1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0114p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

J ESSE D ANIEL W ILLIAMS III, Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 12-2108

Appeal from the United St ates District Court for the Western District of Michigan at Grand Rapids. No. 1:10-cr-00094-2—Paul Lewis Ma loney, Chief District Judge. Decided and Filed: June 2, 2014
Before: DAUGHTREY, COOK, a nd WHITE, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Melissa M. Salinas, OFFICE OF TH E FEDERAL PUBLIC DEFENDER, Toledo, Ohio, Dennis G. Terez, OFFI CE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Mark V. Courtade, UNITED STATES ATTORNEY’S O FFICE, Grand Rapids, Michigan, for Appellee.

_________________ OPINION

_________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. Jessie Daniels Williams was convicted by a jury on two counts of possessing cocaine with the intent to distribute and one count of maintaining a drug-involved premises. He was sentenced as a career offender to a total of 360 months in prison. He now appeals both his conviction and his sentence, contending (1) that the almost two-year delay between hi s first indictment and the commencement of his
trial violated his Sixth Amendment right to a speedy trial; (2) that the district court’s actions in 

### >No. 12-2108 USA v. Williams Page 2

allowing the delay to occur violated his rights under the Speedy Tria l Act; (3) that he was denied the effective assistance of counsel; and (4) that he was wrongly classified as a career offender, rendering his sentence procedurally unreasonable. For the reasons set out below, we find no
reversible error and affirm th e district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND
Williams was initially indicted by a federa l grand jury on April 15, 2010, on charges of possession of cocaine with intent to distribute, maintaining a drug-involv ed premises, and being a felon in possession of a handgun. The charges st emmed from the execution of a search warrant at Williams’s residence in Lansing, Michigan, th at took place ten days earlier. During the search, police seized a .40 caliber semiautomatic pistol, 1.3 grams of cocaine, and more than $16,350 in cash in Williams’s bedroom, as well as over 500 grams of cocaine, small amounts of crack cocaine, significant amount s of money in cash, and assort ed drug paraphernalia in the common areas of the house and in the bedroom belonging to Williams’s roommate, Anthony Jermaine Wilson. Wilson was also charged in th e indictment with maintaining a drug-involved premises and with possession of more than 500 gram s of cocaine with the intent to distribute. However, because police did not know the wherea bouts of either Wilson or Williams, neither
man could be arrested immediatel y. Williams was eventually pi cked up by the Lansing police on July 10, 2010, after they encountered him on the street during the inves tigation of a reported home invasion. At the time officers spotted h im, Williams was carrying a duffel bag that was later found to contain large amounts of cocaine, cocaine base, and cash.
After he was arrested, Williams was charged with two state felony drug crimes, both of which were ultimately dismissed. Nevertheless, he remained in state custody and, after October 8, 2010, in state prison, following hi s guilty plea to violating the terms of his probation arising from an earlier state drug conviction. Williams was surrendered to federal marshals in March 2011, and he was arraigned on March 23, 2011. Initia lly represented by a member of the federal defender’s office, Sean Tilton, Williams was assigned a new attorney on May 26, based on his contention that new counsel was necessary beca use of fundamental disagreements with Tilton over the prosecution of his case. Tilton agreed th at there had been “a certain breakdown in the attorney/client relationship” that had made co mmunication with Williams “very difficult.” TheNo. 12-2108 USA v. Williams Page 3

magistrate judge handling the case granted Willi ams’s motion for a new attorney but warned
Williams that the court would not be in clined to grant a second such motion.

