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Bullard v. United States

United States Court of Appeals, Sixth Circuit

September 4, 2019

Dwight Bullard, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued: August 1, 2019

          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

          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.

          Before: GUY, THAPAR, and NALBANDIAN, Circuit Judges.

          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 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 Fed.Appx. 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 ...


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