NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2211 _____________
UNITED STATES OF AMERICA
v.
FELIX DOMINGUEZ-RIVERA, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-14-cr-00088-001) District Judge: Honorable John E. Jones, III _______________
Submitted Under Third Circuit LAR 34.1(a) April 3, 2020
Before: GREENAWAY, JR., PORTER, MATEY, Circuit Judges.
(Filed: April 22, 2020 ) _______________
OPINION * _______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Felix Dominguez-Rivera says his attorney provided ineffective assistance, failing
to argue against a career-offender enhancement. The Government agrees that the career-
offender enhancement should not have been applied to Dominguez-Rivera but does not
believe that error affected Dominguez-Rivera’s sentence. We conclude that the record
shows prejudicial ineffective assistance and agree with Dominguez-Rivera that
resentencing is necessary. So we will vacate and remand.
I. BACKGROUND
No facts are in dispute. Felix Dominguez-Rivera pleaded guilty to distribution and
possession with intent to distribute 100 grams or more of heroin and 28 grams or more of
cocaine, and possession of a firearm as a felon. The Presentence Investigation Report
(“PSR”) calculated a total offense level of 31 and a criminal history category VI, leading
to an advisory Guidelines range of 188–235 months’ imprisonment. As part of that
computation, the PSR treated Dominguez-Rivera as a career offender based on, among
other things, a prior Connecticut drug conviction. Although Dominguez-Rivera’s counsel
raised several objections at sentencing, he did not challenge whether the Connecticut drug
conviction constitutes a predicate offense for a career-offender enhancement. Instead, he
argued that there were no “judicially noticeable documents that would show that Mr.
Dominguez Rivera[] was convicted under a qualifying statute,” (App. at 41–42), which
was strange given the documentation provided by the Government. And while the District
Court accepted some of counsel’s arguments, the Court did not disturb the career-offender
2 enhancement, finding Dominguez-Rivera had two qualifying predicates, including his
Connecticut drug conviction.
The career-offender enhancement automatically raised Dominguez-Rivera’s
criminal history to category VI. U.S.S.G. § 4B.1(b). At sentencing, the District Court
departed downward to a criminal history category V. 1 That produced an advisory
Guidelines range of 168–210 months’ incarceration. The District Court then sentenced
Dominguez-Rivera to 168 months’ confinement, stating, “I think a sentence within the
guidelines is warranted and I’m going to sentence you at the bottom of the guidelines, the
advisory guidelines that you find yourself in[,]” and that that anything more would be
“unfair and gratuitous,” anything less “would depreciate the seriousness of the crime.”
(D.C. Dkt. No. 113 at 26–27.)2
Dominguez-Rivera appealed his conviction and sentence, but this Court dismissed
the appeal, citing the appellate waiver in his plea agreement. He then filed a pro se motion
to vacate his sentence, challenging the career-offender enhancement. The District Court
denied the motion. We granted a certificate of appealability on two issues: 1) “his claim
that sentencing counsel failed to argue that appellant’s 1996 conviction under Conn. Gen.
1 A career-offender enhancement permits only a one-level downward departure. U.S.S.G. § 4A1.3(b)(3)(A). 2 We note that the Government quoted from parts of the sentencing transcript that were not included in the appendix. While the transcript is obviously part of the record on appeal, we remind the Government of its obligation under Fed. R. App. P. 30(b) to designate those “parts [of the record] to which it wishes to direct the court’s attention.” We also remind Appellant of his obligation under that same rule to “include the designated parts in the appendix.” 3 Stat. § 21a-277(a) does not constitute a ‘controlled substance offense’ as defined in
U.S.S.G. § 4B1.2(b) for purposes of the career-offender Sentencing Guideline, U.S.S.G.
