Dwight Bullard v. United States ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0226p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DWIGHT BULLARD, ┐
Petitioner-Appellant, │
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> No. 17-3731
v. │
│
│
UNITED STATES OF AMERICA, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
Nos. 1:14-cr-00411-1; 1:17-cv-00061—James S. Gwin, District Judge.
Argued: August 1, 2019
Decided and Filed: September 4, 2019
Before: GUY, THAPAR, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Samantha M. Goldstein, O’MELVENY & MYERS LLP, Washington, D.C., for
Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee. ON BRIEF: Samantha M. Goldstein, O’MELVENY & MYERS LLP,
Washington, D.C., Anton Metlitsky, O’MELVENY & MYERS LLP, New York, New York, for
Appellant. Rebecca C. Lutzko, Danielle K. Angeli, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee. Dwight Bullard, Lisbon, Ohio, pro se.
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. Dwight Bullard pleaded guilty to distributing heroin and
being a felon in possession of a firearm. At sentencing, the district court determined that Bullard
No. 17-3731 Bullard v. United States Page 2
qualified as a career offender under the Sentencing Guidelines. Bullard now challenges that
determination, arguing that his Arizona conviction for attempting to sell drugs is not a
“controlled substance offense.”
Bullard has a bit of a point. We recently explained, sitting en banc, that “[t]he
Guidelines’ definition of ‘controlled substance offense’ does not include attempt crimes.”
United States v. Havis, 927 F.3d 382, 387 (6th Cir. 2019) (en banc) (per curiam). In other words,
“attempt crimes no longer qualify as controlled substance offenses for purposes of the career
offender enhancement.” United States v. Garrett, 772 F. App’x 311, 311 (6th Cir. 2019) (per
curiam). Indeed, the government admits that “under Havis, Bullard’s attempted transport for sale
of a narcotic drug conviction, under Arizona Revised Statute § 13-3408, would not constitute a
predicate ‘controlled substance offense.’” So if Bullard received his sentence today, he would
not be a career offender under the Guidelines.
But Bullard runs into a problem getting to the merits of his argument: he is not on direct
review. Instead, Bullard filed a § 2255 habeas petition, arguing that the district court
misclassified him as a career offender, which resulted in a higher recommended sentence. This
is not a cognizable claim on collateral review. See Snider v. United States, 908 F.3d 183, 189–91
(6th Cir. 2018) (“[A] non-constitutional challenge to [an] advisory guidelines range suffers from
a greater defect: it is not cognizable under § 2255.”). As a result, Bullard cannot challenge his
classification as a career offender under the Guidelines—and Havis provides no relief on
collateral review.
To get around this prohibition, Bullard also argues that he received ineffective assistance
of counsel because his trial and appellate counsel failed to object to his status as a career
offender. While this claim is at least cognizable under § 2255, it fares no better. Bullard cannot
satisfy his heavy burden under Strickland. As a result, we affirm the denial of Bullard’s petition.
I.
Back in 2014, Bullard was charged with trafficking heroin and for being a felon in
possession of a firearm. The charges followed a search of Bullard’s apartment, where officers
found fifty-two bags of heroin. The officers seized more than 140 grams (or $20,000) worth of
No. 17-3731 Bullard v. United States Page 3
heroin. Bullard was also in possession of a .40 caliber Glock pistol. Bullard moved to suppress
the evidence from his apartment—arguing that the warrant was not supported by probable cause.
The district court denied the motion to suppress, “rul[ing] that probable cause existed to support
the issuance of the warrant, and indicated that the good-faith exception under Leon applied.”
United States v. Bullard, 659 F. App’x 288, 292 (6th Cir. 2016). (See also Mot. Hr’g Tr., R. 62
at 67 (finding probable cause “more than sufficient” to support the warrant).)
Unable to keep the evidence out, Bullard entered a plea deal with the government. The
plea deal recognized that Bullard could face anywhere between ten years to life in prison. But it
omitted any agreement about the appropriate sentencing range under the Guidelines. The plea
deal did, however, recognize that Bullard “may be classified as a career offender based on his
prior criminal record.” (Plea Deal, R. 40 at 5.) Bullard had two prior convictions that could
support a career-offender designation: a 2003 Arizona conviction for attempting to sell cocaine
(under Ariz. Rev. Stat. § 13–3408), and a 2013 Ohio conviction for selling drugs (under Ohio
Rev. Code § 2925.03(A)(2)).