Two weeks later, on June 9, Mi chael Dunn, a lawyer with 23 y ears’ experience in federal court, was appointed to represen t Williams. That same day, the government filed a five-count superseding indictment that charged Williams with two new offenses: one count of possessing
cocaine with the intent to dist ribute and a second count charging possession of cocaine base with the intent to distribute, both stemming from seizures of cont raband at the time of his arrest on July 10, 2010, three months after the first indictment was returned. Williams was arraigned on the superseding indictment on June 27, 2011.
On July 26, 2011, Williams wrote a letter to the court, expressing his concern with the performance of his lawyer. He claimed that Dunn had “a noticable [sic] grudge against me” and that Dunn was “more interested in helping the U. S. Attorney find me guilty rather than fighting to prove my innocence.” The district court c onstrued this letter as a motion to appoint new counsel and held a hearing on the matter on A ugust 11. During the hearing, Williams explained that he was dissatisfied with Dunn’s performan ce because Dunn refused to file the pretrial
motions that Williams had asked him to file. Dunn explained to the court that he had declined to file the motions because they had no merit and b ecause he did not believe that it would be in Williams’s best interest to file them. When asked whether he had any additional comments,
Dunn indicated that when Williams wrote his le tter to the court complaining about Dunn’s performance, Dunn himself was “in the process of drafting my first motion to have [replacement] counsel appointed . . . in 23 years.” Despite Dunn’s testimony that he and Williams “really clash heads, because [Williams] does not believe I have the ability, the capacity, or the understanding in order to proceed,” Dunn expres sed his willingness to stay on the case if the court wished him
to do so. But Dunn also informed the court that if he were to remain on th e case, he would in all likelihood need to ask for a continuance, explai ning that because of hi s conflict with Williams, he was behind in his preparation fo r trial. The district court was agreeable to this resolution of
the matter but instructed Dunn to have Williams personally endorse any motion for continuance
that Dunn filed with the court.No. 12-2108 USA v. Williams Page 4

Dunn filed a motion for a 60-day ends-of-just ice continuance, noting that Williams had agreed to the continuance. However, the mo tion did not include Williams’s signature. Dunn
indicated that he had “notbeen able to get Defendant’s signat ure because of the expedited nature of this motion” and promised to “supplement at a later date.” The court granted the continuance and, in an amended order filed on August 26, explaine d the reasons for the gr ant. The court also postponed trial until November 30.
On October 21, just over a month prior to trial, Dunn moved to w ithdraw as Williams’s
counsel. His withdrawal was necessary, he said, because th ere had been a “drastic and irreconcilable breakdown of the attorney-client re lationship” that prevente d him from being able to provide Williams with adequate represen tation going forward. In the motion, Dunn also asserted that Williams had repeatedly requested th at he withdraw as Williams’s lawyer and noted the “growing (and very uncomfortable and unproductive) hostility” that Williams exhibited towards him. After holding yet another hearin g on the motion and receiving sealed testimony from Dunn describing veiled threats that he had r eceived from Williams and his associates if he did not stop representing Williams, the court granted his motion to withdraw.

Some three weeks later, on November 9, Paul Mitchell was assigned to represent Williams, the third court-appointed lawyer to oc cupy this role. On November 21, a day before the scheduled pre-trial conference, Mitchell fi led a motion to dismiss the charges against his client, on the ground that the date set for Williams’s trial violated the Speedy Trial Act, 18 U.S.C. § 3162(a)(2). At the pre-trial confer ence the next day, Mitchell informed the court that he was still reviewing the case to determine wh ether to file other pre-trial motions. In order to allow Mitchell adequate time to review the record, the district court entered a sua sponte ends-of-justice continuance. The court also gr anted Mitchell until December 16 to file pre-trial motions and subsequently extended this pe riod by 16 days at Mitchell’s request.
On December 22, the court denied the November 21 motion to dismiss. On January 30, 2012, Williams wrote another letter to the court to complain about the performance of his courtappointed lawyer. The districtcourt construed this as a pro se motion to appoint new counsel and, after holding a hearing on the motion on February 15, 2012, denied it the next day.No. 12-2108 USA v. Williams Page 5

Trial began on March 6, 2012. On March 8, the jury found Williams guilty of possessing less than 500 grams of cocaine with the intent to distribute (Count One of the superseding indictment), maintaining a dr ug-involved premises (Count Tw o), and possessing more than 500 grams of cocaine with the intent to distri bute (Count Four). The jury found Williams not guilty of being a felon in possession of a fi rearm (Count Three). Count Five, charging possession of cocaine base, had been dismissed prior to trial at the government’s request.

