The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on petitioner James Robert Webb, Jr.'s motion to vacate, set aside or correct his supervised release revocation sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). On February 13, 2004, the petitioner pled guilty to possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). On May 14, 2004, the Court sentenced the petitioner to serve 96 months in prison. The petitioner served his sentence and was released to supervised release in December 2010.
Webb did not abide by the terms of his supervised release. On October 28, 2011, the Court revoked Webb's supervised release after he admitted he violated the terms of his release by making false statements, possessing synthetic cannabis on four occasions, possessing marihuana, failing to report for drug testing on two occasions and failing to attend drug treatment counseling on two occasions. The Court sentenced Webb to serve 24 months in prison. He did not appeal that sentence.
On June 1, 2012, Webb filed the pending § 2255 motion raising the following claims: His counsel in the revocation proceedings was ineffective for failing to argue that Webb's most serious violations were Grade C, not Grade B, violations;
The Court erred in finding possession of synthetic cannabis and marihuana was a felony where the amount possessed was under 28 grams; and
The Court erred in finding possession of synthetic cannabis was illegal prior to January
2012, in punishing Webb for it since it was freely available over the counter from many gas stations, and in finding Webb lied to his probation officer about possessing synthetic cannabis.
Ineffective Assistance of Counsel
Webb's first ground, ineffective assistance of counsel, has no merit. The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to assistance of counsel encompasses the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009). A party claiming ineffective assistance of counsel bears the burden of showing
(1) that his trial counsel's performance fell below objective standards for reasonably effective representation and (2) that this deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 688-94 (1984); United States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); Wyatt v. United States, 574 F.3d 455, 457 (7th Cir. 2009), cert. denied, 130 S. Ct. 2431 (2010); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000).
Webb's counsel's performance did not fall below objective standards for reasonably effective representation because his most serious violations were, indeed, Grade B violations. Defense counsel is not deficient for failing to make a frivolous or losing argument, Fuller v. United States, 398 F.3d 644, 652 (7th Cir. 2005); Whitehead v. Cowan, 263 F.3d 708, 731 (7th Cir. 2001).
The United States Sentencing Guidelines Manual ("U.S.S.G.") § 7B1.1(b) provides that, where there are multiple violations, the grade of the violation for sentencing purposes is determined by the violation having the most serious grade. A Grade B violation is "conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). Thus, if any of Webb's violations were Grade B, Grade B should have been used to determine his sentencing guideline range and statutory maximum, and his counsel was not deficient for failing to argue otherwise.
It is clear that the first violation Webb admitted -- making a false statement to his probation officer -- constitutes a federal offense under 18 U.S.C. § 1001. That statute states, in pertinent part, "Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the . . . judicial branch of the Government of the United States, knowingly and willfully . . . makes any materially false, fictitious, or fraudulent statement or representation. . . shall be . . . imprisoned not more than 5 years." That offense, as stated in the statute, is punishable by a term of ...