United States of America v. Samuel Bush Wright

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7350
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL BUSH WRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:03-cr-00146-AW-2; 8:07-cv-01790-AW)
Submitted: June 15, 2010 Decided: July 2, 2010
Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant. Robert K. Hur, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Samuel Bush Wright appeals the district court’s order
denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2010)
motion. We granted a certificate of appealability on Wright’s
claim that counsel was ineffective in failing to object to the
use of a conviction for second-degree burglary in the District
of Columbia as a predicate conviction for sentencing Wright
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)
(2006). After further consideration, we affirm.
In order to succeed on a claim of ineffective
assistance of counsel, a movant must show: (1) that counsel’s
performance fell below an objective standard of reasonableness;
and (2) that counsel’s deficient performance was prejudicial.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In
evaluating counsel’s performance, the court indulges a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance. Id. at 689. Further,
the reviewing court must evaluate the reasonableness of
counsel’s performance within the context of the circumstances at
the time of the alleged errors, rather than with the benefit of
hindsight. Id. at 690. To satisfy the second prong of
Strickland, a defendant must show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694.

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Wright was sentenced in 2004, and his conviction
became final in 2006. At that time, the use of a prior burglary
conviction as a predicate for sentencing under the ACCA was
governed by the Supreme Court’s decision in Taylor v. United
States, 495 U.S. 575 (1990). Taylor held that burglary as used
in § 924(e) must include “an unlawful or unprivileged entry.”
495 U.S. at 598. The district court correctly recognized that
neither the Washington, D.C. second-degree burglary statute nor
Wright’s underlying indictment includes this element.
Importantly, however, Taylor reserved the interpretation of
§ 924(e)’s residual clause, which states that the ACCA can still
apply if a felon-in-possession’s prior felony was one that
“otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The Taylor Court noted that “[t]he
Government remains free to argue that any offense -- including
offenses similar to generic burglary -- should count towards
enhancement [under § 924(e)(2)(B)(ii)].” 495 U.S. at 600 n.9.
Wright correctly notes that the Supreme Court, in
Begay v. United States, 553 U.S. 137, 144-47 (2008), narrowed
the definition of a violent felony under the residual clause of
the ACCA to include only crimes that involve “purposeful,
violent, and aggressive conduct” similar to burglary, arson,
extortion, or use of explosives. However, Wright’s counsel at

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sentencing in 2004 cannot be held responsible for forecasting
future interpretations of the statute. Thus, counsel’s
performance was not deficient when he did not assert an argument
based on the principles announced in Begay. See United
States v. McNamara, 74 F.3d 514, 516-17 (4th Cir. 1996) (an
attorney’s failure to anticipate a new rule of law is not
constitutionally deficient).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED

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