                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 19a0625n.06

                                           No. 17-6178

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 ROBERT SCOTT SHEPPARD,                                  )                        FILED
                                                         )                   Dec 18, 2019
                                                                         DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,                            )
                                                         )
 v.                                                      )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
 UNITED STATES OF AMERICA,                               )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF KENTUCKY
        Respondent-Appellee.                             )




       Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.

       PER CURIAM. Robert Scott Sheppard, a habeas petitioner, argues that he received

constitutionally deficient assistance of counsel when his trial attorney failed to object to a

sentencing enhancement. Sheppard’s petition for relief comes to us with a record that is inadequate

to permit review, so we vacate and remand for additional proceedings in the district court.

       In December 2012, Sheppard shot an acquaintance, Johnny Hill, in the woods near

Sheppard’s farmhouse. Sheppard was a felon, so he could not legally possess a firearm. Neither

Hill nor Sheppard reported the shooting. Fourteen months later, police officers discovered

Sheppard, along with two loaded firearms and a bag of methamphetamine precursors—the raw

materials for producing methamphetamine—in the basement of another house that they suspected

was a meth lab. In the rest of the house, the officers found drug paraphernalia, more meth

precursors, a security-camera system and monitor, and nine more firearms.           They arrested

Sheppard.
No. 17-6178, Sheppard v. United States


       Sheppard admitted to the police that he had shot Johnny Hill in 2012. Sheppard said that

the “Hill Boys”—Johnny and his brother Melvin—had been stealing from him. The police

interviewed the Hill brothers. Johnny confirmed that Sheppard had shot him; Melvin said that he

stayed home the night of the shooting, but admitted that he bought meth from Sheppard regularly.

Melvin had also seen Sheppard produce meth—usually at the farmhouse—around 200 times.

According to Melvin, Sheppard had always been armed when they saw each other.

       The government eventually charged Sheppard with two counts of being a felon-in-

possession of a firearm, in violation of 18 U.S.C. § 922(g), for shooting Johnny Hill and for

possessing firearms when he was arrested. Sheppard pled guilty to those charges.

       Sheppard’s presentence report recommended that his sentence be enhanced on the ground

that his offenses collectively involved three firearms. See U.S.S.G. §§ 2K2.1(b)(1)(A), 3D1.2(b).

Sheppard’s counsel did not object; the district court adopted that enhancement and sentenced

Sheppard to 162 months in prison. This court affirmed. United States v. Cureton, 661 F. App’x

369, 381–83 (6th Cir. 2016).

       Sheppard then petitioned for relief under 28 U.S.C. § 2255, arguing among other things

that his attorney’s failure to object to the number-of-guns enhancement violated Sheppard’s Sixth

Amendment right to effective counsel. The district court denied Sheppard’s petition without

holding an evidentiary hearing and before the government filed a response to the motion. This

appeal followed.

       We review claims of ineffective assistance de novo. Logan v. United States, 910 F.3d 864,

868 (6th Cir. 2018). To prevail on an ineffective-assistance claim, a petitioner must prove that his

“counsel’s performance was deficient” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is



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No. 17-6178, Sheppard v. United States


deficient only if it falls “below an objective standard of reasonableness” evaluated from “counsel’s

perspective at the time.” Id. at 688–89.

       We usually hear ineffective-assistance claims through a § 2255 motion, rather than through

a direct appeal, because that posture allows the district court “to develop[] the facts necessary to

determin[e] the adequacy of representation[.]” Massaro v. United States, 538 U.S. 500, 505

(2003). But for all practical purposes the record here is no different than it would be in a direct

appeal. We have no testimony from trial counsel that might explain whether “a seemingly unusual

or misguided action”—here, according to Sheppard, the failure to object—“had a sound strategic

motive or was taken because counsel’s alternatives were even worse.” Id. And the government

has asserted that, even if Sheppard’s counsel had objected to the enhancement, a different section

of the Guidelines, namely § 3D1.2(d), mandated an identical sentence to the one Sheppard

received. The district court is better situated than we are to pass on that question in the first

instance. We therefore vacate the district court’s judgment, and remand for the district court to

develop the record and otherwise to proceed as it sees fit.




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