At sentencing, the district court determined that Bullard qualified as a career offender.
This set Bullard’s recommended range at 292 to 365 months in prison. (Sentencing Hr’g Tr., R.
65 at 3.) Without the enhancement, Bullard’s sentencing range would have been 92 to 115
months. But these sentencing ranges under the Guidelines are, of course, just advisory. And the
district court ultimately varied downward, sentencing Bullard to 140 months in prison—i.e.,
“significantly below the guideline range.” (Id. at 16.) In doing so, it recognized that although
Bullard had a “long history of dealing drugs,” he was still “kind of a low-level guy.” (Id. at 6.)
The downward variance tracked Bullard’s argument at sentencing: while he agreed that the
Arizona and Ohio convictions made him a career offender, he argued that he was not “an
authentic career offender.” (Id. at 12.) In other words, the district court believed Bullard that he
was not as bad as your typical (and often violent) career criminal.
Bullard waived most his appellate rights—reserving the right to appeal just four issues.
Among those four, only two applied: the right to appeal “any determination by the Court that
defendant qualifies as a Career Offender,” and “the denial of [the] motion to suppress.” (Plea
Deal, R. 40 at 7.) On direct appeal, Bullard decided to appeal only the latter, and we affirmed.
No. 17-3731 Bullard v. United States Page 4
Bullard then filed a § 2255 habeas petition—arguing that the district court misclassified
him as a career offender under the Guidelines—and that he received ineffective assistance of
counsel when his trial and appellate counsel failed to challenge this designation. Bullard
provided two theories on why the Arizona conviction did not qualify as a “controlled substance
offense.” First, the Arizona statute criminalized drugs (benzylfentanyl and thenylfentanyl) that
are not federally controlled. And second, the Arizona statute criminalized conduct (attempts to
sell drugs) that falls outside the Guidelines’ definition. See U.S.S.G. § 4B1.1. Simply put,
Bullard argued that Arizona’s statute is too broad to qualify. Bullard also challenged his Ohio
conviction for selling drugs.
The district court denied the petition, explaining that the state convictions qualified as
“controlled substance offenses.” (Op. & Order, R. 76.) This also defeated Bullard’s ineffective
assistance claim: because the district court properly classified Bullard as a career offender, he
could not show prejudice in his failure-to-object claim. We granted Bullard’s application for a
certificate of appealability, but only for his claims related to the Arizona conviction. We review
the trial court’s factual findings for clear error and its legal conclusions de novo. Cradler v.
United States, 891 F.3d 659, 664 (6th Cir. 2018). And we examine de novo whether a prior
conviction counts as a predicate offense under the Guidelines. Havis, 927 F.3d at 384.
II.
Section 2255 does not provide relief for just any alleged error. Instead, we can grant
habeas relief under § 2255 only in a narrow set of circumstances: “when a sentence ‘was
imposed in violation of the Constitution or laws of the United States, or . . . the court was
without jurisdiction to impose such a sentence, or . . . the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack[.]’” Snider, 908 F.3d at
189 (quoting 28 U.S.C. § 2255(a)). To start, Bullard brings no constitutional challenge. Nor
does Bullard challenge the jurisdiction of the district court. And his sentence was below the
maximum he faced—life in prison. See 28 U.S.C. § 841(b)(1)(B).
This leaves just the last option—a “collateral attack.” When a § 2255 claim falls under
this category, the claim is “generally cognizable only if [it] involved ‘a fundamental defect
No. 17-3731 Bullard v. United States Page 5
which inherently results in a complete miscarriage of justice.’” Snider, 908 F.3d at 189 (quoting
Davis v. United States, 417 U.S. 333, 346 (1974)). To meet this demanding standard, a prisoner
typically must “prove that he is either actually innocent of his crime or that a prior conviction
used to enhance his sentence has been vacated.” Spencer v. United States, 773 F.3d 1132, 1139
(11th Cir. 2014) (en banc); accord Snider, 908 F.3d at 190–91 (analyzing United States v. Foote,
784 F.3d 931, 940–43 (4th Cir. 2015)). But Bullard does not allege that he is actually innocent
of his crimes. Nor does he claim that Arizona vacated his conviction for attempting to sell
cocaine.
