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Kelly v. United States

United States Court of Appeals, Eighth Circuit

April 11, 2016

Steven Troy Kelly, Petitioner - Appellant
v.
United States of America, Respondent - Appellee

         Submitted December 16, 2015.

          Appeal from United States District Court for the Southern District of Iowa - Des Moines.

         For Steven Troy Kelly, Petitioner - Appellant: Gary Dean Dickey Jr., Dickey & Campbell, Des Moines, IA.

         Steven Troy Kelly, Petitioner - Appellant, Pro se, Pekin, IL.

         For 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.

         Before WOLLMAN, LOKEN, and BYE, Circuit Judges.

          OPINION

         WOLLMAN, Circuit Judge.

         Steven 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[1] 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.

         I.

         Kelly 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.

         Although 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 months.

         The 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.

         Kelly 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 ...


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