NOT RECOMMENDED FOR PUBLICATION
                                File Name: 24a0407n.06

                                        Case No. 23-1010

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                  FILED
                                                                                     Oct 17, 2024
                                                      )                      KELLY L. STEPHENS, Clerk
 UNITED STATES OF AMERICA,
                                                      )
        Plaintiff - Appellee,                         )
                                                          ON APPEAL FROM THE UNITED
                                                      )
 v.                                                       STATES DISTRICT COURT FOR
                                                      )
                                                          THE   WESTERN DISTRICT OF
                                                      )
 TOMMY MAURICE-SANS JURL,                                 MICHIGAN
                                                      )
        Defendant - Appellant.                        )

OPINION

                                                      )
                                                      )


Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Tommy Maurice-Sans Jurl robbed several

credit unions and cash advance businesses in southwestern Michigan. After pleading guilty, Jurl

testified against his partner, Redo Rolling, at Rolling’s trial. Recognizing Jurl’s substantial

assistance in Rolling's prosecution, the district court sentenced Jurl to seventy-two months’

imprisonment — thirty-eight months below the bottom of his initial Guideline range.

Nevertheless, Jurl now seeks to vacate his sentence, arguing that his trial counsel performed

deficiently by failing to more vigorously contest his purportedly overstated criminal history score.

Because we find that Jurl's trial counsel rendered adequate representation, and because Jurl was

not prejudiced even if she did not, we affirm.

                                                 I.

       Between June 2020 and December 2021, Jurl robbed or attempted to rob six credit unions

and cash advance businesses across Southwestern Michigan. Many of these robberies followed a

common pattern. Jurl would enter the target business alone, demand money and threaten the
No. 23-1010, United States v. Jurl


employees with the prospect of accomplices waiting outside. Money in hand, Jurl would then

leave with his co-defendant, Redo Rolling, who was driving the getaway vehicle. Through the

first five robberies, Jurl and Rolling purportedly obtained more than $36,000. But on their sixth

attempt, their luck ran out, and officers arrested Jurl and Rolling as they fled from the Instant Cash

Advance store in Wyoming, Michigan, after the store’s employee denied them cash and instead

called the police.

       A grand jury indicted Jurl on six counts related to these robberies. Ultimately, however,

Jurl pled guilty to just one count of credit union robbery. The government dismissed the remaining

five counts. By virtue of his plea agreement, Jurl waived certain avenues for appeal, including,

for instance, his right to appeal the district court’s calculation of the Sentencing Guidelines range

(absent an objection by defense counsel at sentencing). But Jurl maintained the right to raise

certain constitutional challenges, such as ineffective assistance of counsel. The district court

accepted Jurl’s plea agreement as knowingly and voluntarily made.

       At sentencing, the district court began by ensuring that the parties had no outstanding

objections to the presentence report. The court then turned to Jurl and confirmed that he had

reviewed the presentence report and was otherwise satisfied with his representation.              Jurl

responded in the affirmative, noting his “complete[]” satisfaction with defense counsel. DE 121,

Sentencing Tr., Page ID 727. Next, the court addressed the offense level calculation. Although

Jurl pled guilty only to one count of credit union robbery, he stipulated to the facts underlying the

other five counts, which were incorporated into the calculation of his offense level and restitution

amount. All agreed that this resulted in a total offense level of twenty-five. Likewise, all agreed

that Jurl had a criminal history score of twenty, placing him in Criminal History Category VI.

These figures generated a Guidelines range of 110–137 months’ imprisonment.


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No. 23-1010, United States v. Jurl


       The government then moved for a downward departure, seeking a six-level reduction in

Jurl’s total offense level — consistent with U.S.S.G. § 5K1.1 — for Jurl’s assistance in the

government’s prosecution of Rolling. The court granted this motion and reduced Jurl’s total

offense level to nineteen, which in turn produced an amended Guidelines range of 63–78 months.

       Defense counsel spoke next, addressing Jurl’s sentencing memorandum and motion for a

downward variance. She focused on Jurl’s lengthy criminal history, which counsel argued

overstated the seriousness of Jurl’s offenses and his likelihood of recidivism. She highlighted that,

despite Jurl’s high criminal history category, his past offenses were primarily “petty nonviolent

offenses.” DE 121, Sentencing Tr., Page ID 730. And she argued that the difficulties Jurl endured

after entering the adult prison population at age fifteen — severe mental health issues, poverty,

and homelessness — contributed to his repeated incarceration over the years. These challenges,

she continued, explained Jurl’s previous lack of success in custody and on parole. But as evidenced

by his post-arrest conduct in this case, she concluded, Jurl’s previous convictions no longer

reflected his character or ability to succeed after incarceration.

       In response, the government largely agreed with defense counsel’s characterization of

Jurl’s growth. The government described Jurl as respectful and increasingly “stable” as he became

sober throughout his cooperation in Rolling’s trial. Id. at Page ID 734. Jurl struck the government

as “somebody who has improved himself through this process.” Id.

