United States v. Husband

Vacated by Supreme Court, October 3, 2005

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4630

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JIMMY RICHARD HUSBAND,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (CR-02-125)

Argued: September 30, 2004 Decided: January 11, 2005

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Shedd joined.

ARGUED: Marcia Gail Shein, Decatur, Georgia, for Appellant. Arenda
L. Wright Allen, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
GREGORY, Circuit Judge:

In April 2003, Jimmy Richard Husband (“Husband” or

“Appellant”) pled guilty in the United States District Court for

the Eastern District of Virginia to eight counts of sexual

exploitation of a minor in violation of 18 U.S.C. § 2251(a) and

(d). The court accepted Husband’s plea and subsequently sentenced

him to 87 months of imprisonment for each of the eight counts and

ordered that the sentences be run consecutively, for a total of 696

months, followed by eight three-year periods of supervised release,

also to be run consecutively. Husband timely appeals on five

grounds: (1) that he was prosecuted and convicted of crimes for

which the governing statute of limitation had expired; (2) that his

plea was not voluntary and knowing under Fed. R. Crim. P. 11

because the court misinformed him of the actual penalty he could

face; (3) that the court failed to establish an adequate factual

basis for accepting his plea; (4) that the court violated the

Sentencing Guidelines by sentencing him to consecutive rather than

concurrent terms; and (5) that his counsel ineffectively assisted

him because his counsel failed to raise and argue the statute of

limitations defense.

None of Husband’s grounds for appeal is meritorious.

Accordingly, we affirm.

2
 I

The immediately following facts are admitted by Appellant:

“Jane Doe,”1 Husband’s daughter by adoption and the primary victim

in this case, was born in late 1979. In 2001, Husband and his

family relocated to Newport News, Virginia from West Monroe, New

York. On January 8, 2002, a videotape was discovered that depicted

eight scenes of Jane Doe in sexually explicit activities. Three

days later, Husband was arrested and charged with possession of

child pornography.

The record makes plain that these events then occurred. On

October 15, 2002, a federal grand jury returned a twenty-count

indictment against Husband, alleging seventeen counts of sexual

exploitation of a minor in violation of 18 U.S.C. § 2251(a) and

(d), one count of transportation of child pornography in violation

of 18 U.S.C. § 2252A(a)(1) (“Count 18"), and two counts of

possession of child pornography, both in violation of 18 U.S.C. §§

2252A(a)(5)(B) and 2256(1) and (2) (“Counts 19 and 20"). On

December 16, 2002, Husband pled not guilty to all counts, and a

jury trial was scheduled. On March 27, 2003, after numerous

pretrial motions and pleadings, the district court dismissed the

last nine sexual exploitation counts upon the United States’ motion

1
Out of respect of the victim, we will attempt to minimize
revelation of details that would reveal her identity.
Unfortunately, the details of this case often make it difficult to
do so.

3
because the conduct charged in those counts took place after Doe

turned eighteen years old, leaving only counts one through eight to

survive. On April 7, 2003, immediately before the jury trial was

scheduled to begin, and without the benefit of a plea agreement,

Husband pled guilty to the sexual exploitation counts remaining

against him. The court subsequently dismissed counts eighteen

through twenty with prejudice.

The facts that are most relevant for this appeal took place at

the plea hearing. After the judge established Husband’s

competence, Husband indicated that he wished to plead guilty. The

following exchange then occurred between the court and Husband:

THE COURT: And the maximum possible penalty on each of
these counts, then, Mr. Husband, is a maximum of 20 years
imprisonment and a minimum of ten years. Do you
understand that penalty?
THE DEFENDANT: Yes, ma’am.

J.A. 35. After establishing that Husband would be a felon and lose

substantial rights if he pled guilty, the court then informed him

that, “in relation to any sentence that the court will impose, the

United States sentencing guidelines are in effect[,]” J.A. 35-36,

and that, “ultimately under the law, it is up to the court to

sentence you under the federal sentencing guidelines.” J.A. 46.

