                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-2298
                                   ___________

Patrick Pierce,                         *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
United States of America,               *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 18, 2012
                                Filed: July 19, 2012
                                 ___________

Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
                          ___________

BEAM, Circuit Judge.

      The government appeals the district court's grant of 28 U.S.C. § 2255 habeas
corpus relief to Patrick Pierce on the basis of ineffective assistance of counsel at
sentencing resulting in an incorrectly calculated Guidelines range. We reverse.

I.    BACKGROUND

      In 2009, Pierce was charged with and pled guilty to being a felon in possession
of ammunition, based upon an incident wherein Pierce fired shots in public, and
continued to fire shots while leading police on a high speed chase through metro St.
Louis. During the chase, Pierce threw the gun out of the car and it was apparently
never recovered, but police did find plenty of ammunition along the trail. In the plea
agreement, Pierce agreed to waive "all non-jurisdictional issues including, but not
limited to, any issues relating to pretrial motions, hearings, and discovery and any
issues relating to the negotiation, taking or acceptance of the guilty plea or the factual
basis for the plea." With regard to sentencing issues, the plea agreement stated that
Pierce waived "all rights to appeal all sentencing issues," so long as the court
sentenced Pierce within the Guidelines range based upon the bargained-for
recommendations. Finally, Pierce also waived his right to bring § 2255 claims,
except for claims of prosecutorial misconduct or ineffective assistance of counsel.

       At sentencing, an issue arose as to whether Pierce's 2005 conviction for
resisting arrest was a "crime of violence" for purposes of Pierce's base offense level
calculation.1 Because of the qualifying crime of violence, Pierce's base offense level
was 20 under United States Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2008).
Without that qualifying crime, Pierce's base offense level would have been 14.
Pierce's trial counsel argued at sentencing that Pierce's conviction for resisting arrest
did not fit within the definition of a crime of violence. Counsel did not make the
argument that the prior offense should not qualify to raise the base offense level
because it was not given any criminal history points under U.S.S.G. § 4A1.1. See
U.S.S.G. § 2K2.1 cmt. n.10 (directing that only felony convictions that receive
criminal history points under § 4A1.1(a), (b), or (c) should be counted to raise the
base offense level). The trial court overruled the objection, found that Pierce had a
sentencing range of 57 to 71 months, and sentenced Pierce to 57 months. On direct
appeal, with new counsel, Pierce first raised the issue of whether the resisting arrest
offense was a qualifying crime of violence sufficient to enhance his base offense level


      1
        In the plea agreement, the parties agreed that the base offense level would be
either 14, 20 or 24, depending on the nature of his criminal history calculation under
United States Sentencing Guidelines Manual § 2K2.1.

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due to the fact that it did not receive any criminal history points in his Guideline
calculation. However, we enforced the appeal waiver in the plea agreement and
dismissed the appeal. United States v. Pierce, 382 F. App'x 527, 528 (8th Cir. 2010)
(per curiam). The panel noted that any claim for ineffective assistance of counsel was
premature. Id. Pierce next filed a pro se § 2255 motion, the district court appointed
counsel, and counsel filed an amended § 2255. One of the claims was for ineffective
assistance of counsel for failing to recognize and argue that the predicate crime did
not receive any criminal history points under the Guidelines and thus could not
qualify as a crime of violence to raise the base offense level. The district court
granted relief on this claim, and the government appeals.

II.   DISCUSSION

       We review the grant of 28 U.S.C. § 2255 relief de novo, including reviewing
the underlying factual findings for clear error. Tinajero-Ortiz v. United States, 635
F.3d 1100, 1103 (8th Cir.), cert. denied, 132 S. Ct. 315 (2011). To prove ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), a
defendant has the burden of showing that (1) his attorney's performance failed to
conform to the degree of skill, care, and diligence of a reasonably competent attorney;
and (2) he was prejudiced by the attorney's poor performance. Id. at 687. The first
part of the test requires a showing "that counsel's representation fell below an
objective standard of reasonableness." Id. at 688. There is a "strong presumption"
that counsel's performance fell within the range of reasonable professional assistance.
Id. at 689. To prove prejudice in the second prong, the defendant must show "a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.

