Argued: December 12, 2018
from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, Chief
District Judge. (4:13-cr-00025-MSD-LRL-1; 4:15-cv-00104-MSD)
Russell Hosmer, MCGUIREWOODS LLP, Richmond, Virginia, for
Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellee.
Trent Taylor, MCGUIREWOODS LLP, Richmond, Virginia, for
Zachary Terwilliger, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
AGEE, DIAZ, and HARRIS, Circuit Judges.
HARRIS, Circuit Judge:
Lavonne Morris was sentenced as a career offender under the
Sentencing Guidelines, based in part on a prior Virginia
conviction for attempted abduction. Morris now seeks relief
under 28 U.S.C. § 2255, arguing that his counsel was
ineffective for failing to object to use of that conviction
as a predicate crime of violence. Because precedent at the
time of Morris's 2013 sentencing did not strongly suggest
that his career offender enhancement was improper, see
United States v. Carthorne, 878 F.3d 458, 466 (4th Cir.
2017), we find that counsel was not ineffective. We therefore
affirm the district court's denial of Morris's §
2013, Morris pleaded guilty to one count of conspiring to
distribute cocaine and cocaine base. The probation office
prepared a Presentence Investigation Report
("PSR"), and based on Morris's criminal
history, recommended that Morris be designated a "career
offender" under § 4B1.1 of the United States
Sentencing Guidelines. As relevant here, that provision
applies when a defendant "has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense." U.S.S.G. § 4B1.1(a). The
probation office identified two such convictions: a 1995 drug
conviction that qualified as a "controlled substance
offense," and - at issue here - a 2005 conviction for
attempted abduction under Virginia law that constituted a
"crime of violence." As a career offender,
Morris's advisory sentencing range would increase
substantially, from 262 to 327 months' imprisonment to
360 months to life in prison. See U.S.S.G. ch. 5,
pt. A (sentencing table).
Morris's 2013 sentencing hearing, defense counsel did not
object to the proposed career offender enhancement. Morris,
however, addressed the court directly and opposed the
enhancement, raising a technical argument about the PSR's
calculation of his criminal history points. After an
adjournment to allow the parties to brief the issue, the
district court ultimately adopted the PSR's sentencing
calculations, including the career offender enhancement.
Morris's counsel then argued successfully for a downward
variance from the advisory range of 360 months to life in
prison: In light of factors such as Morris's acceptance
of responsibility and cooperation with the government, the
district court sentenced Morris to 294 months'
imprisonment, to be followed by five years of supervised
represented by a new attorney, appealed his sentence and
again challenged his designation as a career offender. This
court dismissed the appeal as barred by the appellate waiver
in Morris's plea agreement. See United States v.
Morris, No. 13-4868 (4th Cir. Apr. 28, 2014).
then filed the 28 U.S.C. § 2255 petition that is the
subject of this appeal, moving to vacate, set aside, or
correct his sentence and raising ineffective assistance of
counsel claims regarding both his trial and appellate
counsel. Included among those claims was the contention that
Morris's trial counsel was constitutionally ineffective
because he failed to argue that ...