At page 815 Determining prejudice from sentencing guideline errors12 citing casesfinding prejudice where, as here, defendant was sentenced under Guidelines range of 70 to 87 months instead of the proper range of 57 to 71 months
- Roy Moses v. Dist. Attorney Philadelphia, 133 F.4th 251 (3d Cir. 2025).published In the sentencing context, “[t]he prejudice prong is satisfied ‘when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing.’” Otero, 502 F.3d at 337 (quoting United States v. Franks, 230 F.3d 811, 815 (5th…
- United States v. Victor Manzanillo, No. 23-2259 (3d Cir. Nov. 5, 2024).unpublishedIn the sentencing context, “[t]he prejudice prong is satisfied ‘when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing.’” United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (quoting United States…
- Osorio v. United States, No. 5:19-cv-00154 (S.D. Tex. Nov. 12, 2021). (finding prejudice where defendant was sentenced based on guideline range of 70 to 87 months, rather than 57 to 71 months)
- United States v. Otero, 502 F.3d 331 (3d Cir. 2007).published See, e.g., Jansen v. United States, 369 F.3d 237, 243 (3d Cir.2004); United States v. Franks, 230 F.3d 811, 814 (5th Cir.2000); United States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir.1991).
- Phillips v. United States, 238 F. App'x 89 (6th Cir. 2007).unpublished (finding prejudice where 20 defendant was sentenced under sentencing guidelines range of 70 to 87 months instead of a 57 to 71 month range)
- United States v. Grammas, 376 F.3d 433 (5th Cir. 2004).published (finding prejudice where, as here, defendant was sentenced under Guidelines range of 70 to 87 months instead of the proper range of 57 to 71 months)
- United States v. Grammas, 376 F.3d 433 (5th Cir. 2004).published(finding prejudice where, as here, defendant was sentenced under Guidelines range of 70 to 87 months instead of the proper range of 57 to 71 months)
- State v. Goodman, No. 1807009539 (Del. Super. Ct. May 15, 2023).publishedTr. at 29-30. 39 Hamby, 2005 WL 914462 , at *2 (citation omitted). -10- to examine whether his sentencing attorney did indeed perform deficiently.40 The necessary prejudice here must be a reasonable probability that but for counsel’s error…
- State v. Lindsey, No. 1708006225 & 1708003578 (Del. Super. Ct. Mar. 16, 2023).publishedCt. 2022); See also United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (finding prejudice prong satisfied “when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurre…
- State v. Peters, 283 A.3d 668 (Del. Super. Ct. 2022).publishedSee also United States v. Otero, 502 F.3d 331, 337 (3d Cir. 2007) (finding prejudice prong satisfied “when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing . . . which would not have occurred but for c…
Show 1 more citing case
- United States v. Conley, 349 F.3d 837 (5th Cir. 2003).published(three extra months equals prejudice)
At page 814 Preventing double counting in firearm threat enhancements12 citing casesfinding failure to dispute a sentencing enhancement under the guidelines to be unreasonable
- United States v. Massey, 79 F.4th 396 (5th Cir. 2023).published Cf. United States v. Franks, 230 F.3d 811, 814 (5th Cir. 2000).
- Camacho-Santiago v. United States, 523 F. Supp. 3d 206 (D.P.R. 2021).publishedUnited States v. Franks, 230 F.3d 811, 814 (5th Cir. 2000).
- Faulds v. United States, 617 F. App'x 581 (7th Cir. 2015).unpublishedSee United States v. Otero, 502 F.3d 331, 336 (3d Cir.2007) (“[Cjounsel’s failure to cite favorable decisions from other courts of appeals indicates deficient performance.”); United States v. Franks, 230 F.3d 811, 814 (5th Cir.2000) (same).
- United States v. Otero, 502 F.3d 331 (3d Cir. 2007).published See, e.g., Jansen v. United States, 369 F.3d 237, 243 (3d Cir.2004); United States v. Franks, 230 F.3d 811, 814 (5th Cir.2000); United States v. Headley, 923 F.2d 1079, 1083-84 (3d Cir.1991).
- United States v. Boothroyd, 403 F. Supp. 2d 1011 (D. Or. 2005).published(finding failure to dispute a sentencing enhancement under the guidelines to be unreasonable)
- Ladd v. Cockrell, 311 F.3d 349 (5th Cir. 2002).publishedUnited States v. Franks, 230 F.3d 811, 814-15 (5th Cir.2000). *360 Ladd claims five types of information that could have been ascertained had counsel subpoenaed his juvenile records: (1) his troubled childhood and lack of supervision; (2)…
- United States v. Stricklin, 290 F.3d 748 (5th Cir. 2002).publishedTo prove prejudice, however, Stricklin must show that but for counsel’s error, his sentence “would have been significantly less harsh.” United States v. Franks, 230 F.3d 811, 814-15 (5th Cir.2000) (quoting Spriggs v. Collins, 993 F.2d 85,…
- United States v. Franks, No. 01-60103 (5th Cir. Jan. 8, 2002).unpublishedPER CURIAM:1 Frederick Franks, federal prisoner number 09941-042, has appealed the amended judgment entered by the district court pursuant to this court's remand order in United States v. Franks, 230 F.3d 811, 814-15 (5th Cir. 2000).
