16

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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 A SUMMARY 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 15 th 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.2 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, we3 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.4 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