                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0114n.06
                            Filed: February 12, 2007

                                            No. 03-6250

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


EARL ANTHONY JAMES,                                        )
                                                           )        ON APPEAL FROM THE
        Petitioner-Appellant,                              )        UNITED STATES DISTRICT
                                                           )        COURT FOR THE EASTERN
v.                                                         )        DISTRICT OF TENNESSEE
                                                           )
UNITED STATES OF AMERICA,                                  )                           OPINION
                                                           )
        Respondent-Appellee.                               )




        BEFORE:        MARTIN, BATCHELDER, McKEAGUE, Circuit Judges.

        McKEAGUE, Circuit Judge. Petitioner Earl Anthony James appeals the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. For the reasons that follow, we affirm

the district court.

                                        I. BACKGROUND

        The facts of Petitioner’s offense were set forth by this court on direct review:

                Earl Anthony James left his house on the evening of October 12, 1995,
        purportedly to check on his brother Mark. James testified that he took the family
        Pontiac Grand Am because it used less gas than his pickup truck. Although each
        vehicle was registered in both his wife’s and his name, he testified that he rarely
        drove the Grand Am. He testified that he found his brother at the Nashville Sound,
        a bar, where they proceeded to shoot pool and drink alcohol.

                Government witnesses testified that James and a man with him became very
        belligerent and threatened security guards at the bar. James disputes this, saying that
        he tried to calm down the other man, his brother’s friend, and get him out of the bar
No. 03-6250
James v. United States

       peacefully and quickly. A number of government witnesses testified that they heard
       a gunshot as James was driving out of the parking lot, and a 911 call was made
       reporting a gunshot in the area. James denies shooting a gun.

               A police officer pulled James over because the police dispatcher had sent out
       a be-on-the-lookout call for the Grand Am and because James was speeding. James
       immediately exited his car and walked towards the officer until told to return to his
       car. The officer testified that James held his right hand behind his back and walked
       backwards when told to get back into his car. The officer testified that he saw James
       bend down after he reentered the Grand Am, and that he appeared to be digging
       under the seat. James again exited his car and walked towards the police officer; this
       time holding his hands out. The officer handcuffed him and placed him in the back
       of the squad car. When support arrived, the officers performed sobriety tests on
       James, which he failed. An officer inventoried the Grand Am and found a leather
       pistol holster between the car door and the driver’s seat, and a revolver under the
       driver’s seat. As he removed the firearm, it snagged on two baggies, which turned
       out to contain relatively small quantities of marijuana. One shell of the firearm had
       been discharged, but the police did not perform any chemical tests to determine if
       James or anyone else had fired the firearm recently. James testified that he had
       hidden the marijuana under the seat but that he was not aware of the presence of the
       holster or the revolver. He testified that his wife was familiar with and owned guns.
       Although James’s wife testified before the grand jury that she did not know anything
       about the gun, she testified at trial that she was a gun enthusiast, and that the gun was
       hers.

                James pleaded guilty in Tennessee state court to possession of the marijuana
       with intent to distribute. He claims this was part of a plea bargain in which the state
       agreed to drop gun possession charges. The United States then indicted James under
       18 U.S.C. §§ 922(g)(1) & 924(a)(2) for being a felon in possession of a firearm.
       James had been convicted of a number of felonies in the past, and was on probation
       at the time of the incident.

               At the initial federal trial in April of 1997, the jury deadlocked on conviction
       and the judge declared a mistrial. Upon retrial in July of 1997, James was convicted.
       The judge sentenced him to 292 months in prison.

United States v. James, No. 97-6205, 1999 U.S. App. LEXIS 2024, at *2-5 (6th Cir. Feb. 4, 1999).

       On appeal, this court affirmed the district court’s conviction and sentence. Two years later,

Petitioner filed the motion to vacate his sentence at issue here under the Antiterrorism and Effective

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Death Penalty Act of 1996 (“AEDPA”). Petitioner alleged a number of errors, all of which the

district court construed as claims of ineffective assistance. Specifically, Petitioner claimed that

counsel had not attempted to suppress the gun as the fruit of an unlawful arrest; that counsel had not

objected to improper remarks in the prosecutor’s closing argument; that counsel failed to object to

the prosecutor’s elicitation of inadmissible evidence; that counsel failed to investigate the role of

federal agents in Petitioner’s guilty plea proceedings in state court; and that counsel failed to object

to incorrect calculation of Petitioner’s sentencing guidelines range. The district court denied

Petitioner’s motion as to all the above claims of error.

