Gamble v. United States

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

)

JEREMIAH GAMBLE, )

)

Petitioner, )

)

v. ) Cv. No. 16-02527

) Cr. No. 14-20171

UNITED STATES OF AMERICA, )

)

Respondent. )

)

)

ORDER

Before the Court is Petitioner Jeremiah Gamble’s November

15, 2016 amended pro se motion seeking to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255 (the “Amended § 2255

Motion”). (ECF No. 11.)1 Gamble filed a supplement to the

Amended § 2255 Motion on December 1, 2016, adding new grounds

for relief.2 (ECF No. 12.) The government responded to the

Amended § 2255 Motion on January 17, 2018. (ECF No. 25.) Also

before the Court is Gamble’s August 26, 2019 pro se motion to

1 Citations to (Cr. ECF No. ##) refer to the criminal case United

States v. Gamble, No. 2:14-cr-20171-SHM-18 (W.D. Tenn.). Citations

to (ECF No. ##) refer to this civil case, Gamble v. United States,

No. 2:16-cv-02527-SHM-tmp (W.D. Tenn.).

2 Gamble filed a second supplement to the Amended § 2255 Motion on

December 11, 2019. (ECF No. 31.) That supplement does not state

new grounds for relief. It provides additional analysis of the

grounds for relief stated in the Amended § 2255 Motion. (See

generally id.)

amend his Amended § 2255 Motion (the “Motion to Amend”). (ECF

No. 30.) On December 11, 2019, Gamble supplemented the Motion

to Amend with his proposed amended pleading. (ECF No. 32.)

For the following reasons, Gamble’s Amended § 2255 Motion

and Motion to Amend are DENIED.

I. Background

On January 29, 2015, a federal grand jury in the Western

District of Tennessee returned a twelve-count fourth superseding

indictment against numerous defendants, including Gamble. (Cr.

ECF No. 303.) The indictment charged Gamble with one count of

conspiracy to possess with intent to distribute, and to

distribute, cocaine, in violation of 21 U.S.C. § 846. (Id. ¶¶ 1,

19.) On July 10, 2015, Gamble pled guilty to the offense charged

pursuant to a plea agreement. (Cr. ECF Nos. 460-61.)

The United States Probation Office prepared a Presentence

Investigation Report (the “PSR”). (Jan. 29, 2016 Revised PSR,

Cr. ECF No. 1002.) The PSR calculated Gamble’s recommended

sentencing range under the 2014 edition of the United States

Sentencing Commission Guidelines Manual (the “U.S.S.G.” or the

“Guidelines”). (Id. ¶ 24.) Gamble’s base offense level was 24.

(Id. ¶ 25.) He was subject to a two-level enhancement for

possession of a dangerous weapon during commission of the

offense. (Id. ¶ 26.) Gamble’s adjusted offense level was 26.

(Id. ¶ 30.)

Gamble was a career offender under U.S.S.G. § 4B1.1 and

subject to a further sentencing enhancement. (Id. ¶ 31.) The

PSR identified two prior felony convictions of a crime of

violence or a controlled substance offense: (1) a 2005 Tennessee

conviction for possession of cocaine with intent to manufacture,

sell, or deliver; and (2) a 2011 Tennessee conviction for

aggravated assault. (Id. ¶¶ 31, 40, 51.) Gamble’s offense level

was 32 based on his career offender status. (Id. ¶ 31.) The

offense level was reduced three levels to 29 for acceptance of

responsibility. (Id. ¶¶ 32-34.) Gamble’s criminal history

category was VI. (Id. ¶ 58.) Based on his total offense level

of 29 and his criminal history category of VI, Gamble’s

recommended Guidelines range was 151-188 months. (Id. ¶ 90.)

On March 3, 2016, Gamble was sentenced. (Cr. ECF No. 790.)

The Court adopted the PSR without objection. (Id.) Gamble was

sentenced to 151 months in prison and 3 years of supervised

release. (Cr. ECF No. 792 at 2-3.) Gamble did not appeal his

conviction or his sentence.

On June 28, 2016, Gamble filed a pro se motion seeking to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255

(the “Initial § 2255 Motion”). (ECF No. 1.) In the Initial

§ 2255 Motion, Gamble sought relief only under Johnson v. United

States, 135 S. Ct. 2551 (2015). On September 22, 2016, the

government responded to the Initial § 2255 Motion. (ECF No. 7.)

On November 15, 2016, Gamble filed the Amended § 2255 Motion,

which asserted non-Johnson grounds for relief. (ECF No. 11.)

On December 1, 2016, Gamble supplemented the Amended § 2255

Motion, asserting additional non-Johnson grounds for relief.

(ECF No. 12.) On November 6, 2017, the Court denied Gamble’s

Initial § 2255 Motion and directed the government to respond to

Gamble’s Amended § 2255 Motion. (ECF No. 15.) On January 17,

2018, the government responded to the Amended § 2255 Motion.

(ECF No. 25.) On December 11, 2019, Gamble filed a further

supplement to the Amended § 2255 Motion, in which he set out

additional analysis of the grounds for relief stated in the

Amended § 2255 Motion. (ECF No. 31.)

On August 26, 2019, Gamble filed the Motion to Amend. (ECF

No. 30.) On December 11, 2019, Gamble supplemented the Motion

to Amend with his proposed amended pleading. (ECF No. 32.) The

government has not responded to the Motion to Amend.

II. Legal Standards

A. Section 2255

Pursuant to 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to

be released upon the ground that the sentence was

imposed in violation of the Constitution or laws of

the United States, or that the court was without

jurisdiction to impose such sentence, or that the

sentence was in excess of the maximum authorized by

law, or is otherwise subject to collateral attack, may

move the court which imposed the sentence to vacate,

set aside or correct the sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must

allege either: (1) an error of constitutional magnitude; (2) a

sentence imposed outside the statutory limits; or (3) an error

of fact or law that was so fundamental as to render the entire

proceeding invalid.” Short v. United States, 471 F.3d 686, 691

(6th Cir. 2006) (quotation marks and citation omitted). A

prisoner must file his § 2255 motion within one year of the

latest of:

(1) the date on which the judgment of conviction

becomes final;

(2) the date on which the impediment to making a

motion created by governmental action in

violation of the Constitution or laws of the

United States is removed, if the movant was

prevented from making a motion by such

governmental action;

(3) the date on which the right asserted was initially

recognized by the Supreme Court, if that right

has been newly recognized by the Supreme Court

and made retroactively applicable to cases on

collateral review; or

(4) the date on which the facts supporting the claim

or claims presented could have been discovered

through the exercise of due diligence.

28 U.S.C. § 2255(f).

A § 2255 motion is not a substitute for a direct appeal.

Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013).

“[C]laims not raised on direct appeal,” which are thus

procedurally defaulted, “may not be raised on collateral review

unless the petitioner shows cause and prejudice.” Massaro v.

United States, 538 U.S. 500, 504 (2003) (citing United States v.

Frady, 456 U.S. 152, 167-68 (1982)). Alternatively, a petitioner

may obtain review of a procedurally defaulted claim by

demonstrating his “actual innocence.” Bousley v. United States,

523 U.S. 614, 622-23 (1998).

The procedural default rule is not absolute:

If claims have been forfeited by virtue of ineffective

assistance of counsel, then relief under § 2255 would

be available subject to the standard of Strickland v.