§ 4B1.1” and 2) “on his alternative claim that, if Mathis permits application of the modified
categorical approach to Conn. Gen. Stat. § 21a-277(a), cf. United States v. Hinkle, 832 F.3d
569, 574–76 (5th Cir. 2016), then counsel failed to effectively argue that the conviction
documents of record did not permit application of the modified categorical approach in this
case.” 3 (App. at 22.)
II. COUNSEL’S INEFFECTIVE ASSISTANCE DURING SENTENCING
Ineffective assistance of counsel requires a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). That demands a showing that
counsel’s conduct was unreasonable, resulting in prejudice. Gov’t of Virgin Islands v.
Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
A. Sentencing Counsel’s Failure to Cite Relevant Law Was Deficient
Conduct is deficient where the errors are “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. For example, where an attorney “fails to object to an improper
enhancement under the Sentencing Guidelines, counsel has rendered ineffective
assistance.” Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004). That imposes a
3 The District Court had subject matter jurisdiction under 28 U.S.C. § 2255 and we have jurisdiction under 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291. We exercise plenary review over legal issues and review factual findings for clear error. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014). 4 “duty to make reasonable investigations of the law” and “cite favorable decisions.” United
States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007). So failing to raise “readily available”
authorities may be deficient. Id.
Here, counsel should have raised relevant case law to challenge the career-offender
sentencing enhancement. For the enhancement to apply, there must be two qualifying
predicate offenses. U.S.S.G. § 4B1.1(a). At issue is whether Dominguez-Rivera’s
Connecticut drug conviction under Conn. Gen. Stat.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2211 _____________
UNITED STATES OF AMERICA
v.
FELIX DOMINGUEZ-RIVERA, Appellant _______________
On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 1-14-cr-00088-001) District Judge: Honorable John E. Jones, III _______________
Submitted Under Third Circuit LAR 34.1(a) April 3, 2020
Before: GREENAWAY, JR., PORTER, MATEY, Circuit Judges.
(Filed: April 22, 2020 ) _______________
OPINION * _______________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Felix Dominguez-Rivera says his attorney provided ineffective assistance, failing
to argue against a career-offender enhancement. The Government agrees that the career-
offender enhancement should not have been applied to Dominguez-Rivera but does not
believe that error affected Dominguez-Rivera’s sentence. We conclude that the record
shows prejudicial ineffective assistance and agree with Dominguez-Rivera that
resentencing is necessary. So we will vacate and remand.
I. BACKGROUND
No facts are in dispute. Felix Dominguez-Rivera pleaded guilty to distribution and
possession with intent to distribute 100 grams or more of heroin and 28 grams or more of
cocaine, and possession of a firearm as a felon. The Presentence Investigation Report
(“PSR”) calculated a total offense level of 31 and a criminal history category VI, leading
to an advisory Guidelines range of 188–235 months’ imprisonment. As part of that
computation, the PSR treated Dominguez-Rivera as a career offender based on, among
other things, a prior Connecticut drug conviction. Although Dominguez-Rivera’s counsel
raised several objections at sentencing, he did not challenge whether the Connecticut drug
conviction constitutes a predicate offense for a career-offender enhancement. Instead, he
argued that there were no “judicially noticeable documents that would show that Mr.
Dominguez Rivera[] was convicted under a qualifying statute,” (App. at 41–42), which
was strange given the documentation provided by the Government. And while the District
Court accepted some of counsel’s arguments, the Court did not disturb the career-offender
2 enhancement, finding Dominguez-Rivera had two qualifying predicates, including his
Connecticut drug conviction.
The career-offender enhancement automatically raised Dominguez-Rivera’s
criminal history to category VI. U.S.S.G. § 4B.1(b). At sentencing, the District Court
departed downward to a criminal history category V. 1 That produced an advisory
Guidelines range of 168–210 months’ incarceration. The District Court then sentenced
Dominguez-Rivera to 168 months’ confinement, stating, “I think a sentence within the
guidelines is warranted and I’m going to sentence you at the bottom of the guidelines, the
advisory guidelines that you find yourself in[,]” and that that anything more would be
“unfair and gratuitous,” anything less “would depreciate the seriousness of the crime.”