Rather, Bullard alleges that his career-offender designation is erroneous under the
advisory Sentencing Guidelines. This is fatal to his claim. We recently rejected an almost
identical § 2255 claim, where the defendant “allege[d] that an intervening change in the law
rendered his career offender designation erroneous.” Snider, 908 F.3d at 191. In doing so, we
relied on the Fourth Circuit’s decision in Foote, which explained why these “misapplication-of-
the-guidelines-range” claims are not cognizable on collateral review. See id. (analyzing Foote,
784 F.3d at 940–43). The Fourth Circuit was skeptical that a “complete miscarriage of justice”
could ever occur when a district court is simply exercising its discretion in sentencing under the
now-advisory Guidelines. Foote, 784 F.3d at 940–42.
This makes sense. Misapplication-of-the-guidelines-range claims challenge the district
court’s choice between alternative sentences “under an advisory Guidelines scheme.” Id. at 941
(emphasis original). Indeed, the Guidelines are just “meant to guide the district court to the
proper sentence.” Id. But the district court is free to vary from the Guidelines—and can impose
a sentence at, below, or above the Guidelines. See United States v. Booker, 543 U.S. 220, 245
(2005). For example, if a defendant is a career offender and the Guidelines recommend a long
sentence, the district court can nevertheless impose a much shorter sentence. That’s exactly what
happened to Bullard. But the opposite is also true. If a defendant does not have a career-
offender designation and the Guidelines recommend a short sentence, the district court still has
the discretion to impose a much longer sentence. See Foote, 784 F.3d at 942 (giving examples of
upward variances supported by § 3553(a) factors). This discretion confirms the absence of any
No. 17-3731 Bullard v. United States Page 6
“miscarriage of justice” in Guidelines calculations: a district court can lawfully impose the same
sentence with or without the career offender designation.
We agreed with this reasoning in Snider, explaining that “[a]lthough the career
designation may have affected the ultimate sentence imposed, ‘it did not affect the lawfulness of
the [sentence] itself—then or now.’” 908 F.3d at 191 (quoting United States v. Addonizio,
442 U.S. 178, 187 (1979) (brackets original)). Bullard asks us to distinguish Snider because the
defendant’s Guidelines range in Snider, unlike his own, “would have been the same absent the
career-offender designation.” (Appellee’s Br. at 48–49 n.14.) But that is not entirely accurate.
In Snider, “[w]ith the career offender designation, Snider’s guidelines range was 360 months to
life.” 908 F.3d at 186. “However, without the career offender designation, . . . Snider’s resulting
advisory guidelines range was 262 to 327 months.” Id. But the district court eventually
sentenced Snider to just 300 months—i.e., within his lower non-career-offender range. Still,
despite the below-Guidelines sentence, Snider filed a § 2255 challenging his career-offender
designation.
In affirming the dismissal of his § 2255 petition, we noted the lack of prejudice in
Snider’s sentence: “Snider’s 300-month sentence is within the middle of [the allegedly correct]
range.” Id. at 191 (quoting Davis, 417 U.S. at 346). So Snider could not possibly meet his
demanding burden under § 2255 to show a “miscarriage of justice” because his sentence fell
within the Guidelines range he wanted: 262 to 327 months. In other words, even if Snider was
correct about his career-offender status, it didn’t matter. To be sure, Snider’s Guideline range
would have been lower without the career-offender designation. But because the district court
deviated from Snider’s “360 months to life” career-offender range, he already received a
sentence within his non-career-offender-Guidelines range.
Bullard argues that his sentence is different than Snider—and that this difference allows
him to bring a § 2255 claim. While the district court sentenced Snider within his non-career-
offender-Guidelines range (of 262 to 327 months), Bullard received a sentence higher than his
non-career-offender-Guidelines range (of 92 to 115 months). So even though the district court
gave Bullard a sentence substantially below his career-offender range (140 months instead of
292 to 365 months), it still did not deviate as low as the district court in Snider.
No. 17-3731 Bullard v. United States Page 7
But this difference does not matter—and for good reason. As the Fourth Circuit
explained in Foote, if an inmate’s ability to challenge his Guidelines range under § 2255 depends
on a comparison between the actual sentence and the allegedly correct Guidelines range, “it is
hard to fathom what the dividing line would be between a fundamental defect and mere error.”
