United States v. Massey

79 F.4th 396

UNITED STATES of America, Plaintiff—Appellee, v. Brenton Thomas MASSEY, Defendant—Appellant.

No. 20-10478

United States Court of Appeals, Fifth Circuit

FILED August 16, 2023

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:18-CV-1973, Sidney A. Fitzwater, U.S. District Judge

Brian W. McKay, Esq., Assistant U.S. Attorney, Amy Jeannine Mitchell, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Andrew Buttaro, Morgan, Lewis & Bockius, L.L.P., Boston, MA, Michael E. Kenneally, Morgan, Lewis & Bockius, L.L.P., Washington, DC, for Defendant-Appellant.

Before Jones, Willett, and Douglas, Circuit Judges.

Edith H. Jones, Circuit Judge:

Prisoner Brenton Massey brings ineffective-assistance-of-counsel claims under 28 U.S.C. § 2255. He was convicted for conspiracy to possess with intent to distribute methamphetamine in the Eastern District of Texas and for being a felon in possession of a firearm in the Northern District of Texas. His claims rest on the argument that his sentence for the latter offense should have been adjusted to reflect the 13 months he had already spent in prison for his first conviction.

Massey brought this 2255 petition in the Northern District of Texas, faulting his trial counsel for failing to adequately advocate for "back time" at sentencing and faulting his appellate counsel for not raising the issue on appeal. The magistrate judge recommended that relief be denied. The district judge (the same judge who sentenced Massey in the Northern District) adopted the recommendation, dismissed the claims, and denied a certificate of appealability. This court granted a certificate of appealability, and we now AFFIRM.

It is true that the Sentencing Guidelines call for credit for time served if there are two related offenses. U.S.S.G. § 5G1.3(b). Both parties agree the offenses are related here. Yet the Guidelines are not obligatory, and the judge in the Northern District of Texas instead sentenced Massey under U.S.S.G. § 5G1.3(d). Thus, Massey's sentences were treated as concurrent from the day of the second sentencing but did not account for the 13 months of back time.

None of this means that Massey's lawyers were constitutionally deficient. Massey's trial counsel argued for the application of U.S.S.G. § 5G1.3(b) in a memorandum and noted the argument in open court; he was not constitutionally obliged to do more. Massey's appellate counsel was not deficient for failing to raise the issue because the district court did not contravene any binding case law. Further, even if one or both attorneys were deficient, the district court's subsequent actions make it clear that the defendant was not prejudiced.¹

I.

To establish ineffective assistance of counsel, a prisoner must make two showings. First, he "must show that counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Second, he "must show that the deficient performance prejudiced the defense." Id. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "Surmounting Strickland's high bar is never an easy task." Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Padilla, 559 U.S. at 371, 130 S. Ct. at 1485).

In this case, the trial lawyer adequately presented in his briefing and thereby preserved the argument that his client should be sentenced according to U.S.S.G. § 5G1.3(b). While the argument was imperfect—counsel also sought credit for time Massey spent in custody for a related state charge as well, which Massey was already entitled to under 18 U.S.C. § 3585—it was not constitutionally deficient. The argument put the district court on notice of the back-time request and directed it to the applicable Guideline. Neither the failure of this argument to persuade the district court nor the absence of any further objection to the court's decision suggests that the attorney's conduct was constitutionally deficient. Even "an unsuccessful defense" must enjoy "a strong presumption" of reasonableness. Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 89 L.Ed.2d 123 (1986). Further, counsel need not reassert sentencing arguments in order to preserve them for appellate review. See Holguin-Hernandez v. United States, — U.S. —, 140 S. Ct. 762, 766, 206 L.Ed.2d 95 (2020).