(D.C. Dkt. No. 113 at 26–27.)2
Dominguez-Rivera appealed his conviction and sentence, but this Court dismissed
the appeal, citing the appellate waiver in his plea agreement. He then filed a pro se motion
to vacate his sentence, challenging the career-offender enhancement. The District Court
denied the motion. We granted a certificate of appealability on two issues: 1) “his claim
that sentencing counsel failed to argue that appellant’s 1996 conviction under Conn. Gen.
1 A career-offender enhancement permits only a one-level downward departure. U.S.S.G. § 4A1.3(b)(3)(A). 2 We note that the Government quoted from parts of the sentencing transcript that were not included in the appendix. While the transcript is obviously part of the record on appeal, we remind the Government of its obligation under Fed. R. App. P. 30(b) to designate those “parts [of the record] to which it wishes to direct the court’s attention.” We also remind Appellant of his obligation under that same rule to “include the designated parts in the appendix.” 3 Stat. § 21a-277(a) does not constitute a ‘controlled substance offense’ as defined in
U.S.S.G. § 4B1.2(b) for purposes of the career-offender Sentencing Guideline, U.S.S.G.
§ 4B1.1” and 2) “on his alternative claim that, if Mathis permits application of the modified
categorical approach to Conn. Gen. Stat. § 21a-277(a), cf. United States v. Hinkle, 832 F.3d
569, 574–76 (5th Cir. 2016), then counsel failed to effectively argue that the conviction
documents of record did not permit application of the modified categorical approach in this
case.” 3 (App. at 22.)
II. COUNSEL’S INEFFECTIVE ASSISTANCE DURING SENTENCING
Ineffective assistance of counsel requires a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 694 (1984). That demands a showing that
counsel’s conduct was unreasonable, resulting in prejudice. Gov’t of Virgin Islands v.
Nicholas, 759 F.2d 1073, 1081 (3d Cir. 1985).
A. Sentencing Counsel’s Failure to Cite Relevant Law Was Deficient
Conduct is deficient where the errors are “so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. For example, where an attorney “fails to object to an improper
enhancement under the Sentencing Guidelines, counsel has rendered ineffective
assistance.” Jansen v. United States, 369 F.3d 237, 244 (3d Cir. 2004). That imposes a
3 The District Court had subject matter jurisdiction under 28 U.S.C. § 2255 and we have jurisdiction under 28 U.S.C. § 2253(a) and 28 U.S.C. § 1291. We exercise plenary review over legal issues and review factual findings for clear error. United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014). 4 “duty to make reasonable investigations of the law” and “cite favorable decisions.” United
States v. Otero, 502 F.3d 331, 336 (3d Cir. 2007). So failing to raise “readily available”
authorities may be deficient. Id.
Here, counsel should have raised relevant case law to challenge the career-offender
sentencing enhancement. For the enhancement to apply, there must be two qualifying
predicate offenses. U.S.S.G. § 4B1.1(a). At issue is whether Dominguez-Rivera’s
Connecticut drug conviction under Conn. Gen. Stat. § 21a-277(a) qualifies under U.S.S.G.
§ 4B1.2(b) as a predicate offense. That determination turns on a “categorical approach”
that examines whether the state statute’s “elements are the same as, or narrower than, those
of the generic offense.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). At least one
court has explained that Conn. Gen. Stat. § 21a-277(b) 4 is broader than the Guidelines
definition of a controlled substance offense under U.S.S.G. § 4B1.2(b), because a “sale” of
drugs under Connecticut law includes mere offers to sell, unlike the Guidelines. United
States v. Savage, 542 F.3d 959, 964–66 (2d Cir. 2008). Arguably, this authority suggests
that Dominguez-Rivera’s Connecticut conviction is not a predicate offense.
