Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. Nos. 1:06-cr-00126-1; 1:10-cv-00163--Paul Lewis Maloney, Chief District Judge.
Brian P. Lennon, Elinor R. Jordan, WARNER NORCROSS & JUDD LLP, Grand Rapids, Michigan, for Appellant.
Sally J. Berens, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Before: MOORE, SUTTON, and STRANCH, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge.
Petitioner-Appellant, Darron Deon Howard, has been involved with the criminal-justice system since he was eleven years old. When he pleaded guilty to violating 18 U.S.C. § 922(g)(1) in 2006, his many run-ins with the law resulted in a rather high criminal-history score. At sentencing, his counsel objected to several of the Presentence Investigation Report's (" PSR" ) assignments of criminal-history points for some of Howard's juvenile offenses. The district court sustained two of the objections, leaving Howard in Criminal History Category V and with a guidelines-recommended range of 130 to 162 months of imprisonment. The district court sentenced Howard to the statutory maximum of 120 months of imprisonment. Since then, Howard has filed a petition under 28 U.S.C. § 2255 alleging that his counsel's failure to object to the PSR's award of two criminal-history points in Paragraph 38 rendered his representation constitutionally deficient. The district court denied his petition.
Howard's allegations of attorney misconduct and incompetence are troubling, and if proven true, they would usually support a finding of constitutionally deficient performance. In this case, however, we cannot say that the attorney's representation of Howard ran afoul of the Sixth Amendment's basic protections. An objection to Paragraph 38 would have been futile, and Howard has not explained how his sentence would be different but for the other misconduct he alleges. Therefore, we AFFIRM the district court's denial of Howard's § 2255 petition.
Early in the morning of February 3, 2006, witnesses reported to the police that a fight had broken out near 77 Grandville Avenue, SW, in Grand Rapids, Michigan. These tipsters claimed that an individual was armed with a handgun and pointing it at people in the vicinity of the altercation. Several officers responded. At the scene,
they noticed a young man matching the description given by the concerned callers and approached. The officers identified themselves, and the individual fled. Mid-flight, he tossed a handgun underneath a nearby parked car. Several officers gave chase, and one tackled the suspect to the ground. After placing him in handcuffs, the police learned that the subdued suspect was Howard. Underneath the parked car, the officers found a cocked and fully loaded.32-caliber revolver.
Due to a previous felony conviction, Howard could not own or possess a firearm. Accordingly, a federal grand jury indicted him for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Howard initially pleaded guilty pursuant to a plea agreement, see R. 21 at 7 (Plea Agreement) (Page ID #39), but at the defendant's request, the district court vacated the plea prior to sentencing, see R. 29 at 1 (D. Ct. Order Vacating Plea) (Page ID #74). A few months later, on the eve of trial, Howard changed his mind and pleaded guilty without the benefit of an agreement. R. 47 at 11:16 (Change of Plea Hr'g Tr.) (Page ID #163). The district court accepted his plea. R. 46 at 1 (D. Ct. Order Accepting Plea) (Page ID #152).
During this sequence of events, the United States Probation Office prepared a PSR. The PSR recommended a sentence of 120 months of imprisonment--the statutory maximum. PSR at 17 ¶ 73. At this time, Howard was twenty-one years old, yet the probation office assigned him thirteen criminal-history points--placing him in Category VI--due in large part to his juvenile record.
This record begins early, and it is extensive. In the PSR, it spans twelve paragraphs over seven pages. Only Paragraph 38 is relevant to this appeal. In that paragraph, the probation office assigned Howard two criminal-history points for an adjudication that happened on October 11, 1996. Id. at 8 ¶ 38. At that time, Howard was eleven years old, and a probate judge found him delinquent for committing retail fraud and unarmed robbery. Id. He received probation. Id. Generally, this long-ago offense would not be factored into Howard's criminal-history score because he received only probation and it happened nearly a decade before his felon-in-possession offense. See U.S.S.G. § 4A1.2(d)(2) (2006) (allowing for the assignment of criminal-history points only if a juvenile sentence was imposed within five years of the instant offense).
This early brush with the criminal-justice system, however, did not set Howard straight. A few months later, he violated his probation by maliciously destroying a building. PSR at 8 ¶ 38; 10 ¶ 39. The probate court extended his probation. Id. at 8 ¶ 38. In 1998, Howard violated curfew and repeatedly failed to comply with the terms of his probation. Id.. As a result, the probate judge placed him first on a tether, then removed him from his mother's home, and eventually ordered him to Kokomo Academy, a boys' school in Indiana. Id. at 9 ¶ 38; R. 95 at 15:15-24 (Remand Hr'g Tr.) (Page ID #452). In 1999, due to continued probation violations, the probate judge ordered ...