United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief Judge.
Arian Brown filed a pro se motion seeking to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255 on June 7, 2019. [Record No. 172] Consistent with local
practice, the motion was referred to a United States
Magistrate Judge for initial review and issuance of a Report
and Recommendation (“R&R”). Shortly
thereafter, Brown filed a motion to amend the § 2255
motion, seeking to clarify and/or assert additional claims.
[Record No. 179] On September 11, 2019, Magistrate Judge
Candace J. Smith issued a well-reasoned R&R, granting
Brown's motion to amend and recommending that the motion
for relief under § 2255 and its amendment be denied.
Despite Brown's failure to file objections, the Court has
reviewed this matter de novo and concludes that the
§ 2255 motion should be denied.
pleaded guilty in September 2017 to possessing with the
intent to distribute 40 grams or more of a mixture or
substance containing fentanyl (count 2) and possessing with
the intent to distribute heroin (count 3), both in violation
of 21 U.S.C. § 841(a)(1). The United States Probation
Officer assigned to Brown's case prepared a presentence
investigation report (“PSR”) using the 2016
version of the United States Sentencing Guidelines Manual. In
calculating his guideline range, Brown was assigned a base
offense level of 26, but he received a career offender
enhancement under U.S.S.G. § 4B1.1(b)(1), raising his
offense level to 37. After receiving a two-level reduction
for acceptance of responsibility, his total offense level was
35. Combined with his criminal history category of VI, this
offense level produced a guidelines range of 292 to 360
months' imprisonment. On January 22, 2018, Brown was
sentenced to 330 months' imprisonment on each count, to
run concurrently. [Record No. 133] Brown's sentence was
affirmed on appeal. United States v. Brown, No.
18-5084 (6th Cir. Oct. 16, 2018).
filed a timely motion to vacate his sentence under 28 U.S.C.
§ 2255. [Record No. 172] He characterizes most of his
claims as ineffective-assistance-of-counsel, which is not
surprising, since Brown waived his ability to bring any other
type of claims on collateral attack. [Record No. 107, ¶
10] The familiar standard announced in Strickland v.
Washington, 466 U.S. 668 (1984), applies to claims of
ineffective assistance of counsel. To succeed on such a
claim, the defendant must show that counsel's performance
was deficient and that he was prejudiced by counsel's
performance. Id. at 688. Accordingly, counsel is not
required to raise meritless arguments to avoid being deemed
ineffective. Knowles v. Mirzayance, 556 U.S. 111,
of Brown's claims focus on his status as a career
offender under § 4B1.1(b)(1) of the sentencing
guidelines. Application of this enhancement was based on
Brown's 2003 state conviction for conspiring to commit
first-degree robbery and his 2010 federal conviction for
attempting to possess with the intent to distribute 500 grams
or more of cocaine. Brown argues that neither of these
convictions constitutes a predicate offense under §
4B1.1 and that his trial attorney was ineffective for failing
to present these arguments.
Brown argues that his Kentucky conviction for conspiring to
commit first-degree robbery does not constitute a crime of
violence. However, robbery is an enumerated offense within
the guidelines' definition of “crime of
violence.” U.S.S.G. § 4B1.2. It is not affected by
the United States Supreme Court's decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015), or
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which
involved the residual clauses of the Armed Career Criminal
Act and the Immigration and Nationality Act,
contrary to Brown's assertion, counsel did
object to the PSR by arguing that the conspiracy to commit
first-degree robbery conviction was not categorically a crime
of violence under the Sixth Circuit's decision in
United States v. Yates, 866 F.3d 723 (6th Cir.
2017). The Court, however, rejected this argument and
sentenced Brown as a career offender. [Record No. 148, pp.
33-34] On appeal, the Sixth Circuit affirmed the Court's
application of the enhancement.
robbery in Kentucky requires the use or threatened immediate
use of physical force upon another person, accompanied by one
of the following aggravating circumstances: the defendant
“causes physical injury to any person who is not a
participant in the crime, ” “is armed with a
deadly weapon, ” or “uses or threatens the
immediate use of a dangerous instrument upon any person who
is not a participant in the crime.” Ky. Rev. Stat.
