United States v. Barlow, No. 18-30994 (5th Cir. 2021)
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The Fifth Circuit affirmed the district court's denial of defendant's 2016 motion for post-conviction relief based on the ineffective assistance of counsel. In this case, defendant pleaded guilty to possession of a firearm by a convicted felon and was sentenced under the Armed Career Criminal Act (ACCA). The court concluded that defendant failed to brief claims concerning the effectiveness of his trial counsel and has therefore abandoned those claims. In regard to defendant's claim that trial counsel failed to advise him before he entered into the plea agreement that he could be subject to a 15-year mandatory minimum sentence under the ACCA, defendant did not present this claim to the district court, and he neither sought nor obtained a certificate of appealability on the issue.
In regard to defendant's sentencing, he contends that the collateral-review waiver does not bar his challenge to his sentence because he reserved his right to appeal a sentence imposed in excess of the statutory maximum. The government counters that waiver only reserved the right to appeal, not collaterally attack, a sentence imposed in excess of the statutory maximum. The court concluded that resolution of the waiver issue would be more difficult than resolving whether defendant's state convictions were serious drug offenses. Applying this alternative course, the court concluded that defendant's convictions under La. R.S. 40:966(A) for possession with intent to distribute are serious drug offenses for the purpose of sentence enhancement under the ACCA. Accordingly, the court affirmed defendant's sentence.
This opinion or order relates to an opinion or order originally issued on June 19, 2020.
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