       Finally, Jurl spoke about his “commitment to change and redirect[ion]” through federal

programming and his renewed commitment to his family. Id. at Page ID 734–36. The district

court expressed skepticism, however, and highlighted Jurl’s longstanding involvement in the

criminal justice system. The court noted that he had “been given a lot of chances,” and that it

would be up to him to take advantage of future opportunities. Id. at Page ID 736. Similarly, the


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court reminded Jurl that given his high offense level, he would have faced a decade in prison had

he not cooperated with the government and earned a downward departure.

       Turning to the § 3553(a) factors, the court highlighted the “serious” nature of Jurl’s string

of robberies, focusing on the “significant period of time” that Jurl participated in this scheme. Id.

at Page ID 740. The court then acknowledged Jurl’s tumultuous upbringing and its contribution

to his severe mental health issues and subsequent incarceration. Jurl’s criminal history, the court

intimated, was a double-edged sword. On one hand, Jurl lacked a “significant violent history.” Id.

at Page ID 741. But on the other hand, the persistence of primarily petty offenses and parole

violations “just never stopped,” rendering the court skeptical that Jurl would perform well under

supervision. Id. at Page ID 741–42. Still, the court commended Jurl’s recent improvements.

       Taking all of this together, the court found that a sentence within the adjusted Guidelines

range of 63-78 months was warranted. Accordingly, the court sentenced Jurl to seventy-two

months’ imprisonment followed by three years of supervised release, and it ordered restitution

totaling $36,266. Neither party objected. Jurl appeals, urging this court to vacate his sentence and

remand for resentencing.

                                                 II.

       To successfully bring a Sixth Amendment ineffective assistance of counsel claim, Jurl must

show that his counsel’s conduct fell below “an objective standard of reasonableness” and that a

“reasonable probability” exists that “but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 

 (1984).

These two requirements are commonly known as the performance and prejudice prongs,

respectively. See, e.g., Andrus v. Texas, 590 U.S. —, 

 (2020) (per curiam).

Jurl’s failure to satisfy either prong results in the failure of his claim. Strickland, 

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No. 23-1010, United States v. Jurl


(counseling that a court need not “address both components of the inquiry if the defendant makes

an insufficient showing on one”).

       Typically, ineffective assistance of counsel claims are inappropriate for review on direct

appeal “since there has not been an opportunity to develop and include in the record evidence

bearing on the merits of the allegations.” United States v. McAllister, 

 (6th Cir.

2012) (quoting United States v. Martinez, 

 (6th Cir. 2005)). Claims brought in a

post-conviction proceeding pursuant to 

, in contrast, allow a district court to make

appropriate factual findings in the first instance. 

 We may make an exception, however, “in the

rare case in which the record is adequate to review the claim on direct appeal.” United States v.

Gilbert, 

, 183 (6th Cir. 2021) (citing United States v. Pruitt, 

(6th Cir. 1998)). Both Jurl and the government agree that the record is adequate here. Because

Jurl’s ineffective assistance claim solely concerns his counsel’s performance at his sentencing

hearing, we agree that the record enables us to resolve this claim.

                                                III.

       Jurl contends that his counsel performed deficiently at his sentencing in two ways. First,

defense counsel “failed to meaningfully explain to the court” that the inclusion of two petty

offenses in Jurl’s criminal history score, one of which was a juvenile offense, overstated the

extensiveness of Jurl’s criminal history. CA6 R. 22, Appellant Br., at 8, 15. Second, defense

counsel failed to object to the inclusion of a stale, three-point offense into Jurl’s criminal history

calculation. Neither argument is meritorious.

       Jurl’s first argument fails because he cannot show that his counsel acted deficiently by

failing to argue that the inclusion of a three-point larceny conviction and one-point alcohol

conviction overstated the seriousness of Jurl’s criminal history. At the outset, Jurl concedes that


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No. 23-1010, United States v. Jurl


these charges were “calculated correctly” in Jurl’s criminal history score computation. CA6 R.

22, Appellant Br., at 15. Thus, “it was not unreasonable for [Jurl]’s counsel to fail to object to

[Jurl]’s criminal history classification” on this basis. United States v. Nicholson, 

 (6th Cir. 2007) (finding lack of deficient performance because criminal history score was

properly computed); see also Coley v. Bagley, 

 (6th Cir. 2013) (“Omitting

meritless arguments is neither professionally unreasonable nor prejudicial.”).