       The district court certified for appeal only the claim of ineffective assistance for failure to

object to inadmissible evidence: specifically, the use of stale convictions for impeachment in

violation of a pretrial order, and two hearsay documents from Petitioner’s jail file. Additionally, this

court granted a certificate of appealability regarding the calculation of Petitioner’s sentencing range.

Petitioner also continues to argue on appeal the issues of improper argument and the role of federal

agents in state guilty plea proceedings. “[T]he court of appeals will not entertain any issue that lacks

district court or court of appeals certification.” In re Certificates of Appealability, 106 F.3d 1306,

1308 (6th Cir. 1997); 28 U.S.C. § 2253. Petitioner’s arguments regarding the uncertified issues will

not be considered.

       Petitioner also attempts to argue on appeal a Fifth Amendment due process claim, on the

theory that the use of his state-court possession of marijuana for resale conviction violated his rights

to be free from double jeopardy and self-incrimination, and a related Sixth Amendment claim

regarding the sufficiency of the indictment. These issues will not be considered by this court,

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because they have not been certified; they were not raised before the district court; they were not

raised on direct review, and Petitioner has not established good cause for his failure to do so; and

in any case they are without merit. Perez v. Oakland County, 466 F.3d 416, 430 (6th Cir. 2006)

(“We do not consider an argument raised for the first time on appeal unless the party shows that

refusal to consider the argument would result in a miscarriage of justice.”); Bousley v. United States,

523 U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 486 (1986)) (“Where a

defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may

be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’

or that he is actually innocent.”) (citations omitted).

               II. FAILURE TO OBJECT TO INADMISSIBLE EVIDENCE

       A claim of ineffective assistance of counsel presents a “mixed question[] of law and fact.”

Mapes v. Tate, 388 F.3d 187, 190 (6th Cir. 2004). Therefore, this court “review[s] the district

court’s ruling on such a claim de novo,” while “‘[a]ny findings of fact pertinent to the ineffective

assistance of counsel inquiry are subject to a clearly erroneous standard of review.’” Id. (quoting

United States v. Jackson, 181 F.3d 740, 744 (6th Cir. 1999)).

       Ineffective assistance claims are analyzed under the test from Strickland v. Washington, 466

U.S. 668 (1984):

               A convicted defendant’s claim that counsel’s assistance was so defective as
       to require reversal of a conviction or death sentence has two components. First, the
       defendant must show that counsel’s performance was deficient. This requires
       showing that counsel made errors so serious that counsel was not functioning as the
       “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant
       must show that the deficient performance prejudiced the defense. This requires


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        showing that counsel’s errors were so serious as to deprive the defendant of a fair
        trial, a trial whose result is reliable.

Id. at 687. Meeting the second, “prejudice” prong requires showing “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694. The harmless error standard is applicable to claims of ineffective assistance, Maurino v.

Johnson, 210 F.3d 638, 644 (6th Cir. 2000), on collateral review as well as on direct appeal. See

Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000); Myers v. United States, 198 F.3d 615, 619

(6th Cir. 1999). However, reviewing courts need not undertake an independent harmless error

analysis.

        State court convictions are examined on collateral review to determine whether an error “‘had

substantial and injurious effect or influence in determining the jury’s verdict.’”               Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)); see also Joseph v. Coyle, 469 F.3d 441, 464 (6th Cir. 2006). This standard does not apply

to collateral review of federal-court convictions, as state-court convictions are entitled to special

deference. Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); see also 28 U.S.C. § 2254(e)(1).

