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United States v. Campbell

United States District Court, E.D. Kentucky, Central Division, Lexington

March 30, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ADRIAN WESLEY CAMPBELL, Defendant/Movant. Criminal Action No. 5:14-83-DCR


          Danny C. Reeves United States District Judge

         This matter is pending for consideration of Defendant Adrian Wesley Campbell's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 131] To the extent Campbell seeks re-sentencing, his motion will be granted.


         On August 27, 2014, a grand jury returned an indictment charging Campbell and others with one count of conspiring to distribute 50 kilograms or more of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846, and three counts of using a communications facility in committing a felony in violation of 21 U.S.C. § 843(b). [Record No. 1] Campbell later pleaded guilty to count one (i.e., conspiring to distribute 50 kilograms or more of marijuana). [Record No. 64, 68] Thereafter, Campbell was sentenced to a 190-month term of incarceration, followed by 6 years of supervised release. [Record No. 89] Campbell filed a direct appeal, which was dismissed by the Sixth Circuit because of the plea agreement's appellate-review waiver. [Record Nos. 91, 121]

         On May 19, 2016, Campbell timely filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 131] The motion alleges his improper classification as a career offender, ineffective assistance of trial counsel for failing to raise claims under Johnson v. United States, 135 S.Ct. 2551 (2015), and ineffective assistance of appellate counsel for failing to re-assert Johnson in a reply brief. [Record No. 131] In accordance with local practice, the motion was referred to United States Magistrate Judge Robert E. Wier for initial consideration.

         While briefing proceeded on the defendant's § 2255 motion, Campbell filed multiple motions to supplement, alter, amend, or relate back under Fed.R.Civ.P. 15(c). [Record Nos. 144, 146] The first two motions, alleging that the federal statutes under which Campbell was indicted were unconstitutionally vague, were denied. [Record No. 148] Undeterred, Campbell sought reconsideration of the Rule 15(c) motions. [Record No. 149] Reconsideration was denied. [Record No. 150] Campbell then filed a third Rule 15(c) motion, this time based upon the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). [Record No. 151]

         The third motion was addressed (and denied) in Magistrate Judge Wier's December 20, 2016, Recommended Disposition. [Record No. 152] Notwithstanding Campbell's mounting history of frivolous filings, the Recommended Disposition found merit in his claim of ineffective assistance of counsel during sentencing. In light of the Magistrate Judge's Recommendation, the United States sought extensions to file objections, which were granted. [Record Nos. 154-56] The matter is now ripe for review.


         Campbell raises three arguments for relief, all bearing on the propriety of his sentence rather than on his underlying decision to plead guilty plea.[1] The first two arguments are based on the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), which concerned the Armed Career Criminal Act. Campbell first argues that Johnson is “beyond the scope” of the appellate-review waiver contained in his plea agreement. [Record No. 131-1 at 2] He does little to extrapolate, but this argument appears to lay a foundation for his second argument: his appellate counsel was ineffective for failure to re-assert Johnson in his reply brief. [Id.] Neither argument has merit because Campbell was not convicted under the Armed Career Criminal Act.[2]

         Campbell's third argument-ineffective assistance of counsel at sentencing-is the most substantive. He alleges that counsel failed to provide a meaningful argument against application of the career offender guideline enhancement. Specifically, Campbell claims that because Kentucky third-degree assault convictions, Kentucky Revised Statute (“KRS”) § 508.025, may be the result of reckless conduct, his convictioncannot count as a predicate offense. Upon review, the Court finds merit in Campbell's third argument, and agrees with the Magistrate Judge's Recommended Disposition.[3] Accordingly, Campbell will be re-sentenced.


         Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a party claiming ineffective assistance of counsel must prove both deficient performance and prejudice. Specifically, a movant must show that (1) “counsel's representation fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Howard v. United States, 743 F.3d 459, 463-64 (6th Cir. 2014) (quoting Strickland, 466 U.S. at 687).

         With respect to counsel's performance, the “objective standard of reasonableness” is considered “in light of prevailing professional norms.” Bobby v. Van Hook, 558 U.S. 4, 7 (2009). For example, “omitting meritless arguments” is not professionally unreasonable. Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013). Further, “counsel should be strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Hodges v. Colson, 727 F.3d 517, 542 (6th Cir. 2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 189, (2011)) (quotation marks omitted).

