Tenth Circuit Summaries

• Publication year: 2003
• Pages: 145

32 Colo.Law. 145 Colorado Lawyer 2003.

2003, September, Pg. 145. Tenth Circuit Summaries

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145

Vol. 32, No. 9, Pg. 145

The Colorado Lawyer
September 2003
Vol. 32, No. 9 [Page 145]

From the Courts
U.S. Court of Appeals for the Tenth Circuit
Tenth Circuit Summaries

Summaries of selected opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association by Jenine Jensen and Catherine Campbell, licensed Colorado attorneys. The summaries of the U.S. Court of Appeals for the Tenth Circuit are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.
Full copies of the Tenth Circuit decisions are available on the CBA website at http: //www.cobar.org/hotlinks.cfm (United States Courts link to the Tenth Circuit). Call The Colorado Lawyer Editorial Offices with questions: (303) 860-1118

Ineffective Assistance of Counsel - Showing of Prejudice - Extent of Increase to Defendant's Sentence - Significantly Greater Sentence

U. S. v. Horey, No. 02-6119, 6/23/03, W.D.Okla., Judge McKay

Defendant appeals the district court's order denying his motion to vacate his sentence, filed under 28 U.S.C. § 2255 The issue on appeal is whether his trial counsel was constitutionally ineffective, under Strickland v. Washington, 466 U.S. 668 (1984), for failing to object to an undisputedly inapplicable career offender enhancement that increased defendant's total offense level and his criminal history category. These increases changed the guideline minimum sentences from 292 months to 360 months. These increases were based on defendant's prior conviction for possession of cocaine. It is undisputed that this conviction did not meet the definition of a qualifying felony under U.S.S.G. § 4B1.1. Defendant's appellate counsel did not raise this error on direct appeal. Defendant then filed this motion to vacate his sentence. The district court held that counsel's failure to object was constitutionally deficient, but concluded that defendant failed to satisfy the prejudice requirement of Strickland, because defendant was sentenced within the guideline range that would have applied without the career offender enhancement.

The Tenth Circuit Court of Appeals reverses. Under U.S. v Kissick, 69 F.3d 1048 (10th Cir. 1995), the defendant was required to establish that his attorney's deficient performance resulted in a significantly greater sentence than would have been the case absent the attorney's mistakes. That law has been abrogated by Glover v. U.S., 531 U.S. 198 (2001) (the amount by which a defendant's sentence is increased by...