USCA4 Appeal: 20-7402 Doc: 23 Filed: 11/27/2023 Pg: 1 of 8

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7402

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CHICOBE ANTRELL WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:17-cr-00022-D-1; 4:19-cv-00136-D)

Submitted: October 2, 2023 Decided: November 27, 2023

Before AGEE and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.

Dismissed in part, vacated in part, and remanded by unpublished per curiam opinion.

Chicobe Antrell Williams, Appellant Pro Se. Andrew Kasper, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Chicobe Antrell Williams appeals from the district court’s order denying his

motion. We previously granted a certificate of appealability and directed

briefing as to whether the district court erred in denying Williams’ ineffective assistance

of counsel claim regarding trial counsel’s failure to raise United States v. McCollum,

(4th Cir. 2018), when challenging the application of the career offender

enhancement. Having reviewed the parties’ submissions, we dismiss in part, vacate in part,

and remand for further proceedings to include resentencing.

We “review[] de novo a district court’s legal conclusions in denying a [§] 2255

motion.” United States v. Cannady,

(4th Cir. 2023) (internal quotation

marks omitted). A claim of ineffective assistance of counsel presents a mixed question of

law and fact that we likewise review de novo. United States v. Ragin,

(4th Cir. 2016). “When . . . the district court denies relief without an evidentiary hearing,

we construe the facts in the movant’s favor.” United States v. Akande,

(4th Cir. 2020).

To establish ineffective assistance, Williams must demonstrate “that counsel’s

performance was [constitutionally] deficient” and “that the deficient performance

prejudiced the defense.” Strickland v. Washington,

(1984). To satisfy

the performance prong, Williams must demonstrate “that counsel’s representation fell

below an objective standard of reasonableness” as evaluated “under prevailing professional

norms.”

. This standard requires “a court [to] indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

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at 689. “This assistance should, among other things, be legally competent, include relevant

research, and raise important issues.” Cannady,

.

To demonstrate prejudice, Williams must establish “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland,

. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.”

“When there is an error regarding the

Guidelines range . . . [,] the error itself can, and most often will, be sufficient to show a

reasonable probability of a different outcome absent the error.” Cannady,

(internal quotation marks omitted). “Thus, if counsel fails to object to the erroneous

application of the career offender enhancement, that alone can be sufficient to demonstrate

prejudice.”

At the June 4, 2018, sentencing hearing, the district court found that Williams’ two

North Carolina felony convictions for conspiracy to sell cocaine in violation of

(2022), 1 qualified as controlled substance offenses for purposes of the career

offender enhancement. See U.S. Sentencing Guidelines Manual §§ 4B1.1, 4B1.2(b)

(2016). Based on a total offense level of 29 and a criminal history category of VI, 2 the

1 Section 90-98 has not been amended since Williams committed the predicate offenses in 2007 and 2012.

In the presentence report, the probation officer assessed 17 criminal history points; 2

thus, Williams’ criminal history category was VI, even without the career offender enhancement.

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district court calculated an advisory Sentencing Guidelines range of 151 to 188 months’

imprisonment and sentenced Williams to 151 months.

In his § 2255 motion, Williams argued that his counsel was ineffective for failing to

argue at sentencing that our decision in McCollum advised against application of the career

offender enhancement. In McCollum, we considered whether a defendant’s prior

conviction for conspiracy to commit murder in aid of racketeering,

(a)(5),

categorically qualified as a crime of violence for purposes of the career offender

enhancement.

. We explained that the generic definition of “conspiracy”

applied to the Guidelines,

, and “that an overt act [was] an element of the

generic definition of conspiracy,”

(internal quotation marks omitted). Because

obtaining a conspiracy conviction under § 1959(a)(5) did not require proof of an overt act,

the statute necessarily “criminalize[d] a broader range of conduct than that covered by

generic conspiracy.” Id. at 309. Therefore, a § 1959(a)(5) conspiracy conviction was not

categorically a crime of violence for purposes of the career offender enhancement. Id.; see

Cannady,

(explaining holding in McCollum).

Williams also contended that North Carolina conspiracy did not require proof of an

overt act. See State v. Mylett,

(N.C. Ct. App. 2018) (“[N]o overt act

is necessary to complete the crime of conspiracy.” (internal quotation marks omitted)).

Thus, Williams asserted in his § 2255 motion that counsel performed deficiently by failing

to argue that McCollum—which issued more than two months before Williams’

sentencing—strongly suggested that North Carolina conspiracy under § 90-98 criminalized

a broader range of conduct than generic conspiracy, and it was therefore not categorically

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a controlled substance offense for purposes of the career offender enhancement. 3 Williams

next asserted that counsel’s error prejudiced him because Williams’ advisory Guidelines

range without the career offender enhancement would have been 51 to 63 months’

imprisonment, based on a total offense level of 17, as opposed to 151 to 188 months’

imprisonment with the enhancement. Williams maintains this claim of error on appeal.

