Federal Drug Conspiracy No Good for Career Offender Enhancement, and Counsel was Ineffective for Not Raising the Challenge

United States v. Cannady, No. 20-6906, — F.4th — (4th Cir. Mar. 24, 2023)

Hot off the press just minutes ago, the Fourth Circuit vacated the denial of a 28 U.S.C. § 2255 motion and held that a federal drug conspiracy, under 21 U.S.C. § 846, is broader than generic federal conspiracy and was therefore not a valid offense to impose a career offender sentence. The court’s opinion started this way:

[Germaine] Cannady appealed his sentence to this Court. While his appeal was pending, he moved for a new trial based on newly discovered, previously undisclosed evidence. The district court granted the motion, and the government appealed. We then reversed the grant of a new trial and remanded. On remand, the government moved to reinstate the judgment of conviction and Cannady’s sentence, to which Cannady’s counsel consented. Cannady now argues that, on remand, his counsel rendered ineffective assistance by failing to object to his designation as a career offender on the ground that conspiracy under § 846 is broader than generic conspiracy and thus does not constitute a controlled substance offense under the Guidelines. As we explain below, Cannady’s counsel rendered deficient performance by failing to make this objection. This failure resulted in prejudice to Cannady, whose 16-year sentence far exceeded the high end of what the Guidelines range would have been without the career offender enhancement. We therefore vacate the district court’s judgment, and we remand the case to the district court for resentencing.

There are a few important points to this case, besides the fact that the court held that a federal drug conspiracy conviction could not support a career offender sentence. First, the court found that the movant’s counsel was ineffective for failing to object to the career offender sentence. A failure-to-object claim in a § 2255 motion is a difficult one to win. Courts are reluctant to question whether an objection missed by counsel would have made a difference in the outcome. They tend to say that counsel’s failure to object was a “strategic” move that is outside the review of the court. However, this time the case law was clear that had counsel objected it likely would have succeeded in overturning the career offender sentence.

Another point I think is relevant is the court’s explanation that a remand after an appeal does not prevent counsel from arguing for a different sentence or challenging the sentence that was previously imposed. In this case, the fourth Circuit remanded so the district court could address a Brady violation by the government, and counsel conceded that the sentence was correct – when it definitely was not, in light of new case law that came down at the time of the appeal. Apparently, counsel wasn’t aware of that new case, United States v. McCollum, 885 F.3d 300 (4th Cir. 2018), which held that federal conspiracy to commit murder did not require an overt act and therefore did not match the generic federal conspiracy statute, 18 U.S.C. § 371, which did. The court here applied McCollum and found the same error with federal drug conspiracies.

Finally, the court rejected the government’s argument that the district court could have imposed the same sentence, since the guidelines were only advisory, and so there was no prejudice. Some courts have bought into this (I’m looking in your direction, Eleventh Circuit), but the Fourth didn’t bite. Instead, the court said that the guidelines are the “lodestar” of sentencing and the judge considering a guideline range more than eight years above the true guideline range likely prejudiced the movant.

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