       Pierce argues that trial counsel was ineffective for failing to properly challenge
his prior offense for resisting arrest. Pierce argues that counsel should have argued
that the offense did not qualify as a crime of violence to enhance his base offense

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level because it did not receive any criminal history points. At issue was an incident
that took place on January 19, 2005, where Pierce ultimately pleaded guilty to three
offenses: tampering in the first degree, tampering in the second degree and resisting
arrest. He was sentenced to suspended concurrent sentences of five years for first-
degree tampering, four years for resisting arrest, and one year for second-degree
tampering. After Pierce pleaded guilty to the instant charge, the presentence
investigation report grouped these three convictions together and assessed one
criminal history point to the group. See U.S.S.G. § 4A1.2(a)(2) (providing that
certain prior convictions, including those committed on the same day without an
intervening arrest, are treated as one sentence for the purpose of assigning criminal
history points under U.S.S.G. § 4A1.1). The offense which is "assigned" the criminal
history point within that group is the offense receiving the "longest sentence of
imprisonment if concurrent sentences were imposed." King v. United States, 595
F.3d 844, 849 (8th Cir. 2010) (quotation omitted). In Pierce's case, the resisting arrest
conviction was the only one in the group from the January 19, 2005 incident that
qualified as a crime of violence. However, since the first-degree tampering charge
had the longest sentence within that group, it was the one that would have been
assessed a criminal history point. U.S.S.G. § 2K2.1 cmt. n.10 (directing that for
purposes of enhancing the base offense level, the court should use "only those felony
convictions that receive criminal history points under § 4A1.1(a), (b), or (c)").

      In King, we examined what we described as the defendant's "relatively
sophisticated [pro se] argument" that his prior two convictions for resisting arrest did
not meet the definition of "prior felony conviction" under the career offender
provisions of the Guidelines in U.S.S.G. § 4B1.1. 595 F.3d at 847, 849. One of the
groups of convictions used to invoke the career offender provisions in King included
both resisting arrest and other crimes not classified as crimes of violence. Based
upon a group of offenses from an April 1, 2005, state court sentencing, King received
a ten-year suspended sentence for a drug trafficking charge, concurrent four-year
suspended sentences for one count of unlawful use of a weapon and one count of

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resisting arrest and a concurrent one-year sentence for third-degree assault. Id. at
849. Of those offenses, only the resisting arrest charge was a crime of violence that
would have, had it not been grouped with the other charges, been a predicate for the
career offender guideline. However, because the trafficking sentence was the longest
of the four, it should have received the criminal history point. And, similar to
application note 10 to § 2K1.1, U.S.S.G. § 4B1.2(c) provides that sentences for
career-offender-qualifying convictions must be "counted separately under the
provisions of § 4A1.1(a), (b), or (c)." See also United States v. Peters, 215 F.3d 861,
862 (8th Cir. 2000) ("To qualify as a 'prior felony' for career offender purposes, the
felony must receive criminal history points under subsection (a), (b), or (c) of 4A1.1.
See U.S.S.G. § 4B1.2(c).")

       We acknowledged King's argument that "[s]ince the resisting arrest charge did
not receive a criminal history point . . . it cannot be a predicate" for the career
offender guideline, and held that "[a]fter considerable study, we conclude that King's
reading of the guidelines is plausible." King, 595 F.3d at 849-50.2 However, we did
not find that King's trial counsel was ineffective for failing to raise this issue. We
noted that counsel is not ineffective for failing to raise an argument that was novel at
the time of the proceeding, even if later found to be meritorious. Id. at 853. Instead,
we granted relief on the basis that King's appellate counsel was ineffective for failing
to challenge the appeal waiver because the sentencing court had not followed the
recommendations of the plea agreement, and for failing to raise this Guidelines issue
on appeal after King had raised it in a pro se filing. Id.




      2
       We were also "studying" King's argument that in another set of grouped
offenses, each of which were given the same length concurrent sentences, the crime
of violence predicate should not get the assigned criminal history point pursuant to
the "rule of lenity." King, 595 F.3d at 850.

