United States v. Winbush (P)

The district court erred in substituting a previously unidentified conviction to sustain the appellant’s “career offender” designation. Thus, he must be resentenced without that enhancement.

By habeas petition, the appellant brought a claim for ineffective assistance of counsel based on failure to challenge his designation as a career offender. While the district court found that one of the predicate offenses identified by the state didn’t qualify as a crime of violence and thus could not support a career offender designation, the court nevertheless found no prejudice because the designation could be supported by another conviction – even one that the state didn’t identify as a basis for enhancement at sentencing. This substitution was impermissible and, at any rate, the substitute conviction for robbery does not qualify as a crime of violence.

Reversed and remanded.

United States v. Winbush (P), No. 17-7148, Apr. 23, 2019. 4th Cir. (Gregory) from SDWV at Charleston (Copenhaver).

Categories: 4th U.S. Circuit Court of Appeals, Opinions, Published

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