[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-14075

Non-Argument Calendar

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D.C. Docket No. 3:18-cr-00142-BJD-MCR-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

JAMES EDWARD PHILLIPS, III, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(April 29, 2021)

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Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges.

JORDAN, Circuit Judge. 

James Phillips, III, appeals his convictions and total sentence for distribution 

of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and possession of a 

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). On 

appeal, he asserts that he received constitutionally ineffective assistance of counsel 

because his trial counsel failed to object to the calculation of his criminal history 

score in his presentence investigation report, which lead to a higher guidelines range 

and security classification within the Bureau of Prisons. 

Because Mr. Phillips cannot show prejudice due to his attorney’s failure to 

object to the criminal history score, we affirm the judgment of the district court.

I

Mr. Simpson pleaded guilty to four counts of distribution of cocaine in 

violation of 21 U.S.C §§ 841(a)(1), (b)(1)(C), and two counts of possession of a 

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(f)(1), 924(a)(2). The 

charges stemmed from a series of transactions with a confidential informant working 

with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. At sentencing, the 

probation officer calculated an offense level of 25 and placed Mr. Phillips in criminal 

history category VI based on a total criminal history score of 15, resulting in an 

advisory guidelines range of 110 to 137 months imprisonment. The district court

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considered the factors in 18 U.S.C. § 3553(a) and sentenced him to six concurrent 

sentences of 120 months’ imprisonment, followed by 72 months of supervised 

release. Neither the government nor Mr. Phillips objected to the sentence.

In calculating Mr. Phillips’ criminal history score, the PSI relied on two 

separate sets of Florida convictions stemming from an arrest on June 6, 2012. The 

PSI stated that the first set of convictions were for unlawful possession of a motor 

vehicle and making a false statement in a title transfer (the vehicle violations) and 

that the second set was for armed burglary, kidnapping, and possession of a firearm 

by a convicted felon. It explained that the vehicle violations related to a stolen black 

SUV that Mr. Phillips and another individual used as a getaway vehicle after 

committing the home invasion that served as the basis for the second set of charges. 

As to the vehicle violations, the PSI stated that Mr. Phillips pleaded guilty on March 

6, 2013, and was sentenced on December 3, 2015, to five years’ imprisonment with 

credit for 1,701 days. As to the second set of convictions, it stated that Phillips 

pleaded guilty and was sentenced to five years’ imprisonment with credit for 1,701 

days on September 23, 2016. For the vehicle violations, the PSI added three criminal 

history points, under U.S.S.G. § 4A1.1(a). For the second set of convictions for 

armed burglary, kidnapping, and possession of a firearm by a convicted felon, it 

added six criminal history points, under U.S.S.G. § 4A1.1(a), (e). 

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Following the entry of the district court’s judgment, Mr. Phillips filed a 

motion for reconsideration of his sentence and to correct his guidelines calculation

under Fed. R. Crim. P. 35(a), and a notice of appeal designating the district court’s 

judgment and sentence. In his motion, Mr. Clifton, Mr. Phillips’ attorney, stated that 

he failed to make a proper objection “to the scoring of three criminal history points” 

in relation to the vehicle violations listed in the PSI. Mr. Clifton explained that Mr. 

Phillips was arrested on June 6, 2012, for the vehicle violations and that, while in 

custody for those violations, Mr. Phillips confessed to armed burglary, kidnapping, 

and possession of a firearm by a convicted felon—the second set of charges listed in 

the PSI—and that he was sentenced for both sets of offenses on the same day without 

an intervening arrest. And because under U.S.S.G § 4A1.1(a) sentences are only 

counted separately if they are “separated by an intervening arrest,” Mr. Phillips 

should only have a criminal history score of 12, a category of V, and an advisory

guidelines range of 100 to 125 months’ imprisonment. Mr. Clifton stated that he 

failed to recognize the mistake in the PSI and the relevant records that would have 

explained the situation. He requested the opportunity to seek to amend the PSI and

the advisory guidelines calculation and to have Mr. Phillips resentenced. He said his 

error “would almost certainly result in remand base[d] upon ineffective assistance 

of counsel.” Mr. Clifton also asserted that the criminal history category affects how 

Mr. Phillips is scored and classified in the Bureau of Prisons. 