After trial, Williams sent numerous letters to the district court asking the court to order attorney Mitchell to file a motion of acquittal on his behalf and expressing continuing frustration with Mitchell’s performance. At sentencing on August 20, the district court construed these
letters as pro se motions for removal of counsel and denied them, noting that Mitchell had “vigorously defended [his client], in the Court’s judgment” and that he was “one of the most experienced and skillful defens e lawyers on the Criminal Justic e Act appointment list.” The court also rejected Mitchell’s objections to the presentence report, including an objection to the report’s recommendation that Williams be cla ssified as a career offender, pursuant to USSG § 4B1.1. The court instead adopted the r ecommendations provided in the presentence report and sentenced Williams as a career offender to a within-guidelines sentence of 360 months. Williams, with the assistance of ne w counsel, now appeals both his conviction and
his sentence.

II. DISCUSSION
A. Sixth Amendment Right to a Speedy Trial
Williams first argues that his conviction is invalid because the 690-day delay between the date of his original indictment on the federal ch arges and the commencement of trial violated his Sixth Amendment right to a speedy trial. “In determining whether a defendant’s [Sixth Amendment] right to a speedy trial has been vi olated, this court reviews questions of law de

novo and questions of fact under the clearly erroneous standard.” United States v. Jackson , 473 F.3d 660, 664 (6th Cir. 2007) (quoting United States v. Robinson , 455 F.3d 602, 607 (6th Cir. 2006)). If we find that a defendant’s Sixt h Amendment right to a sp eedy trial was violated, the charges must be dismissed with prejudice. United States v. Bilsky , 664 F.2d 613, 617 (6th Cir. 1981).No. 12-2108 USA v. Williams Page 6

In its seminal speedy-trial opinion, Barker v. Wingo , the Supreme Cour t identified four
factors that courts should take into account when determining whether a defendant’s Sixth Amendment right has been violated: (1) the “[ l]ength of the delay”; (2) “the reason for the delay”; (3) “the defendant = s assertion of his right ”; and (4) “prejudice to the defendant.” 407 U.S. 514, 530 (1972). The first factor is a threshold requirement. Id. “[I]f the length of the delay is not uncommonly long, then the judicial examination ends.” United States v. Bass , 460 F.3d 830, 836 (6th Cir. 2006) (internal citati on and quotation marks omitted). Conversely, a delay of one year or more is considered “presumptively prejudic ial” and, as such , satisfies the
first Barker factor, triggering examinati on of the remaining three. Id.
In this case, it is undisputed that a dela y of more than one year occurred between Williams’s initial indictment on April 15, 2010 , and the commencement of trial on March 6, 2012. Determining whether Williams’s Sixth Am endment rights were violated therefore depends upon an analysis of the remaining three Barker factors.
The Reason for the Delay

Courts assign “different weights . . . to different reasons” for the government’s delay.
Barker , 407 U.S. at 531. “Governmental delays motivat ed by bad faith, harassment, or attempts to seek a tactical advantage weigh heavily agai nst the government, while ne utral reasons such as negligence are weighted less heavily, and valid reasons for a delay weigh in favor of the government.” Robinson , 455 F.3d at 607.
There is no question about the constitutiona l validity of the delay between the date Williams was first indicted, on April 15, 2010, and his first arraignment on federal charges, on March 23, 2011. For all but two days of this pe riod, Williams was not in federal custody, either because he had not yet been apprehended or becau se he remained in the custody of the State of Michigan. Hence, he could not be arraigned and his case could not proceed. Williams argues that the delay was not valid because it was not his fault. But, as we noted in United States v.
Schreane , “[T]he second Barker factor is not a search for a blameless party . . . ; instead, the concern is with whether the gov ernment or the criminal defendant is more to blame for the delay.” 331 F.3d 548, 554 (6th Cir. 2003) (interna l citations, quotation marks, and alterationNo. 12-2108 USA v. Williams Page 7