Husband acknowledged his assent, admitting that he had discussed

the Guidelines with his attorney, and also acknowledged that, under

the Guidelines he would be sentenced based not only on “the crimes

to which you are pleading guilty, but all of your relevant criminal

4
conduct in regard to the crimes to which you are pleading

guilty[.]” J.A. 36. The district court then reaffirmed that “you

are pleading guilty to the indictment, counts 1 through 8, and

those all involve charges of sexual exploitation of a minor[,]”

J.A. 37, and restated each count. The judge then clarified that

Husband would be subject to supervised release, “not more than

three years on each count.” J.A. 42. After noting that Husband

would not later be able to withdraw his guilty plea because he did

not like the sentence, the following statements were made:

THE COURT: In other words, without a background
presentence report, Mr. Husband, the only promise that I
can make to you today is that your sentence on counts 1
through 8 would be somewhere between a minimum of 10
years and a maximum of 20; do you understand?
THE DEFENDANT: Yes, ma’am.

J.A. 47. Finally, after ensuring that Husband had no questions

about the sentencing guidelines or their application to his case,

and ensuring with Husband’s attorney that no meritorious defenses

existed, the district court finally allowed Husband to plead

guilty.

The government then proffered evidence of Husband’s guilt.

The evidence included a videotape of the defendant sexually

exploiting his minor daughter on multiple occasions in their New

York home. The videotape was discovered by Husband’s other

daughter on January 8, 2002 in Newport News, Virginia. Also

included was an oral confession by Husband that he engaged in

sexual activity with Doe and videotaped it over a five- to six-year

5
period. Husband also handwrote a two-page statement corroborating

his oral admissions and noting that his sexual desire for Doe began

when she was “about six or eight.” J.A. 53.2 After the proffer,

the following exchange occurred:

THE COURT: All right.... Mr. Collins, you have heard
what the United States claims it could prove had you
called upon it to present a case against this defendant.
Do you agree with the proffer?
MR. COLLINS: I agree that would be their evidence, yes
ma’am.
THE COURT: Mr. Husband, do you agree with the proffer?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you still wish to plead guilty?

MR. HUSBAND: Yes, ma’am.
THE COURT: All right. Then, based upon your guilty pleas
and the government’s proffer of evidence and your
agreement therewith, I would find as a fact that you did
commit the sexual exploitation of a minor, as set forth
in counts 1 through 8 of the indictment, and I accept
your guilty pleas.

J.A. 58-59.

The Presentence Investigation Report (“PSR”) concluded that

the offenses occurred in 1995 and 1996, so the appropriate

Guidelines were from 1995, which relied on a statutory scheme with

a maximum penalty of 10 years per count (not 20, as the judge

stated, apparently relying upon a later version of the Guidelines).

The PSR also found that the offense level was 27 and that Husband’s

criminal history category was I, which totaled 70-87 months, and

2
His written admission, however, claimed “oral sex was never
done to climax, and there was never penetration of her vagina or
anus by me or any other object.” J.A. 54. The government
proffered a number of witnesses who would refute this claim.

6
that an upward departure may be warranted. The government filed

its position on Husband’s sentence on June 30th, and Husband filed

a “Response... to the Government’s Motion for Upward Departure” on

July 9th.

The sentencing hearing took place on July 15th, 2003.

Husband’s counsel did not object to the PSR. He did, however, say

he spoke with someone in the probation office, “who assured us that

the standard is concurrent sentences.” J.A. 117. The judge

interrupted immediately, stating,

Im not going to accept any such argument on the
record.... I want to make the record clear, there was no
plea agreement whatsoever in this case.... I asked him if
any promise had been made to him in return for the plea,
and he said no. And I made it clear to him that he faced
20 years.