The Supreme Court has explained that the more stringent habeas standard for state-court convictions

is subsumed in a prejudice standard identical to that in Strickland: “‘a reasonable probability that,

. . . [but for the error], the result of the proceeding would have been different’ . . . necessarily entails

the conclusion that” there was a “‘substantial and injurious effect or influence in determining the

jury’s verdict . . . .’” Kyles v. Whitley, 514 U.S. 419, 435 (1995) (quoting United States v. Bagley,

473 U.S. 667, 682 (1985) (opinion of Blackmun, J.); Brecht, 507 U.S. at 623). This court has


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similarly held that “[n]o harmless error analysis is necessary for claims of ineffective assistance of

counsel,” because the less-stringent harmless error analysis is likewise subsumed in the prejudice

prong of the Strickland analysis. Combs v. Coyle, 205 F.3d 269, 291 (6th Cir. 2000) (citing Kyles,

514 U.S. at 435-36).

       Petitioner’s counsel failed to object to the introduction of three pieces of evidence at trial:

the fact that Petitioner was convicted in 1977 for stealing fifty to eighty firearms, introduced by the

Government on cross-examination of Petitioner; a statement in the Medical Data form prepared upon

Petitioner’s arrest that Petitioner’s “behavior suggest[ed] the risk of assault,” introduced through the

testimony of a jail records custodian; and a letter purportedly written by “most of” Petitioner’s cell

block, indicating that Petitioner “has been causing problems in the cell, and is using intimidation to

take from people,” introduced through the same witness. 7/3/1997 Tr. Excerpt at 50; Government

Exhibit 14; 7/3/1997 Tr. Excerpt at 19.

       A. Impeachment with Stale Conviction

       Petitioner contends that counsel’s failure to object to this evidence entailed ineffective

assistance of counsel. The questions regarding Petitioner’s 1977 gun conviction violated a pretrial

order that “the United States will not be allowed to use stale [more than ten-year-old] convictions

for impeachment purposes” pursuant to Federal Rule of Evidence 609. Order at 3. This court on

direct review held that the Government’s elicitation of this evidence constituted plain error because

it “was in direct contravention of the district court’s pretrial order and Rule 609.” 1999 U.S. App.

LEXIS 2024, at *11. However, this court held that reversal was not appropriate because “James fails

the prejudice prong of the plain error test.” Id.

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        Similarly, the district court ruled regarding Petitioner’s § 2255 motion that counsel’s failure

to object “does not fall within the wide range of reasonably competent assistance demanded of

attorneys in criminal cases.” Memorandum Opinion at 16. The Government contends on appeal that

counsel’s failure to object could have been trial strategy, as counsel could have decided that “rather

than object, and perhaps give the jury the impression petitioner was hiding prior convictions,” he

would “permit[] the impeaching inquiry about the stale conviction in order” that Petitioner might

“testify unequivocally that he had no convictions involving the use of guns or involving violence.”

Appellee’s Brief at 33.

        The Government’s argument is unpersuasive. The failure to object to clearly inadmissible

evidence of prior convictions is not shielded as “strategy” even where it is part of a carefully

considered defense plan. See Coleman v. Ohio Adult Parole Auth., 118 F. App’x 949, 952 (6th Cir.

2004) (“The state’s argument that counsel’s failure to object to the remarks as part of a conscious

strategy to use the prior conviction in [the defendant’s] favor does little to rebut the district court’s

finding of ineffective assistance, and is supported by no case.”); Lovett v. Foltz, No. 88-1682, 1989

U.S. App. LEXIS 13295, at *11-12 (6th Cir. Sept. 5, 1989) (in case table at 884 F.2d 579) (“[W]hile

‘baring the soul’ may have been a reasonable defense theory, its use . . . does not excuse counsel’s

failure to object to what might otherwise have been inadmissible evidence. ‘Strategy,’ whether

labeled ‘baring the soul’ or with some other name, is not the equivalent of ‘opening the

floodgates.’”). The district court was correct in ruling that “[t]his Court can conceive of no reason,

other than inattentiveness, for an attorney to sit silent while a client is subjected to questioning that

transgresses a court order as well as an evidentiary rule.” Memorandum Opinion at 16.

