                                                                  NOT PRECEDENTIAL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.




                                           8
