Celebrating Our Victories on 2255 Cases and a Recent Resentencing

As you all know, every week I send out cases of interest from across the country. This week, I am proud to present three recent cases where my clients had favorable outcomes. Each case is unique in its own way, but I am hopeful that sharing these results will help many of you in similar situations. As always, if you are interested in discussing my assistance with your case, please contact us.

Client Receives § 2255 Relief Based on Johnson/Davis Where Charged Indictment and Jury Verdict Were Unclear

United States v. Berry, No. 3:09-cr-00019 (E.D. Va.)

In 2010, a federal grand jury charged Berry as follows: Counts One and Three – attempt or conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. 1951 and 2; and Counts Two and Four – Discharging a Firearm in Furtherance of a Crime of Violence, in violation of 18 U.S.C. 924(c).

Berry proceeded to trial and was convicted on Counts One, Two and Three. Berry was later sentenced to a term of 230 months on Counts One and Three, to run concurrently, and 120 months on Count Two, to run consecutively to Counts One and Three, for a total sentence of 350 months.

After exhausting his appeal and 28 U.S.C. 2255 motion, the Supreme Court decided United States v. Johnson. Berry retained the Firm to file an Application for Leave to File a Second or Successive 2255 Motion. The Fourth Circuit granted Berry’s application and his successive 2255 motion based on Johnson was docketed with the district court. The motion was then stayed pending a decision from the Fourth Circuit in United States v. Walker, No. 15-4301.

After the Supreme Court held that 18 U.S.C. 924(c)(3)(B) is unconstitutionally vague in Davis v. United States, and the Fourth Circuit decided Walker, the Firm moved to lift the stay. Further, the Firm argued that although Berry was charged with Hobbs Act robbery in his indictment, the jury verdict and jury instructions allowed for a conviction based solely on conspiracy to commit Hobbs Act robbery.

The district court granted Berry’s motion to lift the stay and ordered the government to respond to Berry’s arguments. In its response, the government conceded that Berry was charged in a single count with both attempting and conspiring to commit Hobbs Act robbery, the jury instructions allowed for a conviction on either conspiracy or attempted Hobbs Act robbery, and the jury verdict was a general verdict which does not specify which was the basis of the conviction. As such, the government agreed that Berry was entitled to 2255 relief.

On February 6, 2020, the district court granted Berry’s 28 U.S.C. 2255 motion and vacated his conviction on Count Two. Berry is set to be re-sentenced in the near future.

I wanted to share this case with you for two important reasons. First, I know how many of you have been waiting years and years for the same type of relief on your Johnson/Dimaya/Davis claim. Berry’s successive 2255 motion was filed in 2016. It has taken four years to finally receive relief. This is due, in part, on the fact that the case law around these issues has been developing over these years. Another prominent factor is the sheer number of individuals seeking the same relief, and the limited resources of the court. It may take years, but Berry and many others patiently awaited the relief they were entitled to.

Another important takeaway from this case is the fact that Berry’s indictment charged him with both attempt and conspiracy to commit Hobbs Act robbery. The Fourth Circuit has only held that conspiracy does not qualify for 924(c) purposes. Substantive Hobbs Act robbery, attempt, and aiding and abetting still qualify under the elements clause. However, in Berry’s case, the indictment, jury verdict and jury instructions did not clarify which Berry was convicted under. Because of this, it is impossible to know which theory the jury convicted on, and the government conceded that “it cannot establish the conviction qualifies as a crime of violence.”

Client Receives an Out-Of-Time Appeal Where Attorney was Ineffective for Failing to Consult With Client Directly After Sentencing

Dillard v. United States, No. 3:17-cv-3307 (N.D. Tex.)

Dillard pled guilty pursuant to a plea agreement to one count of conspiring to commit Hobbs Act robbery and one count of using, carrying, brandishing, and discharging a firearm during and in relation to a crime of violence. He was sentenced by the district court to a term of 120 months on each count, to be served consecutively for a total term of 240 months imprisonment. After he was sentenced, he did not appeal.

Dillard retained the Firm to represent him on a 28 U.S.C. 2255 motion. The Firm raised two claims for relief. First, that Dillard was entitled to 2255 relief based on Johnson. Second, that sentencing counsel was ineffective for failing to file a notice of appeal at Dillard’s request and for failing to meaningfully consult with Dillard regarding taking an appeal.

The government opposed both of Dillard’s 2255 claims. On the Johnson issue, the government claimed that Dillard has procedurally defaulted the claim by not raising it on direct appeal. As to the failure to appeal claim, the government argued that because sentencing counsel had discussed an appeal with Dillard’s mother, counsel met her obligation under Roe v. Flores-Ortega.