omitted). Here, Williams points to nothing to suggest that the government was more to blame for the initial delay in apprehending him than he himself, or that it acted in bad faith or was negligent in failing to locate him. Nor is there any evidence that the government acted negligently or in bad faith when it waited until the State of Michigan, wh ich had initial custody of Williams, dismissed the state drug charges against him before it requested his transfer to federal court — a common process in cases i nvolving both state and federal jurisdiction. See
Schreane , 331 F.3d at 554-55.
As for the subsequent one-year period between Williams’s arraignment on the superseding indictment on March 23, 2011, and th e commencement of his trial on March 5, 2012, the delay was almost entirely attributable to the antagonistic relationship that Williams developed with the three attorneys appointed to represent him. Williams argues in response that these problems stemmed from his attorneys’ persistent efforts to negotiate a plea agreement despite his clearly-expressed desire to go to trial. What he ca nnot explain, however, is how this makes the government or the district court “more to blame for the delay” than the defense. Indeed, Williams has identified no specific action by the prosecution or the district court that stymied the progress of his case, other than th e court’s decision to grant Dunn’s motion for a continuance even though Williams had not signed the motion as the court requested. This situation simply does not constitute dilatory acti on on the part of the district court, which ruled promptly on all motions before it — at least th ose that were properly submitted through counsel — and acted expeditiously to appoint Williams new representation when necessary.
The Defendant’s Assertion of His Right

The third factor considers whether the defe ndant effectively asserted his speedy trial right. Because “[t]he strength of [a defendant’s] efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences, . . . [t]he defendant’s assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker , 407 U.S. at 531-32. “[F]ailure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Id. at 532.No. 12-2108 USA v. Williams Page 8

The government asserts that the first time th at Williams or his lawyers communicated his desire for a speedy trial was on November 21, 2 011, when his third attorney, Mitchell, filed a motion for dismissal based on the court’s alleged violation of the Speedy Trial Act. Williams insists that he expressed his desire for a speedy trial from the beginning of the proceedings against him. Indeed, the record shows that Williams insisted on multiple occasions that he wanted to go to trial, rather th an to accept a plea deal. But the r ecord also shows that at the same time he expressed his desire to go to trial, Williams also wanted defense counsel to file numerous motions on his behalf or reque sted the court to appoint ne w counsel, thereby impeding the progress of the case at least tem porarily. Hence, it is not at al l clear that, on those occasions when Williams purportedly asserted his desire to go to trial, he was insisting on a “speedy” trial rather than expressing rejection of counsel’s efforts to secure a fa vorable plea agreement with the government. Moreover, the fact th at he did not assert his right to a speedy trial for some eight months after he was arraigned and sixteen months after he was arrested is sufficient to “cast doubt on the sincerity of [the defendant’s] demand.” United States v. Brown , 169 F.3d 344, 350 (6th Cir. 1999).
Prejudice to the Defendant

The last factor to be considered is wh ether Williams was prejudiced by the delay. Prejudice is evaluated with respec t to the three purposes of the speedy trial right: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and con cern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker , 407 U.S. at 532. “Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Id.
Williams argues that the time he spent in jail awaiting trial caused him harm, insofar as it “restrain[ed] . . . his liberty” and forced him to live “under a cloud of anxiety, suspicion, and often hostility,” quoting Barker , 407 U.S. at 533. However, even if he had not been in federal custody, he would have remained in state prison fo r most, if not all, of that time, due to his conviction for violating probation. 1 Furthermore, Williams fails to identify any other way in

1 According to the records of the Michigan Department of Corrections, had Williams not been turned over to federal marshals on a writ of habeas corpus ad prosequendum on March 11, 2011, the earliest he could have beenNo. 12-2108 USA v. Williams Page 9

