### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10070

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. CHRISTOPHER YOUNG, Defendant–Appellant.

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:10-CR-102-1

Before HIGGINBOTHAM, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * D e f e n d a n t

– A p p e l l a n t C h r i s t o p h e r Y o u n g a p p e a l s t h e d i s t r i c t c o u r t ’ s d e n i a l of h is motion under 2 8 U.S.C. § 2255 to vacate, set aside, or correct h is s entence

on the ground of ineffective assistance o f counse l

. Young also asserts that the district court abused its discretion by failing to hold an e v i d e ntiary hearing regarding his motion. We affirm. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D May30, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10070 Document: 00512257433 Page: 1 Date Filed: 05/30/2013No. 12-10070 I An indictment charged Young w ith two counts of b e i n g a felon-inpossession o f a fir e a r m in violation of 18 U.S.C. §§ 9 22(g)(1) and 924(a)(2). Count One of the indictment alleged that Young possessed a Taurus 9mm pistol

on or about S e p tember 4, 2 008. Count Two alleged that Young possessed a Springfield

. 4 0 caliber pistol on or about September 1, 2 009. Young pleaded guilty to Count Two of the indictment, and Count One was dismissed. Young’s presentence report (PSR) included enhancements for both firearms at issue in the indictment. In relevant part, the PSR included a twolevel increase pursuant t o s e c tion 2 K2.1(b)(4)(A) of t he Sentencing Guidelines for possession of the Taurus pistol, which allegedly had been stolen. Although Young filed objections to the PSR, he did not object t o the section 2K2.1(b)(4)(A) enhancement. A fter granting one of Young’s objections as well as his r equest for

a downward variance in h is criminal history category, the d istrict court imposed

a w ithin-Guidelines s e n t e n c e of 71 months of i mprisonment. Young did not challenge his sentence on direct appeal. Young later f

iled a § 2255 motion asserting a number of claims, including those at issue in this appeal. The district court d e nied Young’s motion. Young timely filed a request for a c e r t i f i c a t e of appealability (COA), but the district court denied the request. T his a ppeal follo w e d , a n d w e granted a COA with respect to the two issues now before us. II Young first argues that the district c o u r t e r r o neously denied his § 2255 clai m o f ineffective assistance of counsel. “We review a district court’s conclusions with regard to a petitioner’s § 2255 claim of ineffective assistance of counsel de novo.” 1 To prove hi s i n e f f e ctive-assistance claim, Young must

1 U ni ted S t a tes v . Fi el ds , 565 F. 3d 290, 293 ( 5th Ci r . 2 0 0 9 ) ( quoting U ni t ed Sta tes v . M ol i na -U ri be , 429 F. 3d 514, 518 ( 5th C ir. 2005) ) ( internal quotation m ark s om itted )

. 2 Case: 12-10070 Document: 00512257433 Page: 2 Date Filed: 05/30/2013No. 12-10070

demonstrate b oth that his “ counsel’s performance was deficient” and “ that the deficient performance prejudiced the defense.” 2 In this case, since Young cannot prove that his counsel’s performance was deficient, his claim fails. Proving that c ounsel’s performance was deficient “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed t h e defend a nt by the Sixth A mendment” based on “an objective standard of reasonablen e ss.” 3 Recognizing that “the purpose of the effective assista n c e guarantee

. . . is n ot to improve the quality o f l egal representation” but instead “to ensure that criminal defendants receive a fair t r ial,” the S upreme Court has explained that “ [ j ] u d i cial s crutiny of counsel’s performance must be highl y d e f

e r ential.” 4 A s such, we “must indulge a strong presumption that

c o unsel’s conduct falls within the wide range of r easonable profession a l assistance.” 5 We have explained that the objective-reasonabl e n e s s standard requires counsel to discover and assert “[s]olid, meritorious arguments based on directly controlling p recedent.” 6 By contrast, “we have repeatedly held that ‘there is no general duty on t he part of defense counsel to anticipate changes in the law.’” 7 Similarly, c ouns e l need not “raise a claim t hat c ourts in the controlling

2 Stri ckl a nd v . Wa shi ngton , 466 U

. S. 668, 687 ( 1984)

.
3 Id. at 687- 88.