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        However, counsel’s failure to object does not entitle Petitioner to habeas relief. The

Government presented significant evidence against Petitioner, including the testimony of two

eyewitnesses regarding threats and the firing of a shot at the Nashville Sound, and of a police officer

regarding Petitioner’s furtive actions during the traffic stop. As this court held in United States v.

Scisney, 885 F.2d 325, 327 (6th Cir. 1989), “Although ‘overwhelming’ might be too strong a word

to describe the Government’s case, it was solid enough overall, and convinces us that any error

involved in the brief reference to the prior . . . conviction was harmless as a matter of law.”

        Moreover, although the Government improperly elicited evidence of Petitioner’s 1977

conviction, evidence that Petitioner had been convicted of two counts of cocaine trafficking, had

violated parole and been returned to prison, and had been convicted of introducing contraband into

a jail, was properly admitted. This court held in Charles v. Foltz, 741 F.2d 834, 838 (6th Cir. 1984),

in which two convictions were improperly elicited on cross-examination, but “at least six additional

convictions” were properly before the jury, that “[i]t is . . . beyond a reasonable doubt that the two

convictions elicited during cross-examination were harmless error.”

        B. Elicitation of Hearsay Statements

        Similarly, counsel’s failure to object to the admission of two hearsay documents from

Petitioner’s jail file, the Medical Data form and the letter from Petitioner’s cellmates, does not entitle

Petitioner to habeas relief. The district court made no express ruling as to whether counsel’s failure

to object to this evidence met the first requirement of the Strickland test, and it is unnecessary for

this court to do so in the first instance, since the prejudice requirement is not met.



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       The Medical Data form recorded a police officer’s belief that Petitioner’s “behavior” at the

time of his arrest “suggest[ed] the risk of assault.” Though, as this court ruled on direct appeal, the

Medical Data form was inadmissible hearsay, the evidence was essentially cumulative with the

testimony of the arresting officer. That officer had already testified that when Petitioner was

stopped, “It was kind of a tense moment. I’d already received a [be-on-the-lookout] of an altercation

in Johnson City involving a weapon. I stopped a vehicle with the tag number that was given to me,

and I felt a threat of a – of a gun.” 7/3/1997 Tr. Excerpt at 8-9. Although the hearsay evidence “was

improperly before the jury,” it “was cumulative of other evidence and did not pose a reasonable

possibility of prejudice to the jury’s verdict.” United States v. Lartigue, Nos. 93-5356, 93-5359,

1994 U.S. App. LEXIS 9342, at *33 (6th Cir. Apr. 26, 1994); see also United States v. Sollars, 979

F.2d 1294, 1298 (8th Cir. 1992).

       The letter purportedly from Petitioner’s cellmates alleged that he was “using intimidation to

take from people.” The letter does not specify what “intimidation” means, and Petitioner’s

explanation that his cellmates may have been resentful because he had won several poker games was

uncontroverted. 7/3/1997 Tr. Excerpt at 36. Thus, it is not clear that the hearsay statement in the

letter was even unflattering to Petitioner. Even assuming that it was, in the context of the officer’s

testimony mentioned above and the testimony of Nashville Sound security guards that Petitioner was

“cursing us out pretty good,” that Petitioner or his companion stated that “they’d shoot every one of”

the security guards, that Petitioner made two passes by the guards in his car, and that he fired a shot

as he drove away, any evidence of Petitioner’s disagreements with cellmates was harmless.



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Petitioner’s claims of ineffective assistance fail because he cannot satisfy the prejudice prong of

Strickland.

                     III. CALCULATION OF SENTENCING GUIDELINES

        This Court reviews for clear error a district court’s findings of fact for purposes of its

Sentencing Guidelines calculations; conclusions of law, however, are reviewed de novo. United

States v. Galloway, 439 F.3d 320, 322 (6th Cir. 2006).

        Petitioner argues that his Sentencing Guidelines were calculated incorrectly. Specifically,

he asserts that the sentencing court

        incorrectly increased the defendant’s offense level from 24 to 34 under [U.S.S.G. §]
        2K2.1(b)(5) (6 points) and again under [§] 4B1.4(b)(3)(A) (4 points) then increased
        the defendant’s criminal history from IV to VI under [§] 4B2.4(c)(2) all based on the
        same possession by the defendant of 33 grams of marijuana at the time of his arrest.

