PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-7148

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ANTWAUN MAURICE WINBUSH, a/k/a Nick, a/k/a Antwaun Winbush,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, 

at Charleston. John T. Copenhaver, Jr., Senior District Judge. (2:10-cr-00200-1; 2:13-

cv-24112)

Argued: March 19, 2019 Decided: April 23, 2019

Before GREGORY, Chief Judge, DIAZ, and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Gregory wrote the opinion, 

in which Judge Diaz and Judge Harris joined.

ARGUED: Rajesh Ram Srinivasan, KATTEN MUCHIN ROSENMAN LLP, 

Washington, D.C., for Appellant. Drew Oliver Inman, OFFICE OF THE UNITED 

STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Robert T. 

Smith, KATTEN MUCHIN ROSENMAN LLP, Washington, D.C., for Appellant. 

Michael B. Stuart, United States Attorney, John J. Frail, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for 

Appellee.
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GREGORY, Chief Judge:

This appeal stems from the district court’s dismissal of Antwaun Winbush’s 

petition for habeas corpus relief pursuant to 28 U.S.C. § 2255. Winbush brought a claim 

for ineffective assistance of counsel based on his counsel’s failure to challenge his 

designation as a career offender under the Sentencing Guidelines. The district court 

found that one of the predicate offenses identified by the State did not qualify as a crime 

of violence and thus could not support a career offender designation. The district court 

nevertheless found no prejudice from counsel’s error, because it concluded that the career 

offender designation could be supported by another conviction in Winbush’s record, even 

though the State did not identify this conviction as a basis for the designation at 

sentencing. Winbush argues on appeal that this substitution was impermissible under our 

jurisprudence and at any rate that his conviction for robbery does not qualify as a crime 

of violence. Because the district court erred in substituting a previously unidentified 

conviction to sustain Winbush’s career offender designation, we reverse and remand with 

direction to resentence Winbush without a career offender enhancement.

I.

In 2011, Winbush pleaded guilty to one count of possession with intent to 

distribute cocaine base. Under an appellate waiver included in the plea agreement, 

Winbush retained his right to object to the district court’s determination of the Sentencing 

Guidelines range and to raise an ineffective assistance of counsel claim on direct appeal 

or collateral review.
3

At the sentencing hearing, the district court determined that Winbush was a career 

offender under United States Sentencing Guidelines (USSG) § 4B1.1 based on two prior 

felony convictions of controlled substance offenses: trafficking cocaine and illegal 

conveyance of drugs onto the grounds of a detention facility. The district court sentenced 

Winbush to 151 months in prison, and this Court affirmed the sentence. See United 

States v. Winbush, 473 F. App’x 250 (4th Cir. 2012).

Winbush then filed the instant § 2255 petition to vacate, set aside, or correct his 

sentence on several grounds. As relevant here, he contended that his defense counsel was 

ineffective for failing to argue that he was not a career offender. The magistrate judge 

determined that Winbush was a career offender and found that counsel was not 

ineffective for failing to raise a meritless claim. Winbush objected to the magistrate’s 

recommendation to dismiss his ineffective assistance of counsel claim. The district court, 

reviewing the magistrate’s recommendation, requested further briefing from the 

government as to: (1) whether the illegal conveyance conviction was simply a possession 

charge rather than a controlled substance offense that could support a career offender 

designation; and (2) whether Winbush’s prior Ohio conviction for third-degree robbery 

was a predicate “crime of violence” for career offender purposes. In response, the 

government conceded that Winbush’s prior felony conviction for illegal conveyance of 

drugs onto the grounds of a detention facility was in fact not a qualifying controlled 

substance offense for career offender purposes, because it did not have the requisite intent 

element. J.A. 136. However, the government contended that Winbush remained a career 

offender because his Ohio robbery conviction was a crime of violence.
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After the additional briefing, the district court dismissed Winbush’s petition. The 

court adopted the magistrate’s report and recommendation except as to the magistrate’s 

finding that Winbush’s prior illegal conveyance conviction was a controlled substance 

offense. J.A. 189. The district court found that the Ohio robbery conviction constituted a 

crime of violence for career offender purposes under both the “force” and “enumerated 

offense” clauses of USSG § 4B1.2(a) and that Winbush therefore had the requisite two 

prior convictions for career offender purposes. Accordingly, the district court concluded 

that counsel was not ineffective for failing to raise a meritless challenge to Winbush’s

receiving a sentence as a career offender.