784 F.3d at 943. This would leave courts “to guess about which types of guideline error could be
corrected on collateral review.” Spencer, 773 F.3d at 1140. For example, the career-offender
designation in Foote “increased dramatically [the defendant’s] advisory Guidelines range”—
jumping from “151–188 to 262–327 months in prison.” 784 F.3d at 933, 944. And the district
court ultimately sentenced the defendant to 262 months, with no deviation from the career-
offender range. Id. at 933. This resulted in almost a forty percent increase in the defendant’s
otherwise top-of-the-Guidelines sentence (without the career-offender designation). So while the
defendant in Snider received a sentence “within-the-correct-Guidelines” range, so to speak, the
defendant in Foote certainly did not. Still, neither court thought the sentence involved a
miscarriage of justice.
Bullard finds himself somewhere in the middle. With the district court’s downward
variance, he received a sentence roughly twenty-two percent above his otherwise top-of-the-
Guidelines sentence (without the career-offender designation). So while Bullard’s sentence is
higher than Snider, it is much lower than Foote. This comparative line-drawing exercise just
highlights (all over again) the problem with these types of § 2255 claims: the district court’s
broad discretion in sentencing under the advisory Guidelines. Some sentences will be high,
others will be low. See United States v. Johnson, No. 18-3720, 2019 WL 3788232, at *3 (6th
Cir. Aug. 13, 2019) (“Any system of advisory guidelines will lead to all kinds of variations that
affect individual criminal defendants, sometimes in their favor, sometimes not.”). But in all
these scenarios, the district court could, with its discretion, impose an identical sentence even
without the career-offender designation, and the sentence could remain lawful. See Foote,
784 F.3d at 941 (“Thus, even if we vacate and remand at this juncture, the same sentence could
be legally imposed.”). And a lawful sentence does not create a miscarriage of justice. Spencer,
773 F.3d at 1138 (citing United States v. Addonizio, 442 U.S. 178, 186–87 (1979)).
No. 17-3731 Bullard v. United States Page 8
So rather than speculate about when, if ever, an incorrect designation under the advisory
Guidelines could create a “fundamental miscarriage of justice,” the better practice is to broadly
repeat what we said in Snider: “[a] misapplication-of-an-advisory-guidelines-range claim
is . . . not cognizable under § 2255.” 908 F.3d at 191. Indeed, every circuit to “look[ ] at the
issue has agreed that a defendant cannot use a § 2255 motion to vindicate non-constitutional
challenges to advisory guideline calculations.” Id.; see also, e.g., Foote, 784 F.3d at 932 (same);
Spencer, 773 F.3d at 1135 (same); Hawkins v. United States, 706 F.3d 820, 824–25 (7th Cir.
2013) (same); Sun Bear v. United States, 644 F.3d 700, 704–06 (8th Cir. 2011) (en banc) (same);
United States v. Williamson, 183 F.3d 458, 461–62 (5th Cir. 1999) (same). As a result, Bullard
cannot use § 2255—or our decision in Havis—to attack collaterally his designation as career
offender under the Sentencing Guidelines. Both are best left for direct review.
III.
This leaves Bullard’s claim for ineffective assistance of counsel, “which is cognizable
under § 2255.” Snider, 908 F.3d at 192. To succeed on this claim, Bullard “must establish two
things.” Monea v. United States, 914 F.3d 414, 419 (6th Cir. 2019). “First, that the attorney’s
performance fell below ‘prevailing professional norms.’” Id. (quoting Kimmelman v. Morrison,
477 U.S. 365, 381 (1986)). “And second, that the attorney’s poor performance prejudiced the
defendant’s case.” Id. But we need not address both elements. Indeed, ineffectiveness claims
are often disposed of for lack of sufficient prejudice because “[p]roving prejudice is not easy.”
Id. Defendants “face[ ] a ‘high burden’ in demonstrating ‘that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Id. (quoting Davis v. Lafler, 658 F.3d 525, 536 (6th Cir. 2011)).
Bullard argues that his attorneys made the same mistake twice. At sentencing, his
attorney did not object when the district court labeled him a career offender. And then on direct
appeal, his attorney did not challenge Bullard’s career offender enhancement. In both instances,
Bullard argues that his attorneys should have raised the same two arguments he now makes in his
§ 2255 petition about his Arizona conviction: the overbroad drugs and conduct.
No. 17-3731 Bullard v. United States Page 9
We start with the easier claim first—the conduct. Bullard argues that his Arizona
conviction is not a controlled substance offense because he was attempting to sell drugs.
