United States v. Jolon Carthorne, Sr., 878 F.3d 458

Background

Jolon Carthorne pleaded guilty to possession with intent to distribute crack and to possessing a firearm in furtherance of a drug offense; the PSR classified him as a career offender under U.S.S.G. § 4B1.1 based on two prior convictions, including Virginia assault and battery of a police officer (ABPO).
ABPO conviction involved spitting in an officer’s face in 2002; the probation officer and district court treated ABPO as a "crime of violence," triggering the career-offender range (Guidelines 322–387 months).
Carthorne’s retained counsel did not object to the career-offender designation at sentencing and expressly stated an argument that ABPO was not a crime of violence would be “without merit.” The court varied downward and sentenced Carthorne to 300 months.
On direct appeal the Fourth Circuit held ABPO was not a crime of violence under the force or residual clauses but declined to grant plain-error relief because precedent was unsettled among circuits and binding authority was lacking; the court affirmed (Carthorne I).
Carthorne filed a timely § 2255 motion claiming ineffective assistance of counsel for failure to object to the career-offender classification; the district court denied relief, reasoning the lack of plain error on direct appeal foreclosed ineffective-assistance relief.
The Fourth Circuit (panel opinion) vacated and remanded: it held plain-error and Strickland standards differ, found counsel’s performance objectively deficient for failing to understand and litigate the categorical analysis, and found prejudice because the applicable Guidelines range without the career-offender enhancement would have been materially lower.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether absence of plain error on direct appeal forecloses an ineffective-assistance claim on collateral review	Carthorne: plain-error and Strickland are distinct; counsel’s failure to object can be ineffective even if error was not "plain" on appeal	Government: counsel’s failure was not obvious because precedent was unsettled at sentencing; thus no ineffective assistance	Held: Standards differ; plain error does not automatically bar Strickland relief
Whether counsel’s failure to object to career-offender status was constitutionally deficient	Carthorne: counsel misunderstood categorical approach, failed basic research, admitted objection would be “without merit”	Government: unsettled law made objection nonobvious and reasonable to forgo	Held: Deficient — counsel failed to grasp applicable law and did not perform basic research
Whether counsel’s deficient performance prejudiced defendant under Strickland	Carthorne: career-offender designation increased Guidelines range by ~7.5 years; reasonable probability of a different outcome	Government: maintains no reasonable probability because precedent unsettled	Held: Prejudice established — lower applicable Guidelines range without enhancement created reasonable probability of a different sentence
Remedy — whether resentencing is required	Carthorne: requests resentencing or evidentiary hearing	Government: opposed based on prior rulings	Held: Vacated sentence and remanded for resentencing (no need for evidentiary hearing given record)

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (Ineffective-assistance two-prong standard)
Puckett v. United States, 556 U.S. 129 (forfeiture and plain-error review framework)
Johnson v. United States, 559 U.S. 133 (categorical approach / force clause analysis)
Taylor v. United States, 495 U.S. 575 (categorical approach for predicate offenses)
United States v. Carthorne, 726 F.3d 503 (4th Cir.) (prior appellate decision addressing ABPO and plain error)
United States v. White, 606 F.3d 144 (4th Cir.) (Virginia battery can be the slightest touching)
Hinton v. Alabama, 134 S. Ct. 1081 (2014) (counsel’s ignorance of fundamental law and failure to research can be ineffective assistance)