USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 1 of 20
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-6992
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NATHANIEL POWELL, a/k/a Nate,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:16-cr-00097-AWA-LRL; 2:18-cv- 00175-AWA)
Argued: September 25, 2024 Decided: April 10, 2025
Before DIAZ, Chief Judge, and NIEMEYER and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Quattlebaum wrote the opinion, in which Judge Niemeyer joined. Chief Judge Diaz concurred in the judgment and wrote a concurring opinion.
ARGUED: Morgan VanGilder Maloney, MCGUIREWOODS, LLP, Richmond, Virginia, for Appellant. Vetan Kapoor, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Erin B. Ashwell, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 2 of 20
QUATTLEBAUM, Circuit Judge:
In Strickland v. Washington, the Supreme Court reaffirmed that the Sixth
Amendment’s right to counsel includes assistance that is “effective.” 466 U.S. 668, 686
(1984). But the bar for establishing ineffective assistance is high. Because the habeas
petition before us fails to clear that bar, we affirm the district court’s order of dismissal.
I.
In 2016, Nathaniel Powell pled guilty to one count of conspiracy to manufacture,
distribute and possess with intent to distribute more than 100 grams of heroin in violation
of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B), pursuant to a written plea agreement. Prior
to his sentencing, the United States Probation Office prepared a presentence report that
recommended a two-level sentence enhancement under United States Sentencing
Guidelines § 2D1.1(b)(12) because Powell “maintained a premises for the purpose of
manufacturing or distributing a controlled substance . . . .” U.S.S.G. § 2D1.1(b)(12). This
enhancement recommendation was based largely on information provided to detective and
drug task force agent Robert Dyer, with the Portsmouth, Virginia police department, by
Valerie Wilson, one of Powell’s co-defendants and relatives. Wilson told Agent Dyer that
she bought drugs from Powell at his residence many times. Wilson also told him that on at
least one occasion she saw someone deliver a kilogram of heroin to Powell at “an address
on Gateway Drive.” J.A. 82–83. And that time specifically, Wilson told Dyer that she heard
Powell processing the heroin after he received it at the residence.
2 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 3 of 20
Lawrence Woodward represented Powell at sentencing. 1 Woodward objected to the
premises enhancement, arguing the information from Wilson did not justify its application:
The Court, in determining the applicability of the . . . drug premise issue, has to base its determination on a summary of one witness that contains almost no detail, was provided under the advice of counsel who presumably advised her about how to maximize her value to the government and who is a heavy drug user. While she no doubt made those statements to the agents, the issue for the Court is, does this single source provide an adequate basis to increase the Defendant’s advisory guideline range. . . . The defense contends that it does not.
J.A. 48.
In response, the government argued in its position paper that the enhancement can
apply regardless of whether “the defendant lease[s] or own[s] the premises” if the
“defendant [has] a substantial connection to the residence and [is] more than a casual
visitor.” J.A. 57. The government then asserted that Wilson visited an apartment on
Gateway Drive “on a dozen occasions” from the summer of 2011 through mid-2016 “to
purchase heroin” from Powell, indicating that he used that location “for the purpose of
manufacturing, distributing, or using heroin.” J.A. 57.
Wilson was not a witness at Powell’s sentencing. But, in support of the
enhancement, the government called Agent Dyer as a witness. 2 Dyer testified that Wilson
1 At the evidentiary hearing on Powell’s 28 U.S.C. § 2255 motion, the government noted that Woodward “has practiced for 39 years, has had thousands of clients, has dealt with Fourth Circuit appeals approximately 90 times, [has handled] 400 federal cases, was on an ethics committee, [and] was on a committee to select magistrate judges . . . .” J.A. 354. 2 Hearsay testimony is admissible at sentencing. See United States v. Roberts, 881 F.2d 95, 105 (4th Cir. 1989).
3 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 4 of 20
told him that she once observed a delivery of heroin to Powell at the Gateway Drive
apartment and overheard “what she believed to be a coffee grinder or some sort of a blender
running.” J.A. 83. Dyer explained that this indicated heroin distribution because the best
way to cut and mix additives into heroin is with a blender. Dyer also testified that Wilson
told him that she bought drugs many times “from an address on Gateway Drive in
Portsmouth, in an apartment complex.” J.A. 90. Dyer acknowledged that he had “not ever
been in [the Gateway Drive apartment or] seen any drug-processing equipment” on the
premises. J.A. 104. But he said he had surveilled the area and verified that Powell appeared
to be living in or using an apartment on Gateway Drive.
