NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0361n.06

Case No. 19-3025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RYAN D. MALONE,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO 

BEFORE: BOGGS, GRIFFIN, and READLER, Circuit Judges. 

PER CURIAM. Ryan Malone appeals from the denial of his motion to vacate, set aside, 

or correct his sentence pursuant to 28 U.S.C. § 2255. Malone asks that his sentence be vacated on 

the grounds that his counsel on direct appeal provided ineffective assistance by failing to challenge

whether Malone’s prior controlled substance offense satisfied the requirements for a Guidelinesimposed sentencing enhancement. Finding no error in the district court proceedings, we 

AFFIRM. 

BACKGROUND

This is Malone’s third appearance before this court to challenge the sentence imposed 

following his 2015 guilty plea to being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1), in relation to a kidnapping. At his initial sentencing hearing, Malone’s Guidelines 

range was 130 to 162 months. That range was driven in part by an enhancement to Malone’s base 
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offense level due to two of Malone’s prior felony convictions. See U.S.S.G. § 2K2.1(a)(2). Under 

§ 2K2.1(a)(2), a defendant’s base offense level is increased when the defendant has at least two 

prior felony convictions for either a “controlled substance offense” or a “crime of violence.” 

Malone had both. His controlled substance offense predicate was an Ohio conviction for drug 

trafficking, in violation of Ohio Revised Code § 2925.03(A)(2). And the district court also 

determined that a prior aggravated burglary conviction qualified as a crime of violence under the 

Guidelines. United States v. Malone, 646 F. App’x 454, 456 (6th Cir. 2016). The district court 

sentenced Malone to the statutory maximum of 120 months of imprisonment. 

Around the time of Malone’s sentencing, the Supreme Court struck down, on vagueness 

grounds, the residual clause of the Armed Career Criminal Act. See Johnson v. United States, 135 

S. Ct. 2551 (2015). In light of Johnson, we held that Malone’s aggravated burglary conviction no 

longer qualified as a “crime of violence” because the Guidelines definition was similar to the 

statutory definition of “violent felony” invalidated in Johnson. Malone, 646 F. App’x at 457–58. 

After removing the crime of violence designation, Malone was left with only one offense 

relevant under U.S.S.G. § 2K2.1(a)—his prior Ohio drug trafficking conviction. His base offense 

level thus dropped by four levels. U.S.S.G. § 2K2.1(a)(4)(A). The Guidelines range on remand 

was 92 to 115 months. At his resentencing hearing, Malone challenged application of this 

enhancement as well, arguing that by operation of the “modified categorical approach,” his drug 

offense did not qualify as a Guidelines controlled substance offense. Malone also challenged 

application of a separate enhancement for possessing a firearm in connection with his underlying 

kidnapping charge, in addition to arguing that his criminal history score over-represented his past 

criminal conduct. As before, the government sought the statutory maximum 120-month sentence, 

asserting that the aggravating factors of the case coupled with Malone’s criminal history 
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distinguished Malone from the typical felon-in-possession defendant. Rejecting Malone’s 

enhancement challenges and finding that the aggravating factors and Malone’s criminal history 

justified a five-month upward variance, the court again sentenced Malone to 120 months in prison.

On appeal, Malone’s counsel challenged the sentence’s procedural and substantive 

reasonableness. Counsel also reiterated two arguments raised at Malone’s re-sentencing: one, that 

there was insufficient evidence to enhance Malone’s sentence for possessing a firearm in relation 

to the felony kidnapping offense, and two, that Malone’s criminal history score over-represented 

his past criminal conduct. Equally relevant, for today’s purposes, was an argument appellate 

counsel did not make, namely, a challenge to the application of the controlled substance offense 

enhancement. We affirmed. 

Malone then filed the present action under 28 U.S.C. § 2255. He claims that his appellate 

counsel’s failure to challenge the controlled substance offense enhancement amounted to

constitutionally ineffective assistance. Without this enhancement, Malone’s Guidelines range on 

remand would have dropped from 92 to 115 months to as low as 51 to 63 months. See U.S.S.G., 

§ 5A, Sentencing Table. The district court denied Malone’s § 2255 motion, and he timely

appealed. 

ANALYSIS

We review the denial of Malone’s § 2255 motion de novo. Neill v. United States, 937 F.3d 

671, 675–76 (6th Cir. 2019). We review the district court’s factual findings for clear error. Id. at 

675. 

