Exclusion of Inchoate Drug Conspiracy from Career Offender Enhancements under USSG §4B1.2(b)

Introduction

United States v. Lekey Davis is a decision by the Eleventh Circuit Court of Appeals issued on November 13, 2024. The defendant, Lekey “Kee Boo” Davis, pled guilty to conspiracy to possess with intent to distribute cocaine in August 2021. At sentencing, Davis was classified as a career offender under U.S. Sentencing Guidelines §4B1.1(b)(2) based on two prior controlled-substance convictions and his §846 conspiracy count. This classification raised his guidelines range to 188–235 months, and the district court imposed a 210-month term. Davis did not appeal but later sought collateral relief under 28 U.S.C. §2255, arguing ineffective assistance of counsel at sentencing and failure to file a direct appeal. While his §2255 motion was pending, this Court’s en banc decision in United States v. Dupree clarified that inchoate offenses—like conspiracy under 21 U.S.C. §846—are not “controlled substance offenses” for career-offender purposes under USSG §4B1.2(b). The Eleventh Circuit in Davis’s appeal applied Dupree to vacate and remand his sentence for resentencing without the career offender enhancement.

Summary of the Judgment

The Eleventh Circuit held that:

  • Under United States v. Dupree, conspiracy offenses under 21 U.S.C. §846 are inchoate and thus excluded from the definition of “controlled substance offense” in USSG §4B1.2(b).
  • Davis’s classification as a career offender was erroneous, so his 210-month sentence must be vacated and the case remanded for resentencing under the corrected guidelines range (60–71 months).
  • The district court properly declined to conduct a de novo resentencing hearing, instead following the Phillips remedial framework: vacate the judgment, reimpose the same sentence, advise the defendant of appeal rights, and permit an out-of-time appeal.
  • Davis’s additional claims of ineffective assistance of counsel (aside from failure to file an appeal) must be raised in a future §2255 proceeding rather than on direct appeal.

Analysis

1. Precedents Cited

The court’s decision rests on several key precedents:

  • United States v. Dupree (57 F.4th 1269, 11th Cir. en banc, 2023): Clarified that inchoate offenses such as conspiracy under 21 U.S.C. §846 are excluded from the textually unambiguous definition of “controlled substance offense” in USSG §4B1.2(b). This overruled United States v. Weir (51 F.3d 1031), which had previously compelled treating conspiracy as a controlled substance offense.
  • United States v. Weir (51 F.3d 1031, 11th Cir. 1995): The earlier binding precedent that classified §846 conspiracy as a controlled substance offense under §4B1.2(b). Overruled by Dupree.
  • Concerned Citizens of Vicksburg v. Sills (567 F.2d 646, 5th Cir. 1978): Authorizes courts of appeal to take notice of intervening changes in law during the pendency of an appeal to serve substantial justice.
  • United States v. Phillips (225 F.3d 1198, 11th Cir. 2000): Prescribes the remedy when counsel fails to file a direct appeal: vacate judgment, reimpose the same sentence, advise the defendant of appeal rights, and permit timely appeal.
  • United States v. Doyle (857 F.3d 1115, 11th Cir. 2017): Reaffirms that the Phillips remedy is limited to restoring the ability to file an out-of-time appeal of the original sentence.
  • McIver v. United States (307 F.3d 1327, 11th Cir. 2002): Explains that granting a §2255 motion and reimposing sentence resets the collateral relief counter and preserves the right to bring additional ineffective-assistance claims in a new §2255 petition.
  • Padgett v. United States (917 F.3d 1312, 11th Cir. 2019) & United States v. Griffin (699 F.2d 1102, 11th Cir. 1983): Hold that ineffective-assistance claims under Strickland v. Washington should first be examined by the district court, not resolved on direct appeal.

2. Legal Reasoning

The court’s reasoning unfolds in two parts:

  1. Career Offender Classification under Dupree: The court applied Dupree’s textual analysis of USSG §4B1.2(b), which unambiguously excludes inchoate offenses. Since conspiracy under §846 is inchoate, Davis does not qualify as a career offender, and the enhancement was improper. The court invoked Concerned Citizens to apply this intervening change of law even though Davis’s sentence was originally correct under prior precedent.
  2. Remedial Framework for Counsel’s Failure to Appeal: Davis established that his trial counsel was constitutionally ineffective by not filing an already instructed direct appeal. Under Phillips and its progeny, the district court’s role is to vacate the judgment, reimpose the same sentence immediately, advise the defendant of appeal rights and deadlines, and allow an out-of-time appeal. The Eleventh Circuit held that this statutory-constitutional remedy does not include a de novo resentencing hearing.

3. Impact on Future Cases

This decision has several significant consequences:

  • Sentencing: Defendants convicted of §846 conspiracy will no longer trigger career offender enhancements under USSG §4B1.1 if they lack qualifying controlled-substance convictions beyond inchoate counts.
  • Guidelines Clarification: District courts and practitioners must reassess career offender calculations in light of the unambiguous text of §4B1.2(b).
  • Collateral Relief: The Eleventh Circuit confirms that newly decided precedents affecting guidelines classification apply on pending appeals, promoting fairness even when original sentences conformed to outdated precedent.
  • Ineffective Assistance Claims: The ruling underscores the limited scope of the Phillips remedy on direct appeal and guides defendants to use §2255 for other Strickland claims.

Complex Concepts Simplified

  • Inchoate Offense: An offense that involves steps toward committing a crime (e.g., conspiracy, attempt) rather than the completed substantive offense.
  • Controlled Substance Offense (USSG §4B1.2(b)): A conviction for a substantive drug offense punishable by statutory maximum exceeding one year; does not include inchoate offenses after Dupree.
  • Career Offender (USSG §4B1.1): A defendant with two prior felony convictions for either “crimes of violence” or “controlled substance offenses” faces a higher base offense level. Exclusion of conspiracy disrupts this enhancement.
  • Strickland Standard: The two-pronged test for ineffective assistance of counsel: (1) deficient performance, and (2) prejudice resulting from the deficiencies.
  • Remedy under Phillips: The narrow procedural fix when counsel fails to file a direct appeal as instructed: vacate and reimpose the same sentence, advise on appeal rights and deadlines, then permit an out-of-time appeal.
  • De Novo Hearing: A completely new sentencing proceeding. The Eleventh Circuit clarified that the Phillips remedy does not extend to a de novo hearing when counsel’s only error was failing to appeal.

Conclusion

United States v. Lekey Davis cements a critical limitation on career-offender enhancements by confirming that §846 conspiracy is not a “controlled substance offense” under USSG §4B1.2(b). The decision illustrates how intervening en banc rulings like Dupree can reshape pending cases and ensures fairness by vacating improperly enhanced sentences even when they originally complied with precedent. The court also reaffirms the narrow scope of the Phillips remedy for counsel’s failure to file a direct appeal, declining to expand it into a full de novo sentencing. Finally, by directing Davis to raise any additional Strickland claims in a future §2255 petition, the Eleventh Circuit preserves procedural order and offers defendants clear guidance on how to challenge ineffective assistance in the appropriate forum.