Washington. In those rare instances where the

defaulted claim is of an error not ordinarily

cognizable or constitutional error, but the error is

committed in a context that is so positively outrageous

as to indicate a “complete miscarriage of justice,”

. . . what is really being asserted is a violation of

due process.

Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996)

(citation omitted). To establish a claim that ineffective

assistance of counsel has deprived a defendant of his Sixth

Amendment right to counsel, “[f]irst, the defendant must show

that counsel’s performance was deficient. . . . Second, the

defendant must show that the deficient performance prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). “Unless a defendant makes both showings, it cannot be

said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.” Id.

To demonstrate deficient performance by counsel, a

petitioner must demonstrate that “counsel’s representation fell

below an objective standard of reasonableness.” Id. at 688. In

considering a claim of ineffective assistance, a court “must

apply a ‘strong presumption’ that counsel’s representation was

within the ‘wide range’ of reasonable professional assistance.

The challenger’s burden is to show ‘that counsel made errors so

serious that counsel was not functioning as the counsel

guaranteed the defendant by the Sixth Amendment.’” Harrington

v. Richter, 562 U.S. 86, 104 (2011) (citation omitted) (quoting

Strickland, 466 U.S. at 687, 689). “A fair assessment of

attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.”

Strickland, 466 U.S. at 689.

To demonstrate prejudice, a petitioner must establish “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. “‘A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’” Humphress

v. United States, 398 F.3d 855, 859 (6th Cir. 2005) (quoting

Strickland, 466 U.S. at 694). “In assessing prejudice under

Strickland, the question is not whether a court can be certain

counsel’s performance had no effect on the outcome or whether it

is possible a reasonable doubt might have been established if

counsel acted differently. . . . The likelihood of a different

result must be substantial, not just conceivable.” Richter, 562

U.S. at 111-12 (citations omitted).

“Surmounting Strickland’s high bar is never an easy task.”

Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

An ineffective-assistance claim can function as a way

to escape rules of waiver and forfeiture and raise

issues not presented at trial, and so the Strickland

standard must be applied with scrupulous care lest

“intrusive post-trial inquiry” threaten the integrity

of the very adversary process the right to counsel is

meant to serve. Even under de novo review, the

standard for judging counsel’s representation is a

most deferential one. Unlike a later reviewing court,

the attorney observed the relevant proceedings, knew

of materials outside the record, and interacted with

the client, with opposing counsel, and with the judge.

It is “all too tempting” to “second-guess counsel’s

assistance after conviction or adverse sentence.” The

question is whether an attorney’s representation

amounted to incompetence under “prevailing

professional norms,” not whether it deviated from best

practices or most common custom.

Richter, 562 U.S. at 105 (citations omitted). Ultimately,

“[c]ounsel [cannot] be unconstitutionally ineffective for

failing to raise [] meritless arguments.” Mapes v. Coyle, 171

F.3d 408, 427 (6th Cir. 1999).

B. Motion to Amend

A motion to amend a § 2255 motion is governed by the Federal

Rules of Civil Procedure. Clark v. United States, 764 F.3d 653,

661 (6th Cir. 2014). Rule 15(a)(2) provides that a “court should

freely give leave [to amend] when justice so requires.” Leave

to amend may be denied, however, when amendment would be futile.

Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017); see also

Oleson v. United States, 27 F. App’x 566, 568-71 (6th Cir. 2001)

(affirming district court’s denial of motion to amend § 2255

petition where the motion to amend was “futile”).

C. The Guidelines’ “Career Offender” Framework

In his Amended § 2255 Motion, Gamble argues that his trial

counsel was ineffective in failing to challenge the Court’s

determination that Gamble was a career offender under the

Guidelines. At sentencing, a federal court must consider the

Guidelines’ recommended sentencing range for the defendant.

United States v. Booker, 543 U.S. 220, 245 (2005). Numerous

factors inform the Guidelines’ recommended sentencing range for

an individual defendant, including, inter alia, the defendant’s

criminal history. See U.S.S.G., ch. 4 (“Criminal History and

Criminal Livelihood”).3 The Guidelines recommend a sentencing

enhancement for a defendant who is a “career offender.” See id.

§ 4B1.1. A defendant is a career offender under the Guidelines

if:

3 All citations to the Guidelines are to the 2014 edition under which

Gamble was sentenced.

(1) the defendant was at least eighteen years old at

the time the defendant committed the instant

offense of conviction;

(2) the instant offense of conviction is a felony

that is either a crime of violence or a controlled

substance offense; and

(3) the defendant has at least two prior felony

convictions of either a crime of violence or a

controlled substance offense.

Id. § 4B1.1(a).

A “crime of violence” under the Guidelines is “any offense

under federal or state law, punishable by imprisonment for a

term exceeding one year, that . . . has as an element the use,

attempted use, or threatened use of physical force against the

person of another, or . . . is burglary of a dwelling, arson, or

extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury

to another.” Id. § 4B1.2(a). A “controlled substance offense”

under the Guidelines is “an offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that

prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance)

or the possession of a controlled substance (or a counterfeit

substance) with intent to manufacture, import, export,

distribute, or dispense.” Id. § 4B1.2(b).

When determining whether a defendant’s instant and prior

criminal convictions are crimes of violence or controlled

substance offenses under the Guidelines, courts “apply a

‘categorical’ approach, looking to the statutory definition of

the offense and not the particular facts underlying the

conviction.” United States v. Rede-Mendez, 680 F.3d 552, 556

(6th Cir. 2012) (citing Sykes v. United States, 131 S. Ct. 2267,

2272 (2011)). Under the categorical approach, a court must

compare the elements of the statute under which the defendant

was convicted with “the elements of the ‘generic’ crime -- i.e.,

the offense as commonly understood.” Descamps v. United States,

570 U.S. 254, 257 (2013). The defendant’s conviction will

qualify as a crime of violence or controlled substance offense

for purposes of the Guidelines’ career offender sentencing

enhancement only if the statute of conviction’s elements are the

same as, or narrower than, those of the generic offense. United

States v. Brown, 195 F. Supp. 3d 926, 930 (E.D. Mich. 2016)

(citing United States v. Ozier, 796 F.3d 597, 599-600 (6th Cir.

2015)); United States v. Montanez, 442 F.3d 485, 489 (6th Cir.

2006).

If a defendant’s statute of conviction “comprises multiple,

alternative versions of [a] crime” -- i.e., if it is “divisible”

-- a court may use the “modified categorical approach” and

“examine a limited class of documents to determine which of a

statute’s alternative elements formed the basis of the

defendant’s prior conviction.” Descamps, 570 U.S. at 261-62;

see also Shepard v. United States, 544 U.S. 13, 16-17 (2005).

“[T]hese so-called Shepard documents may including the ‘charging

document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the

defendant assented.’” United States v. Denson, 728 F.3d 603,

608 (6th Cir. 2013) (quoting Shepard, 544 U.S. at 16). The

purpose of the modified categorical approach is to determine

“whether the court documents establish that the defendant

‘necessarily admitted’ the elements . . . of a predicate

offense.” United States v. Davis, 751 F.3d 769, 775 (6th Cir.

2014) (quoting United States v. Medina-Almaguer, 559 F.3d 420,

423 (6th Cir. 2009)).