Appellant’s Brief at 7. As an initial matter, this court reviews sentencing calculations to determine

that the Guidelines were applied correctly. That the single fact of possession of marijuana may

legally qualify a defendant for several sentencing enhancements under the Guidelines does not entail

a basis for relief. See 18 U.S.C. § 3742(a).

        A. Calculation of Offense Level

        The sentencing court applied the 1996 version of the federal Sentencing Guidelines.1 The

court increased Petitioner’s offense level four points, rather than six, as Petitioner contends, pursuant

to U.S.S.G. § 2K2.1(b)(5). That Guideline provides, “If the defendant used or possessed any firearm



        1
            Hereinafter, the content of the Guidelines is taken from the version effective November 1,
1996.

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James v. United States

or ammunition in connection with another felony offense; or possessed or transferred any firearm

or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense, increase by 4 levels.” U.S.S.G. § 2K2.1(b)(5). Petitioner

contends that his conduct does not qualify as use or possession of a firearm “in connection with

another felony offense,” in this case, his state conviction for possession of marijuana for resale.

        The district court correctly followed this court’s opinion in United States v. Hardin, 248 F.3d

489 (6th Cir. 2001), in ruling that the sentencing court properly assessed four points under §

2K2.1(b)(5). In Hardin, it was undisputed that

        the cocaine and the gun were in the room with [the defendant] at the time of his
        arrest. . . . Defendant contends that in order to prove that he used the gun “in
        connection with” a drug offense, the Government must present additional evidence
        – perhaps that he had both the gun and the cocaine on his person, or that he was
        holding the gun while selling the cocaine, or that he confessed that he was using the
        gun to protect the cocaine. We do not read the term “in connection with” to require
        additional evidence beyond that presented here.

Id. at 495. Thus, while it is true, as Petitioner contends, that the Government must prove the

possession of a firearm in connection with another felony by a preponderance of the evidence, this

simply requires that the possession of the firearm “cannot be the result of accident or coincidence.

. . . Instead, the gun at least must ‘facilitate, or have the potential of facilitating,’ the drug trafficking

offense.” Id. at 497-98 (quoting United States v. Regans, 125 F.3d 685, 686 (8th Cir. 1997) (quoting

Smith v. United States, 508 U.S. 223, 238 (1993))) (internal quotations omitted).

        The Hardin court held that the presence of the defendant, the cocaine, and the gun, which

was registered in the name of the defendant’s wife, in the same room at the same time, was sufficient

to establish that the firearm possession was “in connection with” the felony cocaine possession. Id.

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at 490, 496. In this case, Petitioner, the marijuana, and the gun were in the same car at the same

time, and the gun and the marijuana were actually next to each other hidden under the same car seat.

Though, as Petitioner contends, the quantities of drugs in Hardin and the cases from other circuits

which it cites were larger than the quantity of marijuana at issue here, in view of Petitioner’s state

court conviction for “possession of marijuana for resale,” this distinction is not relevant.

       Even if Petitioner’s offense level had not been increased four points under § 2K2.1(b)(5), his

offense level would still have been 34 under § 4B1.4(b)(3)(A) because of his status as an Armed

Career Criminal. Under § 4B1.4(b)(3)(A), if a defendant is designated an Armed Career Criminal,

and he “used or possessed the firearm or ammunition in connection with a crime of violence or

controlled substance offense, as defined in [§] 4B1.2(1),” his offense level is 34. A controlled

substance offense is “an offense under a federal or state law prohibiting . . . the possession of a

controlled substance . . . with intent to manufacture, import, export, distribute, or dispense” it.

U.S.S.G. § 4B1.2(2). Marijuana is a controlled substance under both Tennessee and federal law.

Tenn. Code Ann. § 39-17-415(1); 21 U.S.C. § 812 Schedule I(c)(17). Petitioner pled guilty to

possession of marijuana for resale in violation of Tenn. Code Ann. § 39-17-417(a)(4).2 Thus, the

district court correctly ruled that Petitioner’s conduct falls within the ambit of § 4B1.4(b)(3)(A).

