                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 10-3152
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                 ALFONSO F. CARTER,
                                              Appellant

                       Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                            (No. 0314-1:1-99-cr-00099-001)
                         District Judge: Honorable Yvette Kane

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               Tuesday, January 24, 2012

    Before: McKEE, Chief Judge, FISHER, and GREENAWAY, Jr., Circuit Judges

                               (Opinion Filed: May 1, 2012)
                                     _____________

                               OPINION OF THE COURT
                                   _____________


McKEE, Chief Judge.

       Alfonso Carter appeals the District Court’s denial of his petition for a writ of

habeas corpus. Although Carter attempts to frame several issues for appeal, the

Certificate of Appealability that this Court granted after the District Court denied his

claim for habeas relief was limited to a single issue. That issue is whether the District
Court erred in denying his habeas petition without a hearing on his claim that counsel

was constitutionally ineffective for failing to object to his career offender designation at

sentencing. For the reasons that follow, we will affirm.

                                              I.

       Since we write primarily for the parties, we need not recite the underlying facts or

procedural history of this appeal.

       The Pre-Sentence Report that was completed after Carter pled guilty to possession

with intent to distribute cocaine and cocaine base classified him as a career offender

under § 4B1.1 of the Sentencing Guidelines. That classification was based on two 1993

controlled substance convictions and one 1998 simple assault conviction. However,

Carter also had another controlled substance conviction in state court in 1999.1

Thereafter, Carter filed a motion to vacate the sentence pursuant to 28 U.S.C. § 2255.

The District Court denied that motion without an evidentiary hearing and this appeal

followed.

                                                   II.

       28 U.S.C. § 2255 requires the district court to hold an evidentiary hearing before

ruling “unless the motion and files and records of the case show conclusively that the

movant is not entitled to relief.” Government of the Virgin Islands v. Forte, 865 F.2d 59,

62 (3d Cir. 1989). “In considering a motion to vacate a defendant’s sentence, the court

must accept the truth of the movant’s factual allegations unless they are clearly frivolous


1
 Although, the 1999 conviction was subsequently vacated by the Pennsylvania Superior
Court, it was eventually reinstated.
                                              2
on the basis of the existing record.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir.

2008) (alteration omitted) (quotation marks and citation omitted).

       Carter’s claim for habeas relief arises from the District Court’s conclusion that he

should be sentenced as a career offender.

                  A defendant is a career offender if (1) the defendant was at
          least eighteen years old at the time the defendant committed the
          instant offense of conviction; (2) the instant offense of conviction is
          a felony that is either a crime of violence or a controlled substance
          offense; and (3) the defendant has at least two prior felony
          convictions of either a crime of violence or a controlled substance
          offense.

U.S.S.G. § 4B1.1(a). When applying § 4B1.1, two prior convictions must be “counted

separately under the provisions of §4A1.1(a), (b), or (c).” Id. § 4B1.2(c)(2). “Prior

sentences always are counted separately if the sentences were imposed for offenses that

were separated by an intervening arrest (i.e., the defendant is arrested for the first offense

prior to committing the second offense).” Id. § 4A1.2(a)(2).

       Carter claims that the record does not indicate whether he committed his second

offense before or after he was arrested for his initial offense. His second conviction in

1993 was for delivering cocaine to a minor. Carter argues that the record does not

indicate when he delivered the cocaine to the minor and that he could have delivered the

cocaine to the minor prior to his first arrest, which occurred in July of 1992.

       However, the record clearly indicates that Carter delivered the cocaine to the

minor on October, 10, 1992, the same day the minor sold the cocaine to an undercover

officer, i.e., October 10, 1992, after his first arrest. PSR 31 Moreover, as noted by the

District Court, Carter had a third controlled substance conviction in 1999, which also

                                              3
qualifies as a predicate conviction for his career offender designation. Thus, even if the

two 1993 convictions counted as one conviction for purposes of § 4B1.1, Carter’s career

offender designation still would have been proper. Accordingly, the District Court did

not need to hold an evidentiary hearing to determine the merit of Carter’s habeas petition.

                                            III.

       For the reasons stated above, Carter’s counsel was not ineffective in failing to

object to the career offender designation, and the District Court did not abuse its

discretion in denying Carter’s § 2255 motion without an evidentiary hearing. We shall

affirm the Order of the District Court.




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