         To meet Strickland's second prong (i.e., prejudice), the defendant need only show a “reasonable probability” that the result would be different, which is “less than a preponderance of the evidence.” Howard, 743 F.3d at 64 (quoting Joseph v. Coyle, 469 F.3d 441, 459 (6th Cir. 2006) (quotation marks omitted)). “[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case.” Id. (emphasis added).

         In the context of sentencing, “any amount of actual jail time has Sixth Amendment significance.” Glover v. United States, 531 U.S. 198, 203 (2001). Therefore, to prevail on his claim, Campbell must show that counsel's performance fell below an objective standard of reasonableness, and that, but for that deficiency, there is a reasonable probability that he would have received a different sentence. See United States v. Jones, 308 F. App'x 930, 932 (6th Cir. 2009) (articulating defendant's burden in the sentencing context); United States v. DeGroat, 102 F. App'x 956, 959-60 (6th Cir. 2004) (same); Arredondo v. United States, 178 F.3d 778, 783-84 (6th Cir. 1999) (discussing the application of Strickland to sentencing).


         Campbell's pertinent claim is as follows:

Here, in petitioner's case, under the KRS 508.025 assault third degree conviction, not all of the conduct proscribed by the statute qualifies as a crime of violence (reckless conduct), application of the categorical approach, today, in light of Begay, Descamps, and Johnson, precludes a finding that Petitioner has a prior conviction for a crime of violence. Therefore, the Sentencing Guideline Manual Section 4B1.1 enhancement does not apply.

[Record No. 131-1 at 5] Campbell claims that, “counsel's ignorance of [Johnson] incapacitated the District Court's findings that the modified categorical approach as well as the categorical approach applied to the KRS 580.025 conviction.” [Id. at 9] He goes on:

[T]he prior plea agreement in the KRS 508.025 conviction never presented what mental state Petitioner entered a guilty plea for the [sic] KRS 508.025 conviction was not clear for the District Court to conclude that categorically the conviction was prototypical conduct suitable under §4B1.2 to sustain an enhanced sentence under §4B1.1.

[Id. at 10] Despite conflating Johnson and Descamps, 133 S.Ct. 2276 (2013), Campbell makes a colorable claim that his past conviction for third-degree assault should not qualify as a predicate offense for purposes of the career offender enhancement.

         Campbell correctly argues that, under circuit precedent, Descamps and the categorical approach apply to the Sentencing Guidelines. “Whether a conviction is a ‘violent felony' under the ACCA is analyzed in the same way as whether a conviction is a ‘crime of violence' under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.2(a).” United States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011) (quoting United States v. Gibbs, 626 F.3d 344, 352 n. 6 (6th Cir. 2010)); see also United States v. Covington, 738 F.3d 759, 762 (6th Cir. 2014) (applying Descamps when determining whether a prior offense qualifies under U.S.S.G. § 4B1.2(a)); United States v. Denson, 728 F.3d 603, 612 (6th Cir. 2013) (same).

         Campbell is also right to challenge Kentucky third-degree assault in light of Begay v. United States, 553 U.S. 137 (2008). Begay established a “purposeful, violent, and aggressive” standard for “use of physical force” predicate offenses. Id. at 148. Kentucky third-degree assault may be committed through recklessness conduct, and under Kentucky law, reckless conduct is not purposeful conduct. See KRS § 501.020 (definition of mental states). Relying upon Begay, the Sixth Circuit in United States v. McMurray held that “the ‘use of physical force' clause of the ACCA, § 924(e)(2)(B)(i), requires more than reckless conduct.” 653 F.3d 367, 375 (6th Cir. 2011) (citing Leocal v. Ashcroft, 543 U.S. 1, 9-11 (2004). Jones v. United States, reaffirmed McMurray, holding that “[w]hen a crime requires only the mens rea of recklessness, it cannot qualify under the ‘use of physical force' subsection of the ACCA.” 689 F.3d 621, 626 (6th Cir. 2012).

         In 2013, Campbell pleaded guilty to Kentucky third-degree assault under KRS § 580.025. Under the statute, a person may commit assault either “[r]ecklessly, with a deadly weapon or dangerous instrument” or “intentionally.”[4] Therefore, this conviction required scrutiny to ensure it could be counted as use of ...

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