which he was prejudiced by the delay. As we have noted, “When a defendant is unable to articulate the harm caused by delay, the reason for the delay (factor 2) will be used to determine whether the defendant was pr esumptively prejudiced.” United States v. Mundt , 29 F.3d 233, 236 (6th Cir. 1994). In this case, because there is no evidence that the government acted in bad faith or even negligently caused the delay, th ere can be no presumption of prejudice.
In short, Williams has not been able to demonstrate that the delay was caused by bad faith or negligence on the part of the government, or that he was pr ejudiced by it. As a result, his
Sixth Amendment claim must fail.
B. Speedy Trial Act
Williams also argues that the delay between his indictment and his trial violated the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. That statute requires th at a defendant be brought to trial within 70 days of the date of indictment, the date the indictment was uns ealed, or the date of the initial appearance, whichever date occurs last. 18 U.S.C. § 3161(c)(1). Nevertheless, the Act
carves out a number of exclusions that can toll the running of the 70-day period. These excludable periods include “[a]ny period of delay resulting from other proceedings concerning the defendant,” “any period of dela y resulting from the absence or unavailability of the defendant or an essential witness,” and any period of dela y resulting from a continuance “granted by any judge on his own motion or at the re quest of the defendant or his c ounsel or at the request of the attorney for the Government.” 18 U.S.C. § 31 61(h)(1), (3)(A), (7)(A). In order to stop the speedy-trial clock, however, a contin uance must be based on a court’ s “findings that the ends of justice served by taking such acti on outweigh the best in terest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Wh en determining whether the ends of justice outweigh the public and defendant’s interests in a speedy trial, the Act requires the district court to consider several factors, including “[w]hether the failure to grant such a continuance . . . would be likely to make a conti nuation of such proceeding impossible, or result in a miscarriage of justice” a nd “[w]hether the failure to grant such a continuance in a case . . . would deny counsel for the defendant or the attorney for the Government the reasonable

released from jail on the probation-vi olation sentence was October 6, 2011, and the latest date of discharge was October 6, 2049.No. 12-2108 USA v. Williams Page 10

time necessary for effective preparation, taking in to account the exercise of due diligence.” 18 U.S.C. § 3161(h)(7)(B)(i), (iv). It also requires a court to “set[] forth, in the record of the case, either orally or in writing, its reasons fo r finding that the ends of justice served by the granting of such continuance out weigh the best interests of th e public and the defendant in a speedy trial.” 18 U. S.C. § 3161(h)(7)(A).
Williams argues that the district court abused its discretion under the Act when it granted a 60-day ends-of-justice continuance on August 18, 2011. He contends that the continuance was granted on insufficient grounds and, alternatively, th at the court failed to adequately explain its reasons for granting the continuance, as 18 U.S.C. § 3161(h)(7)(A) requires.
Standard of Review

We review the district court’s decision to grant an ends-of-justic e continuance under an
abuse-of-discretion standard. United States v. Howard , 218 F.3d 556, 563 (6th Cir. 2000). Williams argues that the district court abused it s discretion when it granted the ends-of-justice continuance because the statutory factors did not support the grant and be cause Williams did not
consent to it. Neither argument has merit.
Eighteen U.S.C. § 3161 (h)(7)(B)(iv) allows a court to grant a continuance when “the failure to grant such a continuance . . . would deny counsel for the defendant . . . the reasonable time necessary for effective preparation, taking in to account the exercise of due diligence.” Here, Dunn informed the court at the August 11 hearing that he would need additional time to prepare for trial because the conflict that had arisen between himself and Williams had impeded his efforts at preparation. Because the district court granted the ends-of-justice continuance on this basis, as it indicated in the order, the decisi on was well within the discretion afforded district courts by statute.
Williams argues that because the order indicated that the continuance was intended to allow Dunn to “review evidence, meet with the defendant, and possibl[y] find a resolution short of trial ,” the grant of the continuan ce was an abuse of the court’ s discretion because the court knew that Williams wished to proceed to trial rather than to accept a plea deal. He thus contends that the continuance served a purpose that “Atto rney Dunn did not need and that Mr. WilliamsNo. 12-2108 USA v. Williams Page 11

did not want.” But the continua nce was not entered solely to allow Dunn to seek a resolution
“short of trial” — it was also in tended to allow Dunn to prepare fo r trial, in the eventuality that
there was one.
There is also no merit to Williams’s argument that the district court abused its discretion by granting the motion to continue despite the ab sence of Williams’s signature on the motion. The Speedy Trial Act does not require a defend ant’s consent to stop the running of the speedytrial clock. United States v. Stewart , 628 F.3d 246, 254 (6th Cir. 2010). Furthermore, in his motion for continuance, Dunn represented to the court that Williams had consented but merely had not signed. Williams argues that the cour t abused its discretion nonetheless because it should have recognized Williams’s desire for a sp eedy trial at that point and determined that Williams had not willingly consented to a continua nce. However, as discussed above, Williams did not clearly state his desire for a speedy trial until November — two months after the continuance was granted on August 18. All that the court knew wh en it granted the continuance was that Williams wanted to go to trial, that he had expressed some concern about the length of the continuance, and that Dunn requ ired the continuance in order to adequately prepare for trial. Under these circumstances, it was not an abuse of discretion for the court to conclude that the ends of justice merited the gr anting of the continuance.