       B. Designation as an Armed Career Criminal



        2
         Petitioner contends on appeal that “[t]here was no evidence whatsoever that [he] was selling
or intended to sell any marijuana or that he had the 33 grams of marijuana for any other purpose than
personal use.” Appellant’s Brief at 9. Petitioner’s state guilty plea is to the contrary, and he may not
use the instant habeas petition to effect a collateral attack on his conviction under Tennessee law.


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       Petitioner additionally argues that he was incorrectly designated an Armed Career Criminal

under 18 U.S.C. § 924(e), which provides increased penalties for a felon in possession of a firearm

who “has three previous convictions . . . for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1); see also U.S.S.G. §

4B1.4(a). The Government offered five prior offenses at sentencing to establish that Petitioner is

an Armed Career Criminal:

       1) possession of marijuana with intent to distribute, Virginia state court, conviction 1983;
       2) sale of Schedule II drugs, Tennessee state court, committed May 24, 1984;
       3) sale of Schedule II drugs, Tennessee state court, committed June 10, 1984;
       4) introducing contraband into prison, Tennessee state court, conviction 1987; and,
       5) third-degree burglary, Tennessee state court, conviction 1977.

The district court below ruled that at least three of these prior convictions, the second, third, and

fifth, qualify as violent felonies or serious drug offenses. Petitioner concedes that the first offense

counts toward Armed Career Criminal status, but contends that the second and third offenses are not

“separate and distinct criminal episodes” and that therefore only one can be counted. He also

contends that his 1977 offense, the fifth above, does not fall under the definition of burglary for

federal sentencing purposes. Therefore, he claims, he does not have the three predicate offenses

required for Armed Career Criminal status.

       For purposes of designating an Armed Career Criminal, a “violent felony” is “any crime

punishable by imprisonment for a term exceeding one year” that “has as an element the use,

attempted use, or threatened use of physical force against the person of another,” or “is burglary . .

. or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

Id. § 924(e)(2)(B). A “serious drug offense” includes “an offense under State law, involving

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manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled

substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by

law.” 18 U.S.C. § 924(e)(2)(A)(ii).

       Petitioner is correct in concluding that the first of the five above offenses qualifies as a

serious drug offense. He was convicted in 1983 of possession with intent to distribute 1.89 ounces

of marijuana, which is a Class 5 felony under Virginia law. Va. Code Ann. § 18.2-248.1(a)(2).

Class 5 felonies are punishable by up to ten years’ incarceration. Va. Code Ann. § 18.2-10(e).

Marijuana is a controlled substance under both Virginia and federal law.                Donahue v.

Commonwealth, 300 S.E.2d 768, 769 (Va. 1983); 21 U.S.C. § 812 Schedule I(c)(17).

       The second and third offenses above are also serious drug offenses. The sale of a “Schedule

II controlled substance” in violation of Tenn. Code Ann. § 39-17-417(a)(3), (c) is at least a Class C

felony, and is punishable by up to 10 years’ incarceration or more.3 Therefore, as Petitioner does not


       3
          In United States v. Morton, 17 F.3d 911, 915 (6th Cir. 1994), this court held that the
maximum sentence prescribed by law for a prior drug offense counted under § 924(e) is determined
based on the sentencing laws of the relevant state at the time of the Armed Career Criminal
sentencing – thus, in this case, 1995, rather than 1985. Under Tennessee’s “comprehensive penal
and sentencing reform legislation,” which took effect in 1989, the difference between statutory
minimum and maximum sentences is divided into “ranges” based on the offender’s criminal record.
Tenn. Code Ann. §§ 40-35-112, 40-35-101 Sentencing Comm’n Cmts. The Morton court thus held,
“At the time defendant was being sentenced in this case, the State of Tennessee did not consider
trafficking less than .5 grams, when the defendant has no more than one prior felony conviction,
serious enough to impose a ten-year sentence.” 17 F.3d at 915. In this case, by contrast, Petitioner
already had more than one prior felony conviction in 1985; he was considered an “especially
aggravated offender” based on his prior record and was sentenced to 14 years’ incarceration for the
two sales of Schedule II drugs, the sentences to run concurrently. “Especially aggravated offender”
status triggers a “Range II” sentence under Tennessee’s current system. Wallen v. State, 863 S.W.2d
34, 36 (Tenn. 1993); State v. Cook, 816 S.W.2d 322, 323 (Tenn. 1991). For a Class C felony, Range
II is six to ten years. Tenn. Code Ann. § 40-35-112(b)(3). For a Class B felony (for sale of more

