Description: Dallas, Texas criminal defense lawyer represented the Defendant charged with violating the Armed Career Criminal Act.

To establish ineffective assistance of counsel, a prisoner must make
two showings. First, he “must show that counsel’s performance was
deficient.” Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984). “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id. Second, he “must show that the deficient
performance prejudiced the defense.” Id. “This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id. “Surmounting Strickland’s high bar is
never an easy task.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770,
788 (2011) (quoting Padilla, 559 U.S. at 371, 130 S. Ct. at 1485).
In this case, the trial lawyer adequately presented in his briefing and
thereby preserved the argument that his client should be sentenced according
to U.S.S.G. § 5G1.3(b). While the argument was imperfect—counsel also
sought credit for time Massey spent in custody for a related state charge as
well, which Massey was already entitled to under 18 U.S.C. § 3585—it was
not constitutionally deficient. The argument put the district court on notice
of the back-time request and directed it to the applicable Guideline. Neither
the failure of this argument to persuade the district court nor the absence of
any further objection to the court’s decision suggests that the attorney’s
conduct was constitutionally deficient. Even “an unsuccessful defense”
must enjoy “a strong presumption” of reasonableness. Nix v. Whiteside,
475 U.S. 157, 165, 106 S. Ct. 988, 993 (1986). Further, counsel need not
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fact that this court reviews de novo.” Id. (citing United States v. Rivas-Lopez, 678 F.3d 353,
356 (5th Cir. 2012)).
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reassert sentencing arguments in order to preserve them for appellate review.
See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020).
Trial counsel’s adequate presentation and preservation of the
§ 5G1.3(b) issue sets this case apart from those where courts have found
ineffective assistance of counsel. In United States v. Smith, the defense never
raised any argument about how to apply the Guidelines. 454 F. App’x 260
(5th Cir. 2011). Neither party objected to the Guideline range calculated by
the probation office, and the defense failed to object when the district court
inadvertently departed from that range. Id. at 261. Similarly, the basis for
finding deficient performance of counsel in United States v. Carlsen was the
“attorney’s failure to advocate for the application of” § 5G1.3(b).
441 F. App’x 531, 535 (9th Cir. 2011). District court cases have followed a
similar trendline.2
In fact, in every case we are aware of where counsel cited § 5G1.3(b),
his or her conduct has been found constitutionally adequate. See, e.g., United
States v. Hoang, 2016 WL 1392549, at *23 (S.D. Tex. Apr. 8, 2016) (rejecting
an argument of deficient performance where “the transcript of the
Sentencing Hearing shows that U.S.S.G. § 5G1.3(b) was [] addressed”);
Kriegbaum v. United States, 2017 WL 4222439, at *7 (W.D. Tex. Aug. 30,
2017). These analogous cases help guide our decision.
Thus, counsel was not constitutionally obliged to re-urge his argument
after the district court applied U.S.S.G. § 5G1.3(d). The issue was
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2 See Cobb v. United States, 2019 WL 2607002, at *2 (E.D.N.Y. Jan. 11, 2019) (an
error regarding § 5G1.3(b) was “not raised at sentencing”); Schmitt v. United States,
2018 WL 10669774, at *3 (S.D. Ind. Feb. 26, 2018) (the “lawyer did not argue for” the
credit available under the Guidelines). Likewise, defense counsel appears to have made no
argument regarding the proper application of § 5G1.3(b) during the trial at issue in Jones v.
United States, No. 2:19-CV-291, 2019 WL 4060390, at *1 (M.D. Fla. Aug. 28, 2019).
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preserved. Moreover, even if we believed that the district court simply mixed
up the two provisions, trial counsel evidently did not agree. Applying the
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” this was a reasonable belief, as explained
below. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. We decline to turn
Strickland’s “highly deferential” standard on its head by assuming that
counsel erred based on a debatable interpretation of the sentencing
transcript. Id. To find deficient performance under such circumstances
would unreasonably second-guess counsel’s conduct without any legal basis.
II.
Massey’s theory of prejudice rests on the assumption that the district
court meant to sentence Massey under § 5G1.3(b), but it mistakenly
sentenced him under § 5G1.3(d), despite having received a written
memorandum from counsel that cited subsection (b). Consequently, he
believes that the district court would have corrected itself if counsel had
objected. We disagree.
The district judge who sentenced Massey also ruled on this § 2255
motion. He adopted the magistrate judge’s report, which stated that the
district court “appropriately weighed all of [the] options under U.S.S.G.
§ 5G1.3, including the application of subsection (b) and the related
adjustment for time served, and decided to rely instead on subsection (d) to
achieve a reasonable punishment.” In other words, the district judge had the
chance to correct any previous confusion and resentence Massey according
to subsection (b). He instead adopted that report, which stated that he
“weighed all of [the] options under U.S.S.G. § 5G1.3” and chose to sentence
Massey under subsection (d).
This conclusion is bolstered by the legitimate reasons to apply
§ 5G1.3(d). First, a full application of subsection (b) would have led to a
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sentence belowthe mandatory minimum of fifteen years. 18 U.S.C. § 924(e).
