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Fourth Circuit: Counsel Ineffective for Failing to Raise Change in Sentencing Precedent Following Remand

by David M. Reutter

The U.S. Court of Appeals for the Fourth Circuit held a federal defendant was denied the effective assistance of counsel by failing to object to his designation as a career offender on the ground the conspiracy under 21 U.S.C. § 846 is broader than generic conspiracy and thus does not constitute a controlled substance offense under the Sentencing Guidelines.

The Court’s opinion was issued in an appeal brought by Germaine Cannady after his 28 U.S.C. § 2255 petition was denied by the U.S. District Court for the District of Maryland. Cannady was found guilty by a jury of one count of conspiracy to distribute and possess with intent to distribute cocaine and heroin and one count of attempted possession with intent to distribute cocaine and heroin in violation of § 846.

A Presentencing Investigation Report (“PSR”) presented at the June 2015 sentencing hearing calculated Cannady’s base offense level as 34 and his criminal history as VI, making his Sentencing Guidelines range 262 to 327 months in prison with application of the career offender enhancement. The District Court found the nature of the instant offenses and the prior criminal history triggered the Guidelines’ career offender enhancement. Without the enhancement, Cannady’s offense level would have been 24, his criminal history category IV, and Guidelines range 77 to 96 months. The District Court imposed a 192-month sentence. Cannady appealed.

While the appeal was pending, the District Court granted Cannady’s motion for new trial based on a Brady violation. The Government appealed, and the District Court’s order was reversed, with the case remanded for further proceedings. Mandate was issued on April 2, 2018.

Almost two weeks before the mandate issued, the Fourth Circuit decided United States v. McCollum, 885 F.3d 300 (4th Cir. 2018). The McCollum Court reasoned that, under the career offender provision, murder in aid of racketeering “criminalizes a broader range of conduct than that covered by generic conspiracy” and thus cannot trigger the career offender enhancement.

On remand of his Brady claim, Cannady’s counsel consented to reinstatement of his convictions and the 192-month sentence. Cannady’s appeal was affirmed. He then moved to vacate, set aside, or correct his sentence under § 2255. He alleged his attorney rendered ineffective assistance of counsel by failing to challenge his designation as a career offender while his case was on remand in 2018. The District Court denied the motion and a certificate of appealability. Cannady was granted a certificate by the Fourth Circuit.

That Court found counsel was ineffective. The mandate rule governs what a lower court may consider on remand. There are, however, three exceptions to that rule: “(1) a showing that controlling legal authority has changed dramatically; (2) that significant new evidence, not earlier obtainable in the exercise of due diligence, has come to light; or (3) that a blatant error in the prior decision will, if uncorrected, result in a serious injustice.” See: United States v. Bell, 5 F.3d 64 (4th Cir. 1993).

When Cannady was sentenced in 2105, the Fourth Circuit “had long treated § 846 conspiracy offenses as controlled substance offenses under the Guidelines.” The legal landscape changed in 2018 with the issuance of McCollum, which addressed whether conspiracy to murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) categorically qualifies as a “crime of violence” for purposes of the career offender enhancement. It explained that under the career offender provision, generic conspiracy requires an overt act, but § 1959(a)(5) does not, meaning it criminalizes a range of conduct that is broader than that covered by generic conspiracy and thus cannot trigger the Guidelines enhancement.

On remand from the reversal of the District Court’s Brady decision, the Government moved to reinstate Cannady’s conviction and 192-month sentence. His counsel consented and did not object to the reinstatement of the sentence on the ground that conspiracy under § 846, like § 1959(a)(5), does not require the establishment of an overt act and thus, again like § 1959(a)(5), cannot trigger the career offender enhancement. See United States v. Shabani, 513 U.S. 10 (1994).

Turning to the present case, the Court explained that McCollum directly applied and undermined the District Court’s rationale in applying the enhancement, so Cannady’s counsel could and should have objected to the reinstatement of the sentence with the enhancement. Thus, the Court ruled that counsel’s performance was deficient under the performance prong of Strickland v. Washington, 466 U.S. 668 (1984).

The parties do not dispute that without the career offender enhancement, Cannady’s Guidelines range would have been 77 to 96 months rather than 262 to 327 months with the enhancement, and the District Court imposed a sentence of 192 months. the Court noted. The actual sentence imposed was 96 months longer than the high end of the correct Guidelines range, stated the Court. Thus, the Court ruled that Cannady also satisfied the prejudice prong of Strickland and that he was provided constitutionally deficient assistance of counsel.

 Accordingly, the Court vacated the judgment of the District Court and remanded for resentencing. See: United States v. Cannady, 63 F.4th 259 (4th Cir. 2023).

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