- United States v. Lauro Valdez, Jr., 973 F.3d 396 (5th Cir. 2020).published(holding, under mandatory Guidelines, that counsel’s failure to object to the district court double-counting in its Guidelines calculation was deficient)
- United States v. Katalinic, 510 F.3d 744 (7th Cir. 2007).published See United States v. Smith, 981 F.2d 887, 892-93 (6th Cir. 1992) (reasoning that “it is clear that the Sentencing Commission viewed an express threat of death as the equivalent of possession, use, or discharge of a firearm in the course of…
At page 813 Challenging sentence enhancement and ineffective assistance of counsel7 citing casesholding that an enhancement for an express threat of death may not be applied to the sentence for robbery when the threat is related to the use of the firearm and the defendant has a § 924(c) sentence for the same firearm
- United States v. Schubert, No. 24-50787 (5th Cir. July 10, 2026).unpublishedTo demonstrate prejudice, the defendant must show that “there is a reasonable probability that the results of the proceedings would have been different without the attorney’s errors.” United States v. Franks, 230 F.3d 811, 813 (5th Cir. 20…
- United States v. Massey, 79 F.4th 396 (5th Cir. 2023).published Cf. United States v. Franks, 230 F.3d 811, 814 (5th Cir. 2000).
- United States v. Culverhouse, 507 F.3d 888 (5th Cir. 2007).publishedUnited States v. Franks, 230 F.3d 811, 813 (5th Cir.2000).
- United States v. James Ronald Hazelwood, 398 F.3d 792 (6th Cir. 2005).published See, e.g., Reevey, 364 F.3d at 158-59 (4th Cir.2004); United States v. Franks, 230 F.3d 811, 813-14 (5th Cir.2000); United States v. Murray, No. 97-6735, 1999 WL 187192 *800 (4th Cir. Apr.6, 1999) (unpublished opinion); United States v. Tr…
- United States v. Bowman, 632 F.3d 906 (5th Cir. 2011).published(holding that an enhancement for an express threat of death may not be applied to the sentence for robbery when the threat is related to the use of the firearm and the defendant has a § 924(c) sentence for the same firea…)
- United States v. Jaron Reevey, 364 F.3d 151 (4th Cir. 2004).published(concluding that sentencing court erred in enhancing sentence under § 2B3.1(b)(2)(F), where it was clear from evidence that threat of death was related to use of firearm)
v.
Frederick FRANKS, Defendant-Appellant
Franks challenges the district court’s dismissal of his § 2255 petition based on a single claim: his counsel was ineffective in failing to object to the sentencing judge’s erroneous enhancement of his sentence. For the reasons that follow, we REVERSE and REMAND the judgment of the trial court.
[*813] I.
Appellant Frederick Franks was indicted on charges of armed bank robbery and using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c). Following his conviction by a jury on both counts, the court sentenced him to 74 months for the bank robbery plus a consecutive sentence of 60 months for the firearms offense, for a total of 134 months. In Franks’ § 2255 petition, he challenged the district court’s two-level enhancement to his sentence under United States Sentencing Guideline § 2B3.1(b)(2)(F) for an express threat of death. He also asserted that his counsel had been ineffective for failing to object to this alleged error. The district court denied Franks’ § 2255 motion and dismissed the ineffective assistance of counsel claim as meritless on the ground that no significant difference existed between the sentence Franks received and the sentence he would have received under a correct application of the guidelines. Franks now challenges that ruling.
II.
Franks argues that his attorney provided ineffective assistance of counsel by failing to object to the enhancement of his sentence under § 2B3.1(b)(2)(F). To establish ineffective assistance, Franks must show that his attorney’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the results of the proceedings would have been different without the attorney’s errors. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Failure to establish deficient performance or prejudice defeats an ineffective assistance claim. Id. at 697, 104 S.Ct. at 2069.
A.
In order to determine whether Franks’ attorney committed error in not objecting to the district court’s enhancement of Franks’ sentence, we first consider the correctness of that ruling.
The factual basis the trial court relied on for the express threat of death enhancement was the trial testimony of the bank teller, Mrs. Chailland. The trial court summarized this testimony as follows:
Mrs. Shyland [sic] testified she arrived at the bank about 8:20 the morning of June 25 and entered through the back door. Before she could relock the door, a man burst through it with such force as to knock her out of her shoes and hurl her sprawling in the floor. When she looked up, the intruder was standing over her with a gun ordering her to “turn off the alarms.” He ordered her to open the vault, and as she knelt down to operate the combination, he stood over her holding the gun on her saying repeatédly: “If the police come, I’ll shoot you.” She was “scared to death” and concerned about what might happen to her co-worker if she arrived while the robbery was in progress. The robber kept repeating he would shoot her if the police arrived, and he had the gun to her head, and when he pointed it at her, he held it with both hands. She was so upset she could not look at him and was still so shaken when the police arrived that she could not give a detailed description because “if somebody holds a gun to your head, you don’t calm down anytime soon.”