Woodward did not call any witnesses or enter other evidence about the premises
enhancement. However, he questioned Wilson’s credibility. During his cross-examination
of Dyer, Woodward confirmed that Wilson was a known drug user and had been addicted
to heroin for “several years.” J.A. 104. Wilson also pressed Dyer to admit that he had never
personally seen Powell handle heroin at the Gateway Drive apartment. In response to
questioning from Woodward, Dyer conceded that Wilson’s testimony was the only link
between drug manufacturing, drug distribution and the Gateway Drive location. Woodward
also asked Dyer whether he had verified the time frame in which Wilson supposedly saw
Powell receive a package of heroin at the apartment. Dyer testified that he had not.
Despite Woodward’s efforts, the district court overruled Powell’s objection to the
two-level premises enhancement. The court then adopted the presentence report as its own
findings of fact and found Powell’s offense level to be 37 which, with a criminal history
category of VI, along with the applicable statutory maximum, meant that his guidelines
4 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 5 of 20
range was 360–480 months. The district court sentenced Powell to a prison term of 300
months.
Five months later, Powell moved pro se under 28 U.S.C. § 2255 to vacate, set aside
or correct his sentence based on multiple ineffective assistance of counsel claims. The
district court dismissed several of Powell’s claims for reasons not relevant to this appeal.
But it held a hearing on his claim that Woodward, despite Powell’s request, “failed to
investigate potentially exculpatory evidence pertaining to a two-point [Guidelines]
enhancement received for maintaining premises for the purpose of distributing narcotics,
including a leaseholder agreement that purportedly shows that someone else leased the
premises during part of the time in question.” J.A. 293. Powell claimed that if Woodward
had investigated the lease as he was asked to, it would have shown that Powell could not
have dealt drugs out of the apartment from 2011 to 2016 as the government had argued.
Powell also argued that the lease would have undermined Wilson’s credibility because it
would have shown that she could not have bought drugs from him at the apartment on
Gateway Drive several times over five years.
Powell intended to call an ex-girlfriend as a witness at the hearing, but she failed to
appear. Even so, the parties stipulated that the ex-girlfriend would have testified that she
had leased the Gateway Drive apartment beginning in January 2016, that the lease “was
not a renewal of a prior term,” that she had “spoke[n] to Mr. Woodward about the Lease”
and that she “faxed it to Mr. Woodward’s office prior to sentencing.” J.A. 299–300, 360.
Woodward testified at the hearing. He first disputed ever receiving the lease.
Woodward stated that he “didn’t know anything about the lease at the time of the
5 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 6 of 20
sentencing.” J.A. 317. He added that, if Powell’s ex-girlfriend faxed any lease to his office,
it “didn’t end up in [Powell’s] file.” J.A. 318. While he hedged a bit by saying that he
“would never say under oath that a piece of paperwork couldn’t get lost,” Woodward said
that he has “had the same fax number” and the same filing system for 30-plus years, and
that he had no such lease in Powell’s file. J.A. 312. He then explained his approach to
opposing the government’s efforts to apply the premises enhancement. Because of the
preponderance of the evidence standard governing the application of sentencing
enhancements, Woodward felt that “the premises enhancement [was] not a heavy lift for
the government.” J.A. 316. So, he did not “hire an investigator to go . . . subpoena records
and research who lived where when.” J.A. 317. Woodward believed that it was ultimately
Wilson’s “credibility that was [at] stake,” not who specifically leased the apartment at a
given time. J.A. 317. And he explained that “in [his] experience with the judges in this
court, it’s not really legally pertinent who owns or rents [an apartment]; it’s what it’s used
for.” J.A. 317. Woodward also stated that, “[i]n the scope of a case like this, you know, two
points was not going to be the make or break.” J.A. 316. And he observed that drug dealers
often maintain a “safe place . . . to keep narcotics in.” J.A. 318.
