No. 20-1267

TREZJUAN THOMPSON,

Petitioner, Appellant,

v.

UNITED STATES,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Kayatta, Lynch, and Howard, Circuit Judges.

Seth Kretzer, with whom Law Offices of Seth Kretzer was on brief, for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

April 11, 2023 LYNCH, Circuit Judge. In 2011, Trezjuan Thompson pleaded guilty in the U.S. District Court for the District of Maine to two counts of conspiracy to distribute a substance containing cocaine base and one count of malicious damage or destruction of property by fire. During sentencing in that case in 2013, the court determined that Thompson was a "career offender" within the meaning of the U.S. Sentencing Guidelines ("Guidelines"), a designation which increased his advisory Guidelines Sentencing Range ("GSR"). See U.S. Sent'g Guidelines Manual § 4B1.1 (U.S. Sent'g Comm'n 2010) [hereinafter U.S.S.G.]. The court's conclusion that this enhancement applied rested in part on its determination that Thompson's 2007 Maine state court conviction for unlawful trafficking in scheduled drugs qualified as a "controlled substance offense" under the Guidelines -- a determination to which Thompson's counsel did not object. See id. §§ 4B1.1-.2.

In this collateral challenge to his sentence under 28 U.S.C. § 2255, Thompson contends that he received constitutionally ineffective assistance of counsel at his 2013 sentencing based on his counsel's failure to object to the use of the Maine drug conviction as a predicate offense for the career offender enhancement. The district court denied Thompson's § 2255 motion. United States v. Thompson, No. 10-cr-200, 2020 WL 86446, at *2 (D. Me. Jan. 7, 2020). We hold that Thompson has not met his burden

- 2 - of showing that his counsel's performance was deficient, and affirm.

I.

A.

In December 2010, a federal grand jury sitting in the District of Maine returned a six-count indictment charging Thompson with, inter alia, two counts of conspiracy to distribute and possess with intent to distribute a substance containing five grams or more of cocaine base, see 21 U.S.C. §§ 841(a)(1), 846, and one count of malicious damage or destruction of property by fire (i.e., arson), see 18 U.S.C. § 844(i).1

In May 2011, Thompson, represented by counsel, pleaded guilty to the two drug conspiracy counts and the arson charge.2 During his plea colloquy, Thompson affirmed that the prosecution version of the facts was accurate. The prosecution version specified that each of the drug conspiracies involved twenty-eight

1 The indictment also charged Thompson with two counts of using a communication facility to commit a drug felony, see 21 U.S.C. § 843(b), and one count of possession of an unregistered firearm, see 26 U.S.C. § 5861(d).

2 Although the plea was not pursuant to a formal plea agreement, Thompson's counsel represented in a later hearing before a magistrate judge that the government had "offered" to dismiss the remaining counts, as well as a felon-in-possession- of-a-firearm charge against Thompson under a separate indictment, if Thom