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In support of his motion, Mr. Clifton attached state court documents related 

to the armed burglary, kidnapping, and possession of a firearm charges listed in the 

PSI. The first document, dated September 23, 2016, appears to be a judgment from 

a resentencing for those convictions and for a separate set of convictions for armed 

burglary and possession of a firearm by a convicted felon. The second document, 

dated August 26, 2016, was a motion by the state indicating that Mr. Phillips was 

eligible for resentencing in those matters. Both documents stated that Mr. Phillips’s 

sentences had originally been imposed on December 3, 2015.

The district court denied the motion. It reasoned that Mr. Phillips’s “120-

month sentence was imposed after considering the relevant [§] 3553(a) factors and 

weighing [his] history and characteristics, including his substantial criminal history 

and mitigation materials.” The district court stated that it would have imposed the 

same sentence whether Mr. Phillips’s criminal history was V or VI. 

II

An ineffective assistance of counsel claim is a mixed question of law and fact, 

which we review de novo. See Osborne v. Terry, 466 F.3d 1298, 1305 (11th Cir. 

2006). 

The Supreme Court has explained that, “[w]hen an ineffective-assistance 

claim is brought on direct appeal, appellate counsel and the court must proceed on a 

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trial record not developed precisely for the object of litigating or preserving the claim 

and thus often incomplete or inadequate for this purpose.” Massaro v. United States, 

538 U.S. 500, 504–05 (2003). We have therefore held that, “[e]xcept in the rare 

instance when the record is sufficiently developed, we will not address claims for 

ineffective assistance of counsel on direct appeal.” United States v. Merrill, 513 

F.3d 1293, 1308 (11th Cir. 2008) (alteration in original) (citation omitted). “[A]n 

ineffective assistance of counsel claim is properly raised in a collateral attack on the 

conviction under 28 U.S.C. § 2255.” Id. (alteration in original) (citation omitted). 

Here the record is sufficiently developed, so we address Mr. Phillip’s ineffectiveness 

claim. See id. 

A

The Constitution provides criminal defendants the right to effective assistance 

of counsel. See U.S. Const., amend. VI; Strickland v. Washington, 466 U.S. 668, 

684–86 (1984). To demonstrate ineffective assistance, a petitioner must show that 

(1) his counsel’s representation fell below an objective standard of reasonableness,

and (2) there is a reasonable probability that the proceeding’s result would have been 

different, but for his counsel’s ineffective assistance. See Chandler v. United States, 

218 F.3d 1305, 1312–13 (11th Cir. 2000) (en banc). Failure to establish either prong 

is fatal and makes it unnecessary to consider the other. See Strickland, 466 

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U.S. at 697. We engage in a “highly deferential” review of counsel’s performance. 

See Chandler, 218 F.3d at 1314 (internal quotations omitted). 

Prejudice is a “reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. 

at 694. A reasonable probability is one sufficient to undermine confidence in the 

outcome. See id. It is not enough for the defendant to show that the error had some 

conceivable effect on the outcome of the proceeding. See id. at 693. We have held 

that, “[l]ike the Supreme Court, we require[] a showing of actual prejudice in 

countless cases involving serious mistakes, omissions, or errors by counsel at 

specific points in time.” Castillo v. Fla., Sec’y of Dep’t of Corr., 722 F.3d 1281, 

1288 (11th Cir. 2013). 

Under U.S.S.G. § 4A1.1(a), a defendant receives three criminal history points 

for each prior sentence of imprisonment exceeding one year and one month. See 

U.S.S.G. § 4A1.1(a). And § 4A1.1(e) adds an additional point for “each prior 

sentence resulting from a conviction of a crime of violence that did not receive any 

points under (a), (b), or (c) above because such sentence was treated as a single 

sentence, up to a total of 3 points for this subsection.” § 4A1.1(e). If a defendant 

has multiple prior sentences, those sentences are counted separately if they were 

imposed for offenses “that were separated by an intervening arrest.” § 4A1.2(a)(2). 

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Prior sentences that are not separated by an intervening arrest and that were imposed 

on the same day are treated as a single sentence. See id. 