We recently addressed a similar issue in Cannady, where the district court sentenced

the defendant as a career offender based on his prior conviction for conspiracy to distribute

cocaine under § 846.

. In a § 2255 motion, the defendant argued that his

counsel provided ineffective assistance by failing to argue, based on McCollum, that his

§ 846 conviction did not categorically qualify as a controlled substance offense for

purposes of the career offender enhancement. Id. at 264. The district court denied the

motion. Id. at 265.

We granted a certificate of appealability in Cannady, vacated the district court’s

judgment, and remanded for resentencing. Id. at 265, 269. We determined that counsel’s

failure to raise McCollum against the career offender enhancement constituted deficient

performance because “[a] straightforward application of McCollum to [defendant’s] case

[made] clear that conspiracy to distribute cocaine in violation of § 846 [was] not a

categorical match for generic conspiracy.” Id. at 268-69. We explained that, under these

3 One year after Williams’ sentencing, we “definitively held 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.” Cannady,

n.3 (quoting United States v. Norman,

(4th Cir. 2019)).

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circumstances, “the failure to object to the career offender enhancement on [McCollum]

ground[s did] not qualify as sound legal strategy.”

. We next determined that the

defendant demonstrated prejudice because the district court had imposed a sentence two

times longer than the high end of what the Guidelines range would have been without the

career offender enhancement.

On appeal, the Government argues that, at the time the district court sentenced

Williams, we had stated, in United States v. Kennedy,

(4th Cir. 1994),

that § 846 “conspiracy to distribute cocaine . . . would clearly qualify as a career offender

offense under the Guidelines.” The Government asserts that it was not until United States

v. Norman,

(4th Cir. 2019), which issued after Williams’ sentencing,

that we held that a § 846 conspiracy did not categorically qualify as a controlled substance

offense under the Guidelines. Thus, in the Government’s view, reasonable counsel at the

time of Williams’ sentencing would not have performed deficiently by relying on Kennedy

in the context of a controlled substance offense.

However, we have already considered—and rejected—this same argument. In

Cannady, we acknowledged that, “when [the defendant] was sentenced in 2015, [we] had

long treated § 846 conspiracy offenses as controlled substance offenses under the

Guidelines.”

(citing Kennedy,

). Still, we stressed that—by

2018—“the McCollum [c]ourt held that generic conspiracy under the Guidelines requires

an overt act.”

As we explained, “post-McCollum, Fourth Circuit precedent strongly

suggested that conspiracy under § 846 no longer qualified as a controlled substance

offense.” Id. at 268 (internal quotation marks omitted). Thus, McCollum itself provided

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sufficient grounds for counsel to argue against the career offender enhancement if it was

based on a drug conspiracy conviction that did not require proof of an overt act.

Here, as in Cannady, counsel failed to argue at Williams’ sentencing that “[a]

straightforward application of McCollum to [Williams’] case [made] clear that” the state

drug conspiracy convictions did not qualify as controlled substance offenses for purposes

of the career offender enhancement. See id. at 268. Therefore, we conclude that Williams

demonstrated deficient performance.

Turning to prejudice, what the Guidelines range would have been absent the career

offender enhancement is unclear because the district court deemed moot two of Williams’

objections to his Guidelines range in light of its application of the career offender

enhancement. Nonetheless, the record confirms that Williams’ Guidelines range would

have been significantly lower absent the career offender enhancement, satisfying the

prejudice prong. 4 Thus, we conclude that Williams demonstrated deficient performance

and prejudice and that the district court erred in denying his § 2255 motion. We leave the

precise determination of Williams’ Guidelines range for the district court to calculate at a

resentencing hearing.

4 On appeal, the Government contends that Williams cannot demonstrate prejudice because the district court stated at sentencing that it would have imposed the same sentence as an alternative variant sentence, rendering harmless any Guidelines error. However, a district court’s proclamation that “it would have imposed an identical sentence as a variance, regardless of the calculated Guidelines range,” does not apply “in the Strickland prejudice context.” United States v. Freeman,

(4th Cir. 2022) (en banc).

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Accordingly, we vacate the district court’s judgment and remand for further

proceedings to include resentencing with respect to the issue on which we granted a

certificate of appealability. We deny a certificate of appealability and dismiss the appeal

as to Williams’ remaining claims. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

DISMISSED IN PART VACATED IN PART, AND REMANDED

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