J.A. 117. After more discussion by the judge as to why a probation

officer’s statements were inapposite, Husband’s counsel replied, “I

just wanted the court to be aware that that was a primary

consideration in the entering of a plea,” J.A. 118, whereupon the

judge cut counsel off again, making clear that the court would not

hear such arguments:

THE COURT: Frankly, if you want to know the truth, it
matters not to me, because if that was a primary
consideration, then that should have been made known to
the court, and it was never made known to the court....
I know what the plea colloquy was, and I know that it was
never discussed that sentences would run concurrently.
I advised him that he could get 20 years on each count of
conviction. That’s what he was advised of.

7
 MR. COLLINS: Yes, ma’am. Nothing further.
THE COURT: All right.

J.A. 118-19.

In support of its request for an upward departure, the

government called four witnesses – the case agent, the victim, the

victim’s mother, and a clinical social worker – to testify to the

especially heinous and prolonged nature of the sexual abuse. We

will spare the reader the details by noting only that the evidence

was, simply put, sad, horrible, and clearly damning.

The court took great pains to establish adequate grounds for

Husband’s sentence by noting that the prolonged and heinous and

degrading behavior over an extremely long period of time along with

the repetitive nature of the conduct was sufficient to upwardly

depart. But, it generally appears that, in fact, the court never

officially granted the motion for upward departure. See infra n.

7. Rather, the court simply sentenced Husband to 87 months for

each count to run consecutively for a total of 696 months, in

apparent belief that this was appropriate absent an upward

departure. In justifying the decision, the court noted,

So basically I would find that there are all of these
grounds to depart upward. If for some reason the
consecutive sentences don’t hold, I want to make it clear
that this would be an alternative grounds for the court
to depart upward. However, I’m of the opinion that in
this particular case I do not believe that the sentence
imposed on the counts and letting them run concurrently
would be at all adequate under the factors set forth in
the law. The sentence would be somewhere between – 70 to
87 months is the guideline range, and certainly an 87-
month sentence is not sufficient to punish, to remedy

8
 this conduct, to meet the heinous activity that has
occurred in this particular case. . . . the thrust of
this is that the court can run the sentences consecutive
if necessary to achieve the appropriate total punishment,
considering all of the matters that I have found as a
fact here today, which are basically facts in the
presentence report. . . . the way I would propose to
proceed is to sentence him within the guidelines on each
of the counts and to run those sentences consecutively.

J.A. 124-26. Again, Husband did not object. Now, however, he

appeals on the above-stated grounds.

II.

We now address each of Husband’s arguments in turn. The short

answer is that we affirm on all counts.

A.

Husband first argues that the applicable statute of limitation

had expired, and thus that his guilty plea should not have been

accepted. Because Husband failed to object below, plain error

review governs. See Fed. R. Crim. P. 52(b); United States v.

Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993). This means, of course,

that Husband must clear the high hurdle of proving that (1) there

was error, (2) the error was plain, (3) the error affected

substantial rights, and (4) the error “‘seriously affect(s) the

fairness, integrity or public reputation of judicial proceedings.’”

United States v. Olano, 507 U.S. 725, 732-37 (1993); United States

v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).

9
 It has long been the law in this circuit that a valid guilty

plea waives all non-jurisdictional defenses. See, e.g., United

States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (voluntary

guilty plea waives all nonjurisdictional defects); Bloombaum v.

United States, 211 F.2d 944, 945 (4th Cir. 1954) (same). Applying

this rule here, we find that Husband’s plea waives his statute of

limitations argument, which is, of course, a non-jurisdictional

affirmative defense. See, e.g., United States v. Matzkin, 14 F.3d

1014, 1017-18 (4th Cir. 1994) (statute of limitations is not a

jurisdictional defense and can be waived; counsel’s failure to seek

statute of limitations jury instruction was not plain error even

though it was “not an intentional relinquishment of a known right;

but was a failure to make the timely assertion of that right”);

United States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982), cert.

denied, 459 U.S. 1110 (1983) (18 U.S.C. § 3282 is not

jurisdictional, but affirmative defense that may be waived).

