UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 15-CR-20152 (2) 

 v. HON. TERRENCE G. BERG 

 

LAWRENCE CHRISTOPHER 

DAVIS, 

 

 Defendant. 

_________________________________/ 

ORDER DENYING DEFENDANT’S MOTION TO 

VACATE SENTENCE UNDER 28 U.S.C. § 2255 (DKT. 213) 

This matter is before the Court on Defendant’s motion to vacate, 

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. 

213. In his motion, Defendant asserts that his trial counsel was ineffective for failing to object to the plea agreement’s use of U.S.S.G. 

§ 2A2.1(a)(1), which used a base offense level of 33 for “assault with 

intent to commit murder/attempted murder” and the specific offense characteristic increase of two levels because the victim sustained serious bodily injury, under § 2A2.1(b)(1)(B). Defendant 

maintains that the record did not support the application of this 

guideline, and that the guideline range should have been 63–78 

months rather than the 121–151 month range that the Court found 
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applicable. Defendant was ultimately sentenced to 113 months.1

Dkt. 188 at Pg ID 961. The Court ordered the Government to file a 

response to Defendant’s motions, Dkt. 216, which the Government 

did on April 2, 2018. Dkt. 217. On April 30, 2018, Defendant filed a 

reply brief. Dkt. 219. For the reasons set forth below, Defendant’s 

motion is DENIED. 

BACKGROUND 

Lawrence Christopher Davis (“Petitioner”) pleaded guilty on August 22, 2016 pursuant to a written plea agreement under Rule 11 

of the Fed. R. Crim. Proc. Dkt. 166. In the agreement, Petitioner 

pleaded guilty to tampering with a witness, identified as “Jones” or 

“J.J.,” by physical force in violation of 18 U.S.C. §§ 1512 (a)(2)(A) 

and 2. Id. at Pg ID 734. The facts of the case are set forth in the 

plea agreement as follows: 

On July 26, 2014, co-defendant Lezlye Taylor and J.J. 

met up and drove around the city of Flint. Unbeknownst 

to J.J., Lezlye Taylor was communicating with co-defendant Christopher Blackwell using a cellular phone 

during the time that J.J. and Taylor were together. Taylor was providing Blackwell her and J.J.’s locations 

throughout the evening. Taylor provided these locations 

to Blackwell knowing that Blackwell intended to physically harm J.J. Specifically, in the early morning of July 

27, 2014, in the Eastern District of Michigan, Taylor 

                                                            

1 The Court sentenced Defendant to 132 months total, with credit for 19 

months served in state custody. 
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communicated to Blackwell that J.J. and her were about 

to leave an apartment building, knowing that J.J. would 

be harmed by physical force, and, likely be shot, upon 

exiting the building. In fact, when J.J. exited the building, he was shot two times. During the evening of July 

26 and the early morning hours of July 27, defendant 

was frequently in telephone contact with Blackwell, and 

acted in concert with Blackwell and others to inflict 

physical harm against J.J. 

16 days after the shooting, defendant discarded one 

of the firearms used to shoot Jones. 

Defendant acted in concert with others to physically 

harm J.J. in order to prevent his testimony in a federal 

criminal case, United States v. Hogg, 13-cr-20809. 

Dkt. 166 at Pg ID 735. 

The plea agreement states that the parties disagreed on the 

guideline range, but only because Defendant argued that he deserved a two-point reduction based on having a minor role in the 

offense. Id. at Pg ID 736. Defendant took the position that if the 

two-point reduction for minor role were applied to the guideline 

range for attempted murder, the resulting guideline range would 

be 97–121 months. Id. The government took the position that Defendant did not deserve a reduction for minor role, and that the 

guideline range was therefore 121–151 months based on the sentence scoring worksheets attached to the plea agreement. Id. Both 

parties accepted the attempted murder guideline of § 2A2.1(a)(1) as 

the starting point for calculating the base offense level; the lower 
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guideline range that Defendant sought was also premised on the 

use of the attempted murder cross reference. Neither party objected 

to the use of that cross-reference at the plea or sentence. 

Section 2A2.1(a)(1) of the U.S.S.G. establishes the base offense 

level for cases of assault with intent to commit murder “if the object 

of the offense would have constituted first degree murder.” During 

the guilty plea colloquy, Defendant acknowledged that he understood the Plea Agreement, and further understood that he was 

charged with the offense of aiding and abetting co-defendants 

Christopher Blackwell and Lezlye Taylor in using physical force 

against a federal witness, “J.J.,” by shooting him with a firearm in 

order to prevent his testimony in a federal criminal case. Defendant stated in his factual basis that he was aware that Blackwell 

intended to hurt the witness and that he was going to let Blackwell 

use Defendant’s apartment if he needed to get away. Defendant further stated that he heard the shots being fired and that he had been 

in touch with Blackwell throughout that evening regarding meeting 

up with Blackwell to help him carry out the plan to harm the witness. 