Winbush now appeals the district court’s dismissal of his petition. In an appeal 

from a dismissal of a § 2255 petition, this Court reviews a district court’s “legal 

conclusions de novo and its findings of fact for clear error.” United States v. Roane, 378 

F.3d 382, 395 (4th Cir. 2004).

II.

Winbush argues that his counsel was constitutionally ineffective for failing to 

challenge his career offender status. This Court uses the test established in Strickland v. 

Washington to assess ineffective assistance of counsel claims. 466 U.S. 668 (1984). To 

succeed on such a claim, a defendant must show that: (1) “counsel’s performance fell 

below an objective standard of reasonableness”; and (2) “the deficient representation 

prejudiced the defendant.” United States v. Carthorne, 878 F.3d 458, 465 (4th Cir. 2017)

(internal citation omitted).
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The government does not appear to dispute the performance prong. Indeed, it 

would be difficult to do so, as counsel’s failure to identify and object to a legal error that 

was later recognized by both the government and the district court fell below “prevailing 

professional norms or duties.” Id. (internal citation omitted). The government focuses 

instead on prejudice. It contends that Winbush cannot show prejudice, because even if 

his counsel had objected that the illegal conveyance of drugs charge did not qualify as a 

prior controlled substance offense, the district court could have sentenced Winbush as a 

career offender based on his second controlled substance offense coupled with the Ohio 

robbery conviction. Winbush argues that our holding in United States v. Hodge prohibits 

the government from substituting his robbery conviction to maintain his career offender 

status when the government failed to designate that conviction at sentencing and

designated other offenses instead. 902 F.3d 420 (4th Cir. 2018). We agree.

In Hodge, we held that the government must identify at the time of sentencing all 

convictions it wishes to use to support a defendant’s sentence enhancement under the 

Armed Career Criminal Act (“ACCA”). Id. at 428. The defendant there was sentenced 

with an ACCA enhancement based on three prior convictions. Id. at 423–24. However, 

as in this case, it was later determined that one of the defendant’s designated convictions 

failed to qualify as a predicate conviction. Id. at 425. When the defendant filed a § 2255 

petition to vacate his sentence, the government argued–and the district court agreed–that 

another conviction listed in the defendant’s Pre-Sentence Investigation Report (“PSR”),

but never designated as an ACCA predicate, could replace the invalid predicate. Id.
6

We reversed the lower court’s dismissal of Hodge’s petition and remanded for 

resentencing. We reasoned that because the PSR had designated only three convictions 

as ACCA predicates, the defendant “did not have adequate notice that additional 

convictions would be used to support his ACCA sentence enhancement.” Id. at 428. We

explained, moreover, that important fairness and notice concerns underlie the wellestablished rule that both defendants and the government are required to raise any 

objections or arguments related to the PSR at or before sentencing. Id. at 429. Thus, the 

government “cannot identify only some ACCA-qualifying convictions at sentencing–

thereby limiting the defendant’s notice of which convictions to contest–and later raise 

additional convictions to sustain an ACCA enhancement once the burden of proof has 

shifted to the defendant” to demonstrate that the convictions supporting the ACCA are 

infirm. Id. at 430. Because the government “endorsed [the specified] selection of 

predicate convictions by not objecting to it at sentencing,” we would “not allow the 

Government to change its position regarding which convictions support [the defendant’s]

ACCA enhancement now that one of its original choices . . . cannot do the job.” Id.

Under the logic of Hodge, the district court erred in substituting Winbush’s 

robbery conviction as a predicate conviction to sustain his career offender enhancement. 