Failure to State Reasons
As noted above, under the Speedy Trial Act a c ourt must detail its reasons for finding that the ends of justice outw eigh the best interests of the defenda nt and the public in a speedy trial and must do so at least by the time it rules on a defendant’s motion to dismiss under the Act.
Zedner v. United States , 547 U.S. 489, 506-07 (2006). Ideall y, a court should provide these
reasons “at or near the time it grants the continuance.” Id. at 507 n.7 (noting that this is the “best practice”).

In this case, the district c ourt did so. Although it provided no explanati on for its decision in the initial order granting the c ontinuance, the court issued an amended order eigh t days later, which read in relevant part:
Before the Court is a motion by the defenda nt for an ends of justice continuance . . . . The basis of the motion is that ad ditional time is necessary for defenseNo. 12-2108 USA v. Williams Page 12

counsel to review eviden ce, meet with the defendant and possibl[y] find a resolution short of trial. If a resolu tion is not possible, additional time is necessary for defendant to prepare a defense. The government does not oppose the motion. The Court finds that the ends of justice served by the granting of a continuance outweighs [sic] the best intere st of the public and the defendant in a speedy trial. NOW THEREFORE, pursuan t to 18 U.S.C § 3161( h)(7)(B)(iv), an ends of justice continua nce is hereby entered.
Williams argues that because the court phrased its explanation as a restatement of the defense counsel’s argument for the continua nce, it did not satisfy the requirements of § 3161(h)(7)(A). However, in granting the con tinuance under § 3161(h)(7)(B)(iv) to allow a “reasonable time necessary for effective prepara tion,” the court indicate d that it found defense counsel’s arguments credible and was granting the continuance in order to allow Dunn to gather evidence and prepare for trial. We conclude that the district court did no t abuse its discretion or otherwise violate the Speedy Trial Act wh en it granted the August 18 continuance.

C. Ineffective Assistance of Counsel
Williams contends on appeal that his attorn ey was constitutionally ineffective for three reasons: (1) counsel failed to file a motion to sever Williams’s case from that of his codefendant, Wilson, thus delaying progr ess of the case in getting to tr ial; (2) counse l requested an unjustified continuance (namely, the August 18 c ontinuance discussed above); and (3) counsel
failed to file a second motion fo r violations of the Speedy Trial Act after the first one was
denied.
Typically, we do not address ineffective- assistance-of-counsel arguments on direct appeal, although we have done so when “the reco rd is adequate to assess the merits of the defendant’s allegations.” United States v. Wunder , 919 F.2d 34, 37 (6th Cir. 1990). Otherwise, we leave the defendant to the preferred mechanism of raising a claim of ineffective assistance of counsel under 28 U.S.C. § 2255. In this case, Williams argues that “the evidence germane to [his] ineffective assistance claim is already part of the district court record.” What Williams refers to here are the numerous complaints he made during the progress of the case about the deficiencies of his various lawyers. But the co mplaints do not provide material necessary to review Williams’s claims. They do not, for example, provide any information about why Williams’s various lawyers chose to take the ac tions they took. Nor is there anything in theNo. 12-2108 USA v. Williams Page 13