At sentencing on December 21, 2016, Petitioner’s counsel reiterated that the issue was whether the two-point reduction for minor 

role applied; he did not raise any objection to the use of the crossreference for attempted murder. He stated: 
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I went over the presentence report with my client. We’ve 

thoroughly reviewed it. We have taken issue with the 

scoring of the sentence guidelines. This was no surprise 

to the Court or the prosecutor since our Rule 11 agreement contemplated that we would agree to disagree 

about the application of a two-level reduction for being 

a minor participant. There are no other corrections that 

need to be made. 

Dkt. 188 at Pg ID 940. Ultimately, this Court determined that Petitioner did not qualify for the minor-role reduction. Dkt. 188 at Pg 

ID 944. The Court’s finding was based on the evidence that Petitioner played a significant role in the offense. Id. at Pg ID 943–44. 

 Petitioner does not seek to challenge the Court’s finding on 

the issue of a minor-role reduction. Instead, Petitioner now seeks to 

vacate his sentence pursuant to § 2255 on the ground of ineffective 

assistance of counsel. Specifically, Petitioner argues that his attorney erred by allowing Petitioner to plead guilty to the offense scored 

with a cross-reference to first-degree murder. Dkt. 213 at Pg ID 

1448. Instead, Petitioner argues, the base offense level should have 

been scored at 27, under USSG § 2A2.1(a)(2), which applies where 

the object of the offense would not have constituted first-degree 

murder. Dkt. 213 at Pg ID 1448. If the base offense level had been 

27, rather than 33, the adjusted base offense level would have been 

26, which yields a guideline range of 63–78 months. USSG § 5A, 
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Sentencing Table. As a prerequisite to Petitioner’s ineffective assistance of counsel claim, he contends that he did not agree to the 

cross-reference to first-degree murder. Dkt. 213 at Pg ID 1448. 

ANALYSIS 

A prisoner who moves to vacate his sentence under § 2255 

must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without 

jurisdiction to impose such a sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. See 28 U.S.C. § 2255. To prevail on a § 2255 

motion “‘a petitioner must demonstrate the existence of an error of 

constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict.’” 

Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) 

(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). 

Non-constitutional errors are generally outside the scope of 

§ 2255 relief. See United States v. Cofield, 233 F.3d 405, 407 (6th 

Cir. 2000). A petitioner can prevail on a § 2255 motion alleging nonconstitutional error only by establishing a “fundamental defect 

which inherently results in a complete miscarriage of justice, or, an 

error so egregious that it amounts to a violation of due process.” 

Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting 
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United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotations omitted)). 

As a general rule, claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the petitioner shows either (1) “cause” and “actual prejudice” 

or (2) “actual innocence.” Massaro v. United States, 538 U.S. 500, 

504 (2003); Bousley v. United States, 523 U.S. 614, 621–22 (1998); 

United States v. Frady, 456 U.S. 152, 167–68 (1982). An ineffective 

assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of counsel claim may be raised in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim 

on direct appeal. Id. Petitioner was free to challenge the factual 

findings of the Court and the imposition of his sentence through a 

direct appeal of that sentence, notwithstanding the waiver of appeal in his plea agreement. Dkt. 188 at Pg ID 964. Instead of doing 

so, Petitioner immediately filed a motion pursuant to § 2255. Consequently, the requirements of exhaustion prevent him from challenging the Court’s finding through a § 2255 motion. Instead, he is 

limited to an ineffective assistance of counsel claim. 

There is a two-prong test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 

(1984). A defendant must prove that (1) counsel's performance fell 
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below an objective standard of reasonableness; and (2) counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. Id. A court considering a 

claim of ineffective assistance must “indulge a strong presumption 

that counsel’s conduct falls within a wide range of professional assistance.” Id. at 689. 

Petitioner claims that he did not agree to the scoring crossreference to first-degree murder. Consequently, he argues, his 

counsel was ineffective by failing to object to this Court imposing a 

sentence based on a cross-reference to first-degree murder. 

As an initial matter, the record shows that Petitioner did in 

fact agree to the calculation of his sentencing guidelines using the 

cross-reference for attempted murder. The Plea Agreement states 

this clearly and during the plea hearing Petitioner acknowledged 

that he understood the plea agreement and agreed with it. At sentencing, Petitioner’s counsel again indicated that he went over the 

plea agreement with Petitioner prior to the sentencing hearing. 

Dkt. 188 at Pg ID 940. The Court asked Petitioner directly about 

the scoring: 

THE COURT: Specifically in the plea agreement that 

you entered, you calculated the guidelines at between 97 

and 121 months, if you received a two-point reduction in 
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the guideline range for being a minor participant, or between 121 and 151 months if you did not receive those 

two points. Do you understand? 