Following our decision in Havis, Bullard is correct. See 927 F.3d at 387 (“The text of § 4B1.2(b)
controls, and it makes clear that attempt crimes do not qualify as controlled substance
offenses.”). But looking back to when the district court sentenced Bullard and when he filed his
direct appeal, as we must, our caselaw was different. Snider, 908 F.3d at 192 (quoting Strickland
v. Washington, 466 U.S. 668, 688–89 (1984) (“We assess counsel’s performance based on
‘counsel’s perspective at the time’ . . . rather than ‘in the harsh light of hindsight[.]’”)). At that
time, our decision in Evans held the opposite: “offering to sell a controlled substance constitutes
an attempt to distribute a controlled substance, and thus a conviction under the statute
categorically qualifies as a controlled substance offense.” United States v. Evans, 699 F.3d 858,
868 (6th Cir. 2012). And “[w]e have repeatedly held that counsel is not ineffective for failing to
predict developments in the law.” Snider, 908 F.3d at 192 (collecting cases).1 As a result,
Bullard’s ineffectiveness claim on the conduct argument fails under the first prong: it was
reasonable for his attorneys not to object.
Next, Bullard argues that the Arizona statute does not qualify as a controlled substance
offense because Arizona criminalizes two drugs (benzylfentanyl and thenylfentanyl) that are not
criminalized on the federal level. To explain why his attorneys should have made this argument,
Bullard points to several cases from our sister circuits, which explain that “‘controlled substance’
refers exclusively to a substance controlled by the [federal government].” United States v.
Townsend, 897 F.3d 66, 72 (2d Cir. 2018) (collecting cases from 2011–2015). In response, the
government cites caselaw we developed after Bullard’s direct appeal, which comes to the
1Bullard briefly argues that his Arizona drug conviction is not a controlled substance offense even under
Evans. (Appellant’s Br. at 41–43.) Evans found that the Ohio statute at issue required an “intent to sell a controlled
substance,” as opposed to a mere “intent to offer to sell.” 699 F.3d at 867. In other words, the Ohio statute did not
criminalize fraudulent offers to sell drugs—i.e., a scam, where the seller had no intention of actually distributing the
drugs. Id. (distinguishing United States v. Savage, 542 F.3d 959, 965–66 (2d Cir. 2008) (“An offer to sell can be
fraudulent, such as when one offers to sell the Brooklyn Bridge.”)). Bullard argues that Arizona does criminalize
such fraudulent offers—so the statute is too broad even under Evans. But Arizona courts have explained the
opposite: the requirement that the defendant “knowingly” offer to sell drugs prevents Arizona from “punish[ing]
persons whose ‘offers’ are ‘fraudulent, insincere or made in jest.’” State v. Strong, 875 P.2d 166, 167 (Ariz. Ct.
App. 1993); see also State v. Alvarado, 875 P.2d 198, 201 (Ariz. Ct. App. 1994) (“Appellant could not be convicted
of offering to sell marijuana . . . if his only intention was to take [the] money and disappear.”). With this backdrop,
it was reasonable for Bullard’s attorney not to object on this ground.
No. 17-3731 Bullard v. United States Page 10
opposite conclusion: “there is no requirement that the particular controlled substance underlying
a state conviction also be controlled by the federal government.” United States v. Smith, 681 F.
App’x 483, 489 (6th Cir. 2017).
To be sure, this is a harder question to answer (at least on the prejudice question),
especially because there is some pre-2015 caselaw (though non-binding caselaw) to support part
of Bullard’s argument. See, e.g., United States v. Gomez-Alvarez, 781 F.3d 787 (5th Cir. 2015);
United States v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012); United States v. Sanchez-Garcia,
642 F.3d 658 (8th Cir. 2011). But on collateral review, Bullard’s argument is not as
straightforward as he would like. It does not matter only whether Bullard’s argument could have
been a winner. Instead, Bullard must satisfy a demanding standard: he must show that “the
likelihood of a different result [was] substantial, not just conceivable.” Storey v. Vasbinder, 657
F.3d 372, 379 (6th Cir. 2011) (citation omitted).
Here, Bullard arguably cannot show the latter, much less the former. Indeed, at the time
of Bullard’s sentence and direct appeal, we had yet to address whether a “controlled substance
offense” can include substances that are not criminalized under federal law. Since then, we
remain conflicted whether such statutes qualify. Compare Smith, 681 F. App’x at 489, with
United States v. Pittman, 736 F. App’x 551, 554 (6th Cir. 2018). And “[w]e have not yet taken
up this question in a published opinion.” United States v. Solomon, 763 F. App’x 442, 447 (6th
Cir. 2019) (recognizing disagreement between Smith and Pittman but refusing to resolve it
because the Ohio statute at issue was divisible as to drug type). Nor has the Supreme Court
addressed this question.
