Barber v. United States

Background

Franklin Barber pleaded guilty to conspiracy to distribute and possess with the intent to distribute more than 28 grams of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). The court sentenced him to 120 months in prison followed by five years of supervised release. The court had calculated a sentencing-guidelines range of 188 to 235 months, based on Barber’s status as a career offender and his criminal-history category, but imposed a sentence below that range.

Barber filed a motion under 28 U.S.C. § 2255, a procedure that allows a person in federal custody to seek correction of a sentence in limited circumstances. He claimed ineffective assistance of counsel, meaning that his lawyer’s performance was constitutionally inadequate. Specifically, he argued that counsel failed to request a Fatico hearing concerning drug quantity and falsely advised him that he qualified as a career offender.

Fatico-Hearing Claim

The court held that Barber’s claim about the failure to request a Fatico hearing was barred by the waiver in his plea agreement. The agreement waived his right to appeal or otherwise challenge a prison sentence within or below the applicable guidelines range, while preserving ineffective-assistance claims. The court concluded that Barber’s argument was really a challenge to the sentence, rather than a challenge to the validity of his guilty plea or the waiver itself.

The court also ruled that the claim failed on the merits even if the waiver did not apply. Under the two-part test for ineffective assistance established in Strickland v. Washington, a person must show both that counsel’s performance was unreasonable and that the person was harmed by that performance. The court found that Barber did not identify what evidence a hearing would have produced or show that the result would have been different.

The court further found that counsel’s decision was reasonable. Barber had pleaded guilty to an offense involving 28 to 112 grams of crack cocaine, and the court stated that requesting a hearing could have exposed him to evidence of a substantially larger quantity. It also could have jeopardized a three-point reduction for accepting responsibility. Because Barber did not show that counsel’s performance was deficient, the court did not need to decide the separate prejudice issue, although it also noted that Barber did not claim he would have rejected the guilty plea because of the omitted hearing.

Career-Offender Claim

The court rejected Barber’s claim that counsel wrongly advised him that he was a career offender. Under the applicable sentencing guideline, a defendant qualifies if the defendant was at least 18 when committing the offense, the offense is a felony involving violence or controlled substances, and the defendant has at least two prior qualifying felony convictions.

The court found that Barber met all three requirements. It stated that he was 35 when he committed the offense, that the offense was a felony controlled-substance offense, and that he had at least two qualifying prior convictions. The court therefore concluded that counsel’s advice was correct and did not constitute ineffective assistance.

Disposition

The court denied Barber’s § 2255 petition. It declined to issue a certificate of appealability because Barber had not made the required substantial showing that a constitutional right was denied. It also certified that an appeal would not be taken in good faith and denied permission to proceed without paying filing fees. The clerk was directed to terminate the motion and close the case.