§ 515.020. As this Court has explained previously,
first-degree robbery criminalizes violent force
within the generic definition of robbery. United States
v. Ingram, 276 F.Supp.3d 717, 721-26 (E.D. Ky. 2017).
Accordingly, the Supreme Court's decision in Mathis
v. United States, 136 S.Ct. 2243 (2016), would not have
helped Brown and his counsel was not ineffective for failing
to raise it.
the Sixth Circuit's recent decision in United States
v. Havis, 927 F.3d 382, 387 (6th Cir. 2019), cannot form
the basis of an ineffective-assistance-of-counsel claim.
See Bullard v. United States, No. 17-3731, 2019 WL
4180407, at *5 (6th Cir. Sept. 4, 2019). Havis,
which held that the Sentencing Commission exceeded its
authority in defining “crime of violence” and
“controlled substance offense, ” was not decided
until June 2019-well after Brown's sentencing and appeal.
The 2016 Guidelines Manual, which was relied upon for
Brown's sentencing, provided that “[c]rime of
violence . . . include[s] the offenses of aiding and
abetting, conspiring, and attempting to commit such
offenses.” U.S.S.G. § 4B1.2, n.1. Counsel cannot
be faulted for failing to anticipate future developments in
the law. Bullard, 2019 WL 4180407, at *5.
also argues that he is “actually innocent” of the
career offender enhancement, resulting in a complete
miscarriage of justice. But as the Sixth Circuit has
explained, “to meet this demanding standard, a prisoner
typically must ‘prove that he is either actually
innocent of his crime or that a prior conviction used to
enhance his sentence has been vacated.'”
Bullard, 2019 WL 4180407, at *3 (quoting Spencer
v. United States, 773 F.3d 1132, 1139 (11th Cir. 2014)).
Obviously, Brown has established neither of these predicates.
Because the guidelines are advisory, district courts are free
to impose a sentence that is appropriate in a particular
case, notwithstanding the guidelines. Id.
Accordingly, misapplication of a career offender designation
does not affect the lawfulness of the sentence itself and,
therefore, such a claim is not cognizable under § 2255.
presents a convoluted series of arguments concerning his 2010
drug-trafficking conviction in this Court. First, he argues
that his 2010 conviction was not a “prior
conviction” for purposes of U.S.S.G. § 4B1.1 and
21 U.S.C. § 851 because he was serving a term of
supervised release for that conviction when he was arrested
for the instance offenses. Brown's argument is simply
incorrect. The word “conviction” means either
“[t]he act or process of judicially finding someone
guilty of a crime; the state of having been proved
guilty” or “[t]he judgment (as by jury verdict)
that a person is guilty of a crime.” United States
v. Havens, 374 F.Supp.3d, 630 (E.D. Ky. 2019)
(quoting Black's Law Dictionary (10th ed. 2014)). The
Supreme Court has recognized that “conviction”
can mean either a finding of guilt or the entry of final
judgment on that finding. Id. Judgment was entered
on Brown's conviction for attempting to possess with the
intent to distribute cocaine on March 1, 2010. [Lexington
Criminal Action No. 5: 09-080, Record No. 46] Brown's
status as a supervised releasee as of the date of his current
offense does nothing to change the finality of the prior
also complains that he is being punished twice for the same
conduct. He received a 330-month sentence in the instant case
for possessing with the intent to distribute 40 grams or more
of a mixture or substance containing fentanyl (count 1) and
possessing with the intent to distribute heroin (count 2). He
received a 36-month sentence in Lexington Criminal Action No.
5: 09-080 for violating the terms of his supervised
release. Brown is wrong in view this as punishing the
same conduct twice. Further, imposing consecutive sentences
is within the Court's discretion and counsel was ...