December 16, 2015.
from United States District Court for the Southern District
of Iowa - Des Moines.
Steven Troy Kelly, Petitioner - Appellant: Gary Dean Dickey
Jr., Dickey & Campbell, Des Moines, IA.
Troy Kelly, Petitioner - Appellant, Pro se, Pekin, IL.
United States of America, Respondent - Appellee: Amy L.
Jennings, Assistant U.S. Attorney, Mary Clare Luxa, Assistant
U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.
WOLLMAN, LOKEN, and BYE, Circuit Judges.
Troy Kelly pleaded guilty to conspiracy to distribute 500
grams or more of a mixture and substance containing
methamphetamine and 50 grams or more of actual
methamphetamine, 21 U.S.C. § § 841(b)(1)(A), 846,
and to being a felon in possession of a firearm, 18 U.S.C.
§ § 922(g)(1), 924(a)(2). The district
court applied a career-offender sentence
enhancement as recommended in the presentence investigation
report (PSR), based on Kelly's two prior convictions for
violent crimes. Kelly did not directly appeal his sentence.
He filed a petition for a writ of habeas corpus seeking to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, claiming that he had been denied his Sixth
Amendment right to effective assistance of counsel during
sentencing. The district court denied Kelly's petition
and granted a certificate of appealability. We affirm.
was arrested for his involvement in a conspiracy to
distribute methamphetamine from California to Iowa. Kelly
entered into a written plea agreement and pleaded guilty to
the crimes set forth above. The PSR calculated a base offense
level of 31 and recommended application of the
career-offender enhancement under § 4B1.1 of the U.S.
Sentencing Guidelines Manual (Guidelines or U.S.S.G.), for
Kelly's two prior felony convictions for crimes of
violence. This enhancement raised Kelly's offense level
from 31 to 37 and his criminal history category from IV to
VI. The two predicate convictions were for robbery in the
second degree in May 2000, Iowa Code § § 711.1,
711.3, and for domestic-abuse assault in January 2011, Iowa
Code § 708.2A(3)(b). The PSR also recommended a 3-level
downward departure for acceptance of responsibility, which
resulted in a total offense level of 34. Based on a total
offense level of 34 and a criminal history category of VI,
the PSR calculated a Guidelines sentencing range of 262 to
327 months' imprisonment. Without the career-offender
enhancement, Kelly's total offense level would have been
28, his criminal history category would have been IV, and his
resultant Guidelines sentencing range would have been 110 to
137 months' imprisonment.
represented by counsel at sentencing, Kelly himself requested
a continuance, arguing that his 2011 domestic-abuse assault
conviction was a misdemeanor, not a felony, conviction. The
district court denied Kelly's request, noting that his
conviction constituted a felony under the Guidelines because
it was punishable by a sentence of more than one year. The
district court told Kelly, " You can preserve the issue,
so if you want to file a post--an appeal or post-trial motion
to reconsider that particular issue and have me issue an
order on it, I'll be happy to do it." Kelly's
counsel did not object to the calculations in the PSR.
Instead, she argued that, in addition to granting the
government's motion for substantial assistance under
U.S.S.G. § 5K1.1, the court should grant a downward
variance to place Kelly's sentence below that of another
co-conspirator who had played a more significant role in the
conspiracy. She argued that such a variance was necessary
" to serve the needs of justice, the needs of the
community, the needs of the Defendant and to be fair,"
noting that the co-conspirator had received a sentence of 176
district court adopted the PSR's recommendations. It then
granted a downward variance of 32 months in light of
Kelly's more limited role in the conspiracy; granted the
government's motion for substantial assistance, further
reducing Kelly's sentence by 86 months; and sentenced
Kelly to 144 months' imprisonment, to be followed by five
years of supervised release.
did not directly appeal his sentence. He instead filed a pro
se § 2255 petition, alleging that his counsel had
rendered ineffective assistance at sentencing by failing to
object to the application of the career-offender enhancement.
He argued that his prior conviction for domestic-abuse
assault did not qualify as a crime of violence under U.S.S.G.
§ 4B1.2(a), that the grounds for this objection would
have been obvious had his attorney conducted a basic search
of relevant Eighth Circuit case law, and that because his
counsel's failure to object served no tactical purpose,
it could be explained only as either ignorance or negligence.
The district court denied Kelly's petition without a
hearing, noting that the law was " complicated and
evolving" at the time of Kelly's conviction. The
court concluded that in light of the unsettled nature of the
law, Kelly's counsel was not constitutionally ...