The “modified categorical approach” casts similar doubt. Under that test, where a
statute is “divisible,” containing “alternative elements,” but not when it only outlines
“alternative means,” Mathis, 136 S. Ct. at 2249; see also United States v. Williams, 898
F.3d 323, 333 (3d Cir. 2018), a sentencing court may consider the charging documents and
similar materials to decide whether they clarify the elements of the conviction. Shepard v.
4 The relevant language in Conn. Gen. Stat. § 21a-277(b) is identical to the language in Conn. Gen. Stat. § 21a-277(a), which is the statute at issue in this case. 5 United States, 544 U.S. 13, 16 (2005). And if those elements match the Guidelines
definition of a predicate offense, then the state conviction qualifies as a predicate offense
too.
Here, the only relevant charging documents are the indictment for “Possession of
Heroin with Intent to Sell” (App. at 46), an arrest warrant (App. at 45), and a judgment of
conviction for “Sale of Hallucinogen/Narcotic” (App. at 44). Savage is again instructive
on how we should read “sell” in a Connecticut law. 542 F.3d at 964–66. That is, a sale is
to be read broadly to include mere offers to sell. Id. at 965. So Dominguez-Rivera’s
conviction could involve only an offer to sell heroin or possession with intent to offer
heroin, each of which falls outside the Guidelines. See U.S.S.G. § 4B1.2(b); 21 U.S.C.
§ 802(11) (defining “distribute” to mean “to deliver . . . a controlled substance” and
“dispense” to mean “to deliver a controlled substance to an ultimate user”). As the charging
documents do not make clear what Dominguez-Rivera pleaded guilty to, his conviction is
not a qualifying predicate offense under the modified categorical approach either. United
States v. Johnson, 587 F.3d 203, 209 (3d Cir. 2009) (when reviewing Shepard charging
documents, we are looking to determine “the specific part of [the statute] to which [the
defendant] in fact pled guilty”).
And counsel should have raised at least one of these arguments before the
sentencing court. Savage and Mathis both predate Dominguez-Rivera’s sentencing. There
is no legitimate strategic purpose in declining to cite both of these cases, particularly since
counsel did challenge the career-offender designation on other grounds. See Strickland,
466 U.S. at 689. All the more so, given the appellate waiver included in the plea agreement.
6 Taken together, we conclude counsel’s failure to raise an argument against the applicability
of a career-offender designation was deficient performance.
B. Sentencing Counsel’s Deficient Conduct Likely Prejudiced Dominguez-Rivera
Dominguez-Rivera must also show that, if counsel had raised a challenge under
Savage and Mathis to his career-offender designation, there is a reasonable probability that
the “result of the proceeding would have been different.” Id. at 694. An error in calculating
a Guidelines range “can, and most often will, be sufficient to show a reasonable probability
of a different outcome absent the error.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1907 (2018) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016)).
Here, counsel’s error materially disadvantaged Dominguez-Rivera in several ways.
First, without the career-offender designation, the criminal history level would be
IV instead of V, producing an advisory Guidelines range of 155–188 months’
imprisonment instead of 168–210 months. Second, without the enhancement, the District
Court has an option to depart downward again. Finally, though the District Court explained
its reasoning for a 168-month sentence, we have noted that “an erroneous calculation of
the defendant’s base offense level or criminal history will not be harmless, particularly
when the sentence imposed suggests that the district court chose to adhere to the advisory
Guidelines range.” United States v. Zabielski, 711 F.3d 381, 387 (3d Cir. 2013). Here, the
District Judge did just that when he stated “I think a sentence within the guidelines is
warranted . . . .” (D.C. Dkt. No. 113 at 26–27.) In all, there is a sufficient likelihood that
the error impacted the outcome thereby prejudicing Dominguez-Rivera.
7 III. CONCLUSION
As Dominguez-Rivera meets both prongs under Strickland for ineffective assistance
of counsel, we will vacate and remand for resentencing.