United States v. Julian

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7678
WILTON RICHARD JULIAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-92-377, CA-96-1824-6-3AK)
Submitted: April 17, 1997
Decided: May 2, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Wilton Richard Julian, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Wilton Richard Julian seeks to appeal the district court's order
denying relief on his motion filed under 28 U.S.C.A.§ 2255 (West
1994 & Supp. 1997). We deny a certificate of appealability and dis-
miss.*
Julian first contends that his attorney was ineffective for failing to
object to his receipt of multiple enhancements under United States
Sentencing Commission, Guidelines Manual,§ 2B3.1(b)(2) (Nov.
1992), for both use of a dangerous weapon and express threat of
death. This court has not yet addressed the propriety of multiple
enhancements under this section. However, even assuming that appli-
cation of both enhancements was erroneous, Julian has not demon-
strated that his attorney's failure to object on this basis constituted
ineffective assistance. Contrary to Julian's assertion, he received a
multiple enhancement in only one of the three counts of his convic-
tion. Thus, because the two remaining counts retain the same offense
level and any reduction to the offense level in the remaining count is
minimal, the principles of USSG § 3D1.4 leave Julian's combined
offense level unchanged. Julian therefore cannot establish the preju-
dice necessary to establish ineffective assistance. See Strickland v.
Washington, 466 U.S. 668 (1984) (providing standard).
Julian next contends that his attorney was ineffective for failing to
argue, under USSG § 4A1.3, that his criminal history score overrepre-
sented the seriousness of his past criminal conduct. Julian explains
that over half of his twenty criminal history points are attributable to
convictions for driving under the influence and other driving viola-
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*Julian concedes that he did not pursue a direct appeal from his sen-
tence, but argues that this failure is excused by the existence of cause and
prejudice in the form of ineffective assistance. Julian's arguments dem-
onstrate a misunderstanding of cause and prejudice, however, because he
asserts that his attorney was ineffective for failing to raise contested
errors at sentencing, we will review his motion as raising his substantive
claims under a theory of ineffective assistance.
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tions. He argues that these driving offenses are minor and the DUI
convictions denote a social illness rather than a criminal propensity.
A conviction for driving under the influence is a serious conviction
warranting consideration in the calculation of a defendant's criminal
history category. Further, even after factoring out the remaining, "less
serious" driving offenses, Julian still has enough criminal history
points to warrant his inclusion in criminal history category VI. We
therefore find that his attorney's failure to move for a departure under
USSG § 4A1.3 does not constitute ineffective assistance.
Given Julian's failure to demonstrate ineffective representation, we
deny a certificate of appealability and dismiss the appeal. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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