     Case: 10-50740     Document: 00511704337         Page: 1     Date Filed: 12/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 22, 2011
                                     No. 10-50740
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

REGINALD KENNEDY, also known as Reginald Donnell Kennedy,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CV-103


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Reginald Kennedy, federal prisoner # 83824-180, proceeding pro se for this
appeal, pleaded guilty in 2007 to conspiracy to possess, with intent to distribute,
cocaine and crack cocaine and possession, with intent to distribute, crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846. He was
sentenced, inter alia, as a career offender to 188-months’ imprisonment, and his
conviction and sentence were affirmed by our court on direct appeal.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-50740    Document: 00511704337       Page: 2   Date Filed: 12/22/2011

                                   No. 10-50740

      Kennedy’s 2010 28 U.S.C. § 2255 motion asserted trial and appellate
counsel rendered ineffective assistance. The district court denied the motion and
a certificate of appealability (COA). Our court granted a COA on whether trial
counsel rendered ineffective assistance by failing to object at sentencing in two
instances: to criminal-history points imposed for three state misdemeanor
offenses; and to the criminal-history calculation for Kennedy’s two state felony
convictions, which resulted in application of the career-offender enhancement.
      Factual findings are reviewed for clear error; conclusions of law, de novo.
E.g., United States v. Stricklin, 290 F.3d 748, 750 (5th Cir. 2002). There is no
clear error if the district court’s findings are “plausible in light of the record as
a whole”. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      To prevail on a claim of ineffective assistance of counsel, Kennedy must
show his counsel’s performance fell below an objective standard of
reasonableness and as such prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 689-94 (1984).
      Kennedy contends counsel was ineffective for failing to object to use of two
prior felony convictions–for aggravated robbery and aggravated assault–to
classify him as a career offender because the sentences resulted from offenses
contained in the same charging instrument and should have been treated as a
single conviction. As noted, Kennedy was sentenced under the career-offender
provision; it requires application of criminal-history category VI.      U. S. S. G.
§ 4B1.1(b). To qualify as a career offender, however, Kennedy had to have two
prior convictions for which the sentences were counted separately under
Sentencing Guideline § 4A1.1, the provision for determining criminal-history
scores. U.S.S.G. § 4B1.2(c) and comment, n.2. Thus, Kennedy essentially
contends that, if the sentences for the two convictions had not been counted
separately under §4A1.1, he would not have qualified as a career offender under
§ 4B1.1.



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   Case: 10-50740    Document: 00511704337      Page: 3    Date Filed: 12/22/2011

                                  No. 10-50740

      Under the Guidelines, prior sentences “are always counted separately if
the sentences were imposed for offenses that were separated by an intervening
arrest (i.e., defendant is arrested for first offense prior to committing the second
offense)”. U.S.S.G. § 4A1.2(a)(2). If there was no intervening arrest, the
sentences are counted separately unless they (1) resulted from offenses
contained in the same charging instrument, or (2) were imposed on the same
day. Id.
      There was no intervening arrest between the aggravated assault and
aggravated robbery. Both felony offenses were originally charged in the same
indictment, but the aggravated-robbery charge was dismissed and subsequently
raised in a separate indictment. Furthermore, Kennedy was sentenced for the
offenses on different days and under different cause numbers.             Kennedy
contends that, because the offenses were originally brought in the same
indictment, they should have counted as one sentence for criminal-history
purposes, but he fails to provide any legal authority either supporting his
assertion or even addressing the district court’s implicit determination that the
offenses being originally charged in one indictment did not alter the result under
the guideline provision governing whether prior sentences are counted
separately or as a single sentence. Accordingly, Kennedy cannot demonstrate
counsel’s failure to object to the criminal-history calculation on prior felony
offenses constituted deficient performance. E.g., McCoy v. Lynaugh, 874 F.2d
954, 963 (5th Cir. 1989) (holding that counsel was not deficient for failing to
make an objection that lacked merit).
      As for Kennedy’s claim that counsel was ineffective for failing to object to
calculation of criminal-history points assessed for three state misdemeanors,
Kennedy cannot demonstrate he was prejudiced by counsel’s performance. See
Strickland, 466 U.S. at 689-94. Even if counsel’s failure to object in that
instance constituted deficient performance, it would have no effect on Kennedy’s
criminal-history category, given the district court’s correct determination that

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   Case: 10-50740   Document: 00511704337     Page: 4     Date Filed: 12/22/2011

                                 No. 10-50740

Kennedy was a career offender. See U.S.S.G. § 4B1.1(b)(B) (indicating all career
offenders will have a criminal history category of VI).
      AFFIRMED.




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