                                                                    [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________                         FILED
                                                                 U.S. COURT OF APPEALS
                                 No. 10-14694                      ELEVENTH CIRCUIT
                             Non-Argument Calendar                     APRIL 26, 2011
                           ________________________                     JOHN LEY
                                                                         CLERK
                   D.C. Docket No. 2:08-cv-08007-KOB-TMP

REGINALD DEWAYNE HUTCHERSON,

                                  llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllRespondent - Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (April 26, 2011)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

      Reginald D. Hutcherson pro se appeals the denial of his 28 U.S.C. § 2255

motion to vacate his sentence. Specifically, he argues that his attorney rendered
ineffective assistance at sentencing by failing to object to the recommendation in

the presentence investigation report that Hutcherson’s prior conviction for

“Discharging a Gun Into an Unoccupied Building,” Ala. Code § 13A-11-61, was a

“crime of violence.”

                                           I.

      In 2006 Hutcherson pleaded guilty to two counts of distributing a substance

containing cocaine hydrochloride. The PSR recommended that he receive a career

offender enhancement because he had prior convictions for “Discharging a Gun

Into an Unoccupied Building” and “Assault, 1st Degree,” which resulted in a

guidelines range of 151 to 188 months imprisonment. Even with that

enhancement the district court said that the guidelines calculation “under-

represented” Hutcherson’s criminal history. The court sentenced him to 188

months imprisonment. Hutcherson appealed his conviction and sentence, which

we affirmed.

      In 2008 Hutcherson filed a 28 U.S.C. § 2255 motion to vacate his sentence,

which the district court denied. The court did, however, grant a certificate of

appealability on the following question:

      For purposes of career offender sentencing under the United States
      Sentencing Guidelines, is the Alabama Class C felony of firing a gun
      into an unoccupied building or vehicle a “crime of violence,” such that

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      counsel’s failure to object to movant’s career offender sentencing based
      in part on such a felony conviction was not ineffective assistance of
      counsel?

                                         II.

      “When reviewing the district court’s denial of a § 2255 motion, we review

findings of fact for clear error and questions of law de novo.” Rhode v. United

States, 583 F.3d 1289, 1290 (11th Cir. 2009). An ineffective assistance of counsel

claim is a mixed question of law and fact that is subject to de novo review.

Caderno v. United States, 256 F.3d 1213, 1216–17 (11th Cir. 2001). In order to

succeed on a claim of ineffective assistance of counsel, a defendant must show

that counsel’s performance was deficient and that the deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052,

2064 (1984). The defendant must overcome a strong presumption that “counsel’s

performance was reasonable and adequate.” Caderno, 256 F.3d at 1217.

      To establish deficient performance, a defendant must show that counsel was

acting “outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. “[W]e must indulge a strong

presumption that counsel’s performance was reasonable and that counsel made all

significant decisions in the exercise of reasonable professional judgment.” Rhode

v. Hall, 582 F.3d 1273, 1280 (11th Cir. 2009). “Thus, the petitioner must establish

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that no competent counsel would have taken the action that his counsel did take.”

Id.

                                          III.

      Hutcherson asserts that his prior conviction for discharging a gun into an

unoccupied building does not constitute a “crime of violence” for the purposes of

career-offender sentencing. Because his attorney failed to object to the

classification of the prior conviction as a “crime of violence,” he argues that he

received ineffective assistance of counsel.

      We have never held that a prior conviction for discharging a firearm into an

unoccupied building is not a “crime of violence” for purposes of career-offender

sentencing. In United States v. McGill, 450 F.3d 1276, 1280 (11th Cir. 2006), we

stated that even when a crime concerns only the “potential risk of physical injury

rather than the actual use of force against another,” it is still a “crime of violence.”

Id. at 1281. And the Supreme Court has explained that it typically treats crimes

involving “purposeful, violent, and aggressive conduct” as crimes of violence.

Begay v. United States, 553 U.S. 137, 144–45, 128 S.Ct. 1581, 1586 (2008)

(quotations omitted) (citing Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377, 382

(2004); Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158 (1990)).

Accordingly, it was reasonable for Hutcherson’s attorney to believe that firing a

                                           4
firearm into a building, even if it proved to be an unoccupied building, is

purposeful, violent, and aggressive conduct that has a potential risk of serious

injury. Because it was reasonable for the attorney to believe that the prior

conviction was a crime of violence, his failure to object to its being treated as such

did not fall outside the wide range of professionally competent counsel.

      AFFIRMED.




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