Sentencing Guideline § 2B3.1(b)(2)(A-F) provides enhancements for sentencing in a robbery conviction for the use of a firearm, use of a dangerous weapon, or for an express threat of death made by the defendant during the course of a robbery. However, Application Note 2 to § 2K2.4 provides that where a defendant convicted of robbery is also convicted under 18 U.S.C § 924(c) or § 929(a) for the use of a firearm in connection with a robbery and sentenced under the mandatory provisions for those offenses, “any specific offense characteristic for the possession, use, or discharge of a firearm (e.g.[*814] § 2B3.1(b)(2)(A)-(F) (Robbery)), is not to be applied in respect to the guideline for the underlying offense.” U.S.S.G. § 2K2.4, Application Note 2.
Thus, it is clear that under the sentencing guideline provisions cited above, the offense level for robbery may not be enhanced for the use of a firearm if the defendant has also been convicted of using a firearm during that robbery, which carries a mandatory sentence. See, e.g., United States v. Washington, 44 F.3d 1271, 1280 (5th Cir.1995); United States v. Rodriguez, 65 F.3d 932, 933 (11th Cir.1995). The question presented in this appeal is whether a threat of death — particularly a threat related to the use of the firearm — is covered under the application note quoted above so that the district court is precluded from enhancing a sentence on this ground.
Franks argues that the “e.g. clause” of Application Note 2 makes it clear that the answer to this question is in the affirmative. Sentencing Guideline § 2B3.1(b)(2)(F) establishes the enhancement for an express threat of death and the “e.g. clause” to Application Note 2 specifically refers to that section in stating that the enhancement may not be applied where a defendant is also convicted and given a mandatory sentence for the use of a firearm in connection with that crime.
The Sixth and Ninth Circuits have adopted this view, and we agree. See, e.g., United States v. Smith, 981 F.2d 887, 893 (6th Cir.1992); United States v. Duran, 4 F.3d 800, 804 (9th Cir.1993). [2] We also agree with the Eighth Circuit qualification that this enhancement is precluded only where the express threat of death is related to the use of a firearm. United States v. Triplett, 104 F.3d 1074, 1081-82 (8th Cir.1997).
In summary, we agree with all circuit courts who have considered this question that § 2K2.4 seeks to avoid “double counting” under these circumstances, and “double counting” would occur if a defendant were sentenced for the use of a firearm during the commission of a robbery and also enhanced at the sentencing phase for threatening the victim of the robbery with the firearm. We therefore hold that an express threat of death may not be used to enhance a defendant’s sentence under § 2K2.4 when he is also convicted of a violation of § 924(c) if the threat of death is related to “the possession, use, or discharge” of the firearm for which he was convicted under § 924(c). As is clear from the trial testimony here, the threat of death Franks made was plainly related to the use of the firearm. Therefore, the district court erred in enhancing Franks’ sentence under § 2B3.1(b)(2)(F).
To establish an ineffective assistance of counsel claim, a defendant must first show that counsel’s failure to raise an issue fell “below an objective standard of reasonableness.” United States v. Phillips, 210 F.3d 345, 348 (5th Cir.2000). In this case, Franks’ counsel made no objection to the enhancement of his sentence, in the face of three circuit court of appeals’ decisions holding the enhancement to be improper under these factual circumstances. Counsel’s failure to object falls below this objective standard of reasonableness, and Franks has satisfied the first prong of his ineffective assistance of counsel claim.
B.
To show prejudice from this deficient performance, Franks must also[*815] show “a reasonable probability that but for trial counsel’s errors the defendant’s non-capital sentence would have been significantly less harsh.” Spriggs v. Collins, 993 F.2d 85, 88 (5th Cir.1993). The prejudice prong is satisfied, however, “when a deficiency by counsel resulted in a specific, demonstrable enhancement in sentencing — such as an automatic increase for a ‘career’ offender or an enhancement for use of a handgun during a felony — which would not have occurred but for counsel’s error.” United States v. Phillips, 210 F.3d at 351; Spriggs, 993 F.2d at 88, n. 4. Without the improper enhancement, Franks’ offense level would have been reduced from 27 to 25 and his guideline range from 70-87 months to 57-71 months. Franks was sentenced to 74 months— three months longer than the maximum permissible guideline sentence had the Sentencing Guidelines been applied properly. Therefore, the alleged error here did result in a specific, demonstrable increase in sentencing, and Franks suffered prejudice because of it.
III.
For the reasons stated above, we conclude that the district court erred in rejecting Franks’ ineffective assistance of counsel claim and in dismissing Franks’ § 2255 petition. We therefore REVERSE the district court’s judgment and REMAND this case to the district court for resentencing consistent with this opinion.
. The Smith court stated,
[I]n view of Application Note 2 to the Commentary for U.S.S.G. § 2K2.4, it is clear that the Sentencing Commission viewed an expressed threat of death as the equivalent of possession, use, or discharge of a firearm in the course of a robbery, and intended that the enhancement under § 2B3.1(b)(2)(D) for an express threat of death should not be applied where the defendant is convicted of the violation of 18 U.S.C. § 924(c).
Id. at 893.