                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-2323
                         ___________________________

                                      Jay Beane

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                          Submitted: September 12, 2014
                            Filed: November 3, 2014
                                 [Unpublished]
                                 ____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

PER CURIAM.


      Jay Beane appeals the denial of his motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255 and the denial of his motion for relief pursuant to
18 U.S.C. § 3582(c)(2). The district court1 held that Beane was not denied his Sixth
Amendment right to effective assistance of counsel and that he was not eligible for
§ 3582(c)(2) relief. For the reasons explained below, we affirm.

       A jury found Beane guilty of conspiring to distribute fifty grams or more of
crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession with
intent to distribute five grams or more of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Beane was subject to increased punishment under 21 U.S.C. § 841(b)
because he had a prior conviction for a felony drug offense. See 21 U.S.C. § 851. At
sentencing, the district court determined that Beane was a career offender under USSG
§ 4B1.1 and calculated an advisory guidelines range of 360 months’ to life
imprisonment. The court considered the 18 U.S.C. § 3553(a) factors and imposed a
sentence of 300 months’ imprisonment on each count, to be served concurrently. We
affirmed. United States v. Beane, 584 F.3d 767, 770 (8th Cir. 2009). Beane then filed
a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging
that his counsel was ineffective at sentencing and on appeal. Beane also filed a
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). The district court
denied both motions and granted a certificate of appealability on all claims.

       “On appeal from a denial of a 28 U.S.C. § 2255 motion, we review the district
court’s legal conclusions de novo and its factual findings for clear error.” Morelos v.
United States, 709 F.3d 1246, 1249 (8th Cir. 2013). To warrant § 2255 relief for
ineffective assistance of counsel, Beane must establish that his counsel’s performance
was deficient and that he suffered prejudice as a result. See Paul v. United States, 534
F.3d 832, 836 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). “Deficient performance requires a showing that counsel’s representation fell
below an ‘objective standard of reasonableness.’” Escobedo v. Lund, 760 F.3d 863,


      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.

                                          -2-
869 (8th Cir. 2014) (quoting Strickland, 466 U.S. at 688). “Prejudice requires the
movant to establish ‘a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Bass v. United States,
655 F.3d 758, 760 (8th Cir. 2011) (quoting Strickland, 466 U.S. at 694). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.

        Beane first argues that his counsel was ineffective for failing to challenge his
career-offender enhancement on the basis that the Sentencing Commission exceeded
its statutory authority in interpreting 28 U.S.C. § 994(h)(2)(B) to authorize inclusion
of state-drug convictions when applying the career-offender enhancement. This court
considered and rejected this argument in United States v. Consuegra, 22 F.3d 788 (8th
Cir. 1994), holding that “the language of § 994(h)(2)(B) encompasses earlier
convictions for state-law offenses involving the same drug trafficking activities as the
specified federal statutes.” Id. at 790. For this reason, Beane’s counsel’s
representation did not fall below an objective standard of reasonableness when he
failed to raise this objection at sentencing or on appeal. See Horne v. Trickey,
895 F.2d 497, 500 (8th Cir. 1990) (failing to raise an unwinnable issue does not
constitute constitutional ineffectiveness).

       Beane next argues that his counsel was ineffective both at sentencing and on
appeal for failing to challenge his career-offender enhancement on the basis that it
resulted in an unduly harsh sentence. However, Beane’s counsel argued at the
sentencing hearing that the career-offender enhancement overstated Beane’s criminal
history because the enhancement subjected Beane to the same sentencing range
normally applied to drug “kingpins,” and his counsel reminded the court of its ability
to disagree with the guidelines’ policy and sentence accordingly, see Kimbrough v.
United States, 552 U.S. 85, 109 (2007). The sentencing court acknowledged these
arguments in varying downward from the advisory sentencing guidelines range.
Accordingly, Beane’s sentencing counsel was not deficient. Likewise, Beane’s

                                          -3-
appellate counsel was not deficient in omitting the argument that the district court
abused its discretion by imposing an unreasonable sentence. See Smith v. Murray, 477
U.S. 527, 536 (1986) (noting that the “process of ‘winnowing out weaker arguments
on appeal and focusing on’ those more likely to prevail . . . is the hallmark of effective
appellate advocacy” (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983))); United
States v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012) (noting that, “[w]hen a district
court varies downward from a presumptively reasonable guideline sentence, ‘it is
nearly inconceivable that the court abused its discretion in not varying downward still
further’” (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009))).
Beane further argues that his counsel should have challenged his sentence because the
same prior convictions were used for both the § 851 sentencing enhancement, which
raised Beane’s statutory mandatory minimum sentence from 120 months’ to 240
months’ imprisonment, and the career-offender designation. The district court noted
that it was aware that the same prior convictions were being used for both purposes,
and our case law establishes that such use is permissible, see United States v. Quiroga,
554 F.3d 1150, 1158 (8th Cir. 2009). Accordingly, Beane was not denied his Sixth
Amendment right to effective assistance of counsel with this omission during
sentencing or on appeal. See Horne, 895 F.2d at 500.

       Finally, Beane argues that the district court erred by denying his motion for
relief pursuant to 18 U.S.C. § 3582(c)(2). Such relief is proper when “a
defendant . . . has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission.”
18 U.S.C. § 3582(c)(2). This court reviews de novo a ruling on the district court’s
authority to reduce a sentence under § 3582(c)(2). United States v. Washington, 618
F.3d 869, 872 (8th Cir. 2010).

       Beane moved for a sentence reduction under § 3582(c)(2), alleging that he was
eligible for such relief because the crack-cocaine guidelines, which the Sentencing
Commission lowered in response to the Fair Sentencing Act of 2010, served as a basis

                                           -4-
for his sentence. The district court rejected Beane’s argument, noting that the court
sentenced Beane as a career offender, and the relief he requested under § 3582(c)(2)
is unavailable to defendants who were sentenced as career offenders. We agree.
See United States v. Collier, 581 F.3d 755, 758-59 (8th Cir. 2009). On appeal, Beane
argues that, even if the crack-cocaine guidelines were not the basis of his sentence,
they nevertheless were “a relevant part of the analytical framework the judge used to
determine the sentence.” Freeman v. United States, 131 S. Ct. 2685, 2692-93 (2011)
(plurality opinion) (discussing whether defendants who enter into Federal Rule of
Criminal Procedure Rule 11(c)(1)(C) agreements were sentenced “based on” a given
guidelines sentencing range). Beane contends that the logic of Freeman requires this
court to find that the district court erred in denying him § 3582(c)(2) relief. We
considered and rejected this argument in United States v. Harris, 688 F.3d 950, 953-
55 (8th Cir. 2012), holding that a defendant convicted of a crack-cocaine offense and
sentenced as a career offender, even when granted a downward variance from his
guidelines range, is ineligible for such § 3582(c)(2) relief. Accordingly, the district
court did not err by denying Beane’s § 3582(c)(2) motion.

      For the foregoing reasons, we affirm the district court’s denials of Beane’s
§ 2255 and § 3582(c)(2) motions.
                      ______________________________




                                         -5-