THE DEFENDANT: Yes, sir. 

THE COURT: Other than that, did you have anything 

about the presentence report, Mr. Davis, that you saw 

that you believe need to be changed or corrected? 

THE DEFENDANT: No, sir. 

Id. 

The Government specifically noted the cross-reference to first degree murder during the sentencing. Id. at Pg ID 952 (“Mr. Davis is 

in some sense lucky that this isn’t a homicide case that he’s sitting 

here on, the cross reference here was to attempt [sic] homicide, and 

understandably so.”). Petitioner has not alleged any facts that refute the clear indication in the record that he read and understood 

the plea agreement, including the cross-reference to first-degree 

murder and the factual predicate thereto—namely, that “Defendant acted in concert with others to physically harm J.J. in order to 

prevent his testimony in a federal criminal case, United States v. 

Hogg, 13-cr-20809” and that the specific physical harm intended 

was a shooting Dkt. 166 at Pg ID 735. 

 Even if Defendant now says he did not intend to agree to the 

cross-reference, as he clearly did, both by signing the Plea Agreement and by not objecting to the presentence report, he would not 

have a successful claim for ineffective assistance of counsel. The 

first prong of the Strickland test—that counsel's performance fell 
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below an objective standard of reasonableness—is not satisfied 

here. The record demonstrates that Petitioner’s counsel negotiated 

a substantial reduction in his sentence in exchange for a plea of 

guilty, set forth in the plea agreement. Dkt. 166 at Pg ID 737 (“The 

government will also not recommend a sentence of imprisonment 

greater than 132 months. The government also will recommend 

that the Court reduce defendant’s sentence for any time that defendant spent in state custody since May 21, 2015); Dkt. 166 at Pg 

ID 750 (three-point adjustment for acceptance of responsibility); 

Dkt. 166 at Pg ID 734 (the defendant agreed to plead guilty only to 

Count Two after the government charged him with three counts). 

Given the advantages flowing from the negotiated plea agreement, 

declining to object to a portion of the plea agreement—after Petitioner had indicated to counsel and to the Court that the agreement 

was satisfactory—was reasonable. 

 Defendant also cannot meet the second prong of the Strickland test. Petitioner cannot show that counsel’s deficient performance prejudiced the defendant by causing an unreliable or fundamentally unfair outcome because, even if defense counsel had objected to the cross-reference, the objection would have been without 

merit. First degree murder is defined as “[e]very murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing. . .” 18 U.S.C. § 1111. There 
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was a factual basis in the plea hearing, written plea agreement, and 

sentencing hearing that the object of the offense was in fact firstdegree murder, rendering the scoring with the cross-reference correct. At Defendant’s plea hearing, Defendant’s attorney established 

the factual basis for his guilty plea by eliciting from Defendant that 

he had agreed to help Blackwell carry out the shooting, knowing 

that Blackwell intended to hurt J.J. and prevent his testimony in a 

federal criminal case. During the sentencing hearing, the Court discussed what it had found Petitioner’s role in the shooting to be: “the 

case involves a shooting of an individual, Juawone Jones, that occurred on July 27th of 2014, and you were charged with being involved in this. You’ve admitted to one of the counts that pertain to 

essentially trying to influence a witness and being involved in this 

activity.” Dkt. 188 at Pg ID 943. Defendant’s conduct was both premeditated—there was a plan to harm J.J.—and deliberate. 

But in any event, Defendant had already indicated that he 

agreed with the way in which the offense was scored. Dkt. 166 at 

Pg ID 735. It would not have made sense for Defendant’s attorney 

to object to an agreement to which Defendant had already agreed. 

Therefore, Petitioner cannot show that his counsel’s performance 

“prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome.” Strickland, 466 U.S. at 687–88. The Court 

found, based on the facts in the record and pursuant to Petitioner’s 
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admission in his plea agreement, that the cross-reference to firstdegree murder was warranted. An objection from counsel would 

have been the equivalent of seeking to withdraw from the plea 

agreement, because the agreement was premised on a guideline 

range that used the cross reference for attempted first-degree murder. Such an objection would not have been reasonable because it 

would have been inconsistent with the written plea agreement and 

would not have been sustained by the Court because it was not justified by the underlying facts of the case. Based on this analysis, 

Petitioner has not stated a valid claim for ineffective assistance of 

counsel. 

CONCLUSION 

For the reasons set forth above, Defendant’s motion under 

§ 2255 is DENIED. 

 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: September 28, 2018 
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Certificate of Service 

I hereby certify that this Order was electronically submitted 

on September 28, 2018, using the CM/ECF system, which will 

send notification to each party. 

s/A. Chubb 

 Case Manager