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Fourth Circuit: Cannot Substitute Career Offender Predicate on Collateral Review

by Anthony Accurso

The U.S. Court of Appeals for the Fourth Circuit reversed a district court’s denial of a defendant’s § 2255 motion, holding the lower court committed clear error when it rejected defendant’s claim that his attorney’s failure to challenge a prior drug conviction for use as a career offender enhancement did not result in prejudice because a prior robbery conviction would still support the enhancement. 

Antwaun Winbush pleaded guilty to one count of possession with intent to distribute cocaine base in 2011. His PSR designated two prior offenses, viz., trafficking cocaine and illegal conveyance of drugs onto the grounds of a detention facility, as prior drug offenses that supported a career offender enhancement under § 4B1.1 of the U.S. Sentencing Guidelines. Winbush then received 151 months at sentencing.

He filed a motion under 28 U.S.C. § 2255, arguing that his attorney should have challenged the conveyance charge as being insufficient to support the career offender enhancement because it lacked the prerequisite intent element. The district court agreed that counsel was deficient but decided no prejudice occurred because Winbush’s prior Ohio conviction for third-degree robbery would have been sufficient to sustain the career offender enhancement even if the conveyance charge were invalidated. 

Winbush appealed this decision, arguing that the Fourth Circuit’s ruling in United States v. Hodge, 902 F.3d 420 (4th Cir. 2018), precluded such a substitution. In Hodge, the Court ruled that such a substitution was not permissible because the government “cannot identify only some ACCA-qualifying convictions at sentencing—thereby limiting the defendant’s notice of which convictions to contest—and later raise additional convictions to sustain an ACCA enhancement once the burden of proof has shifted to the defendant….”

The Government argued that Hodge was inapposite because Hodge concerned the ACCA, an enhancement that carries a statutory mandatory minimum sentence. Whereas, Winbush’s case concerned an enhancement under the Guidelines, which are merely advisory. The Fourth Circuit rejected this argument based on the same rationale as set forth in Hodge—that allowing the substitution of a previously undesignated predicate conviction would deprive Winbush fair notice and shift the burden of proof onto him during collateral review. 

Further, the Court explained that the career offender designation still has serious consequences for defendants. Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). In fact, the Fourth Circuit has held that a lawyer’s failure to challenge the designation can constitute deficient performance, resulting in prejudice. United States v. Carthorne, 878 F.3d 458 (4th Cir. 2017).  

Accordingly, the Court reversed the district court’s denial of Winbush’s § 2255 motion and remanded with directions to resentence him without a career offender enhancement. See: United States v. Winbush, 922 F.3d 227 (4th Cir. 2019). 

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