Reginald DeWayne Hutcherson vs USA , 425 F. App'x 801 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14694 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 26, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cv-08007-KOB-TMP
REGINALD DEWAYNE HUTCHERSON,
llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,
versus
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllRespondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 26, 2011)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Reginald D. Hutcherson pro se appeals the denial of his 28 U.S.C. § 2255
motion to vacate his sentence. Specifically, he argues that his attorney rendered
ineffective assistance at sentencing by failing to object to the recommendation in
the presentence investigation report that Hutcherson’s prior conviction for
“Discharging a Gun Into an Unoccupied Building,” Ala. Code § 13A-11-61, was a
“crime of violence.”
I.
In 2006 Hutcherson pleaded guilty to two counts of distributing a substance
containing cocaine hydrochloride. The PSR recommended that he receive a career
offender enhancement because he had prior convictions for “Discharging a Gun
Into an Unoccupied Building” and “Assault, 1st Degree,” which resulted in a
guidelines range of 151 to 188 months imprisonment. Even with that
enhancement the district court said that the guidelines calculation “under-
represented” Hutcherson’s criminal history. The court sentenced him to 188
months imprisonment. Hutcherson appealed his conviction and sentence, which
we affirmed.
In 2008 Hutcherson filed a 28 U.S.C. § 2255 motion to vacate his sentence,
which the district court denied. The court did, however, grant a certificate of
appealability on the following question:
For purposes of career offender sentencing under the United States
Sentencing Guidelines, is the Alabama Class C felony of firing a gun
into an unoccupied building or vehicle a “crime of violence,” such that
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counsel’s failure to object to movant’s career offender sentencing based
in part on such a felony conviction was not ineffective assistance of
counsel?
II.
“When reviewing the district court’s denial of a § 2255 motion, we review
findings of fact for clear error and questions of law de novo.” Rhode v. United
States, 583 F.3d 1289, 1290 (11th Cir. 2009). An ineffective assistance of counsel
claim is a mixed question of law and fact that is subject to de novo review.
Caderno v. United States, 256 F.3d 1213, 1216–17 (11th Cir. 2001). In order to
succeed on a claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance was deficient and that the deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2064 (1984). The defendant must overcome a strong presumption that “counsel’s
performance was reasonable and adequate.” Caderno, 256 F.3d at 1217.
To establish deficient performance, a defendant must show that counsel was
acting “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. “[W]e must indulge a strong
presumption that counsel’s performance was reasonable and that counsel made all
significant decisions in the exercise of reasonable professional judgment.” Rhode
v. Hall, 582 F.3d 1273, 1280 (11th Cir. 2009). “Thus, the petitioner must establish
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that no competent counsel would have taken the action that his counsel did take.”
Id.
III.
Hutcherson asserts that his prior conviction for discharging a gun into an
unoccupied building does not constitute a “crime of violence” for the purposes of
career-offender sentencing. Because his attorney failed to object to the
classification of the prior conviction as a “crime of violence,” he argues that he
received ineffective assistance of counsel.
We have never held that a prior conviction for discharging a firearm into an
unoccupied building is not a “crime of violence” for purposes of career-offender
sentencing. In United States v. McGill, 450 F.3d 1276, 1280 (11th Cir. 2006), we
stated that even when a crime concerns only the “potential risk of physical injury
rather than the actual use of force against another,” it is still a “crime of violence.”
Id. at 1281. And the Supreme Court has explained that it typically treats crimes
involving “purposeful, violent, and aggressive conduct” as crimes of violence.
Begay v. United States, 553 U.S. 137, 144–45, 128 S. Ct. 1581, 1586 (2008)
(quotations omitted) (citing Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S. Ct. 377, 382
(2004); Taylor v. United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 2158 (1990)).
Accordingly, it was reasonable for Hutcherson’s attorney to believe that firing a
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firearm into a building, even if it proved to be an unoccupied building, is
purposeful, violent, and aggressive conduct that has a potential risk of serious
injury. Because it was reasonable for the attorney to believe that the prior
conviction was a crime of violence, his failure to object to its being treated as such
did not fall outside the wide range of professionally competent counsel.
AFFIRMED.
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