III. Analysis

A. Timeliness

A § 2255 motion and any amendments or supplements to it

must be filed within the one-year statute of limitations

established by 28 U.S.C. § 2255(f). See, e.g., Berry v. United

States, No. 2:14-cv-02070, 2017 WL 401269, at *10 (W.D. Tenn.

Jan. 30, 2017). Under § 2255(f)(1), the motion must be filed

within one year of “the date on which the judgment of conviction

becomes final.” A conviction becomes final on conclusion of

direct review. Sanchez-Castellano v. United States, 358 F.3d

424, 426 (6th Cir. 2004). If the defendant takes a timely direct

appeal to the court of appeals, the judgment of conviction

becomes final after the ninety-day period to file a petition for

writ of certiorari to the Supreme Court expires. Id. If the

petitioner does not appeal, “the judgment becomes final upon the

expiration of the period in which the defendant could have

appealed to the court of appeals, even when no notice of appeal

was filed.” Id. at 427.

Courts may deem claims raised in untimely amendments or

supplements to a § 2255 motion to have been filed on the date of

the original § 2255 motion if the amendment or supplement

“relates back” to the original § 2255 motion. Berry, 2017 WL

401269, at *10 & n.50 (citing Fed. R. Civ. P. 15(c)); Mayle v.

Felix, 545 U.S. 644, 655 (2005). Under Rule 15(c), an amendment

or supplement outside § 2255(f)’s one-year statute of

limitations can relate back if the supplement “asserts a claim

or defense that arose out of the conduct, transaction, or

occurrence set out -- or attempted to be set out -- in the

original pleading.” Fed. R. Civ. P. 15(c)(B). “So long as the

original and amended petitions state claims that are tied to a

common core of operative facts, relation back will be in order.”

Mayle, 545 U.S. at 664.

A judgment was entered against Gamble on March 3, 2016.

(Cr. ECF No. 792.) Gamble did not appeal. His conviction become

final on March 17, 2016. See Fed. R. App. P. 4(b). He filed

his Initial § 2255 Motion on June 28, 2016. (ECF No. 1.) He

filed his Amended § 2255 Motion on November 15, 2016, and

supplemented it on December 1, 2016, less than a year after his

conviction became final. (ECF Nos. 11-12.) Gamble’s Amended

§ 2255 Motion and his supplement to the Amended § 2255 Motion

are timely.

Gamble filed his Motion to Amend on August 26, 2019, and

supplemented it with his proposed amended pleading on December

11, 2019. (ECF Nos. 30, 32.) Gamble further supplemented his

Amended § 2255 Motion on December 11, 2019. (ECF No. 31.)

Gamble’s Motion to Amend, his supplement to the Motion to Amend,

and his December 2019 supplement to the Amended § 2255 Motion

were filed more than a year after Gamble’s conviction became

final. However, those filings relate back to December 1, 2016,

the date on which Gamble filed his Amended § 2255 Motion.

Gamble’s December 2019 supplement to the Amended § 2255

Motion raises arguments about counsel’s alleged ineffectiveness

in failing to file a notice of appeal and in failing to argue

that the Court incorrectly classified Gamble as a career offender

under the Guidelines. (See ECF No. 31 at 2-14.) Those arguments

relate to claims arising from the same conduct, transaction, or

occurrence set out in the Amended § 2255 Motion. Gamble’s

December 2019 supplement to the Amended § 2255 Motion (ECF No.

31) relates back to the Amended § 2255 Motion.

Gamble’s August 26, 2019 Motion to Amend and his December

11, 2019 supplement to the Motion to Amend raise arguments about

the Court’s allegedly incorrect classification of Gamble as a

career offender under the Guidelines. (See ECF Nos. 30, 32.)

Those arguments relate to claims arising from the same conduct,

transaction, or occurrence set out in the Amended § 2255 Motion.

Gamble’s August 26, 2019 Motion to Amend (ECF No. 30) and his

December 11, 2019 supplement to the Motion to Amend (ECF No. 32)

relate back to the Amended § 2255 Motion.

B. Amended § 2255 Motion

In his Amended § 2255 Motion, Gamble presents six grounds

for relief. (See ECF Nos. 11-1, 11-2, 11-3, 12.) Gamble argues

that:

(1) Counsel was ineffective in failing to file a

notice of appeal. (ECF No. 11-1.)

(2) Counsel was ineffective in failing to object to

the Court’s determination that Gamble’s Tennessee

aggravated assault conviction was a crime of

violence under the Guidelines. (ECF No. 11-2.)

(3) Counsel was ineffective in failing to object to

the constitutionality of the standard conditions

of supervised release. (ECF No. 11-3.)

(4) Counsel was ineffective in failing to warn Gamble

about the loss of Social Security benefits and

federal food stamp benefits that could result

from his conviction. (ECF No. 12 at 2.)

(5) Counsel was ineffective in failing to object to

the Court’s determination that Gamble’s instant

offense and his prior Tennessee conviction for

possession of cocaine with intent to manufacture,

sell, or deliver were controlled substance

offenses under the Guidelines.4 (ECF No. 12 at

3; ECF No. 31 at 10-14.)

(6) Gamble’s due process rights were violated when he

was sentenced as a career offender under the

Guidelines. (ECF No. 12 at 4.)

Each of the six grounds for relief in Gamble’s Amended

§ 2255 Motion lacks merit.

1. Ground 1

Gamble alleges that his trial counsel, Lauren Pasley, “was

ineffective in failing to file [a] notice of appeal.” (ECF No.

11-1.) He asserts that Pasley “never consulted with me

concerning an appeal,” and that, “[h]ad she done so[,] I would

have instructed her to [file] said notice on my behalf.” (ECF

No. 11-4 at 2.) Gamble does not allege that he affirmatively

instructed Pasley to file a notice of appeal.

The Court assumes that Pasley did not consult with Gamble

about whether to appeal his guilty plea or sentence. In this

context, “the term ‘consult’ [] convey[s] a specific meaning --

advising the defendant about the advantages and disadvantages of

4 It is not clear whether Gamble means to challenge the Court’s

determination that (1) his instant offense constituted a controlled

substance offense under the Guidelines, (2) his predicate Tennessee

controlled substance offense constituted a controlled substance

offense under the Guidelines, or (3) both. Gamble’s Amended § 2255

Motion discusses his instant offense; the government’s response

discusses Gamble’s predicate Tennessee controlled substance offense;

and Gamble’s recent supplement to the Amended § 2255 Motion

discusses his predicate Tennessee controlled substance offense.

(See ECF No. 12 at 3; ECF No. 25 at 13-15; ECF No. 31 at 10-14.)

The Court addresses both issues.

taking an appeal, and making a reasonable effort to discover the

defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478

(2000). “Where the attorney has not consulted with the

defendant, the attorney’s failure to do so may itself constitute

deficient performance [under the Sixth Amendment].” Richards v.

United States, 301 F. App’x 454, 457 (6th Cir. 2008) (citing

Flores-Ortega, 528 U.S. at 478). “[C]ounsel has a

constitutionally imposed duty to consult with the defendant about

an appeal when there is reason to think either (1) that a rational

defendant would want to appeal (for example, because there are

nonfrivolous grounds for appeal), or (2) that this particular

defendant reasonably demonstrated to counsel that he was

interested in appealing.” Flores-Ortega, 528 U.S. at 480. When

“there [are] no nonfrivolous grounds for appeal,” counsel “would

not [think] a rational defendant would want to appeal.”