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       Our analysis in King indicates that the Guideline argument in dispute here3 was
novel and sophisticated. In fact, we spent a good deal of time in the King case setting
forth the complexities of the grouping rules and pondering King's argument, calling
this reading of the Guidelines "plausible." Id. at 850. Pierce argues that the claim in
King was actually not novel because the King court relied upon two cases from 2000
to support its reasoning that King's argument was plausible. In Peters, we noted in
a direct appeal case that to qualify as a "crime of violence" for career offender
purposes, the felony must receive criminal history points under § 4A1.1(a), (b), or (c).
215 F.3d at 862. It was unclear in Peters whether the nonviolent or the violent
offense in a group of related cases was listed first and therefore should have been
counted for purposes of the criminal history points. We found that the case must be
remanded for a new sentencing hearing for the district court to "use its discretion in
applying the sentencing guidelines to the facts of the case." Id. at 863. In United
States v. Charles, 209 F.3d 1088 (8th Cir. 2000), also a direct appeal, the fighting
issue was whether the defendant's base offense level was correctly calculated because
two prior, related burglary offenses should not have been counted separately to raise
the base offense level under § 4A1.1 Id. at 1090. In both Peters and Charles, we
examined the grouping issue on direct appeal and found that the sentences either were
(Charles) or possibly were (Peters) incorrectly calculated. See also United States v.
Ruhaak, 49 F. App'x 656, 656-57 (8th Cir. 2002) (per curiam) (finding, in an
unpublished opinion on direct appeal, that a prior felony grouped with other counts
with identical sentences was arguably not given criminal history points and that the
rule of lenity applied, requiring reversal). Here, Pierce argues that trial counsel


      3
       Although in King the issues involved the application of the career offender
guideline (§ 4B1.1) and here the enhanced base offense level guideline (§ 2K2.1) is
involved, we believe this is a distinction without much of a difference. While the
application note in § 2K2.1 explicitly says what § 4B1.2 only alludes to (that prior
felonies only "qualify" if they are given criminal history points), King's trial counsel
would have had the benefit of our decision in Peters which clearly stated the criminal-
history-point argument.

                                          -6-
should have raised the grouping and criminal history point argument as explicated in
Peters and Charles. Pierce also claims that his current counsel raised this claim in
briefing on direct appeal prior to the date King was decided, undermining the idea
that this argument was first derived in King.

       We agree that the argument did not originate in King. The Guideline sections
at issue have been in effect for several years. However, this is not your garden variety
Guidelines argument. As the district court noted, it is "counterintuitive because it is
based on the premise that a defendant should receive a lower sentence because he has
more prior convictions." Addendum at 9 n.4 (emphasis in original). Nor does the
issue appear to be frequently litigated. While at least three4 times our court has
granted some form of relief to the defendant on direct appeal5 on the basis of this or
a similar argument, none of our decisions have granted a defendant collateral relief
on the basis of ineffective assistance of counsel for failing to spot this issue. We
declined to do so in King. In fact, this "relatively sophisticated" and "counter-

      4
        Three other of our prior cases discuss the general principles of grouping prior
convictions and assigning criminal history points, but the specific issue in the instant
case was not the litigated issue on appeal in United States v. Lazarski, 560 F.3d 731
(8th Cir. 2009) (litigated issue regarded points assessed for offenses committed prior
to the defendant's eighteenth birthday); United States v. Peltier, 276 F.3d 1003 (8th
Cir. 2002) (litigated issue was whether the defendant's numerous prior burglaries
were separated by intervening arrests and therefore "unrelated" for the purpose of
assigning criminal history points); and United States v. Oetken, 241 F.3d 1057 (8th
Cir. 2001) (litigated issue was whether post-offense conviction could serve as a
qualifying crime of violence). We also note that Lazarski was decided after Pierce's
sentencing hearing.
      5
        Although the Guideline error in question was raised in Pierce's direct appeal,
we chose not to disregard the appeal waiver based upon a potential miscarriage of
justice. See generally United States v. Snelson, 555 F.3d 681, 685 (8th Cir. 2009)
(noting even when a defendant has clearly and unambiguously waived his right to
appeal, the government has the burden of proving that dismissing the appeal would
not result in a miscarriage of justice).

                                          -7-
intuitive" Guideline argument was overlooked by several extremely competent folks,
starting with the probation officer (whose primary job is to calculate Guideline
sentences) and ending with the district court. This bolsters the conclusion that there
was no actionable Sixth Amendment violation. In order for this standard to be met,
counsel's error must have been so serious that counsel was not functioning as the
"counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Given
the unusual circumstances of this case, including the paucity of case law describing
this precise situation, the fact that a myriad of others missed the same point, and most
persuasive, the precedent set forth by King in refusing to find ineffective assistance
for the same error, we cannot hold that Strickland's standard has been met.

III.   CONCLUSION

       Following King, we find that Pierce's trial counsel was not unconstitutionally
ineffective. We therefore reverse and remand to the district court for further
proceedings.
                      ______________________________




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