record to explain why Williams’s signature did not end up on the motion for a continuance that Dunn filed on August 18. We would therefore ha ve “no way of knowing whether a seemingly unusual or misguided action by counsel had a s ound strategic motive or was taken because the
counsel’s alternatives were even worse.” Massaro v. United States , 538 U.S. 500, 505 (2003). Nor could we ascertain “whether the alleged error[s were] prejudicial.” Id. Without an evidentiary hearing, it is simplynot possible for us to properl y determine whether Tilton, Dunn, or Mitchell provided Williams constitutionally ineffective representation.
D. Career-Offender Sentencing
Finally, Williams challenges the district c ourt’s decision to sentence him as a career offender under USSG § 4B1.1(a), cont ending that the cour t incorrectly interpreted the relevant provision in subsection (3) of that guideline, which provides th at a defendant is a “career offender” if he “has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” The district court classified Williams as a career offender on the basis of a prior conviction for a felony controll ed-substance offense and a prior conviction for fourth-degree fleeing and el uding. This court held that the latt er offense qualified as a “violent felony” in United States v. Young , 580 F.3d 373, 379, 381 (6th Cir. 2009) (holding that the
defendant’s conviction of fl eeing and eluding, second offense, Mich. Comp. Laws § 257.602a, which, like fourth-degree fleeing and eluding, is punishable as a felony, qualifies as a violent felony under the Armed Ca reer Criminal Act).

Williams asserts that the court erred in c ounting his prior state conviction for fourthdegree fleeing and eluding as one of the two “prior felony convictions” necessary to qualify as a career offender under § 4B1.1(a). As § 4B1.2(c) of the Sentencing Guidelines makes clear, in order to count as one of the two “prior fel ony convictions” under § 4B1.1( a), the sentences for the prior convictions must be “counted separately under the provisions of § 4A1.1(a), (b), or (c)” — that is, they must add points to the defendant’s criminal history under one of those provisions. Section 4A1.2(a)(2) of the Sentencing Guidelines in turn provides that, when a defendant is
sentenced to concurrent sentence s of imprisonment and the senten ces count as a single sentence either because they (1) “resulte d from offenses contained in the same charging instrument” orNo. 12-2108 USA v. Williams Page 14

(2) were imposed on the same day,” only the l ongest sentence counts separately under the provisions of § 4A1.1(a), (b), or (c).
Williams points out that on the same day he was sentenced for fourth-degree fleeing and eluding, he received identical, concurrent sentences for posse ssing less than 25 grams of a
controlled substance and re sisting a police officer, neither of which is a “crime of violence” for federal sentencing purposes . He insists that, as a result, his fleeing-and-elu ding conviction does not “count separately” under the provisions of § 4A1.1(a), (b), or (c), and cannot constitute a prior conviction for a crime of violence. In ma king this argument, Williams relies heavily on an Eighth Circuit opinion, King v. United States , 595 F.3d 844 (8th Cir. 2010), in which the court held that if there is ambiguity about whic h of several related se ntences count under the provisions of § 4A1.1(a), (b), or (c), the rule of lenity requires that the defendant receive the
benefit of the doubt.
The district court dismissed Williams’s rule-of-lenity argument because it led to a “ridiculous result,” i.e. , “that a . . . predicate that you w ould otherwise score is not scored because [the defendant] got convicted of other crimes at the same time, which were not predicates.” As Williams points out, however, in King , the Eighth Circuit reached the opposite conclusion on similar facts. In that case, the defendant was sentenced as a career offender on the basis of two prior, unre lated convictions for re sisting arrest, which — standing alone — qualified
as crimes of violence. Id. at 3d at 844, 850-51. King appealed this sentence, arguing that because his sentences for resisting arrest were imposed on the same day as, and ran concurrently with, sentences for other, non-qualifying convic tions, neither should count as a prior felony conviction for purposes of § 4B1.1( a). The Eighth Circuit agreed. With respect to the first resisting-arrest conviction, it re ached this conclusion relatively ea sily because another sentence for a non-predicate crime that was imposed at the same time as the senten ce for resisting-arrest exceeded it in length. Straightforwardly applying § 4A1.2(a)(2), the court concluded that it was the other conviction, rather than the resisting-arrest conviction, th at contributed points to King’s criminal history pursuant to § 4A1.1(a). For that reason, the court concluded, the resisting-arrest
conviction did not count as a prior felony conviction. King , 595 F.3d at 849.No. 12-2108 USA v. Williams Page 15