Richards, 301 F. App’x at 457 (citing Flores-Ortega, 528 U.S. at

480).

When determining whether counsel had a constitutionally

imposed duty to consult, “courts must take into account all the

information counsel knew or should have known.” Flores-Ortega,

528 U.S. at 480 (citing Strickland, 466 U.S. at 690). “[A]

highly relevant factor in this inquiry will be whether the

conviction follows a trial or a guilty plea, both because a

guilty plea reduces the scope of potentially appealable issues

and because such a plea may indicate that the defendant seeks an

end to judicial proceedings.” Id. “[W]hen the defendant pleads

guilty, the court must consider such factors as whether the

defendant received the sentence bargained for as part of the

plea and whether the plea expressly reserved or waived some or

all appeal rights.” Id.

A rational defendant would not have wanted to appeal

Gamble’s guilty plea or sentence. Gamble received the sentence

bargained for. His plea agreement provided that the government

would recommend that Gamble receive an acceptance-of-

responsibility adjustment and that he be sentenced at the low

end of the applicable Guidelines range. (Cr. ECF No. 460 at 1-

2.) At sentencing, Gamble received the benefit of a three-point

acceptance-of-responsibility adjustment and a sentence of 151

months, at the low end of his recommended Guidelines range of

151-188 months. (See Cr. ECF No. 790; PSR ¶¶ 32-34, 90.) Gamble

waived his appeal rights. His plea agreement provided that

Gamble “understands that by pleading guilty, he gives up the

right to appeal the conviction,” and that, “[b]ased on

concessions made in this plea agreement by the United States,

[Gamble] [] hereby waives his rights to appeal his sentence,

unless the sentence exceeds the maximum permitted by statute or

is the result of an upward departure from the guideline range

that the Court establishes at sentencing.” (Cr. ECF No. 460 at

3.) Gamble’s sentence did not exceed the statutory maximum of

20 years. See 21 U.S.C. § 846; 21 U.S.C. § 841(b)(1)(C). His

sentence was not the result of an upward departure.

Even if Gamble had not waived his appeal rights, the grounds

for appeal he raises are frivolous. Gamble argues that a

rational defendant would have wanted to appeal his sentence

because the “Court erroneously applied [the career] offender

guidelines.” (ECF No. 31 at 3-4.) As discussed infra, at the

time of Gamble’s sentencing, the Court’s determination that

Gamble qualified as a career offender under the Guidelines was

clearly correct. See Strickland, 466 U.S. at 689 (noting that

a court should assess counsel’s performance “from counsel’s

perspective at the time”). Gamble argues that a rational

defendant would have wanted to appeal “the district court’s

denial of a three level adjustment to the base level calculation

of his sentence.” (ECF No. 31 at 4.) The PSR -- which the Court

adopted without objection -- makes clear that Gamble did in fact

receive the benefit of a three-level acceptance-of-

responsibility adjustment. (PSR ¶¶ 32-34, 90; see also Cr. ECF

No. 790.)

Gamble also does not credibly allege that he “reasonably

demonstrated to counsel that he was interested in appealing.”

Flores-Ortega, 528 U.S. at 480. Gamble conclusorily alleges

that he “showed an interest [in appealing],” but does not assert

that he took any specific actions to demonstrate his interest.

(ECF No. 31 at 3.) In an affidavit attached to the government’s

response to Gamble’s Amended § 2255 Motion, his trial counsel

asserts that “Mr. Gamble did not request an appeal on this case”

and “was reminded [at sentencing] that his agreement with the

Government stated that he had waived his right to appeal.” (ECF

No. 25-1 ¶ 6.)

Given Gamble’s guilty plea, his waiver of appeal rights,

his bargained-for sentence, and his lack of nonfrivolous grounds

for appeal, Pasley’s failure to consult with Gamble about his

appeal rights did not “f[all] below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

2. Ground 2

Gamble alleges that Pasley was ineffective in failing to

object to the Court’s determination that Gamble’s Tennessee

aggravated assault conviction was a crime of violence under the

Guidelines. (ECF No. 11-2.) He asserts that, “had counsel

objected[,] petitioner would not have been designated a career

offender and his guideline sentencing range would have been

different.” (Id.)

At sentencing, the Court determined that Gamble was a career

offender under the Guidelines based on two qualifying

convictions, including a 2011 Tennessee conviction for

aggravated assault that constituted a crime of violence under

U.S.S.G. § 4B1.2(a). (See Cr. ECF No. 790; PSR ¶ 51.) The

Court’s determination was correct. Gamble was convicted under

section 39-13-102 of the Tennessee Code, which prohibits both

intentional or knowing aggravated assault and reckless

aggravated assault. See Tenn. Code Ann. § 39-13-102(a)(1)(A)

(prohibiting intentional or knowing aggravated assault); id. at

§ 39-13-102(a)(1)(B) (prohibiting reckless aggravated assault).

At the time of Gamble’s sentencing in March 2016, controlling

Sixth Circuit precedent held that reckless aggravated assault

did not constitute a crime of violence under the Guidelines and

that, because section 39-13-102 prohibited both knowing and

reckless aggravated assault, a violation of section 39-13-102

“does not categorically qualify as a crime of violence.” United

States v. Cooper, 739 F.3d 873, 879 (6th Cir. 2014); see also

United States v. McMurray, 653 F.3d 367, 373-82 (6th Cir. 2011),

abrogated by United States v. Harper, 875 F.3d 329 (6th Cir.

2017).

This does not help Gamble. At the time of Gamble’s

sentencing, controlling Sixth Circuit precedent also held that

section 39-13-102 was divisible -- one subsection of the statute

prohibited intentional or knowing aggravated assault, while a

separate subsection prohibited reckless aggravated assault. See

Cooper, 739 F.3d at 880 n.2 (noting that Ҥ 39-13-102 is

divisible”). A conviction for intentional or knowing aggravated

assault under section 39-13-102 is a crime of violence under the

Guidelines. Id. at 882. When a statute is divisible, courts

apply the modified categorical approach and consult the

defendant’s Shepard documents to determine the subsection of the

statute under which the defendant was convicted. See Descamps,

570 U.S. at 262.

The Shepard documents from Gamble’s Tennessee proceeding

for aggravated assault demonstrate that he was convicted of

intentional or knowing aggravated assault under section 39-13-

102. (See ECF Nos. 7-1, 7-2.) His indictment states that he

“did unlawfully and knowingly commit an assault on [victim] and

use or display a deadly weapon and cause the said [victim] to

reasonably fear imminent bodily injury, in violation of T.C.A.

39-13-102.” (ECF No. 7-1.) Gamble’s judgment states he was

convicted of a Class C felony under section 39-13-102. (ECF No.

7-2.) Intentional or knowing aggravated assault is a Class C

felony under section 39-13-102. Reckless aggravated assault is

a Class D felony under the same statute. See Tenn. Code Ann.

§ 39-13-102(e)(1)(A); see also Cooper, 739 F.3d at 881-82

(defendant necessarily pled guilty to intentional or knowing

aggravated assault under section 39-13-102 where his “state-

court judgment confirm[ed] that [he] pleaded guilty to a Class

C felony”); Ballinger v. United States, No. 17-5261, 2017 WL

8180569, at *2 (6th Cir. Dec. 14, 2017) (noting that defendant’s

“judgments of conviction indicate[d] that the convictions were

Class C felonies” and that, “because [defendant’s] convictions

were Class C felonies of intentional, rather than reckless,

aggravated assault, he was necessarily convicted” of the

knowing/intentional variant of aggravated assault under section

39-13-102).