1. The thrust of Malone’s appeal is his claim for ineffective assistance of appellate counsel.

To prevail on that claim, Malone must show both that his counsel performed deficiently and that 

he was prejudiced by counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668, 
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687–91 (1984). Malone attempts to demonstrate deficient performance by showing that the 

unraised Guidelines issue “was clearly stronger than issues that counsel did present” on 

appeal. Webb v. Mitchell, 586 F.3d 383, 399 (6th Cir. 2009) (quoting Smith v. Robbins, 528 U.S. 

259, 285, 288 (2000)). In assessing counsel’s decisionmaking, we consider “counsel’s perspective 

at the time” of the appeal, not with the benefit of hindsight. Smith v. Murray, 477 U.S. 527, 536 

(1986) (quoting Strickland, 466 U.S. at 689).

Appellate counsel’s performance was not deficient. Failing to raise an argument that is 

contradicted by existing precedent is not constitutionally defective, Baker v. Voorhies, 392 F.

App’x 393, 401–02 (6th Cir. 2010), unless a change in the law was “clearly foreshadow[ed].” 

Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir. 2010) (quoting Lucas v. 

O’Dea, 179 F.3d 412, 420 (6th Cir. 1999)). At the time of Malone’s appeal, we had held, in unison 

with our sister circuits, that Ohio Revised Code § 2925.03(A)(2) categorically qualified as a 

controlled substance offense for Guidelines purposes. See United States v. Robinson, 333 F. App’x 

33, 35–36 (6th Cir. 2009); United States v. Wright, 43 F. App’x 848, 852–53 (6th Cir. 2002); see 

also United States v. Walker, 429 F. App’x 874, 876–77 (11th Cir. 2011); United States v. FuentesOyervides, 541 F.3d 286, 289 (5th Cir. 2008) (per curiam) (holding that the Ohio statute qualifies 

under the similar drug trafficking offense guideline in U.S.S.G. § 2L1.2); United States v. Miles, 

266 F. App’x 534, 535–36 (9th Cir. 2008); United States v. Karam, 496 F.3d 1157, 1167–68 (10th 

Cir. 2007).

No material change to this line of cases, moreover, was clearly foreshadowed. While there 

has been some development in the law since that time, the trendline is not favorable to Malone.

Malone’s Guidelines argument is now squarely foreclosed by United States v. Smith, __F.3d__, 

2020 WL 3026546 (6th Cir. 2020), decided while Malone’s appeal was pending. In Smith, we 
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held that Ohio Revised Code § 2925.03(A)(2) categorically qualifies as a controlled substance 

offense under the Sentencing Guidelines. Id. at *5. That conclusion, we observed, is correct even 

in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Following Mathis’s instruction on how 

to determine divisibility, we held that Ohio Revised Code § 2925.03(A)(2) is not divisible, 

meaning all of the alternative ways of violating that section must fall within the Guidelines 

definition. Smith, 2020 WL 3026546, at *5–6. And, as we further explained in Smith, they do, 

because each alternative in § 2925.03(A)(2) amounts to possession with intent to distribute or 

distribution, both of which fall under the Guidelines definition. Id. Malone’s Strickland argument

is thus foreclosed on this ground too. Counsel, after all, is not ineffective for failing to raise an 

issue that, like Malone’s Guidelines argument, lacks merit. Greer v. Mitchell, 264 F.3d 663, 676 

(6th Cir. 2001).

2. Resisting this conclusion, Malone argues that our order granting him a certificate of 

appealability already determined the outcome of Strickland’s first prong in his favor, making that 

determination the “law of the case.” This argument misreads both the terms of and purpose behind 

the order. True, the certificate of appealability stated that Malone’s Guidelines “argument was 

‘clearly stronger’ than the two arguments presented [on appeal].” In granting a certificate of 

appealability, however, we take only a “threshold look—or a peek—at the merits of a petitioner’s 

claims,” without “conduct[ing] a full merits inquiry.” Dufresne v. Palmer, 876 F.3d 248, 254 (6th 

Cir. 2017). Yet that initial look at the merits does not resolve them. The order itself reflected its 

limited scope: “jurists could conclude the issues presented are adequate to deserve encouragement 

to proceed further.” Nor could the order have done more in light of the Supreme Court’s 

instruction that “[a] court of appeals should limit its examination [when determining whether to 

issue a COA] to a threshold inquiry into the underlying merit of [the] claims,” asking “only if the 
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District Court’s decision was debatable.” Buck v. Davis, 137 S. Ct. 759, 774 (2017) (third 

alteration in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 348 (2003)). That debate 

has now been settled. 

CONCLUSION

For the aforementioned reasons, we AFFIRM the judgment of the district court.