                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0068n.06
                           Filed: January 29, 2009

                                           No. 07-3205

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
MICHAEL A. JONES,                                )    SOUTHERN DISTRICT OF OHIO
                                                 )
       Defendant-Appellant.                      )




       Before: GUY, CLAY and COOK, Circuit Judges.


       COOK, Circuit Judge.       Michael Jones contends that he was deprived of his Sixth

Amendment right to effective assistance of counsel because his counsel did not file a motion for a

downward departure before the court sentenced Jones for firearm and controlled-substance offenses.

We affirm his sentence.


                                                 I.


       Michael Jones pleaded guilty to illegally possessing a firearm, 18 U.S.C. § 922(g)(1), and

possessing, with intent to distribute, more than five grams of cocaine base, 21 U.S.C. § 841(b)(1).

After receiving credit for acceptance of responsibility, Jones had a total offense level of 31 and a
No. 07-3205
USA v. Jones


criminal-history category of VI. The district court sentenced Jones to 204 months, within the 188-to-

234-month Guidelines range.


       Jones’s appeal relies on the fact that when the district court issued a pretrial order directing

counsel to identify potential grounds for departure or variance before the sentencing date, his counsel

did nothing. Jones presses that his counsel’s performance was constitutionally ineffective because

his counsel should have sought a departure based on the small quantities of drugs and lack of

violence involved in Jones’s prior convictions. Jones is now 25, but since age 11 he has been in

constant trouble with the law; all of his offenses relate to drugs and firearms.


                                                  II.


       To establish ineffective assistance, Jones must show that: (1) his counsel’s performance was

deficient; and (2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466

U.S. 668, 687 (1984). Jones cannot satisfy either prong of the Strickland analysis.


       Jones’s counsel did not make “errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Rather, Jones’s counsel secured

Jones a significant benefit; he argued for and received a third interview with the probation officer,

leading to a three-level reduction for acceptance of responsibility. And we cannot conclude that the

failure to file a written request for a departure was outside the “range of competence demanded of

attorneys in criminal cases.” Id. In fact, given Jones’s massive criminal-history point total—the


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No. 07-3205
USA v. Jones


largest the judge had ever seen—his counsel might have reasonably concluded that an argument that

each prior conviction involved a small quantity of drugs would not be well received.


       Jones cannot prevail on the prejudice prong of Strickland, even if we labeled his counsel

ineffective. Under Strickland, prejudice requires “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. But Jones

offers no reason to believe that the district court would have sentenced him differently had counsel

sought a departure. The record reveals a judge who felt that Jones’s criminal history required a

severe sentence. The judge reviewed Jones’s record in light of the 18 U.S.C. § 3553 factors and

deliberately imposed a middle-of-the-range sentence. The judge declined to sentence Jones at the

bottom of the range “based on [his] conduct.” Significantly, we note that even without classifying

Jones as a career offender, the judge could have imposed the same 204-month sentence because of

his criminal-history points. Under these circumstances, no reasonable probability exists that, but for

his counsel’s alleged deficiency, Jones would have received a different sentence.


                                                 III.


       We affirm Jones’s sentence.




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