As defendant procedurally defaulted on his claim that he did not have the requisite prior convictions to be sentenced as a “career offender,” a Norfolk U.S. District Court denies his 28 U.S.C. § 2255 motion for a sentence reduction.
Defendant contends he no longer qualifies as a career offender under USSG § 4B1.1 after the U.S. Supreme Court decision in Carachuri-Rosendo v. Holder,i 130 S.Ct. 2577 (2010), the 4th Circuit decision in U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011), and the decision in Brantley v. U.S., (E.D.N.C. May 16, 2012). The U.S. argues defendant procedurally defaulted on his § 2255 claim because he did not raise the Simmons issues on direct appeal. He did not raise his objection at sentencing or on direct review and he may not obtain collateral review without showing causing and prejudice.
Defendant could not have raised the claim at his sentencing, which occurred before Simmons was decided, but he could have pursued the claim on direct appeal, as Simmons was decided before defendant’s deadline for appealing his criminal case expired. He has not established sufficient cause to excuse his procedural default. Since he properly qualified as a career offender, he cannot show prejudice to excuse his procedural default.
Further, the change in the law that Simmons effected does not render defendant actually innocent of being a career offender. In Simmons, the 4th Circuit held that the maximum potential term of imprisonment should represent the maximum potential term that the actual defendant faced, not the maximum potential term faced by a hypothetical defendant with the worst possible criminal history and the presence of the most aggravating factors.
The presentence investigation report (PSR) indicated defendant qualified as a career offender due to his conviction for possession of cocaine with intent to distribute in Norfolk Circuit Court on March 20, 1996, and his conviction for possession with intent to distribute cocaine base in the U.S. District Court on Nov. 20, 2003. Both offenses unquestionably meet the definition of predicate “felony,” even under Simmons. That defendant served only one year is not of legal significance, as the imposition of a 20-year sentence makes clear that the offense was punishable for a term exceeding one year.
Spencer v. U.S. (Smith) No. 2:12cv447, Sept. 25, 2012; USDC at Norfolk, Va.; Sherrie S. Capotosto, AUSA. VLW 012-3-484, 11 pp.