An error in the calculation of the guideline range warrants vacatur of a 

defendant’s sentence unless that error is harmless, i.e., if the district court would 

have imposed the same sentence without the error. See United States v. Barner, 572 

F.3d 1239, 1247–48 (11th Cir. 2009). For example, we have held that where a 

defendant preserves a challenge to the guidelines calculations, any error is harmless 

if (1) the district court stated that it would impose the same sentence even if it 

decided the guidelines issue in the defendant’s favor, and (2) assuming an error 

occurred and the lower guidelines range argued for by the defendant applied, “the 

final sentence resulting from consideration of the [18 U.S.C.] § 3553(a) factors 

would still be reasonable.” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 

2006). This is because “[t]he Supreme Court and this Court have long recognized

that it is not necessary to decide guidelines issues or remand cases for new sentence 

proceedings where the guidelines error, if any, did not affect the sentence.” Id. 

(alteration original). 

The district court must issue a sentence “sufficient, but not greater than 

necessary” to comply with the purposes of § 3553(a)(2). The weight given to any 

§ 3553(a) factor is a matter committed to the discretion of the district court. See 

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008). Although we do 

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not automatically presume a sentence falling within the guideline range is 

reasonable, we ordinarily expect such a sentence to be reasonable. See United States 

v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence imposed well below the 

statutory maximum penalty is another indicator of a reasonable sentence. See United 

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Congress gave the BOP discretion for the classification and housing of its 

inmates. See 18 U.S.C. §§ 3621(b), 4081. Further, Congress specified that the 

sections of the Administrative Procedure Act governing judicial review do not apply 

to “the making of any determination, decision, or order under” any provision of 18 

U.S.C. § 3621. See 18 U.S.C. § 3625. As a result, we have held that the BOP’s 

determinations under § 3621 are precluded from judicial review, except to the extent 

that a prisoner seeks to challenge the underlying rules and regulations that establish 

the criteria governing BOP decision-making process. See Cook v. Wiley, 208 F.3d 

1314, 1319 (11th Cir. 2000). Indeed, we have explained that “[d]eciding how to 

classify prisoners and choosing the institution in which to place them are part and 

parcel of the inherently policy-laden endeavor of maintaining order and preserving 

security within our nation's prisons.” Cohen v. United States, 151 F.3d 1338, 1344 

(11th Cir. 1998). 

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B

Mr. Phillips cannot establish ineffective assistance because he cannot show 

actual prejudice from Mr. Clifton’s allegedly deficient performance. See Chandler, 

218 F.3d at 1312–13. As to his total sentence, Mr. Clifton’s error is not prejudicial 

because the district court stated that it would impose the same sentence even if Mr. 

Phillip’s criminal history score were lower. See Strickland, 466 U.S. at 694. Stated 

differently, the district court’s determination that it would have imposed the same 

total sentence renders the purported calculation error harmless. See Barner, 572 

F.3d at 1247–48; Keene, 470 F.3d at 1349. Moreover, Mr. Phillips’s total sentence

of 120 months is reasonable because it was within the lower guideline ranges, and 

the district court reasoned that his sentence was warranted because of his history and 

characteristics and would deter others from similar conduct. See 18 U.S.C. 

§ 3553(a); Hunt, 526 F.3d at 746. 

The more difficult question is whether the BOP security-classification can 

establish actual prejudice under a Strictland ineffective assistance of counsel claim. 

The Supreme Court has told us that consequences other than a different sentencing 

decision can constitute prejudice under Strictland if it has a “close connection to the 

criminal process.” See Padilla v. Kentucky, 559 U.S. 356, 366 (2010). It is an open 

question in this circuit whether an error in BOP security-classification, resulting in 

placement in a different facility or ineligibility for a rehabilitation program, can 

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constitute prejudice under Strictland. Because Mr. Phillips, however, has failed to 

identify a facility or program that he would have been eligible for but for the increase 

in the BOP security-classification due to his inaccurate criminal history calculation, 

we do not need to reach this ultimate question. A mere claim of hypothetical 

prejudice due to the possibility of a different placement or eligibility for a program 

does not satisfy the standard of actual prejudice. See Castillo, 722 F.3d at 1288. 

Accordingly, we affirm. 

III

Because Mr. Phillips cannot establish prejudice due to his counsel’s allegedly 

defective performance, we affirm the district court’s judgment.

AFFIRMED.

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