Since I spend so many of my days arguing that defense attorneys are ineffective and then asking them not to take it personally, I thought I would try to start sharing a few cases where IAC was found with the goal of helping my colleagues take note of pitfalls they might encounter (and avoid) in representing clients in trials and on appeal. Ultimately, perhaps we can call this the “There But For The Grace Of God Go I Blog,” but for now, let’s take a look at United States v. Williams, 2023 WL 8183301 (4th Cir. 2023).
In Williams, a federal prisoner – acting pro se no less – asked the 4th Circuit to vacate his sentence because, he claimed, he should not have received a career offender enhancement based on two prior convictions in North Carolina state courts for conspiracy to sell cocaine. The familiar Guideline enhancement, USSG §§4B1.1 & 4B1.2(b), mandates that the Defendant’s criminal history category should be raised to VI and his base offense level brought to specific minimums based on the offense of conviction’s maximum penalty. Williams argued that, under a then-recent case, United States v. McCollum, 885 F.3d 300 (4th Cir. 2018), his sentencing court had erred in 2018 by making him a career offender because, like 18 U.S.C. §1959(a)(5). In McCollum, North Carolina’s conspiracy statute does not require proof of an overt act and therefore necessarily “criminalized a broader range of conduct than that covered by generic conspiracy.”
Williams argued that counsel performed deficiently because McCollum’s holding, “strongly suggested that North Carolina conspiracy under §90-98 criminalized a broader range of conduct than generic conspiracy, and it was therefore not categorically a controlled substance offense for purposes of the career offender enhancement.” In a footnote, the Fourth Circuit noted that it removed all doubt from the matter a year later by “definitely” holding that “[21 U.S.C.] § 846 [drug] conspiracy offenses do not qualify as controlled substance offenses based on a ‘straightforward application of controlling precedent’—namely, McCollum” in United States v. Cannady, 63 F.4th 259 (4th Cir. 2023). The Fourth Circuit agreed, noting Cannady’s language about conspiracy offenses and going on to conclude that, given the “significantly lower” Guideline range Williams would have had absent the enhancement, he was prejudiced as well.
Key Takeaway: Do Your Homework
So what is the takeaway here? As this is my first stab at this, I am keeping it simple: do your homework, particularly as to the major issues in your case. If your client is facing a significant enhancement in federal court, there may be no way to avoid it, but as minimally competent counsel, your job is to assure that there is no way out and that is accomplished by research! Start by reading the statute (or guideline), see if you can find any reason the language does not fit your case, then read the most recent cases, even if you have done it a hundred times already this month. Do it within a week of your relevant hearing (sentencing, trial, etc.).
Is that a pain in the ass? Sure is, but less of a pain than having to get on the phone with me several months later to explain how you missed this obviously helpful case and then reading a published opinion with your tail between your legs knowing that the only thing saving you from public embarrassment is the appellate court has shown by keeping your name out of the opinion. Plus, if you happen to find something like McCollum hot off the press before a hearing, you look like a genius to your colleagues in court and a superhero to your client and their family. Everybody wins!
New cases are generated almost daily. I will confess to not realizing before I wrote this that the Fourth Circuit – where I practice – had taken this position regarding a conspiracy conviction (at least in North Carolina) and a §4B1.1 enhancement. That’s big! McCollum is emblematic of the pushback that has come from judges of varying philosophies against seemingly inflexible enhancements like §4B1.1 and the analogous ACCA. Those enhancements stack years, even decades, onto your client’s sentence and inevitably will be a central concern to them. When there is a central concern, the best way to effectively represent your client is to know everything you can about the issue, even if you already think you know everything.