The Shepard documents establish that Gamble’s 2011

Tennessee aggravated assault conviction was for intentional or

knowing aggravated assault and is a crime of violence under

U.S.S.G. § 4B1.2(a). See Cooper, 739 F.3d at 881-82 (conviction

for intentional or knowing aggravated assault under section 39-

13-102 was a crime of violence under the Guidelines); Ballinger,

2017 WL 8180569, at *2 (same).

Because, under clearly established law, Gamble’s 2011

Tennessee aggravated assault conviction was a crime of violence

under the Guidelines at the time of Gamble’s sentencing, Pasley’s

decision not to contest that finding did not “f[all] below an

objective standard of reasonableness.” Strickland, 466 U.S. at

688. Counsel cannot be faulted for “failing to raise [a]

meritless argument[].” Mapes, 171 F.3d at 427.

3. Ground 3

Gamble alleges that Pasley was ineffective in failing to

object to the constitutionality of the standard conditions of

supervised release. (ECF No. 11-3.) He asserts that, “had

counsel objected[,] [he] would not have been privy to the

unconstitutional standard conditions.” (Id.)

The Court sentenced Gamble to 151 months in prison and 3

years of supervised release. (Cr. ECF No. 792 at 2-3.) The

Court imposed a standard set of supervised release conditions

and four special conditions. (Id. at 3-4.) Some of the standard

conditions the Court imposed -- i.e., that “the defendant shall

not commit another federal, state or local crime” -- are

statutorily mandated. See 18 U.S.C. § 3583(d). Others -- i.e.,

that “the defendant shall not leave the judicial district without

the permission of the court or probation officer” -- are

conditions that a court may impose at its discretion, provided

the conditions: (1) are reasonably related to certain sentencing

factors set out in 18 U.S.C. § 3553(a); (2) involve no greater

deprivation of liberty than is reasonably necessary for the

purposes set forth in 18 U.S.C. § 3553(a); and (3) are consistent

with Sentencing Commission policy statements. See id. (citing

18 U.S.C. § 3563(b)); see also U.S.S.G. § 5D1.3(c) (policy

statement outlining the Sentencing Commission’s recommended

standard conditions of supervised release).

“[S]upervised release conditions . . . [are subject to] the

prohibition against vague laws embedded in the Fifth Amendment’s

Due Process Clause.” United States v. Shultz, 733 F.3d 616, 622

(6th Cir. 2013). At the time of Gamble’s sentencing, the U.S.

Court of Appeals for the Seventh Circuit had held that several

standard conditions of supervised release are problematically

vague. See, e.g., United States v. Kappes, 782 F.3d 828, 848-

50 (7th Cir. 2015) (holding that standard conditions of

supervised release requiring defendant to refrain from

“associat[ing] with any persons engaged in criminal activity”

and to “refrain from excessive use of alcohol” were “fatally

vague”). The Sixth Circuit had not, however, held or suggested

that any of the standard conditions of supervised release were

unconstitutional, and had stated that “[c]ourts would do well to

show restraint in entertaining facial challenges to conditions

of supervised release.” Shultz, 733 F.3d at 624. The Sixth

Circuit has subsequently -- in an unpublished opinion -- held

that one of the standard conditions of supervised release is

unconstitutionally vague. See United States v. Sexton, 719 F.

App’x 483, 484-85 (6th Cir. 2017) (holding that the standard

condition of supervised release requiring a defendant to “notify

third parties of risks that may be occasioned by [his] criminal

record or personal history or characteristics” is “overly

vague”).

At the time of Gamble’s sentencing, the law governing the

constitutionality of the standard conditions of supervised

release was in flux. Gamble’s counsel could have colorably

argued, relying on precedents from other jurisdictions, that

some of the standard conditions were unconstitutional. Her

choice not to, however, does not constitute deficient performance

under Strickland. “Strickland’s performance standard does not

require an attorney to raise every non-frivolous issue on

appeal.” Harper v. United States, No. 18-1202, 2019 WL 6321329,

at *4 (6th Cir. Nov. 26, 2019) (citing Jones v. Barnes, 463 U.S.

745, 751 (1983)). When the law is in a “curious state,” counsel

cannot be faulted for declining to press an argument that would

stand on uncertain ground. See Lucas v. O’Dea, 179 F.3d 412,

419-20 (6th Cir. 1999) (counsel is not typically required under

Strickland to “anticipate a development in the law,” and is not

ineffective in declining to object to a sentence enhancement

about which the law at the time of sentencing was “in a curious

state”) (quotation marks and citation omitted); see also Bullard

v. United States, 937 F.3d 654, 663 (6th Cir. 2019) (holding

that “it was reasonable for [] trial counsel not to object” to

the trial court’s sentencing determination given “such

uncertainty in the caselaw”). Pasley’s decision not to contest

the constitutionality of the standard conditions of supervised

release did not “f[all] below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688.

Pasley’s decision not to contest the constitutionality of

the standard conditions of supervised release did not prejudice

Gamble. See Strickland, 466 U.S. at 687 (a defendant arguing

that counsel provided constitutionally ineffective assistance

must show that “the deficient performance prejudiced the

defense”). A defendant may contest his conditions of supervised

release and the Court may modify those conditions “at any time

prior to the expiration or termination of the term of supervised

release.” 18 U.S.C. § 3583(e)(2); see also United States v.

Romer, Nos. 18-2113, 18-2239, 2019 WL 6492502, at *5 (6th Cir.

Dec. 3, 2019) (declining to invalidate a condition of supervised

release on direct appeal and noting that, “to the extent

[defendant] later believes that probation is being too

restrictive in its interpretation of this provision, ‘he may

petition the court to modify [or] reduce . . . the condition[]

of supervised release’”) (quoting United States v. Arnold, 549

F. App’x 491, 498 (6th Cir. 2013)); United States v. Bostic, No.

17-cv-1645, 2018 WL 439316, at *6 (N.D. Ill. Jan. 16, 2018)

(counsel’s decision not to challenge the constitutionality of

defendant’s conditions of supervised release at sentencing did

not prejudice defendant under Strickland because “none of the

contested conditions of supervised release have yet gone into

effect” and “a district court may modify a defendant’s supervised

release conditions ‘at any time’ under 18 U.S.C. § 3583(e)(2)”).

Gamble is free to file a motion to modify the conditions of his

supervised release, which have not gone into effect. Pasley’s

decision not to contest those conditions at sentencing did not

constitute ineffective assistance of counsel.

4. Ground 4

Gamble alleges that Pasley was ineffective in failing to

warn Gamble about the loss of Social Security benefits and

federal food stamp benefits that could result from his

conviction. (ECF No. 12 at 2.) He asserts that, “had trial

counsel explained beforehand the direct consequences associated

with said conviction[,] he would not have pled guilty but [would

have] refused to endorse the plea agreement and its terms and

instead insisted on going to trial.” (Id.)

