Dwight Bullard v. United States, 937 F.3d 654

Background

Dwight Bullard pleaded guilty (2014) to distributing heroin and being a felon in possession of a firearm; officers seized >140 grams of heroin and a .40 Glock.
Plea agreement acknowledged Bullard "may be classified as a career offender"; prior convictions included a 2003 Arizona attempted-sale conviction (Ariz. Rev. Stat. § 13-3408) and a 2013 Ohio sale conviction.
District court designated Bullard a career offender under the Sentencing Guidelines, producing a Guidelines range of 292–365 months; court varied downward and sentenced him to 140 months.
Bullard waived most appellate rights but reserved the right to appeal a career-offender determination; he did not pursue that issue on direct appeal and instead filed a § 2255 petition challenging the career-offender classification and alleging ineffective assistance for failure to object.
The district court denied the § 2255 petition; the Sixth Circuit granted a COA limited to the Arizona-conviction issues and reviewed de novo whether the prior conviction is a Guidelines predicate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an attempted-sale conviction (Arizona) qualifies as a "controlled substance offense" under U.S.S.G. § 4B1.2	Bullard: Attempt crimes are not covered and thus Arizona attempt conviction cannot be a predicate.	Government: At the time, circuit precedent supported treating attempt/offers as qualifying.	Court: Attempt crimes do not qualify now (Havis) but Bullard cannot raise pure Guidelines misapplication on collateral review; ineffective-assistance claim on this ground fails because counsel reasonably relied on then-controlling precedent.
Whether an Arizona statute that criminalizes substances not controlled federally (benzylfentanyl, thenylfentanyl) is overbroad for Guidelines purposes	Bullard: Arizona covers drugs not federally controlled, so statute is overbroad and not a qualifying predicate.	Government: Sixth Circuit precedent supports that state-only controlled substances can qualify; statute may be divisible by drug type (Bullard pleaded to cocaine).	Court: Circuit law was unsettled at the time; counsel's failure to object was not deficient or prejudicial under Strickland; claim fails.
Whether a misapplication of the advisory Guidelines (career-offender designation) is cognizable in a § 2255 collateral attack	Bullard: He seeks collateral relief because Havis now shows the designation was erroneous.	Government: Misapplication of advisory Guidelines is not cognizable on § 2255 unless extraordinary miscarriage of justice.	Court: Such non-constitutional Guidelines challenges are not cognizable on § 2255; Havis provides no collateral relief.
Whether counsel was ineffective for failing to challenge the career-offender designation on direct appeal	Bullard: Appellate counsel should have appealed the enhancement.	Government: Plain-error standard applies; no binding precedent would have made an appeal successful.	Court: Appellate counsel was not deficient; plain-error relief unavailable given lack of clear precedent; Strickland request denied.

Key Cases Cited

United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (Guidelines definition of "controlled substance offense" excludes attempt crimes)
Snider v. United States, 908 F.3d 183 (6th Cir. 2018) (non-constitutional challenges to advisory Guidelines ranges are not cognizable on § 2255)
United States v. Foote, 784 F.3d 931 (4th Cir. 2015) (advisory-Guidelines misapplication generally not remediable on collateral review)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test)
United States v. Evans, 699 F.3d 858 (6th Cir. 2012) (earlier Sixth Circuit precedent treating offers/attempts to sell as qualifying controlled-substance offenses)
Booker v. United States, 543 U.S. 220 (2005) (Guidelines are advisory)
United States v. Addonizio, 442 U.S. 178 (1979) (lawfulness of sentence not necessarily affected by Guidelines calculation)
Spencer v. United States, 773 F.3d 1132 (11th Cir. 2014) (§ 2255 collateral-review principles for sentence-enhancement claims)