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United States v. Winbush

United States Court of Appeals, Fourth Circuit

April 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANTWAUN MAURICE WINBUSH, a/k/a Nick, a/k/a Antwaun Winbush, Defendant-Appellant.

          Argued: March 19, 2019

          Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:10-cr-00200-1; 2:13-cv-24112)

         ARGUED:

          Rajesh Ram Srinivasan, KATTEN MUCHIN ROSENMAN LLP, Washington, D.C., for Appellant.

          Drew Oliver Inman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

         ON BRIEF:

          Robert T. Smith, KATTEN MUCHIN ROSENMAN LLP, Washington, D.C., for Appellant.

          Michael B. Stuart, United States Attorney, John J. Frail, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

          Before GREGORY, Chief Judge, DIAZ, and HARRIS, Circuit Judges.

          GREGORY, CHIEF JUDGE:

         This appeal stems from the district court's dismissal of Antwaun Winbush's petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. Winbush brought a claim for ineffective assistance of counsel based on his counsel's failure to challenge his designation as a career offender under the Sentencing Guidelines. The district court found that one of the predicate offenses identified by the State did not qualify as a crime of violence and thus could not support a career offender designation. The district court nevertheless found no prejudice from counsel's error, because it concluded that the career offender designation could be supported by another conviction in Winbush's record, even though the State did not identify this conviction as a basis for the designation at sentencing. Winbush argues on appeal that this substitution was impermissible under our jurisprudence and at any rate that his conviction for robbery does not qualify as a crime of violence. Because the district court erred in substituting a previously unidentified conviction to sustain Winbush's career offender designation, we reverse and remand with direction to resentence Winbush without a career offender enhancement.

         I.

         In 2011, Winbush pleaded guilty to one count of possession with intent to distribute cocaine base. Under an appellate waiver included in the plea agreement, Winbush retained his right to object to the district court's determination of the Sentencing Guidelines range and to raise an ineffective assistance of counsel claim on direct appeal or collateral review.

         At the sentencing hearing, the district court determined that Winbush was a career offender under United States Sentencing Guidelines (USSG) § 4B1.1 based on two prior felony convictions of controlled substance offenses: trafficking cocaine and illegal conveyance of drugs onto the grounds of a detention facility. The district court sentenced Winbush to 151 months in ...


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