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dispute, it qualifies as a serious drug offense under § 924(e)(2)(A)(ii). See United States v. Roach,

958 F.2d 679, 683 (6th Cir. 1992) (counting the sale of schedule II controlled substances in violation

of Tennessee law as a prior conviction for a serious drug offense under 18 U.S.C. § 924(e)(1)).

       However, Petitioner argues that his two 1984 distribution offenses cannot be counted

separately. This court reviews de novo the question of whether offenses were committed on

occasions different from one another under § 924(e)(1). United States v. Hill, 440 F.3d 292, 295 (6th

Cir. 2006). Offenses are committed on different occasions if they “are not ‘components of a single

act of criminality.’” United States v. Anderson, 76 F.3d 685, 691 (6th Cir. 1996) (quoting United

States v. Blackwood, 913 F.2d 139, 145 (4th Cir. 1990)).

       Petitioner sold cocaine to a police informant in Tennessee on May 24 and June 10 of 1984.

He contends that these sales were not on occasions different from one another because the sales were

to the same informant, one warrant was issued and one arrest made for both, both convictions arose

from the same proceeding, and the sentences were served concurrently. As an initial matter, a

“defendant’s receipt of concurrent sentences for . . . [multiple] prior felony drug convictions does

not mean that the convictions were part of the same criminal episode.” United States v. Anderson,

76 F.3d 685, 691 (6th Cir. 1996).

       In United States v. Brady, 988 F.2d 664, 666 (6th Cir. 2002) (en banc), this court held that

offenses were committed on different occasions although they occurred approximately forty-five



than .5 grams), Range II is twelve to twenty years. Id. § 40-35-112(b)(2). Thus, under the rule in
Morton, the maximum sentence prescribed by Tennessee law for sale of Schedule II drugs at the time
of sentencing for Petitioner’s current felon in possession offense was ten years or more.

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minutes apart on the same evening, and the police clearly were unable to arrest the defendant for the

first offense before he committed the second. Thus, the fact that Petitioner was not arrested between

the two drug sales does not mean that the two sales formed a single episode. The rest of Petitioner’s

arguments were all raised and rejected in Roach. This court held in that case that sales of drugs to

the same undercover agent, just over two weeks apart, for which the defendant was indicted on the

same day and later convicted on the same day, were separate criminal episodes for § 924(e)(1)

purposes. 958 F.2d at 683-84. Likewise, Petitioner’s two 1984 sales here were not part of a single

act of criminality, and the district court properly counted both toward Petitioner’s designation as a

Armed Career Criminal.

       Thus, Petitioner has at least three qualifying prior offenses. Therefore, this court need not

reach the question of whether Petitioner’s conviction for third-degree burglary under Tennessee law

qualifies as a violent felony for purposes of Armed Career Criminal status. The sentencing court

properly determined that Petitioner qualified for an offense level of 34 and a criminal history

category of VI. U.S.S.G. § 4B1.4(b)(3)(A), (c)(2). Although the district court used different

offenses to find that Petitioner had three prior felonies, the district court correctly ruled that

Petitioner’s sentencing guidelines were properly calculated. Insofar as Petitioner’s claims regarding

his sentencing calculations are to be construed as allegations that counsel was ineffective for failing

to object at sentencing, they are also not meritorious. Counsel cannot be ineffective for failing to

object to what was properly done. United States v. Sanders, 404 F.3d 980, 986 (6th Cir. 2005).

                                       IV. CONCLUSION



                                                - 16 -
No. 03-6250
James v. United States

       For these reasons, the denial of Petitioner’s § 2255 motion was proper, and the district court’s

decision is AFFIRMED.




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