Take also the Second Circuit’s decision in United States v. Townsend, 897 F.3d 66 (2d
Cir. 2018). Bullard cites Townsend to suggest that the “great weight” of authority supports his
position. (Appellant’s Br. at 25.) But as Townsend explains, before it resolved the overbroad-
drug question (recently in 2018), several district courts within the Second Circuit concluded that
a “conviction for an offense involving a substance controlled only under state law would qualify”
as a controlled substance offense. 897 F.3d at 70 (citing United States v. Laboy, No. 16-cr-669,
2017 WL 6547903, at *3 (S.D.N.Y. Dec. 20, 2017) (“Absent the importation of the word
‘federal’ into the Guidelines definition at issue here, there is no reason to believe that offenses
No. 17-3731 Bullard v. United States Page 11
under state law would be limited to those drugs regulated by federal law.”)). Said another way,
the law did not plainly support Bullard’s position.
Remember also, Bullard pleaded guilty to trafficking cocaine—a federally controlled
substance. So if the Arizona statute is divisible by drug type, he remains a career offender
(making any objection futile). This fact alone could explain why Bullard’s counsel did not
object to the enhancement. Bullard relies on pre-2015 caselaw that unanimously affirmed
career-criminal enhancements because the defendants in each case sold drugs criminalized at
both state and federal levels. Gomez-Alvarez, 781 F.3d at 796 (enhancement still applied
because the conviction was for heroin); Sanchez-Garcia, 642 F.3d at 662 (enhancement still
applied because the conviction was for meth); Leal-Vega, 680 F.3d at 1169 (enhancement still
applied because the conviction was for tar heroin). And as the government explains, there is
significant support that the Arizona statute is likewise divisible. (See Appellee’s Br. at 29–33
(citing State v. Wright, 239 P.3d 1122, 1122–23 (Ariz. Ct. App. 2016) (upholding two counts of
possession of a narcotic drug arising out of a single incident because the officers found two
different drug types: crack cocaine and heroin)).) See also United States v. Esquival-Centeno,
632 F. App’x 233, 234 (5th Cir. 2016) (per curiam) (affirming enhancement when the
defendant’s “conviction was for the specific offense of attempted transport of cocaine”). Put
differently, it is not substantially likely, had Bullard’s attorney objected to the Arizona statute
using the overbroad-drug argument, that the district court would have dropped his enhancement
as a career offender.
In sum, it is enough to say that this is a tough question. Indeed, our circuit has yet to
publish a decision to resolve our intra-circuit disagreement. Solomon, 763 F. App’x at 447. So
while we might agree with Bullard’s argument—and while the district court might have decided
to drop the enhancement had Bullard objected—that is not enough on collateral review.
In addition, with such uncertainty in the caselaw, it was reasonable for his trial counsel
not to object on this ground. And to be sure, Bullard’s trial counsel was not silent about his
career offender status at sentencing. Instead, he argued that Bullard was not “an authentic career
offender” (Sentencing Tr., R. 65 at 12–13), which yielded positive results: the district court gave
Bullard a sentence 152-months below the Guidelines, commenting that Bullard was “kind of a
No. 17-3731 Bullard v. United States Page 12
low-level guy” who did not have “the typical background of people who qualify [as] a career
offender[.]” (Id. at 6, 9–10, 16–17.) In other words, Bullard’s trial counsel was successful at
sentencing—cutting his client’s sentence by more than fifty percent. This was not ineffective
assistance of counsel.
To show ineffective assistance of counsel on his direct appeal, Bullard faces an even
higher hurdle: plain error review. See United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir.
1998) (applying plain error when defendant fails to object at sentencing). As we explained, “a
lack of binding case law that answers the question presented will also preclude our finding of
plain error.” United States v. Al-Maliki, 787 F.3d 784, 795 (6th Cir. 2015). So without binding
precedent for his appeal (to overcome plain error review), Bullard cannot show that his appellate
counsel performed deficiently, or that he suffered prejudice, when his appellate counsel failed to
appeal his career offender enhancement. Thus, Bullard’s ineffectiveness claim on the drug-
mismatch argument fails under both prongs of Strickland.
* * *
We affirm the district court.