The court found the status of the second re sisting-arrest convict ion more difficult todetermine because no other concurrent sentence exceeded the sentence imposed for resistingarrest. Instead, King received on the same day id entical suspended sentences for resisting arrest and for possessing a controlled substance, as we ll as a shorter, concurrent sentence for possessing marijuana. Id. at 849-50. The court found that, b ecause “King received equivalent suspended sentences for the first [two convictions ] . . . , it is unclear which should receive a criminal history point. Either both of them ar e ‘the longest sentence of imprisonment,’ . . . or
neither is.” Id. (quoting § 4A1.2(a)(2)). The court ul timately concluded that, given this ambiguity, the rule of lenity re quired that the non-pred icate sentence for possessing a controlled
substance be considered the sentence that “counted separately u nder the provisions of § 4A1.1(a), (b), or (c)” because doing so would result in King serving a shorter sentence. King , 595 F.3d at 850-51 (quoting United States v. Oetken , 241 F.3d 1057, 1060 (8th Cir. 2001) (“Where there are two plausible r eadings of a guideline provision, we apply the rule of lenity and give the defendant the benefit of the readi ng that results in the shorter sentence.”)).
At sentencing, the district court rejected this argument and instead relied upon a Western District of Kentucky opinion, United States v. Clark , 227 F. Supp. 2d 693 (W.D. Ky. 2002), one
that the King court considered a nd rejected. In the Clark opinion, the distri ct court suggested
that it did not matter which of two identical concurrent sentence received points under § 4A1.1(a), (b), or (c), because even if a pred icate “crime of violence” or “controlled substance offense” did not count under those provisions, it would still merit a crim inal history point under what is now § 4A1.1(e) (then § 4A1.1(f)) and ther eby qualify as a prior “crime of violence.” Id

. at 694-95. The problem with this reasoning is, of course, that th e guideline specifies subsections (a), (b), and (c), and does not include (e), even though subsection (e) clearly refers to the addition of points for a “crime of violence.”
Unlike the Eighth Circuit, we discern no ambi guity requiring applicat ion of the rule of lenity. Section 4B1.2’s requirementthat “the sentences for at least two of the aforementioned felony convictions [be] counted separately under th e provisions of § 4A1.1(a), (b), or (c)” guards against a specific type of senten cing bootstrapping, where a single cr iminal episode resulting in a single sentence could satisfy the enhancement’s requirement of two predicate crimes. TheNo. 12-2108 USA v. Williams Page 16

guideline solves this problem by requiring the two predicate crimes to “count[] separately.” Read in context, § 4B1.2 says nothing regardin g the scoring of multiple crimes within a single predicate episode.
Further, in our view § 4A1.2(a)(2)’s mandate that “if prior senten ces are counted as a single sentence, use the longest sentence of imprisonment if concurrent sentences were imposed” for the purpose of assessing criminal history poi nts results in no ambiguity for Williams to exploit. The Eighth Circuit found this langua ge ambiguous because “[e]ither both of [the defendant’s equivalent sentences] are ‘the longest sentence of im prisonment,’ or neither is.” King , 595 F.3d at 850 (internal citation omitted). We reject this interpretation as nonsensical. If the district court were simply calculating Willia ms’s criminal history category, it would never conclude that, simply because neither identical concurrent sentence is the “longest,” Williams should be assessed no criminal history points atall. Just so here. Each of Williams’s convictions, including his convi ction for fourth-degree fleeing and eluding, independently supports the assessment of criminal history points under § 4A1.1 (a), (b), or (c). Section 4B1.2 requires no more.
Our holding has the added advantage of a voiding the “ridiculous result” noted by the district court. If we accepted Williams’s ar gument, he would evade career offender status
because he committed more crimes than the qualifying offense. Such a result cannot be squared with Congress’s admonition that the Guidelines should “specify a term of imprisonment at or
near the maximum term authorized for” career offenders. 28 U.S.C. § 994(h).
Accordingly, we decline to find Williams’ s sentence procedurally unreasonable under the
Guidelines.

III. CONCLUSION

For the reasons set out above, we AFFIRM the judgment of the district court.