4 Id. at 689.

5 Id.

6 U ni ted S ta tes v . Conl ey , 349 F. 3d 837, 841 ( 5th C ir. 2003) ( quoting U ni ted Sta t es v . Phi ll i p s , 210 F. 3d 345, 348 ( 5th Cir. 2000) ) ( internal quotation m ark s om itted )

.
7 U ni ted Sta t es v . Fi el ds , 565 F. 3d 290, 294 (5th Cir. 2009) ( quoting G reen v . Johnson , 116 F. 3d 1115, 1125 (5th Cir. 1997) )

. 3 Case: 12-10070 Document: 00512257433 Page: 3 Date Filed: 05/30/2013No. 12-10070

jurisdiction have repeatedly rejected.” 8 Indeed, counsel is not required even to “raise every nonfrivolous ground of appeal available.” 9 Here, Young a s s e r t s t h a t h i s c o u n s e l ’ s p e r f o r m a n c e w a s i n e f

f e c t ive because counsel failed to object to the PSR’s inclusion of the sec t i o n 2K2.1(b)(4)(A)

e n h a n c e m ent based on his possession of the Taurus pistol in September 2008. Section 2K2.1(b)(4)(A) of the Guidelines provides as a “speci f ic offense characteristic” that if the offense involved any firearm that was stolen, the base offense level sh o u l d be increased by t wo levels. 1 0 A court m ust make this determination based on the defendant’s relevant conduct, 1 1 which includes not only the offense of conviction but also “offenses that are part of the same course of conduct

. . . a s the o f f ense of c onviction.” 1 2 Offenses “qualify as part of the

same course of c onduct if they are sufficiently connected or related to each other

as to warrant the conclusion that they are part of a single e p i s o d e , spree, or ongoing series of offenses.” 1 3 The Guidelines advise that th e f o llowing factors are relevant in making t his inquiry: ( 1) “the degree of similarity of the offenses,” (2) “the regularity (repetitions) of the offenses,” a nd (3) “ the time i nterval between the offenses.” 1 4 Noting t he 362-day gap b etween his p ossession of the Springfield pistol in September 2009, for which he was convicted, and his possession of the

8 Id. (citing G reen , 116 F. 3d at 1125)

.
9 U ni ted Sta tes v. Wi l li a m son , 183 F. 3d 458, 463 ( quoting G reen v . Johnson , 160 F

. 3d 1029, 1043 ( 5th Cir. 1998) ) ( internal quotation m ark s om itted )

.

1 0 U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 2K 2. 1( b) ( 4) ( A

) ( 2009)

.
1 1 Id. §§ 1B1. 3( a) ( 2) , 3D 1. 2( d )

.
1 2 U ni ted S ta tes v . Brum m ett , 3 55 F. 3d 343, 344 ( 5th Cir. 2003) ( p er curiam ) ( citing U ni ted Sta tes v. V

i ta l , 68 F. 3d 114, 118 ( 5th Cir. 1995) )

.
1 3 U

. S. S E N T E N C I N G G U I DE L I N E S M A N U A L § 1B1. 3, cm t. n. 9( B)

.
1 4 Id. 4 Case: 12-10070 Document: 00512257433 Page: 4 Date Filed: 05/30/2013No. 12-10070

Taurus pistol in September 2008, as well as the see m i n g a b s e nce of evidence indicating that his possessions were connected, Young contends that his possession of the T aurus pistol should not have been considered p a r t o f his relevant conduct. Even assumin g t h a t Y o u n g ’ s a r g u m e n t r e g a r d i n g t h e a p p lication of section 2K2.1(b)(4)(A)’s enha n c e m ent were meritorious, 1 5 given the state of our precedent as of Young’s sentencing, we cannot conclude t h at his c ounsel’s performance was constitutionally d eficient. A review of our case law reveals no precedent that addressed identical facts to t h ose in Young’s c a s e . H o wever, three of this court’s d ecisions—one published, and two unpublished—dealt with similar facts on direct a ppe a l, and each h eld t h at the d istrict court did not clearly err by consideri n g o ther possessions as part of a defendant’s relevant conduct. 1 6 For example, in U n ited States v. Brummett , 1 7 the defendant, Brummett, was convicted of being a felon-in-possession of a firearm based on his possession of a pistol and shotgun on J a nuary 18, 2001. 1 8 Between h is conviction and senten c i n g, Brummett was f ound in p ossession of firearms on two occasions—once in J u ly 2001, and again in September 2001. 1 9 T his court held that the district court did not clearly err in considering the July and September possessions as part of Brummett’s relevant conduct, explaining as follows: Brummett possessed four f i r e a r ms on three separate occasions within a nine m onth period. H e p ossessed a ll four f irearms after a

1 5 We exp res s no op inion regard ing the m erits of Y o u n g’ s a r g um ent, and our op inion
s hould not be s o read

.

1 6 U ni ted Sta tes v . Boutte , 321 F. A p p ’x 342 ( 5th Cir. 2009) ( p er curiam ) ; U ni t ed Sta tes v . Fa usp houl , 232 F. Ap p ’x 400 ( 5th Cir. 2007) ( p er curiam ) ; Brum m ett , 355 F. 3d 343.

1 7 355 F. 3d 343.

1 8 Brum m ett , 355 F

. 3d at 344.