       Moreover, Jurl’s counsel did advance Jurl’s desired argument at sentencing. Counsel

argued for a downward variance based, in part, on the fact that Jurl’s criminal history was inflated

by Jurl’s petty offenses. See DE 91, Sentencing Mem., Page ID 551 (defense counsel describing

Jurl’s history as “primarily involv[ing] incidents of public intoxication, petty theft, and driving

offenses”). She then reiterated this argument at Jurl’s sentencing hearing. The district court

acknowledged as much, noting that Jurl’s history was mainly nonviolent, but it ultimately found

that the seriousness of Jurl’s robberies, his lengthy criminal history and his poor performance under

supervision rendered a downward variance inappropriate. Counsel did not act deficiently in failing

to change the court’s mind. See United States v. Walton, 

, 734–35 (6th Cir. 2002)

(rejecting claim where “counsel did argue to the sentencing court that Walton’s criminal history

score over-represented his criminal past,” making the court “aware of the sentencing factors that

Walton raises on appeal”); Nicholson, 

 (acknowledging that “counsel did

request a downward departure” which the district court clearly found unwarranted in light of

criminal history). Accordingly, Jurl cannot overcome Strickland’s “strong presumption” that his

attorney’s conduct fell within the realm of reasonableness. 

.

       Jurl’s second argument concerns the district court’s computation of his criminal history

score pursuant to U.S.S.G. § 4A1.1. At fifteen, Jurl was tried as an adult and convicted of receiving


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No. 23-1010, United States v. Jurl


stolen property. He was then sentenced to between eighteen months and five years’ imprisonment.

Jurl does not challenge the inclusion of this conviction based on his juvenile status.1 Instead, he

argues that the conviction was too old to be included given the conviction’s vintage (1991), the

maximum sentence (five years), and the end date of § 4A1.2(e)(1)’s fifteen-year lookback period

(June 2005) for inclusion of prior convictions in a defendant’s criminal history calculation. The

government compellingly rebuts this argument, but we need not decide this issue to resolve Jurl’s

appeal; even if Jurl is correct, he cannot establish that he suffered any prejudice.

         Pursuant to Strickland, Jurl must demonstrate a “reasonable probability” that he would

have obtained a more favorable sentence if not for his counsel’s failure to exclude the 1991

conviction from his criminal history score. 

. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” 

 At bottom, Jurl must do more

than show that the error “had some conceivable effect on the outcome of the proceeding.” 

. Rather, he must demonstrate a probability that his “sentence [wa]s increased” by counsel’s

deficient performance. Glover v. United States, 

 (2001).

         Jurl cannot make this showing. True, this court has found Guidelines calculation errors

prejudicial when they subjected the defendant to a higher Guidelines range than he would have

faced absent the errors. See McPhearson v. United States, 

 (6th Cir. 2012)

(deeming the defendant “clearly prejudiced by his counsel’s failure to raise” a plausible argument

that would have reduced his Guidelines range from 140–175 months to either 120–150 months or

100–125 months). But we have consistently found, albeit in unpublished decisions, a lack of



1
  Such challenge would not otherwise be supported by the Guidelines or the record. Jurl’s presentence report indicates
that he was tried as an adult for both the 1991 receiving stolen goods and the 1993 larceny offenses. The Guidelines
enable courts to factor juvenile offenses into the criminal history computation if the defendant was tried as an adult.
See U.S.S.G. § 4A1.2(d)(1). And Jurl concedes that his 1993 larceny offense was calculated correctly even though he
was a juvenile at the time.

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No. 23-1010, United States v. Jurl


reasonable probability of prejudice when the calculation errors did not affect the Guidelines range

and the record did not otherwise suggest that the defendant would have obtained a lower sentence.

See United States v. Hibbard, 

 (6th Cir. 1993) (unpublished table decision) (per

curiam) (finding that, because defendant’s correct score subjected him to the same criminal history

category, “his sentence would remain the same, and counsel’s failure to object could not have

altered the outcome”); cf. Nicholson, 

 (finding no prejudice where criminal

history category was “properly computed”); Powell v. United States, No. 20-1782, 

, at *3 (6th Cir. Jan. 4, 2021) (order) (defendant’s desired calculation “would not have

resulted in a different guidelines range”); McQueen v. United States, No. 19-2427, 

, at *3 (6th Cir. Mar. 25, 2020) (order).

       Jurl falls into this latter category. At sentencing, all agreed that Jurl possessed a criminal

history score of twenty. This put him in Criminal History Category VI. Jurl argues that three

points were incorrectly incorporated into that score for his 1991 conviction. Absent those three

points, his criminal history score would have dropped down to seventeen. But even at seventeen,

Jurl would have remained in Criminal History Category VI—the highest criminal history category.

Accordingly, Jurl’s Guidelines range would have remained the same even had the 1991 offense

been excluded.

       This conclusion remains even if we look beyond Jurl’s concession that the other four points

for his larceny and intoxication offenses were properly calculated and exclude those as well. That

subtraction would put Jurl’s criminal history score at thirteen—still within Category VI. See

U.S.S.G. Ch. 5 Pt. A (Sentencing Table). Jurl presents no argument to the contrary. Because

counsel’s alleged errors would result in the same Guidelines range, and because there is no other




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No. 23-1010, United States v. Jurl


evidence in the record indicating that Jurl would have obtained a different outcome, Jurl fails to

establish ineffective assistance of counsel.

                                               IV.

       We affirm the district court’s judgment.




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