The district court dismissed Powell’s claim that counsel performed deficiently by
failing to investigate the Gateway Drive lease. It concluded that Powell had not shown that
Woodward’s performance was deficient because Woodward “took other steps in his
representation of [Powell],” including cross-examining Dyer. J.A. 374. The court also held
that the lease, even if obtained, would not have “compelled a different ruling on the
objection” because the premises enhancement can and often does apply “even if a
6 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 7 of 20
defendant does not lease or own the premises.” J.A. 374–75. Lastly, the court held that
“Powell’s sentence likely would have been the same” even without the enhancement
because his sentence of 300 months would have been at the low end of his corresponding
Guidelines range. J.A. 375–76. Thus, it denied Powell’s § 2255 motion. 3
Powell timely appealed, initially proceeding pro se. 4 We first remanded the matter
to permit the district court to rule on Powell’s motion for a certificate of appealability that
he had filed below, which the district court denied. Then, we granted Powell a partial
certificate of appealability on “whether Powell’s trial counsel rendered ineffective
assistance by failing to present a lease agreement and witness testimony to rebut the
Government’s assertion that Powell maintained a residence on Gateway Drive in
Portsmouth, Virginia, for the distribution of controlled substances.” J.A. 381–82. We also
appointed him counsel.
3 Despite its ruling, the district court made very few findings of fact at the evidentiary hearing it held to address Powell’s ineffective assistance of counsel claims. It did not resolve (1) who leased the Gateway Drive apartment and when it was leased; (2) whether Woodward knew of or had the lease in his possession at the time of the sentencing hearing; (3) whether Powell instructed Woodward to investigate the lease; or (4) when Powell began using the Gateway Drive apartment to distribute heroin. 4 We have jurisdiction under 28 U.S.C. § 2253. “We review a district court’s denial of relief on a § 2255 motion de novo.” United States v. Palacios, 982 F.3d 920, 923 (4th Cir. 2020). However, we review the “district court’s . . . findings of fact for clear error.” United States v. Winbush, 922 F.3d 227, 229 (4th Cir. 2019) (quoting United States v. Roane, 378 F.3d 382, 395 (4th Cir. 2004)).
7 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 8 of 20
II.
Powell contends on appeal that Woodward’s performance was not objectively
reasonable because he failed to reasonably investigate the existence and duration of the
lease of the apartment where Wilson said she bought drugs from Powell. According to
Powell, the lease “would have revealed that [his ex-girlfriend’s] lease began only a few
months prior to [] Powell’s arrest, not five years before as [] Wilson stated.” Op. Br. at 13.
Thus, Powell insists that the lease “would have contradicted [] Wilson’s testimony about
the ‘use’ of the premises” and would have shown that Powell did not exercise control over
the premises as required by the Guidelines. Op. Br. at 15.
Powell’s ineffective assistance of counsel claim must be evaluated under the well-
recognized Strickland test. That test has two prongs. First, a petitioner must “show . . . that
counsel’s performance was constitutionally deficient.” United States v. Mayhew, 995 F.3d
171, 176 (4th Cir. 2021) (citing Strickland, 466 U.S. at 687). Second, even if a petitioner
establishes that his counsel’s assistance was constitutionally deficient, the petitioner must
“establish prejudice, in the form of a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’” Mayhew,
995 F.3d at 176 (quoting Strickland, 466 U.S. at 694). Powell comes up short on both
prongs.
A. Beginning with constitutionally deficient performance, “trial lawyers must have
wide latitude in making tactical decisions.” Noland v. French, 134 F.3d 208, 217 (4th Cir.
1998); see also Knowles v. Mirzayance, 556 U.S. 111, 127 (2009). As a result, a petitioner
8 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 9 of 20
must overcome the “strong presumption that counsel’s representation was within the wide
range of reasonable professional assistance.” Mayhew, 995 F.3d at 176 (quoting
Harrington v. Richter, 562 U.S. 86, 104 (2011)). Mere deviation from best practices will
not do. See Winston v. Pearson, 683 F.3d 489, 504 (4th Cir. 2012). Instead, “the critical
question is whether an attorney’s representation amounted to incompetence under
prevailing professional norms . . . .” Id. (cleaned up). And “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690.
Measured against this standard, Woodward’s performance is not constitutionally
deficient. After the United States Probation Office’s presentence report recommended
applying the premises enhancement, Woodward met with Powell about it four times. He
then drew on his experience with how courts actually apply the enhancement in the real
world. Since the burden to apply the enhancement was only preponderance of evidence,
Woodward felt the government did not face “a heavy lift . . . .” J.A. 316. And he explained
that “in [his] experience with the judges in this court, it’s not really legally pertinent who
owns or rents [an apartment]; it’s what it’s used for.” J.A. 317. For that reason, he did not
“hire an investigator to go . . . subpoena records and research who lived where when.” J.A.
