United States District Court, S.D. Illinois
ANTON D. HUGHES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
HERNDON, District Judge.
the Court is petitioner Anton Hughes'
(“Hughes”) pro se 28 U.S.C. § 2255 petition
asserting ineffective assistance of counsel
(“IAC”) (Doc. 1). The government opposes (Doc.
6). Based on the following, Hughes' § 2255 petition
(Doc. 1) is DENIED.
argues defense counsel was ineffective for failing to object
to the government's use of his prior 21 U.S.C. § 856
conviction as a basis for sentence enhancement pursuant to 21
U.S.C. § 851 and U.S.S.G. § 4B1.1(a)(3)
(Id. at 3). Specifically, Hughes erroneously
contends his previous § 856 conviction, see
SDIL Case No. 3:16-cr-30045-DRH-1, does not fit within the
definition of a “controlled substance offense” as
described in U.S.S.G. § 4B1.2(b) (Id. at 5).
the government correctly argues-§ 4B1.2 Commentary,
Application Note 1 states plainly “[m]aintaining any
place for the purpose of facilitating a drug offense (21
U.S.C. § 856) is a ‘controlled substance
offense' if the offense of conviction established that
the underlying offense (the offense facilitated) was a
“controlled substance offense.” Correspondingly,
§ 4B1.2 Application Notes are binding unless they
violate the Constitution or a federal statute, or are
inconsistent with plain reading of the guideline. See
United States v. Tate, 822 F.3d 370, 375 (7th Cir. 2016)
and United States v. Dyer, 464 F.3d 741
(7th Cir. 2006); see also Stinson v. United
States, 508 U.S. 36, 38 (1993). Therefore Application
Note 1 directly applies to Hughes' previous § 856
conviction because the underlying offenses were
“controlled substance offenses, ” namely,
Distribution of Crack Cocaine and Heroin in violation of 21
U.S.C. § 841(a)(1) and § 841(b)(1)(C). See
16-cr-30045-DRH-1, Doc. 44.
reply to the government's response, Hughes argues inter
alia, that the modified “categorical approach”
used “to classify a prior conviction under the Armed
Career Criminal Act and similar provisions, including §
4B1.2, ” see Stanley v. United States, 827
F.3d 562, 565 (7th Cir. 2016),  illustrates how his § 856
conviction is not a controlled substance offense for purposes
of § 4B1.2. “Under this approach the Court asks
whether the elements of the crime-rather than what the
defendant did in fact-bring the conviction within the scope
of the recidivist enhancement.” Id., see also
Descamps, v. United States, 133 S.Ct. 2276, 2281 (2013).
In comparing the elements of the crime of conviction with the
elements of the generic crime, see Descamps, at
2218, as well as “presum[ing] the conviction rested on
the least serious acts that could satisfy the statute,
” see United States v. Armour, 840 F.3d 904,
908 (7th Cir. 2016), the Court finds that Hughes'
previous § 856 conviction fits squarely within §
4B1.2(b)'s definition of “controlled dangerous
benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot
be relied on as having produced a just result.”
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Thus, in order to assert a viable IAC claim, Hughes must
demonstrate “(1) that his trial counsel's
performance fell below objective standards for reasonably
effective representation, and (2) that counsel's
deficiency prejudiced the defense.” See Mendoza v.
United States, 755 F.3d 821, 830 (7th Cir. 2014);
see also Strickland, 466 U.S. at 687-88.
in Hughes' § 2255 petition points to defense
counsel's below objective performance, and Hughes was not
prejudiced, as he voluntarily pled to all counts to which he
was convicted. In other words, defense counsel could make no
sustainable objection to the issue Hughes now attempts to
raise. Based on the foregoing, Hughes' § 2255
petition (Doc. 1) is DENIED.
 “The term ‘controlled
substance offense' means an offense under federal or
state law, punishable by imprisonment for a term exceeding
one year, that prohibits the manufacture, import, export,
distribution, or dispensing of a controlled substance (or a
counterfeit substance) or the possession of a controlled
substance (or a counterfeit substance) with intent to
manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b).
 See also Mathis v. United
States, 136 S.Ct. 2243, 2248 (2016).
 The “modified categorical
approach” is used when a prior conviction is for
violating a “divisible statute, ” meaning the
statute sets out one or more elements of the offense in ...