64 F.4th 412
1st Cir.2023Background
- In 2011 Thompson pleaded guilty to two federal cocaine-base conspiracy counts and one arson count; the presentence report treated him as a "career offender" under U.S.S.G. § 4B1.1 based on two prior state felonies: a 2006 Massachusetts ABDW conviction and a 2007 Maine unlawful trafficking conviction.
- At 2013 sentencing counsel objected to the Massachusetts ABDW predicate (invoking then-pending First Circuit ACCA precedent) but did not contest the Maine trafficking conviction as a controlled-substance predicate; three different attorneys represented Thompson at various stages and none challenged the Maine conviction.
- The district court applied the career-offender enhancement and imposed a lengthy sentence (327 months on the drug counts, concurrent with 240 months on the arson count). The First Circuit affirmed on direct appeal.
- In a 2018 § 2255 motion Thompson argued ineffective assistance of counsel at sentencing for failing to challenge the Maine trafficking conviction as a § 4B1.2(b) "controlled substance offense," relying on later First Circuit decisions (notably Mulkern). The district court denied relief; the court of appeals granted a COA limited to the ineffectiveness claim.
- The First Circuit (panel opinion) affirmed denial of § 2255 relief, holding Thompson failed to show counsel's performance was deficient under Strickland because the Mulkern line of decisions postdated sentencing and counsel reasonably could decline a speculative challenge for strategic reasons; Thompson also failed to show his conviction likely rested on heroin-possession conduct that Mulkern would have shielded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was constitutionally ineffective for not objecting that Thompson's 2007 Maine trafficking conviction did not qualify as a "controlled substance offense" under U.S.S.G. § 4B1.2(b) | Thompson: Counsel should have contested the Maine predicate because later First Circuit law (Mulkern) shows Maine's trafficking statute can encompass simple heroin possession and thus may not meet the distributive-intent requirement | Government: Counsel's failure was not deficient because (1) Mulkern and related law postdated sentencing; (2) case law was mixed pre‑2013; (3) raising the issue was speculative and strategically risky; and (4) government could have produced Shepard documents showing the conviction involved distributive intent | Court: Affirmed — counsel not deficient. Failure to anticipate a later change in law (Mulkern) is not ineffective assistance; Thompson did not show his conviction rested on non‑distributive (heroin‑possession) conduct or that counsel's choice was patently unreasonable. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong ineffective assistance test: performance and prejudice)
- Shepard v. United States, 544 U.S. 13 (2005) (limits record materials for modified categorical approach to certain "Shepard" documents)
- Moncrieffe v. Holder, 569 U.S. 184 (2013) (explains categorical approach and presumption of conviction resting on least conduct)
- Johnson v. United States, 576 U.S. 591 (2015) (addresses vagueness in sentencing enhancements; cited for doctrinal background)
- United States v. Mulkern, 854 F.3d 87 (1st Cir. 2017) (held Maine trafficking in heroin can encompass simple possession and may not qualify as an ACCA predicate)
- United States v. Mohamed, 920 F.3d 94 (1st Cir. 2019) (held Maine trafficking in cocaine categorically qualifies as a controlled‑substance/distribution offense)
- United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) (explains that a "controlled substance offense" requires statutory elements involving distribution or intent to distribute)