Gamble cites no authority supporting his assertion that

counsel’s failure to warn a defendant about a potential loss of

federal benefits could constitute constitutionally ineffective

assistance. In Padilla, the Supreme Court held that counsel’s

failure to advise a defendant that a guilty plea would result in

his deportation constituted constitutionally ineffective

assistance. 559 U.S. at 367-74. The Supreme Court noted

deportation’s “close connection to the criminal process” and

opined that it is “uniquely difficult to classify as either a

direct or a collateral consequence [of conviction].” Id. at

366. “Notably, since Padilla, neither the Supreme Court nor the

Sixth Circuit has extended its holding to any collateral issue

other than deportation.” United States v. Sawaf, Nos. 01-cr-47,

15-cv-170, 2017 WL 9486187, at *7 (E.D. Ky. Aug. 7, 2017),

adopted by 2018 WL 287864 (E.D. Ky. Jan. 4, 2018); see also id.

at *6-7 (declining to extend Padilla to counsel’s failure to

inform defendant of a potential loss of Social Security benefits

and noting that this “is a matter that falls outside the scope

of the Sixth Amendment”); Parrino v. United States, 655 F. App’x

399, 403 (6th Cir. 2016) (declining to extend Padilla to

counsel’s failure to inform defendant of loss of ability to

participate in federal healthcare programs); United States v.

Nelson, No. 1:08-cr-068, 2011 WL 883999, at *2-3 (S.D. Ohio Jan.

5, 2011), adopted by 2011 WL 883973 (S.D. Ohio Mar. 10, 2011)

(declining to extend Padilla to counsel’s failure to inform

defendant that he would be “prohibited from receiving federal

benefits”) (quotation marks omitted). Pasley’s alleged failure

to inform Gamble of a potential loss of Social Security benefits

and federal food stamp benefits does not give rise to a

cognizable claim of ineffective assistance of counsel under the

Sixth Amendment.

Gamble has not demonstrated that Pasley’s alleged failure

to warn him of a potential loss of Social Security benefits and

federal food stamp benefits prejudiced him. To demonstrate

prejudice, a petitioner must establish “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. “The likelihood of a different result must be substantial,

not just conceivable.” Richter, 562 U.S. at 112.

The record demonstrates that Gamble was informed of the

potential loss of benefits. The PSR stated that Gamble might be

ineligible for federal benefits as a result of his guilty plea.

(PSR ¶¶ 103-04.) At his sentencing hearing, Gamble answered

affirmatively when the Court asked whether he had reviewed his

PSR. (Cr. ECF No. 930 at 3.) In the affidavit attached to the

government’s response to Gamble’s Amended § 2255 Motion,

Gamble’s trial counsel submits that “Mr. Gamble was also fully

aware that he would lose benefits upon pleading guilty in federal

court” and that “[t]his was understood upon reviewing the

Presentence Report before the sentencing hearing.” (ECF No. 25-

1 ¶ 7.) Gamble has not demonstrated a substantial likelihood

that he would have proceeded to trial to avoid foregoing Social

Security benefits or federal food stamp benefits. Richter, 562

U.S. at 112.

5. Ground 5

Gamble alleges that Pasley was ineffective in failing to

object to the Court’s determination that Gamble’s instant offense

under 21 U.S.C. § 846 and his prior 2005 Tennessee conviction

for possession of cocaine with intent to manufacture, sell, or

deliver were controlled substance offenses under the Guidelines.

(ECF No. 12 at 3; ECF No. 31 at 10-14.) He asserts that, “had

counsel objected[,] [he] would not have been sentenced as a

career offender and his guideline range would have been lower.”

(ECF No. 12 at 3.)

At sentencing, the Court determined that Gamble was a career

offender under the Guidelines because (1) Gamble’s instant

offense under 21 U.S.C. § 846 constituted a controlled substance

offense under U.S.S.G. § 4B1.2(b); and (2) Gamble had two

qualifying convictions, including a 2005 Tennessee conviction

for possession of cocaine with intent to manufacture, sell, or

deliver that constituted a controlled substance offense under

U.S.S.G. § 4B1.2(b). (See Cr. ECF No. 790; see also PSR ¶¶ 31,

40.) The Court’s determinations were correct.

Gamble’s instant offense was conspiracy to possess with

intent to distribute, and to distribute, cocaine, in violation

of 21 U.S.C. § 846. (Cr. ECF No. 303 ¶¶ 1, 19.) At the time of

Gamble’s sentencing, the Sixth Circuit had repeatedly recognized

that a conspiracy conviction under § 846 constitutes a controlled

substance offense under the Guidelines. See United States v.

Williams, 53 F.3d 769, 772 (6th Cir. 1995) (“[W]e hold that that

the Sentencing Commission did not exceed its statutory authority

by including conspiracy within the definition of a ‘controlled

substance offense’ under the career offender guidelines.

Accordingly, the district court did not err in determining that

a conspiracy to possess cocaine with intent to distribute may be

used to classify defendant as a career offender.”); see also

United States v. Sanbria-Bueno, 549 F. App’x 434, 439 (6th Cir.

2013) (noting that the Sixth Circuit “treat[s] § 846 conspiracy

offenses as ‘controlled substance offenses’ under § 4B1.2”)

(citing Williams, 53 F.3d at 770-71); United States v. Black, 4

F. App’x 280, 281 (6th Cir. 2001) (“For purposes of the career

offender guideline, conspiracy to commit a crime is given the

same status as the underlying crime.”) (citing U.S.S.G. § 4B1.2,

cmt. n.1). Pasley’s decision not to object to the Court’s

determination that Gamble’s instant offense under 21 U.S.C. § 846

was a controlled substance offense under the Guidelines did not

“f[all] below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. That argument would have been

meritless. See Mapes, 171 F.3d at 427.

In 2005, Gamble was convicted of possession of cocaine with

intent to manufacture, sell, or deliver under Tenn. Code Ann.

§ 39-17-417.5 At the time of Gamble’s sentencing, the Sixth

Circuit had repeatedly recognized that a conviction for

possession with intent to manufacture, sell, or deliver under

5 The government represents that Tenn. Code Ann. § 39-17-417 was the

statute of conviction for Gamble’s 2005 Tennessee conviction, but

attaches no supporting documentation. (See ECF No. 25 at 15.)

Gamble does not contest the point. He characterizes his 2005

Tennessee conviction as a “conviction in the State of Tennessee for

possession with intent to distribute C.D.S.” (ECF No. 31 at 10.)

In his Motion to Amend, Gamble submits that this conviction was

under “§ 39-17-417.” (ECF No. 32 at 3-5.)

section 39-17-417 constituted a controlled substance offense

under U.S.S.G. § 4B1.2(b). See United States v. Douglas, 563 F.

App’x 371, 378 (6th Cir. 2014) (collecting cases and noting that

“we have always treated a violation of § 39-17-417 as a

categorical controlled substance offense [under the

Guidelines]”). Pasley’s decision not to object to the Court’s

determination that Gamble’s 2005 Tennessee conviction for

possession of cocaine with intent to manufacture, sell, or

deliver was a controlled substance offense under the Guidelines

did not “f[all] below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. That argument would have been

meritless. See Mapes, 171 F.3d at 427.

6. Ground 6

Gamble alleges that his “constitutional right to due process

of law was violated when he was sentenced with the career

offender enhancement. Categorically[,] petitioner is not a

career offender because both his predicate offenses and his

instant offense are not qualifiers.” (ECF No. 12 at 4.)