Trial counsel's adequate presentation and preservation of the § 5G1.3(b) issue sets this case apart from those where courts have found ineffective assistance of counsel. In United States v. Smith, the defense never raised any argument about how to apply the Guidelines. 454 F. App'x 260 (5th Cir. 2011). Neither party objected to the Guideline range calculated by the probation office, and the defense failed to object when the district court inadvertently departed from that range. Id. at 261. Similarly, the basis for finding deficient performance of counsel in United States v. Carlsen was the "attorney's failure to advocate for the application of" § 5G1.3(b). 441 F. App'x 531, 535 (9th Cir. 2011). District court cases have followed a similar trendline.²

In fact, in every case we are aware of where counsel cited § 5G1.3(b), his or her conduct has been found constitutionally adequate. See, e.g., United States v. Hoang, 2016 WL 1392549, at *23 (S.D. Tex. Apr. 8, 2016) (rejecting an argument of deficient performance where "the transcript of the Sentencing Hearing shows that U.S.S.G. § 5G1.3(b) was [ ] addressed"); Kriegbaum v. United States, 2017 WL 4222439, at *7 (W.D. Tex. Aug. 30, 2017). These analogous cases help guide our decision.

Thus, counsel was not constitutionally obliged to re-urge his argument after the district court applied U.S.S.G. § 5G1.3(d). The issue was preserved. Moreover, even if we believed that the district court simply mixed up the two provisions, trial counsel evidently did not agree. Applying the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," this was a reasonable belief, as explained below. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We decline to turn Strickland's "highly deferential" standard on its head by assuming that counsel erred based on a debatable interpretation of the sentencing transcript. Id. To find deficient performance under such circumstances would unreasonably second-guess counsel's conduct without any legal basis.

II.

Massey's theory of prejudice rests on the assumption that the district court meant to sentence Massey under § 5G1.3(b), but it mistakenly sentenced him under § 5G1.3(d), despite having received a written memorandum from counsel that cited subsection (b). Consequently, he believes that the district court would have corrected itself if counsel had objected. We disagree.

The district judge who sentenced Massey also ruled on this § 2255 motion. He adopted the magistrate judge's report, which stated that the district court "appropriately weighed all of [the] options under U.S.S.G. § 5G1.3, including the application of subsection (b) and the related adjustment for time served, and decided to rely instead on subsection (d) to achieve a reasonable punishment." In other words, the district judge had the chance to correct any previous confusion and resentence Massey according to subsection (b). He instead adopted that report, which stated that he "weighed all of [the] options under U.S.S.G. § 5G1.3" and chose to sentence Massey under subsection (d).

This conclusion is bolstered by the legitimate reasons to apply § 5G1.3(d). First, a full application of subsection (b) would have led to a sentence below the mandatory minimum of fifteen years. 18 U.S.C. § 924(e). Second, as the magistrate judge noted, Massey's case involved time-credit calculations that were difficult to predict. In such cases, the commentary for § 5G1.3 suggests using subsection (d). U.S.S.G. § 5G1.3 cmt. n.4(D).

All of this reinforces the strong presumption that the district judge consciously exercised his sentencing discretion. Massey has not overcome that presumption. He relies on the district court's statement that the sentence would be "fully concurrent" to support his argument that he was prejudiced. But "fully concurrent" does not necessarily mean "according to § 5G1.3(b)." Subsection (d) permitted the sentences to be fully concurrent going forward. If "fully concurrent" meant "giving full back time credit," then the district court legally could not have imposed a "fully concurrent" sentence—giving back time would have led to a 175-month sentence, five months below the mandatory minimum. In the face of this legal obstacle and the district judge's own later rulings, we decline to take the phrase "fully concurrent" to mean that the judge confused subsections (b) and (d). Cf. Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018) ("[T]he judge who reviewed [the defendant's] § 2255 motion is the same judge who sentenced him. It is difficult to think of a better source of information about what happened the first time around."); Dimott v. United States, 881 F.3d 232, 237 (1st Cir. 2018) ("Although these findings were made during the collateral review process, and not expressly stated at the time of sentencing, we give them due weight because the habeas judge was describing his own decisions at sentencing."); United States v. Brito, 601 F. App'x 267, 273 (5th Cir. 2015) ("Since the same judge presided over sentencing and the § 2255 proceeding, she is in the best position to know what she meant by" an ambiguous statement during sentencing).

III.

Appellate counsel was not constitutionally ineffective, either. To succeed, Massey would need to establish that the...