16‐2839
United States v. Legrier
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 15th day of May, two thousand
nineteen.

PRESENT: JON O. NEWMAN
         DENNIS JACOBS,
         CHRISTOPHER F. DRONEY,
                      Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
UNITED STATES OF AMERICA,

                Appellee,

                ‐v.‐                                                      16‐2839

DESHAWN LEGRIER,

                   Defendant‐Appellant.*
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X


* The Clerk of Court is respectfully directed to amend the official caption to conform with the above.
FOR APPELLANT:                        Gwen M. Schoenfeld, Law Office of Gwen
                                      M. Schoenfeld, LLC.

FOR APPELLEE:                         Hagan Scotten (with Won S. Shin on the
                                      brief), for Geoffrey S. Berman, United States
                                      Attorney for the Southern District of New
                                      York, New York, NY.

     Appeal from a judgment of the United States District Court for the
Southern District of New York (Abrams, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court be
AFFIRMED.

       Defendant‐Appellant Deshawn Legrier appeals from a judgment of the
United States District Court for the Southern District of New York (Abrams, J.),
sentencing him principally to 120 months’ imprisonment on one count of
possession of a firearm after having previously been convicted of a felony, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court designated
Legrier’s 2007 conviction for attempted criminal possession of a weapon in the
second degree (N.Y. Penal Law §§ 265.03(1)(b) and 110) as a “crime of violence”
under the residual clause of the United States Sentencing Guidelines § 4B1.2,
resulting in a four‐level increase in Legrier’s guidelines range. Legrier claims he
was deprived of his Sixth Amendment right to effective assistance of counsel at
sentencing because his attorney: (1) failed to object on the ground that Second
Circuit law at the time of his sentencing had invalidated the residual clause of
§ 4B1.2; and (2) failed to alert the district court that an amendment to the
guidelines that eliminated the residual clause in § 4B1.2 was going into effect five
days after his sentencing. We assume the parties’ familiarity with the
underlying facts, procedural history, and issues on appeal.

       A claim of ineffective assistance of counsel requires a demonstration that:
(1) “counsel’s performance was deficient”; and (2) “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In
determining whether a defendant was prejudiced by counsel’s performance, we

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focus on whether the “result of the proceeding was fundamentally unfair or
unreliable.” Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).

       This court is generally reluctant to entertain ineffective assistance claims on
direct appeal. United States v. Gaskin, 364 F.3d 438, 467 (2d Cir. 2004).
However, direct appellate review is appropriate if “the defendant has a new
counsel on appeal,” United States v. Yauri, 559 F.3d 130, 133 (2d Cir. 2009), “the
factual record is fully developed[,] and resolution . . . is beyond any doubt or in
the interest of justice,” Gaskin, 364 F.3d at 468 (internal quotation marks omitted).

       1. Legrier argues that his counsel should have objected to the court’s
classification of his state conviction as a crime of violence under the residual
clause of § 4B1.2 because, at the time of his sentencing, this Court had declared
the residual clause of § 4B1.2 unconstitutionally vague. See United States v.
Welch, 641 F. App’x 37, 42‐43 (2d Cir. 2016) (summary order); see also United
States v. Jones, No. 15‐1518‐cr, slip op. at 17 (2d Cir. July 21, 2016) (citing Welch
and noting that the residual clause “is likely void for vagueness”), vacated, 838
F.3d 296 (2d Cir. 2016). However, after his sentencing, the Supreme Court
upheld the residual clause against a vagueness challenge, overturning our
contrary decisions. See Beckles v. United States, 137 S. Ct. 886, 892 (2017). A
defendant suffers no cognizable Strickland prejudice if counsel fails to raise an
argument that may have resulted in a lower prison sentence under then‐valid law
that is later overruled. See Fretwell, 506 U.S. at 366 (finding no prejudice where
counsel failed to make “an objection that would have been supported by a
decision which subsequently was overruled”). Legrier is not entitled “to have
the [district] court make an error in his favor.” Id. at 371.

      Accordingly, Legrier has failed as a matter of law to demonstrate that he
was prejudiced by his lawyer’s failure to object on the ground that his state
conviction was not a crime of violence under then‐current Second Circuit law.




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       2. Legrier also claims that his counsel was deficient for failing to alert the
district court that a guidelines amendment that eliminated the residual clause of
§ 4B1.2 would be going into effect five days after his sentencing. That
amendment was in fact effected on August 1, 2016, and § 4B1.2 no longer contains
the residual clause under which Legrier’s guidelines were calculated. See
U.S.S.G., App. C., amend. 798 (Aug. 1, 2016). Because this argument does not
rely on precedent that was later overturned, it is not precluded by Fretwell.
However, this ineffectiveness argument is inappropriate to review on direct
appeal, because it may require additional fact finding. See Gaskin, 364 F.3d at
468. Accordingly, we dismiss without prejudice to a motion under 28 U.S.C. §
2255 Legrier’s claim for ineffective assistance based on his lawyer’s failure to alert
the court to the forthcoming amendment to the guidelines.

                                         ****

       As to Legrier’s claims of ineffective assistance of counsel at sentencing, one
is denied and the other is dismissed without prejudice. The judgment of the
District Court is hereby affirmed.



                                       FOR THE COURT:
                                       CATHERINE O’HAGAN WOLFE, CLERK




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