317. To Woodward, the more important issue was attacking Wilson’s credibility.
So, Woodward did that at every turn. In the position paper he filed objecting to the
premises enhancement, Woodward pointed out that Wilson’s statement lacked detail, that
she was a habitual drug user and that she was likely acting in her own self-interest in giving
the statement. During his cross-examination of Dyer, Woodward forced Dyer to concede
9 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 10 of 20
that Wilson was a known drug user and had been a heroin addict for many years.
Woodward’s cross-examination also required Dyer to acknowledge that he had never seen
Powell handling heroin at the Gateway Drive apartment. That meant, as Dyer verified, that
Wilson’s testimony was the only link between drug manufacturing and distribution and the
Gateway Drive location. In response to Woodward’s cross-examination, Dyer also admitted
that he did not verify the time period when Wilson claimed to have seen Powell receive
and process heroin at the apartment.
Powell contends the lease would have bolstered those credibility attacks. Maybe so.
But that is not the way we review ineffective assistance of counsel claims. We do not “grade
counsel’s performance” like “the critic . . . who points out . . . where the doer of deeds
could have done them better.” Strickland, 466 U.S. at 697; Theodore Roosevelt, The Man
in the Arena: Citizenship in a Republic, Address at the Sorbonne, Paris (Apr. 23, 1910), in
Theodore Roosevelt: Letters and Speeches 781–82 (Louis Auchincloss ed., 2004); see
Noland, 134 F.3d at 217. With the benefit of hindsight, improvements could be made to
almost any representation. To the contrary, we ask only whether the representation provided
was constitutionally defective. And failing to make every conceivable argument does not
meet that standard. See Springer v. Collins, 586 F.2d 329, 332 (4th Cir. 1978) (explaining
that “effective representation is not synonymous with errorless representation”). Adhering
to all best practices is not required. Winston, 683 F.3d at 504. Instead, Powell must show
that Woodward was professionally incompetent under prevailing standards. Id. He has not
met this high bar.
10 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 11 of 20
What’s more, Powell overstates the importance of the lease in opposing the
application of the premises enhancement. He says the lease would have “directly
contradicted Ms. Wilson’s uncorroborated hearsay testimony.” Op. Br. at 16. But that is not
correct. While Wilson said that she bought drugs from Powell at the Gateway Drive
apartment several times between 2011 and 2016, she did not provide precise dates on which
any of the transactions with Powell purportedly occurred, including the transaction during
which she allegedly witnessed him receive a heroin delivery. Wilson also did not say that
Powell owned the apartment or that he rented it. Thus, proving that Powell’s ex-girlfriend
only rented the apartment in 2016 does not prove that Wilson had not used it with someone
else’s permission prior to 2016. In other words, Wilson’s testimony is not incompatible
with Powell’s ex-girlfriend’s lease that began in January 2016.
Nor did the government have to show a current lease or title to property to apply the
enhancement. Even if a defendant does not own or lease a premises, he can maintain it for
purposes of the enhancement where he has full access to it and stays there overnight on a
regular basis. 5 See United States v. Barnett, 48 F.4th 216, 220–21 (4th Cir. 2022) (holding
that “courts [applying the premises enhancement] have considered factors such as the
defendant’s ready access to the premises, staying overnight, the defendant’s frequency at
the premises, and the defendant’s participation in the drug activity there”). The government
introduced evidence that Powell sold, received and processed drugs in the apartment many
5 U.S.S.G. § 2D1.1(b)(12) states: “If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 levels.” (emphasis added).
11 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 12 of 20
times over five years. And it introduced evidence that Dyer personally surveilled the
apartment complex on Gateway Drive to confirm that Powell lived there. So, the
government introduced enough evidence to apply the enhancement regardless of the lease
or its duration.
Powell lodges several other complaints at Woodward. He criticizes Woodward’s
statement that “it’s not really legally pertinent who owns or rents” the premises. J.A. 317.
