prior conviction, the Fifth Circuit concluded that it could not classify the
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defendant’s drug offense, which meant that it had to retain the classification of the state offense
as a serious drug offense. Id.
This Court cited Allen with approval in Mallett, 334 F.3d at 503. Mallett presented a
scenario in which a change in the law of the State of Ohio–from unit dose measures of drug
quantities to gram measures–eliminated the offense of which a defendant was convicted.
Because the state did not provide a system for converting the different measurements, there was
no means of assessing the relevant punishment at the time of federal sentencing without
conducting a factual inquiry into the specific quantity of drugs involved in the state conviction.
Id. at 502-03. A majority of the Mallett panel reasoned that “a determination [of the maximum
term of imprisonment] is no longer possible at the time of sentencing in federal court, however,
unless the state-court indictment or jury instructions contain the information that would enable
the district court to determine the punishment that would apply to the defendant’s conviction
under the . . . state laws.” Id. at 503. The indictment did not contain the amount, and the Mallett
majority held that “the district court should not engage in an examination of the conduct involved
in a prior conviction beyond looking at the indictment or jury instructions.” Id. The majority
cited Allen as employing similar reasoning to support the conclusion that there was thus no way
to determine from the record the state sentence applicable to the defendant at the time of his
federal sentencing. Id. at 503. The Mallett majority therefore concluded that under such
circumstances, prior convictions are properly evaluated by looking to the sentences available at
the time of the state court convictions. Id.
Price argues that Mallett applies only to Ohio cases and that the categorical approach does
not apply to Tennessee convictions pursuant to Morton. This argument overlooks that the
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amount of drugs was not at issue in Morton, as it was in Mallett, and that neither opinion
contains any sort of state-specific qualification. Rather, the categorical approach was relevant in
Mallett but irrelevant in Morton. Both cases present across-the-board rules that may or may not
apply depending on the circumstances of each case. Moreover, they do not present inconsistent
rules as Price contends the district court found. His argument that the district court held that
Morton “[does] not require the district court to confine its inquiry into other prior convictions to
a ‘categorical approach,’ when deciding whether they were ‘serious drug offenses’ ” misses the
point. (Aplt. Reply Br. at 2.) The district court held no such thing, but simply summarized both
Morton and Price’s flawed interpretation of that case before concluding that the categorical
approach remained applicable. (J.A. at 62 n.4.)
The district court correctly concluded, then, that the categorical approach applies here and
that it forecloses Price’s reliance on the laboratory reports. Without these reports, the district
court was left with no record evidence to support Price’s allegations that his prior drug offenses
did not qualify as serious drug offenses.
To establish ineffective assistance of counsel, Price must show that: (1) his trial counsel’s
performance was deficient, and (2) the deficient performance prejudiced him. Strickland, 466
U.S. at 687. The fact that Price’s prior counsel failed to attack the armed career criminal
enhancement by introducing laboratory reports that the sentencing judge could not consider
under the categorical approach is not error. Because Price has failed to produce evidence of a
demonstrable error, he cannot show that his prior counsel was deficient. Accordingly, the district
court did not err in denying Price’s motion to vacate his sentence pursuant to 28 U.S.C. § 2255
and the related motion to alter or amend that judgment.
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III. CONCLUSION
For the foregoing reasons, the Court AFFIRMS.
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