1 9 Id. 5 Case: 12-10070 Document: 00512257433 Page: 5 Date Filed: 05/30/2013No. 12-10070

felony conviction. Brummett’s pattern of behavior was s i m ilar and regular, and the time period between offenses permits a c o nclusion that t h e firearms possessions were part of an ongoing series of offenses. 2 0 Since Brummett , t his court has upheld, o n similar l ogic, co n s i d e r a t ion of two possessions of firearms that each occurred within two and a half months of the offense of conviction—one before and one after 2 1 —as well as consideration of two possessions of firearms eleven a nd thirteen mo n t h s prior to the offense of conviction. 2 2 As of Y oung’s sente n c i ng, then, the existing decisions of this court suggested that an objection to the inclusion of the September 2 008 p ossession of the Taurus pistol as part of Young’s relevant conduct would have lacked merit. 2 3 Young possessed two f irearms within a twelve-month period, and both firearms

2 0 Id. at 345.

2 1 The panel in Boutte exp lained as follow s : [ T] he of f ens es all occurred w ithin five m onths , f a l l i n g a pp roxim ately tw o and
a half m onths ap art each tim e. In each ins tance, the of f ens es involved cas h and narcotics , as w ell as f

irearm s . Tw o of the s earches res ulted f rom inves tigations into s us p ected drug activi t y b y B o u t te. As in Brum m ett , the “p attern of behavior of pos s es s in g f irearm s w as s im ilar and regular, and the tim e p eriod betw een of

fens es p erm its a conclus ion that the f irearm s p os s es s ions w ere p art of an ongoing s eries of of f ens es . ” Boutte , 321 F. Ap p ’x at 343- 44 ( quoting Brum m ett , 355 F. 3d at 345)

.

2 2 The panel in Fa usp houl exp lained as f ollow s : Faus p houl p os s es sed f irearm s in January of 2005; he p os s es s ed f irearm s and
am m unition in M arch of 2 0 0 5 ; and he pos s es s ed in February of 2006 a s ignif icant am ount of am m unition that could be us ed in the f irearm s p revious ly d is cove r e d

. H e p os s es s ed d is tinctively s im ilar f irearm s ( s hotguns ) and the
am m unition c o u ld be us ed in s om e of thos e s eized f irearm s. Faus p houl’s p attern of be havior of p os ses s ing illegal firearm s and am m unition on three
occas ions over a tim e s p an of 14 m o n t h s w as s uf f iciently s im ilar and regular und er the f

acts p res ented to cons titute the sam e cours e of cond uct. U ni ted Sta te s v . F

a u s p houl , 232 F. Ap p ’x 400, 401 (5th Cir. 2007) ( p er curiam ) ( citing Brum mett , 232 F. Ap p ’x at 401)

.

2 3 To be clear, no op inion of this court has since d ep arted f rom the Brum m ett logic. 6 Case: 12-10070 Document: 00512257433 Page: 6 Date Filed: 05/30/2013No. 12-10070

were pistols. B oth possessions occurred following Young’s conviction of a felony. As discussed above, our cases have concluded that simila r f a c t s permitted the inclusion of other p o s sessions as part of a defendant’s relevant conduct. We theref o r e c a n n ot s ay that Young’s counsel’s failure to object to t h e section 2K2.1(b)(4)(A) enhancement rendered his assistance constitutionally deficient. Our consideration of Young’s ineffective-assistance claim accordingly ends here. III Young next contends t hat the district court e rred by f a i ling to hold an evidentiary hearing on his § 2255 motion. W e review the district court’s decision in this context for abuse o f d i s c r e tion. 2 4 W e may a ffirm the district court’s refusal to hold an evidentiary hearing “[i]f, on the record bef o r e us, ‘we can conclude as a m atter of law that [the petitioner] cannot establish o ne or both of the elements necessary to est a blish h is constitutional c laim.’” 2 5 Young here identifies no factual dispute that prevents us from resolving his in e ffective assistance claim; it f

ails as a matter of law. Therefore, the district court did not abuse its discretion by failing to hold a hearing on Young’s motion. * * * AFFIRMED.

2 4 U ni ted Sta tes v . D em i k , 489 F. 3d 644, 646 ( 5th Cir. 2007) (p er curiam ) ( citing U ni ted Sta tes v . Cerv a ntes , 132 F. 3d 1106, 1110 ( 5th Cir. 1998) )

.

2 5 Uni ted Sta t es v . Fi el ds , 5 6 5 F

. 3 d 2 90, 298 ( 5th Cir. 2009) ( s econd alteration in original) ( quoting U

ni ted Sta tes v . Wa l ker , 68 F .3d 931, 934 ( 5th C ir. 1995) )

. 7 Case: 12-10070 Document: 00512257433 Page: 7 Date Filed: 05/30/2013