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United States v. Morris

United States Court of Appeals, Fourth Circuit

March 8, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
STEVEN LAVONNE MORRIS, a/k/a Worm, Defendant-Appellant.

          Argued: December 12, 2018

          Appeal 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)

         ARGUED:

          Kyle Russell Hosmer, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant.

          Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

         ON BRIEF:

          R. Trent Taylor, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant.

          G. Zachary Terwilliger, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

          Before AGEE, DIAZ, and HARRIS, Circuit Judges.

          PAMELA HARRIS, Circuit Judge:

         Steven 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 § 2255 motion.

         I.

         In 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).

         At 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 release.

         Morris, 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).

         Morris 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 ...


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