The same concerns animating our decision in Hodge are present here. Winbush’s PSR 

designated prior felony convictions only for controlled substance offenses and did not 

designate his robbery conviction as a predicate conviction for the career offender 

designation. The government did not object to the PSR at sentencing. Like the defendant 

in Hodge, Winbush was given no notice at sentencing that his robbery conviction could 
7

be utilized as a predicate conviction for a career offender enhancement, and the 

government “has already been given one full and fair opportunity to offer whatever 

support” for the career offender enhancement “it could assemble.” Id. at 429 (internal 

citation and quotation marks omitted). Because the government did not identify 

Winbush’s robbery as a conviction it wished to use to support a career offender 

enhancement at the time of sentencing, it cannot raise it now that one of the convictions 

supporting the career offender designation has been determined to be infirm. See id. at 

430. To hold otherwise would be to allow the government “to change its position 

regarding which convictions support [Winbush’s career offender] enhancement now that 

one of its original choices [the illegal conveyance conviction] cannot do the job.” See id. 

Worse yet, allowing the government to change positions for the first time on collateral 

review would “unfairly deprive” the defendant of “an adequate opportunity to respond” 

to predicate offense designations, especially given the fact that a defendant has the 

burden of proof at this stage but no right to counsel. See id. at 429 (internal citation 

omitted).

The government argues that Hodge is inapposite because it concerned the ACCA 

rather than the career offender designation. It is true, as the government notes, that the 

ACCA enhancement results in statutorily mandated sentence ranges while the career 

offender enhancement does not. But this difference does not mean that the career 

offender designation has no consequences for criminal defendants. See Molina-Martinez 

v. United States, 136 S. Ct. 1338, 1345 (2016) (“The Guidelines’ central role in 

sentencing means that an error related to the Guidelines can be particularly serious.”). 
8

Indeed, we have held that counsel’s failure to object to a defendant’s designation as a 

career offender can constitute deficient performance and results in prejudice. United 

States v. Carthorne, 878 F.3d 458 (4th Cir. 2017). In Carthorne, this Court observed that 

if the court had not found the predicate conviction to be a crime of violence, the 

defendant’s Guidelines range would have been lower than the sentence actually imposed 

by the district court. Id. at 469. This was sufficient to demonstrate prejudice, because if 

counsel had objected, there was a “reasonable probability” that the district court would 

not have applied the career offender enhancement.* Id. at 470 (internal citation omitted); 

see also Molina-Martinez, 136 S. Ct. at 1345 (“When a defendant is sentenced under an 

incorrect Guidelines range–whether or not the defendant’s ultimate sentence falls within 

the correct range–the error itself can, and most often will, be sufficient to show a 

reasonable probability of a different outcome absent the error.”)

Likewise, here, if Winbush’s counsel had properly objected to the illegal 

conveyance conviction as a predicate offense, there is a reasonable probability that 

Winbush would not have been sentenced as a career offender. If Winbush is sentenced 

without a career offender enhancement, his Guidelines range could be as low as 110–137

months, 14–41 months lower than Winbush’s sentence of 151 months. See Glover v. 

United States, 531 U.S. 198, 200–02 (2001) (finding prejudice where a defendant’s 

sentence was likely 6–21 months higher than it would have been under the proper 

 * It should be noted that the Court reached this conclusion even though it had 

earlier held that the district court did not commit plain error in designating the defendant 

a career offender. See Carthorne, 878 F.3d at 461.
9

Guidelines range). Thus, the government’s attempt to distinguish Hodge from this case 

on the basis that the Guidelines are not mandatory falls flat, and Winbush is entitled to 

resentencing under the appropriate Guidelines range without a career offender 

designation.

III.

For the foregoing reasons, we conclude that Winbush has successfully 

demonstrated that his counsel provided ineffective assistance, and he is thus entitled to be 

resentenced. We further hold that the district court erred in substituting Winbush’s 

robbery conviction to sustain his status as a career offender where the government chose 

to designate Winbush’s drug convictions as predicate offenses at sentencing and not his 

robbery conviction. We thus reverse the district court’s denial of Winbush’s § 2255 

petition and remand with directions to resentence him without a career offender 

enhancement.

REVERSED AND REMANDED