In fairness, the lease was not irrelevant. But as already shown, it was far from
determinative. More importantly, Woodward’s testimony as a whole reveals he knew the
law. Woodward stated that he knew the “judges in this court” typically believed that
ownership of a premises was not as important as use. J.A. 317. His impression of the kinds
of arguments likely to succeed before the judges of the Eastern District of Virginia,
grounded in decades of experience defending criminal defendants, does not appear to be
the fundamental misunderstanding of the law that Powell suggests.
Powell also takes issue with Woodward’s statement that “two points was not going
to be the make or break” in Powell’s case. J.A. 316. It is true that “the two-points would
have moved the top Guidelines-range sentence” down by over nine years and “the bottom
sentence” down by five and a half years. Id. But to the extent Powell suggests that
Woodward’s statement shows he did not try hard enough to oppose the premises
enhancement, the record shows otherwise. As already discussed, Woodward consistently
opposed the application of the enhancement. And his decision not to add a layer onto his
other attacks on Wilson’s credibility is not constitutionally deficient given the high bar
Strickland imposes.
12 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 13 of 20
Finally, Powell primarily cites to United States v. Freeman, 24 F.4th 320, 326–27
(4th Cir. 2022), as support for his argument that Woodward’s decision not to investigate
whether Powell owned or leased the premises was inherently deficient. Freeman held that
an attorney’s decision to waive certain objections at sentencing was not a tactical decision
entitled to deference because “a cursory ‘investigation’ would have revealed that” the
attorney’s decision was based on incorrect assumptions. Freeman, 24 F.4th at 330
(explaining that strategic choices made after “less than complete investigation[s]” are
“reasonable precisely to the extent that reasonable professional judgments support the
limits on investigation” (quoting Strickland, 466 U.S. at 690–91)). But the time spent
investigating is not the whole story. A quick glance from an experienced hand can be
enough to reveal a shaky foundation. Besides, this old hand did more than glance.
Woodward met with Powell four times to discuss the presentence report. He knew and
considered the law that says the premises enhancement can apply even when a defendant
has no “possessory interest” in the premises, when a defendant “does not live at the
premises” and even when a defendant does not “exercise exclusive control” over the
premises. Barnett, 48 F.4th at 220–21 (citing both earlier unpublished Fourth Circuit
authority and published out-of-circuit cases that confirm the premises enhancement can
apply “if the sum of the evidence supports it” even “where the defendant does not live at
the premises”). And Woodward attacked the credibility of the sole witness who stated that
Powell had used the apartment to manufacture and distribute heroin. While Powell might
quibble that Woodward could have done more, Woodward’s meetings with Powell,
13 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 14 of 20
knowledge of the law and strategy for attacking Wilson’s credibility are not inherently
deficient or the product of a cursory investigation. Thus, Freeman does not help Powell.
To wrap up prong one, we do not need to conclude that Woodward’s representation
was perfect to find that it was objectively reasonable under the circumstances of this case.
Woodward certainly could have investigated who leased or owned the apartment, and such
an investigation might have pressed the government to make additional or more detailed
arguments in support of the premises enhancement. But such possibilities do not render
Woodward’s representation constitutionally deficient. Powell has not met his burden on
this first Strickland prong. He has failed to show that Woodward’s decision to attack
Wilson’s credibility rather than investigating the lease and Powell’s control of the premises
was objectively unreasonable.
B. But even if Powell satisfied Strickland’s first prong, he fails at the second. To
establish prejudice under prong two of Strickland, “[i]t is not enough for the [petitioner] to
show that the errors had some conceivable effect on the outcome of the proceeding,” as
“[v]irtually every act or omission of counsel would meet that test.” Strickland, 466 U.S. at
693. And “not every error that conceivably could have influenced the outcome undermines
the reliability of the result of the proceeding.” Id. “Instead, Strickland asks whether it is
‘reasonably likely’ the result would have been different.” Harrington, 562 U.S. at 111.
Ultimately, “[t]he likelihood of a different result must be substantial, not just conceivable.”
Id. at 112. Thus, the bar for showing prejudice is generally high. But “in most cases, when
a district court adopts an incorrect Guidelines range, there is a reasonable probability that
14 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 15 of 20
the defendant’s sentence would be different absent the error.” Freeman, 24 F.4th at 331–32
(quoting Molina-Martinez v. United States, 578 U.S. 189, 192 (2016)).