Second, as the magistrate judge noted, Massey’s case involved time-credit
calculations that were difficult to predict. In such cases, the commentary for
§ 5G1.3 suggests using subsection (d). U.S.S.G. § 5G1.3 cmt. n.4(D).
All of this reinforces the strong presumption that the district judge
consciously exercised his sentencing discretion. Massey has not overcome
that presumption. He relies on the district court’s statement that the
sentence would be “fully concurrent” to support his argument that he was
prejudiced. But “fully concurrent” does not necessarily mean “according to
§ 5G1.3(b).” Subsection (d) permitted the sentences to be fully concurrent
going forward. If “fully concurrent” meant “giving full back time credit,”
then the district court legally could not have imposed a “fully concurrent”
sentence—giving back time would have led to a 175-month sentence, five
months below the mandatory minimum. In the face of this legal obstacle and
the district judge’s own later rulings, we decline to take the phrase “fully
concurrent” to mean that the judge confused subsections (b) and (d). Cf.
Potter v. United States, 887 F.3d 785, 788 (6th Cir. 2018) (“[T]he judge who
reviewed [the defendant’s] § 2255 motion is the same judge who sentenced
him. It is difficult to think of a better source of information about what
happened the first time around.”); Dimott v. United States, 881 F.3d 232, 237
(1st Cir. 2018) (“Although these findings were made during the collateral
review process, and not expressly stated at the time of sentencing, we give
them due weight because the habeas judge was describing his own decisions
at sentencing.”); United States v. Brito, 601 F. App’x 267, 273 (5th Cir. 2015)
(“Since the same judge presided over sentencing and the § 2255 proceeding,
she is in the best position to know what she meant by” an ambiguous
statement during sentencing).
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III.
Appellate counsel was not constitutionally ineffective, either. To
succeed, Massey would need to establish that the district court did not
exercise its legitimate sentencing discretion and that, if he appealed that
issue, the result would more than likely have been different. He attempts to
do so by faulting counsel for failing to argue that the district court should have
articulated reasons during sentencing as to why it applied § 5G1.3(d) instead
of § 5G1.3(b).
“Effective appellate counsel should not raise every nonfrivolous
argument on appeal, but rather only those arguments most likely to
succeed.” Davila v. Davis, 582 U.S. 521, 533, 137 S. Ct. 2058, 2067 (2017).
Appellate counsel is responsible for making “solid, meritorious arguments
based on directly controlling precedent.” United States v. Conley, 349 F.3d 837,
841 (5th Cir. 2003) (emphasis added). Importantly, “[s]uch directly
controlling precedent is rare. Often, factual differences will make authority
easily distinguishable, whether persuasively or not. In such cases, it is not
necessarily providing ineffective assistance of counsel to fail to construct an
argument that may or may not succeed.” United States v. Williamson,
183 F.3d 458, 463 n.7 (5th Cir. 1999).
The was no such “directly controlling” precedent. In 2003, this court
held in United States v. Rangel that (1) “subsection (b) is mandatory,”
(2) nevertheless, “the district court retains its discretion to impose a
sentence consecutively” through a departure, and (3) if it sentences
consecutively, the court “must offer reasons justifying the departure.”
319 F.3d 710, 715 (5th Cir. 2003). But that framework no longer applies to
§ 5G1.3(b) cases because the Supreme Court later ruled that the Guidelines
are advisory rather than mandatory. Booker, 543 U.S. at 245, 125 S. Ct. at
756. Thus, Rangel is not directly controlling for the purposes of finding
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deficient performance. Cf. United States v. Lagos, 25 F.4th 329, 337 (5th Cir.
2022) (finding no deficient performance where a previously binding
precedent was “superseded by changes to the Guidelines”).
In the aftermath of that decision, this court stated in an unpublished
opinion that “sentencing judges must include [§ 5G1.3(b)] in the calculation
of the proper guideline sentence.” United States v. Figueroa, 215 F. App’x
343, 344 (5th Cir. 2007); see also United States v. Estrada, 312 F. App’x 664,
667 (5th Cir. 2009) (“Even though it was not mandatory for the district court
to comply with § 5G1.3(b), the court was still required to consider that
subsection as part of its determination of a reasonable sentence.”); United
States v. Young, 2021 WL 4515393, at *7 (5th Cir. Oct. 1, 2021) (vacating and
remanding because the district court failed to consider § 5G1.3(b)).
But unpublished opinions “are not precedent.” 5th Cir. R. 47.5.4.
Perhaps in some instances, counsel might fall below the constitutional
standard of effective advocacy even absent controlling precedent, if the point
of law were sufficiently obvious. Cf. United States v. Franks, 230 F.3d 811,
814 (5th Cir. 2000). But the standard requirement is to raise “arguments
based on directly controlling precedent.” Conley, 349 F.3d at 841. Where
only persuasive authority is cited, this court has generally declined to find
that counsel had to raise the argument. See, e.g., United States v. Slape,
44 F.4th 356, 360 & n.2 (5th Cir. 2022); Schaetzle v. Cockrell, 343 F.3d 440,
446 (5th Cir. 2003).3
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Outcome: For the foregoing reasons, the district court’s judgment is
AFFIRMED.

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