United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
matter is before the Court on Defendant's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255. (ECF No. 73.)
first claims he was improperly sentenced based on Johnson
v. United States, 135 S.Ct. 2551 (2015), and its alleged
application to the career-offender enhancement of the
Sentencing Guidelines. However, the Supreme Court has since
concluded that the vagueness analysis of the Armed Career
Criminal Act's residual clause in Johnson does
not apply to the Guidelines. Beckles v. United
States, 137 S.Ct. 886 (2017).
also argues that his counsel was constitutionally ineffective
on two grounds. First, Defendant alleges that his counsel was
ineffective because he failed to challenge whether
Defendant's 2004 conviction for conspiracy to deliver a
controlled substance could be a predicate offense for career
offender scoring. Second, in Defendant's view, the
nine-month sentence imposed for his 2004 conviction was
insufficient to be considered a predicate offense for career
Defendant is precluded from collaterally attacking his
conviction and sentence by virtue of his plea agreement. Even
if he were not precluded, his arguments do not meet the high
bar necessary for relief under Section 2255. Therefore, the
Court will deny Defendant's motion.
August 1, 2014, Deon Lamont Phillips pled guilty to a charge
of conspiracy to distribute and possess with intent to
distribute 500 grams or more of cocaine. (ECF No. 38 at
PageID.74-77.) Pursuant to the plea agreement, a second count
was dismissed and Defendant agreed to waive an appeal and
collateral attack. (Id. at 78, 80.)
Probation Department prepared a presentence report
recommending that Phillips be sentenced as a career offender
based on: (1) a 1997 conviction for conspiracy to deliver
less than 50 grams of cocaine, (2) a 2004 conviction for
conspiracy to deliver less than 50 grams of cocaine, and (3)
a 2011 conviction for fleeing and eluding in the fourth
degree. (ECF No. 49.) Based on these convictions, the
Probation Department calculated Phillip's career offender
guidelines to be level 31 with a criminal history category of
VI, for a guidelines range of 188-235 months. (Id.
at PageID.136.) Phillip's counsel objected that the 1997
conviction was too old to be included in career offender
scoring and fleeing and eluding was not a crime of violence.
(ECF No. 52.) The Court denied the objections and sentenced
Phillips to 188 months.
then filed a notice of appeal. (ECF No. 65.) His counsel
filed a motion to withdraw and an Anders brief after
concluding that the appeal was without merit. Phillips
responded to the Anders brief, arguing, as he has
here, that the 2004 conspiracy conviction was not a
controlled substance offense, and second, that the fleeing
and eluding conviction was void in light of Johnson.
United States v. Phillips, No. 14-2621 (6th Cir.
Aug. 6, 2015).
Sixth Circuit granted counsel's motion to withdraw and
affirmed Phillips' sentence. United States v.
Phillips, No. 14-2621 (6th Cir. Oct. 7, 2015). The court
first addressed the Phillips' waiver of appeal and
collateral attack as part of the plea agreement. After
reviewing the circumstances, the court concluded that the
waiver was enforceable. Id. at 3. The court went on
to conclude that the 2004 conviction was appropriately
counted because a conviction for conspiracy to commit a
controlled substances crime is itself considered a controlled
substances crime for career offender purposes. Id.
at 5. The court concluded that the sentence imposed was
valid-although the fleeing and eluding conviction may not
have been a crime of violence-because Phillips still had two
other qualifying predicate offenses. The court declined to
consider Phillips' ineffective assistance of trial
now returns with the same or nearly the same arguments: (1)
Johnson invalidates the residual clause under the
career offender enhancement of the Guidelines; (2) his
counsel was ineffective for not challenging whether the 2004
conspiracy conviction could be scored as a controlled
substance predicate offense; and (3) counsel was ineffective
because he failed to challenge the 2004 conviction on the
grounds that the term of imprisonment was too short to
qualify as a predicate offense.
obtain relief under § 2255, a petitioner must show: (1)
“the sentence was imposed in violation of the
Constitution or laws of the United States, ” (2)
“the court was without jurisdiction to impose such
sentence, ” or (3) “the sentence was in excess of
the maximum authorized by law or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255.
constitutional defect claimed here is a violation of the
Sixth Amendment's guarantee of effective assistance of
counsel. U.S. Const. amend. VI. The standard for ineffective
assistance of counsel, as established in Strickland v.
Washington, requires a petitioner to prove (1) that
defense counsel's performance fell below an objective
standard of reasonableness, and (2) there is a reasonable
probability that, but for the unprofessional errors, the
outcome of the proceedings would have been different. 466
U.S. 668, 694 (1984). Either prong may be addressed first,
and the failure to demonstrate prejudice obviates the need
for the court to address the counsel performance prong, and
vice versa. I ...