Gamble’s due process argument lacks merit. As discussed

above, the Court correctly determined that Gamble was a career

offender under the Guidelines based on his instant controlled

substance offense and his two predicate convictions. Even if

the Court had erred in finding that Gamble was a career offender,

Gamble has not shown how the Court’s alleged errors resulted in

“a ‘fundamental defect’ in the proceedings which necessarily

result[ed] in a complete miscarriage of justice or an egregious

error violative of due process.” Gall v. United States, 21 F.3d

107, 109 (6th Cir. 1994); see also Jones v. United States, 56

F.3d 64 (6th Cir. 1995) (unpublished table opinion) (noting that

“[r]elief is appropriate on [a] nonconstitutional claim under

the sentencing guidelines only if the record reflects an

egregious error that violates due process or a fundamental defect

resulting in a complete miscarriage of justice”) (citing Gall,

21 F.3d at 109).

Gamble’s due process argument is also procedurally

defaulted. “Sentencing challenges generally cannot be made for

the first time in a post-conviction § 2255 motion.” Weinberger

v. United States, 268 F.3d 346, 351 (6th Cir. 2001) (citing Grant

v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996)). The

petitioner must “[n]ormally” make such objections “on direct

appeal or they are waived.” Id. “[M]istakes in the application

of the sentencing guidelines, will rarely, if ever, warrant

relief from the consequences of waiver.” Grant, 72 F.3d at 506.

“[C]ollateral relief from [such] a defaulted claim of error is

appropriate only where there has been fundamental unfairness, or

what amounts to a breakdown of the trial process.” Id. (citing

Reed v. Farley, 114 S. Ct. 2291, 2300 (1994)). A petitioner

seeking to bring a defaulted sentencing challenge in a § 2255

motion must demonstrate “a violation of due process” that is “so

positively outrageous as to indicate a ‘complete miscarriage of

justice.’” Id.

Gamble did not appeal his sentence. His due process claim

is waived. Gamble does not attempt to explain how the Court’s

determination that he was a career offender under the Guidelines

resulted in a “complete miscarriage of justice.” See, e.g.,

Futrell v. United States, Nos. 1:15-cv-01041, 1:12-cr-10131,

2017 WL 6065271, at *1-3 (W.D. Tenn. Dec. 7, 2017) (denying

petitioner’s § 2255 due process claim where petitioner did not

raise the claim on direct appeal and “ha[d] not shown, or even

tried to explain, how the alleged misapplication of the advisory

guidelines denied him due process”). Gamble waived his due

process claim by not raising it on direct appeal and has

demonstrated no basis on which the Court might excuse that

waiver.

C. Motion to Amend

Gamble has filed a Motion to Amend his Amended § 2255

Motion. (ECF Nos. 30, 32.) In his proposed amended pleading,

Gamble argues that, given the Sixth Circuit’s recent en banc

decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019),

his 2005 Tennessee conviction for possession of cocaine with

intent to manufacture, sell, or deliver “no longer [is] a

qualifying predicate offense” for purposes of the Guidelines’

career offender enhancement. (See ECF No. 32 at 1, 4-8.)

In Havis, an en banc panel of the Sixth Circuit held that

“attempt crimes do not qualify as controlled substance offenses”

under the Guidelines. 927 F.3d at 387. The text of the

definition of “controlled substance offense” in U.S.S.G.

§ 4B1.2(b) does not mention attempt crimes, but the Application

Notes to § 4B1.2(b) provide that a “controlled substance offense

. . . include[s] the offenses of aiding and abetting, conspiring,

and attempting to commit such offenses.” U.S.S.G. § 4B1.2, cmt.

n.1. A prior Sixth Circuit panel, relying on the Application

Notes to U.S.S.G. § 4B1.2(b), held that the Guidelines’

definition of “controlled substance offense” encompassed attempt

crimes. See United States v. Evans, 699 F.3d 858, 866-67 (6th

Cir. 2012). In Havis, the en banc panel abrogated Evans and

held that “the Sentencing Commission has no power to add attempt

crimes to the list of offenses in § 4B1.2(b) through commentary.”

927 F.3d at 384.

In the wake of Havis, a conviction under Tenn. Code Ann.

§ 39-17-417 -- the statute of conviction for Gamble’s 2005

Tennessee conviction for possession of cocaine with intent to

manufacture, sell, or deliver -- is no longer a categorical

controlled substance offense under U.S.S.G. § 4B1.2(b). See

Havis, 927 F.3d at 384, 387. Subsection (a)(2) of § 39-17-417

prohibits the “delivery” of a controlled substance, including

the “attempted transfer” of a controlled substance. See id.

(noting that “the least culpable conduct covered by § 39-17-417

is attempted delivery of a controlled substance” although “[t]he

Guidelines’ definition of ‘controlled substance offense’ does

not include attempt crimes”). Because subsection (a)(2) of the

statute prohibits “attempt” conduct, the Court held in Havis

that § 39-17-417 is overbroad under the categorical approach.

See id.

Tenn. Code Ann. § 39-17-417 is divisible. United States v.

Goldston, 906 F.3d 390, 394 (6th Cir. 2018) (noting that § 39-

17-417 “constitutes a ‘divisible statute’”) (quoting Descamps,

570 U.S. at 257). Gamble’s predicate controlled substance

conviction was for possession of cocaine with intent to

manufacture, sell, or deliver, and is governed by subsection

(a)(4) of § 39-17-417, rather than subsection (a)(2). See Tenn.

Code Ann. § 39-17-417(a)(4) (prohibiting “possess[ion] [of] a

controlled substance with intent to manufacture, deliver or sell

the controlled substance”). Subsection (a)(4) does not

criminalize attempted possession of a controlled substance and

is not overbroad under the categorical approach. See Whyte v.

United States, No. 3:16-cv-02622, 2019 WL 2524095, at *7 n.4

(M.D. Tenn. June 19, 2019) (noting that subsection (a)(4) of

§ 39-17-417 is “divisible from the remainder of the statute” and

that “Tennessee law does not appear to define ‘possession’ to

encompass ‘attempt to possess’”). Without the Shepard documents

explaining Gamble’s 2005 Tennessee controlled substance

conviction, which no party has submitted, the Court cannot

ultimately determine under which subsection of § 39-17-417

Gamble was convicted or whether, under Havis, his conviction

would continue to qualify as a controlled substance offense under

the Guidelines.

The Court need not evaluate the merits of Gamble’s Havis

argument. To allow Gamble to submit his proposed amended

pleading would be futile because the argument he seeks to make

does not give rise to a cognizable § 2255 claim. Gamble’s

proposed pleading would allege that, following Havis, the Court’s

determination that Gamble was a career offender retroactively

constitutes an erroneous application of the Guidelines. (See

ECF Nos. 30, 32.) That is a non-constitutional claim of error.

Non-constitutional errors “ordinarily are not cognizable on

collateral review” under § 2255. United States v. Cofield, 233

F.3d 405, 407 (6th Cir. 2000) (quoting Grant, 72 F.3d at 506).

A non-constitutional error will give rise to a cognizable § 2255

claim “only if [the error] involved ‘a fundamental defect which

inherently results in a complete miscarriage of justice.’”

Snider v. United States, 908 F.3d 183, 189 (6th Cir. 2018)

(quoting Davis v. United States, 417 U.S. 333, 346 (1974)). “To

meet this demanding standard, a prisoner typically must ‘prove

that he is either actually innocent of his crime or that a prior

conviction used to enhance his sentence has been vacated.’”