The magistrate judge held an evidentiary hearing in April 2019. Dillard testified at the hearing that he met with his attorney before sentencing, but that she never spoke or visited with him after he was sentenced. He also testified that counsel never personally advised him about the advantages and disadvantages of appealing. Further, Dillard stated that he directed his mother to contact sentencing counsel and ask to file a notice of appeal. Although his mother did this, Dillard testified that, after becoming resigned to the fact that no notice of appeal would be filed, he told his mother to “forget about it.”

Dillard’s mother also testified at the hearing. She testified that her son “was begging to file an appeal” and that she asked sentencing counsel to file a notice of appeal. Ms. Dillard further testified that when sentencing counsel warned her that there was no basis to appeal. Ms. Dillard eventually asked sentencing counsel whether Johnson would be applicable to Dillard’s case, to which counsel responded it was not.

Lastly, sentencing counsel testified that she discussed with Dillard his right to appeal before sentencing, but never had any direct contact with Dillard after he was sentenced. Counsel stated on cross-examination that she was satisfied with communicating only with Dillard’s mother, but she did not recall discussing Johnson with her.

After the hearing, the magistrate judge issued a Report and Recommendation concluding that counsel was ineffective for failing to consult directly with Dillard regarding filing an appeal after sentencing. The magistrate found that “[t]he cases cited by the Government in its supplemental brief for the proposition that a family member can convey communications to a defendant are inapposite, as they do not address the issue of whether a defense counsel’s communication with a family member is alone sufficient to fulfill the constitutional obligation to consult with a client who has unequivocally indicated the desire to appeal.”

The magistrate recommended that Dillard’s 2255 motion be dismissed without prejudice, and that the district court re-enter judgment so that Dillard may take a timely appeal.

On January 28, 2020, the district court entered an order adopting the magistrate’s recommendation. The court, utilizing the judicial remedy crafted by the Fifth Circuit, dismissed the 2255 motion without prejudice and re-entered judgment so that Dillard could bring his Johnson/Davis claim on direct appeal.

This case is somewhat unusual as there is not much case law regarding sentencing counsel’s duty to consult regarding an appeal with a third party. The government alleged that because the attorney consulted with Dillard’s mother, who in turn discussed it with Dillard, that counsel met her obligation under Flores-Ortega. However, as the court found, the Supreme Court is clear that counsel’s duty to consult lies with the client, not a family member or another third party.

On Remand From the Sixth Circuit, District Court Finds Client is No Longer a Career Offender

United States v. Powell, No. 5:17-cr-333 (N.D. Ohio)

I have previously reported on Powell’s remand from the Sixth Circuit following the en banc decision in Havis. I am pleased to report that, after two continuances, and multiple sentencing memoranda and supplements, the district court found Powell to no longer be a career offender.

After Powell’s case was remanded, the government filed a sentencing memorandum arguing that Powell’s prior convictions still qualified for career offender purposes based on a single judge’s concurring opinion in the denial of the government’s motion for reconsideration of the en banc decision in Havis. Needless to say, the Firm argued that the concurring opinion had little weight in Powell’s case.

Even so, another district court in the Northern District of Ohio followed the concurring opinion and found O.R.C. 2925.03 continued to qualify as a drug trafficking crime regardless of Havis’ holding. However, a few weeks later another district court found the opposite, concluding that 2925.03 is an attempt crime and does not qualify after Havis.

When it finally came time for Powell to be re-sentenced, each side presented its arguments. In addition to arguing that 2925.03 no longer qualified, Powell also argued that the instant offense of conspiracy under 21 U.S.C. 846 also does not qualify because conspiracy-along with attempt-is only mentioned in the Guidelines commentary.

Without deciding the issue regarding O.R.C. 2925.03, the court did find the Sixth Circuit’s opinion in United States v. Orr, No. 18-6054, to be persuasive, and held that Powell’s instant offense for conspiracy could not be used to enhance Powell’s sentence as a career offender. Powell’s 140-month sentence was reduced to 74-months.


I am overjoyed that these three clients have finally received some form of relief after years of fighting. As always, no two cases are identical. But I hope that these cases will 1) show that it may take years in some cases to get a favorable result, but you should never give up hope and keep on fighting; and 2) help those who may be in similar situations. If so, I hope you will contact us to discuss your case.

The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to contact our office today to visit with us on how we might be able to help you or your loved one get the representation they deserve. You can also add us on Facebook or Twitter.