United States v. Thompson

UNPUBLISHED

Submitted: November 30, 2021

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:16-cr-00075-D-1; 5:19-cv-00358-D)

Eric Javon Thompson, Appellant Pro Se.

Dennis Duffy, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before WILKINSON, WYNN, and RUSHING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM.

Eric Javon Thompson appeals the district court's order dismissing his 28 U.S.C. § 2255 motion. Following our initial review of the materials relative to this appeal, we granted a certificate of appealability and directed responsive briefing as to a single issue: whether the district court erred in dismissing Thompson's claim that his trial counsel rendered ineffective assistance by failing to object at sentencing to a life term of supervised release. For the reasons that follow, we vacate and remand for further proceedings on that claim.

We review de novo the district court's denial of a § 2255 motion. United States v. Pressley, 990 F.3d 383, 387 (4th Cir. 2021). Where, as here, "the district court denies § 2255 relief without an evidentiary hearing, the nature of the court's ruling is akin to a ruling on a motion for summary judgment," and the facts must be viewed "in the light most favorable to the § 2255 movant." United States v. Poindexter, 492 F.3d 263, 267 (4th Cir. 2007); see also United States v. Magini, 973 F.2d 261, 264 (4th Cir. 1992) ("A federal court in a [§ 2255] proceeding must hold an evidentiary hearing when the petitioner alleges facts which, if true, would entitle her to relief.").^[1]

To establish ineffective assistance, Thompson must demonstrate that (1) his counsel's performance was constitutionally deficient, and (2) he was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the performance prong, Thompson bears the burden to establish that "his counsel's performance fell below an objective standard of reasonableness measured by prevailing professional norms," and, thus, "made errors so serious that counsel was not functioning as the counsel guaranteed [him] by the Sixth Amendment." Porter v. Zook, 898 F.3d 408, 434 (4th Cir. 2018) (internal quotation marks omitted). The Court "must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance." Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks omitted).

A defense attorney's failure to assert a meritorious Sentencing Guidelines challenge can constitute ineffective assistance of counsel. See United States v. Carthorne, 878 F.3d 458, 466-67 (4th Cir. 2017). The movant must demonstrate that "relevant authority strongly suggest[ed]" the argument was warranted "in light of the available authority at the time of counsel's allegedly deficient performance." United States v. Morris, 917 F.3d 818, 823-24 (4th Cir. 2019) (internal quotation marks omitted). While "[a] lawyer does not perform deficiently by failing to raise novel arguments that are unsupported by then-

existing precedent," attorneys "are obliged to make arguments that are sufficiently foreshadowed in existing case law." Id. (alterations and internal quotation marks omitted).

To demonstrate prejudice, Thompson must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Mayhew, 995 F.3d 171, 176 (4th Cir. 2021) (internal quotation marks omitted). In the sentencing context, Thompson must demonstrate "a reasonable probability that [he] would have received a different sentence" but for counsel's error. Sears v. Upton, 561 U.S. 945, 956 (2010).

Viewing Thompson's motion and the record in the light most favorable to Thompson, we conclude that the district court erred in dismissing Claim 5 of Thompson's § 2255 motion. Thompson asserts that his counsel performed deficiently by failing to research and object to the Guidelines range of supervised release applicable to one of his counts of conviction: a violation of 18 U.S.C. § 2421(a) (Count 3), for which he was sentenced to the life term. The district court rejected this argument based substantially on its conclusion that any such challenge to his Guidelines range would have been meritless. In fact, the record reveals that the district court applied an incorrect Guidelines range of supervised release for Count 3 at sentencing, to which his counsel did not object.

Thompson's presentence report, which the sentencing court adopted, provided for a Guidelines range of supervised release of five years to life, referencing U.S. Sentencing Guidelines Manual § 5D1.2(b)(2) (2016). Under that provision, if a defendant is convicted of "a sex offense," the court should impose a supervised release term "not less than the minimum term of years specified for the offense" based on its offense class, "and may

[impose] up to life." USSG § 5D1.1(b)(2). The Guideline's policy statement likewise recommends a supervised release term at the statutory maximum if the defendant was convicted of a "sex offense." USSG § 5D1.2(b), p.s. A "sex offense" is defined for purposes of USSG § 5D1.2 as "an offense, perpetrated against a minor, under" certain specified criminal statutes, or an attempt or conspiracy to commit such an offense. USSG § 5D1.2 cmt. n.1 (emphasis added); see United States v. Parks, 995 F.3d 241, 244 (D.C. Cir. 2021) (explaining that "sex offense" under USSG § 5D1.2 requires conduct perpetrated against minor); United States v....