Raphael L. Donnell, Movant - Appellant
United States of America, Respondent - Appellee
Submitted February 11, 2014
Appeal from United States District Court for the Western District of Missouri - Kansas City.
Raphael L. Donnell, Movant - Appellant, Pro se, Forrest City, AR.
For Raphael L. Donnell, Movant - Appellant: Andrea L. Smith, Kirkwood, MO.
For United States of America, Respondent - Appellee: Lajuana M. Counts, Assistant U.S. Attorney, David DeTar Newbert, Assistant U.S. Attorney, Philip M. Koppe, Assistant U.S. Attorney, U.S. Attorney's Office, Kansas City, MO.
Before LOKEN, BYE, and COLLOTON, Circuit Judges. BYE, Circuit Judge, dissenting in part and concurring in the judgment.
LOKEN, Circuit Judge.
A jury convicted Raphael L. Donnell of violating 21 U.S.C. § § 841 and 846 by conspiring to distribute ecstacy. We affirmed his conviction and 240-month sentence on direct appeal. United States v. Donnell, 596 F.3d 913, 919-21, 925-26 & n.5 (8th Cir. 2010), cert. denied, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). Donnell then moved to vacate his sentence under 28 U.S.C. § 2255 arguing, inter alia, that the ineffective assistance of his appellate counsel resulted in our affirming an improper career-offender sentencing determination. See U.S.S.G. § 4B1.1(a). The district court denied § 2255 relief. We granted a certificate of appealability on this issue. Reviewing de novo, Pierce v. United States, 686 F.3d 529, 531 (8th Cir. 2012), we affirm.
I. The Issue on Appeal
The Guidelines' career offender provisions increase a defendant's base offense level if he is convicted of a crime of violence or a controlled substance offense and " has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a)(3). Donnell's Presentence Investigation Report (" PSR" ) identified two state convictions as predicates for the career offender enhancement: a 1992 conviction for robbery in the first degree and a 2005 felony conviction for resisting arrest. Only the resisting arrest conviction is here at issue. Donnell concedes that resisting arrest was a qualifying crime of violence but argues that it was improperly counted, applying King v. United States, 595 F.3d 844 (8th Cir. 2010), a decision published after argument and submission of Donnell's direct appeal but before we filed our opinion affirming his conviction and sentence.
The term " two prior felony convictions" in § 4B1.1(a)(1) means two qualifying felony convictions that " are counted separately under the provisions of § 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c). " The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1." U.S.S.G. § 4B1.2 comment. (n.3). Under § 4A1.2, when prior offenses were not separated by an intervening arrest, multiple sentences imposed on the same day are counted as a single sentence, using " the longest sentence of imprisonment if concurrent sentences were imposed." § 4A1.2(a)(2).
In King, we concluded that " not every offense within a group of related prior sentences necessarily receives criminal history points," 595 F.3d at 848, 850. The offense that received the longest prison sentence is " assigned" the group's criminal history point under § 4A1.2(a)(2), and only that offense may be considered a predicate felony conviction offense for purposes of the career offender enhancement in § 4B1.1(a)(1). Id. at 852. In King, one group of the ...