Bullard, 937 F.3d at 658 (quoting Spencer v. United States, 773

F.3d 1132, 1339 (11th Cir. 2014) (en banc)).

Recent Sixth Circuit cases have addressed situations

similar to Gamble’s. In Snider, the Sixth Circuit held that a

petitioner’s “non-constitutional challenge to his advisory

guidelines range . . . [was] not cognizable under § 2255.”6 908

F.3d at 189. Because the Guidelines are advisory, judges must

consult the Guidelines’ recommended sentencing ranges but are

free to depart from the Guidelines’ recommendations based on the

sentencing factors in 18 U.S.C. § 3553(a). See id. at 190-91.

When there is “an intervening change in the law” that “render[s]

[a petitioner’s] career offender designation erroneous,” the

petitioner’s resulting “misapplication-of-an-advisory-

guidelines-range claim” challenges “‘only [] the legal process

6 The Snider panel noted that, “although not without dissent, every

other court of appeals to have looked at the issue has agreed that a

defendant cannot use a § 2255 motion to vindicate non-constitutional

challenges to advisory guideline calculations.” 908 F.3d at 191-92

(collecting cases). The decisions issued by other circuits as to

this issue have been “extremely close and deeply divided.” Id. at

192 (quoting United States v. Foote, 784 F.3d 931, 939 (4th Cir.

2015)). Snider was issued over a strong dissent, which argued that

“there are instances in which, despite being sentenced under the

advisory guidelines, a defendant who has been incorrectly designated

as a career offender may still bring a claim under § 2255.” Snider,

908 F.3d at 193-200 (Moore, J., dissenting).

used to sentence a defendant and does not raise an argument that

the defendant is ineligible for the sentence she received.’” Id.

at 191 (quoting Gibbs v. United States, 655 F.3d 473, 479 (6th

Cir. 2011)).

In Bullard, the Sixth Circuit rejected a petitioner’s §

2255 claim in which he argued that, under Havis, his predicate

conviction under an Arizona controlled substance statute that

prohibits “attempt” conduct was no longer a controlled substance

offense under the Guidelines. 937 F.3d at 656-57, 660-61. The

Bullard panel noted that the petitioner “would not be a career

offender under the Guidelines” if he “received his sentence

today,” but held that the defendant’s argument that “the district

court misclassified him as a career offender” did not present “a

cognizable claim on collateral review.” Id. at 657 (citing

Snider, 908 F.3d at 189-91). The Court reiterated Snider’s

holding that “‘[a] misapplication-of-an-advisory-guidelines

claim is . . . not cognizable under § 2255.’” Id. at 660

(quoting Snider, 908 F.3d at 191).

Snider and Bullard control here. Gamble does not allege

that he is actually innocent of his 2005 Tennessee controlled

substance offense. His sentence has not been vacated. See

Bullard, 937 F.3d at 658 (noting that a petitioner can assert a

cognizable claim of non-constitutional error under § 2255 by

showing that “he is either actually innocent of his crime or

that a prior conviction used to enhance his sentence has been

vacated”). Gamble alleges that Havis is an intervening change

in law that invalidates the Court’s prior determination that he

qualified as a career offender under the Guidelines. (See ECF

Nos. 30, 32.) As discussed above, Gamble might have a

meritorious argument that, if sentenced now, he would not qualify

as a career offender under the Guidelines. Even if so, he cannot

raise a cognizable § 2255 claim by arguing that Havis

retroactively invalidates the Court’s application of the

advisory Guidelines at his sentencing. That is because the

Guidelines are advisory. As the Bullard panel explained:

[T]he Guidelines are just meant to guide the district

court to the proper sentence. But the district court

is free to vary from the Guidelines -- and can impose

a sentence at, below, or above the Guidelines. . . .

This discretion confirms the absence of any

‘miscarriage of justice’ in Guidelines calculations:

a district court can lawfully impose the same sentence

with or without the career offender designation.

937 F.3d at 659 (quotation marks and citations omitted). “Havis

provides no relief on collateral review.” Id. at 657. Gamble’s

proposed amended pleading is futile. See Beydoun, 871 F.3d at

469. Gamble’s Motion to Amend is DENIED.

IV. Appeal

Under 28 U.S.C. § 2253, a district court must evaluate the

appealability of its decision denying a § 2255 motion. The court

should issue a certificate of appealability (“COA”) ”only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also Fed. R.

App. P. 22(b). No § 2255 movant may appeal without this

certificate.

The COA must indicate the specific issue or issues that

satisfy the required showing. 28 U.S.C. § 2253(c)(2)-(3). A

“substantial showing” is made when the movant demonstrates that

“reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 336 (2003) (quotation marks and citation omitted); see

also Henley v. Bell, 308 F. App’x 989, 990 (6th Cir. 2009) (per

curiam). A COA does not require a showing that the appeal will

succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F.

App’x 809, 814-15 (6th Cir. 2011). Courts should not issue a

COA as a matter of course. Bradley v. Birkett, 156 F. App’x

771, 773 (6th Cir. 2005).

The claims raised in Gamble’s Amended § 2255 Motion and

Motion to Amend do not merit further review. Gamble cannot

present a question of some substance about which reasonable

jurists could differ. The Court DENIES a certificate of

appealability on all grounds for relief stated in Gamble’s

Amended § 2255 Motion and Motion to Amend.

The Sixth Circuit has held that the Prison Litigation Reform

Act of 1995, 28 U.S.C. § 1915(a)-(b), does not apply to appeals

of orders denying § 2255 motions. Kincade v. Sparkman, 117 F.3d

949, 951 (6th Cir. 1997). To appeal in forma pauperis in a

§ 2255 case, and thereby avoid the appellate filing fee required

by 28 U.S.C. §§ 1913 and 1917, a prisoner must obtain pauper

status pursuant to Federal Rule of Appellate Procedure 24(a).

Id. at 952. Rule 24(a) provides that a party seeking pauper

status on appeal must first file a motion in the district court,

along with a supporting affidavit. Fed. R. App. P. 24(a)(1).

Rule 24(a) also provides, however, that if the district court

certifies that an appeal would not be taken in good faith, or

otherwise denies leave to appeal in forma pauperis, the prisoner

must file his motion to proceed in forma pauperis in the

appellate court. See Fed. R. App. P. 24(a)(4)-(5).

In this case, for the same reasons the Court denies a

certificate of appealability, the Court determines that any

appeal would not be taken in good faith. It is CERTIFIED,

pursuant to Federal Rule of Appellate Procedure 24(a), that an

appeal addressing any of the claims in Gamble’s Amended § 2255

Motion or Motion to Amend would not be taken in good faith.

Leave to appeal in forma pauperis is DENIED.7

7 If Gamble files a notice of appeal, he must pay the appellate

filing fee or file a motion to proceed in forma pauperis and

V. Conclusion

For the foregoing reasons, Gamble’s Amended § 2255 Motion

is DENIED. Gamble’s Motion to Amend is DENIED.

So ordered this 29th day of January, 2020.

/s/ Samuel H. Mays, Jr.

Samuel H. Mays, Jr.

UNITED STATES DISTRICT JUDGE

supporting affidavit in the Sixth Circuit Court of Appeals within

thirty days.