The opinion of the court was delivered by: William W. Caldwell United States District Judge
We are considering a motion filed under 28 U.S.C. § 2255 by Defendant Cedric D. Simmons, an inmate at Federal Correctional Institution-Allenwood. (doc. 67). Upon initial review, we dismissed the first claim and required the Government to respond to the ineffective assistance of counsel claim. (doc. 69). The Government has responded to Simmons' motion (doc. 74), and Simmons has filed a reply (doc. 75) along with a brief (doc. 71) concerning our dismissal of the first claim. We will now dismiss the remaining claim in Simmons' motion.
On May 22, 2006, Simmons entered into a plea agreement whereby he pleaded guilty to distribution and possession with intent to distribute an indeterminate amount of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Simmons was sentenced to 168 months' imprisonment based in part on his status as a career offender pursuant to § 4B1.1 of the Sentencing Guidelines. In entering into the plea agreement, Simmons preserved his right to appeal the denial of his motion to suppress evidence obtained pursuant to a search of his vehicle and his person. The Third Circuit affirmed Simmons' conviction, determining that the denial of Simmons' suppression motion was proper. United States v. Simmons, No. 06-3902, 2007 WL 3122169 (3d. Cir. Oct. 26, 2007).
A. Career Offender Enhancement
First, Simmons argues that our initial evaluation of his habeas motion misconstrued his claim regarding the application of the career offender enhancement. According to Simmons, his "actual innocence claim is whether the plea agreement, which makes no mention of any sentencing enhancement for career offender, violates the Sixth Amendment." (doc. 71, p. 1). Simmons cites United States v. Wingate, 153 Fed. Appx. 197, 199 (4th Cir. 2005) (nonprecedential), which found that a district court erred by applying a § 4B1.1 career offender enhancement when the facts supporting the enhancement were neither admitted by the defendant nor found by a jury beyond a reasonable doubt.*fn1
As discussed in our prior order, a judge may consider the fact of a prior conviction even though it is not admitted by the defendant or proved to a jury. See doc. 69 (discussing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998)). To the extent Simmons is arguing that the career offender enhancement was improperly applied because it was not explicitly mentioned in the plea agreement, we also disagree. The career offender enhancement is found in § 4B1.1 of the United States Sentencing Guidelines, the application of which Simmons agreed to in his plea agreement. See doc. 39, p. 1. Second, the prior convictions supporting the application of § 4B1.1 were included in the Pre-Sentence Report. Simmons did not object to the Pre-Sentence Report. Third, Simmons was informed, both in his plea agreement and during the plea hearing, that he faced a maximum period of twenty years' imprisonment and that the exact sentence would be determined by the Court. (doc. 63, p. 7).
Therefore, consistent with our prior order, we reject Simmons' claim.
B. Ineffective Assistance of Appellate Counsel Claim
Simmons also claims that he received ineffective assistance of appellate counsel in violation of his Sixth Amendment rights. Simmons' claim concerns appellate counsel's failure to challenge the basis for the search of his person which uncovered cocaine base. According to Simmons, he was prejudiced by counsel's failure to raise this issue on appeal because the argument would have succeeded.
The circumstances leading to Simmons' arrest began with a stop for traffic violations. Upon approaching the car Simmons was driving, the police officer noticed the scent of marijuana from the driver's side window. After a second officer arrived and noticed the same smell, the officers obtained consent to search the vehicle from its owner, Chanika Brown. The search revealed a blunt in the car's ashtray which field-tested positive for marijuana. After placing Simmons under arrest, the officers searched Simmons' person, finding a large sum of cash and cocaine base.
In denying Simmons' motion to suppress the cocaine base, we concluded that consent and probable cause established by the detection of burnt marijuana odor resulted in a valid search of Simmons' vehicle. (doc. 35, p. 8) (quoting United States v. Ramos, 443 F.3d 304, 308 (3d Cir. 2006)). In conducting the vehicle search, the officers found an ashtray containing ash and the end of a blunt, the contents of which field-tested positive for marijuana. Id. at 9. The marijuana provided probable cause to arrest Simmons and the search incident to his arrest yielded the discovery of cocaine base on his person. Id. Therefore, we concluded that the cocaine base was obtained through a valid search incident to arrest. The Third Circuit affirmed our ...