Despite that general principle, the record here indicates that the district court would
have overruled Powell’s objection to the premises enhancement even if Woodward had
investigated Powell’s control of the premises or presented the court with the lease and
testimony from the ex-girlfriend. In its order denying Powell’s § 2255 motion after a
hearing on the instant ineffective assistance of counsel claim, the district court said:
Petitioner fails to provide evidence or substantive argument that shows that the Court would have sustained his objection and granted him a more lenient sentence if the lease were produced.
Even if this objection had been sustained, Mr. Powell’s sentence likely would have been the same. He had an offense level of 37, which resulted in a guidelines range of 360 months to life, restricted to the statutory maximum of 480 months. . . . If the objection had been sustained, his offense level would have been a 35, resulting in a guidelines range of 292 months to 365 months at the time of sentencing. Mr. Powell was sentenced to 300 months, the low end of the Guidelines range.
J.A. 375–76. The district court also stated, “[Powell] has not shown how this evidence
would have compelled a different ruling on the objection. The enhancement can apply even
if a defendant does not lease or own the premises. Sufficient evidence was produced at the
time of sentencing for this Court to find that Mr. Powell was selling drugs from this address
regardless of the status of ownership of the premises.” J.A. 374–75.
Breaking down those statements, the district court said that it (1) would still have
applied the enhancement and (2) would have applied a similar sentence even if it had not
applied the enhancement. Both statements indicate that the result in Powell’s case would
15 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 16 of 20
not have been different even if Woodward had taken all the steps Powell now argues he
should have taken.
Powell counters with our holding in Freeman that a district court’s statement that it
would have imposed the same sentence in light of the § 3553(a) factors regardless of the
“calculated Guidelines range” cannot “insulate a sentence from” an ineffective assistance
of counsel claim. Freeman, 24 F.4th at 332. But this case is different from Freeman.
Freeman, which we took up on direct appeal, involved a district court’s general statement
at the end of a sentencing hearing that it would have applied the same sentence even it had
committed errors in its sentencing. We held that such a statement—untethered to any
specific sentencing issue or objection—does not provide prophylactic protection from an
ineffective assistance challenge under Strickland. Id. In contrast, the district court’s
statement here followed a § 2255 evidentiary hearing that addressed the very evidence that
Powell claims should have been introduced at sentencing and at which the parties presented
arguments on whether the result would have been different in light of that evidence. So,
the district court’s statement was retroactively addressing the precise issue that is the
subject of Powell’s ineffective assistance of counsel claim. Despite the existence of the
lease and the new attacks on Wilson’s credibility, the district court stated that Powell had
not established that “ineffective assistance of counsel occurred,” that the lease would not
have “compelled a different ruling on the objection” and that Powell’s sentence “likely
would have been the same.” J.A. 369, 374–75. Relevant to our Strickland prong two
analysis, such statements provide valuable and informed insight into what the court would
have done had Woodward acted as Powell claims he should have.
16 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 17 of 20
Lastly but importantly, the district court’s statements seem grounded in its
credibility findings as to Wilson. In its order denying Powell’s § 2255 motion, the court
stated, “[a]s the finder of fact, this Court made reasonable, correct findings regarding Ms.
Wilson’s credibility, other related evidence, and the objections presented.” J.A. 374. The
district court said this with full knowledge of Powell’s new arguments that the lease
contradicts or undermines Wilson’s testimony. Powell’s arguments fail to show the court’s
credibility determinations were clearly erroneous, which is our standard for reviewing such
findings. See United States v. Nunez-Garcia, 31 F.4th 861, 868 (4th Cir. 2022) (stating that
“the district court’s decision to credit this interpretation of Nunez-Garcia’s testimony over
the former cannot constitute clear error” and that “the trier of fact [is] in a better position to
evaluate the credibility of witnesses” (cleaned up)).
To conclude, there is no reasonable probability that the district court would not have
applied the premises enhancement even if Woodward had done what Powell argues he
should have done. Nor is there any reasonable probability that the district court would have
sentenced Powell differently even if it had declined to apply the premises enhancement.
And Woodward’s decision to attack Wilson’s credibility rather than investigate whether
Powell owned or leased the Gateway Drive apartment was not constitutionally deficient.
III.
For these reasons, the district court’s order denying Powell’s § 2255 motion is,
AFFIRMED.
17 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 18 of 20
DIAZ, Chief Judge, concurring in the judgment:
To prevail on an ineffective assistance of counsel claim, Powell must show that his
counsel’s performance was constitutionally deficient and that he was prejudiced as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because I agree with my colleagues
that Powell can’t show prejudice, I join in the judgment. But I write briefly to make two
points.
First, as to prejudice, I’d rest solely on the majority’s conclusion that there isn’t a
“reasonable probability that the district court would have sentenced Powell differently even
if it had declined to apply the premises enhancement.” Majority Op. at 17.
Powell’s burden was to prove that “there is a reasonable probability that, but for
counsel’s [allegedly] unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The district court, after conducting an evidentiary
hearing and considering Powell’s § 2255 motion, concluded that Powell’s “sentence likely
would have been the same” even if his objection to the premises enhancement had been
sustained. J.A. 375. Considering this statement and the explanation the district court
offered for Powell’s sentence during his sentencing hearing, I can’t say “there was a
reasonable probability that [his] sentence would have been reduced” but for the faults
Powell assigns to his counsel’s representation. United States v. Freeman, 24 F.4th 320, 332
(4th Cir. 2022) (en banc).
Second, finding no prejudice, I’d decline to address deficient performance. As
Powell must show both prejudice and deficient performance to prevail on his ineffective
assistance claim, “there is no reason . . . to address both components of the inquiry if the
18 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 19 of 20
defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. The panel
agrees that Powell didn’t meet his burden to show prejudice. I would go no further.
To be frank, I harbor some reservations about counsel’s performance. “[C]ounsel
has a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Id. at 691. Here, the justifications counsel offered
during the evidentiary hearing give me pause about his investigatory decisions.
At the time of Powell’s sentencing, the sentencing guidelines commentary, our
cases, and other circuits’ decisions rebuffed counsel’s view that “it’s not really legally
pertinent who owns or rents” a premises for the purpose of manufacturing or distributing a
controlled substance. 1 J.A. 317. There are certainly other ways a defendant could be found
to “maintain” a premises for that purpose, 2 but counsel couldn’t recall during the
evidentiary hearing whether he’d found that those factors applied to Powell. J.A. 317–18.
And a focus on “what [a premises is] used for” does little to explain counsel’s
approach. J.A. 317. Counsel recalled that Powell “expressed to [him] that [the premises]
wasn’t used for drug operations.” J.A. 319. Yet he appears to have focused his
1 The guidelines commentary provided that “court[s] should consider” a defendant’s possessory interests. U.S.S.G. § 2D1.1 cmt. n.17 (2016). We reiterated that. United States v. Clark, 665 F. App’x 298, 302–04 (4th Cir. 2016) (per curiam); United States v. Keitt, 647 F. App’x 157, 159 (4th Cir. 2016) (per curiam); United States v. Moore, 553 F. App’x 345, 345–46 (4th Cir. 2014) (per curiam); United States v. Christian, 544 F. App’x 188, 190–91 (4th Cir. 2013) (per curiam). As did other circuits. E.g., United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013); United States v. Miller, 698 F.3d 699, 705–06 (8th Cir. 2012). 2 For example, a defendant can be found to “maintain” a premises based on “the extent to which [he] controlled access to, or activities at, the premises.” U.S.S.G. § 2D1.1 cmt. n.17.
19 USCA4 Appeal: 21-6992 Doc: 59 Filed: 04/10/2025 Pg: 20 of 20
investigation and objections not on Powell’s use of the premises but on the credibility of
Powell’s codefendant.
My conclusion that Powell can’t show prejudice is not an endorsement of counsel’s
assessment that “[i]n the scope of a case like this, . . . two points was not going to be the
make or break.” J.A. 316. Courts considering ineffective assistance claims take the record
as they find it. Counsel is responsible for developing that record in the first instance.
I would hope that, in carrying out that duty, attorneys don’t lose sight of “the
potential impact” a two-point enhancement may have “on [their client’s] sentencing
exposure.” Freeman, 24 F.4th at 331. Here for example, application of the two-point
enhancement added nearly a decade to the upper end of Powell’s sentencing guidelines
range.
That said, I can’t say there’s a reasonable probability Powell’s sentence would have
been different without the premises enhancement. I therefore concur in the judgment.