While this is surely enough to end the inquiry, because the

statute of limitations issue becomes relevant to subsequent

arguments, we note that Husband’s statute of limitations claim is

meritless for a number of reasons, not the least of which is that

the final element of his crime was not complete until 2001, when

the tape was transported across state lines.3 The statute of

3
The grand jury indictment implied that the “jurisdictional
element” relied upon in this case was the third prong of § 2251 –
that the tape was transported from New York to Virginia at some

10
limitations does not begin until all the elements necessary for the

crime are completed. See, e.g., United States v. Crossley, 224

F.3d 847, 859 (6th Cir. 2000) (statute of limitations begins to run

only when all elements of crime have occurred); United States v.

United Med. and Surgical Supply Corp., 989 F.2d 1390, 1398 (4th

Cir. 1993) (securities or mail fraud is not complete until sale of

security or use of the mail). Thus, the clock did not begin

running until 2001, when the tape was transported across state

lines, not 1995, when actions that were filmed took place. See

United States v. Sirois, 87 F.3d 34, 39 (2d Cir. 1996). As such,

the case was unquestionably within any applicable statute of

limitations.

B.

Husband also argues that his guilty plea was involuntary

because the district court failed to advise him of the true penalty

he faced as a result of his guilty plea. As noted above, the trial

judge, apparently relying on a more current version of the

Sentencing Guidelines, told Husband at the plea hearing that he was

subject to 10 to 20 years of prison for each count (and then,

unnamed time. At the plea hearing, the government also noted that
the tape showed conduct from New York and was found in Virginia.
Thus, the government contends that the crime was inchoate until
2001. Husband’s counsel apparently agreed: at the sentencing
hearing, Husband’s counsel admitted that, “It was, in fact, his
taking it across state lines that made it a federal case.” J.A.
115.

11
Husband contends, for all counts). The PSR, however, subsequently

recommended – and Husband was evidently ultimately sentenced under

– the 1995 Sentencing Guidelines, which mandated a maximum 10-year

sentence per count.4 The real issue here, though, is that the

court sentenced Husband to consecutive terms. Husband argues that

he was given more punishment than he was warned of, and that, as a

result, his plea was unknowing and involuntary.

Trial courts conducting plea colloquies are given deference.

United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991), cert.

denied, 503 U.S. 997 (1992) (“this Court should accord deference to

the trial court's decision as to how best to conduct the mandated

colloquy with the defendant”). Consequently, “any Rule 11

violations should be evaluated under a harmless error standard.”

Id. at 117. See also Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity or variance which does not affect substantial rights

shall be disregarded.”).

4
The PSR mistakenly relied upon the idea that the crimes were
completed in 1995, and thus that the 1995 Sentencing Guidelines
were in effect. This was error because, as we explained in Part
II.A, supra, the crime was inchoate until 2001, when the videotape
crossed state lines. Section 1B1.11 of the Guidelines requires
courts to use the “Guidelines Manual in effect on the date that the
defendant is sentenced[,]” unless doing so would violate the ex
post facto clause. Because Husband was Sentenced on July 15, 2003,
and because the 2002 Guidelines were identical to those in effect
in 2001 for purposes of Husband’s crime, the 2002 Sentencing
Guidelines should have been used. However, since Husband was
sentenced under a Guidelines scheme counseling the 1995 statutory
maximum of 10 years per count rather than the 2001 statutory
maximum 20, the error was in Husband’s favor, and thus harmless.

12
 In accepting a guilty plea, the court must simply determine

“whether the defendant's knowledge and comprehension of the full

and correct information would have been likely to affect his

willingness to plead guilty.” United States v. Goins, 51 F.3d 400,

402 (4th Cir. 1995). In determining whether a defendant’s plea is

acceptable, the court should focus on “three main elements”:

The court must first ascertain what the defendant
actually knows when he pleads guilty on the basis of an
affirmative indication in the record. Second, the court
must decide what information would have been added to the
defendant's knowledge by compliance with Rule 11.
Finally, the court must determine how the additional or
corrected information would have likely affected the
defendant's decision.

Id. (citing United Stats v. Padilla, 23 F.3d 1220, 1222 (7th Cir.

1994) and United States v. Johnson, 1 F.3d 296, 302 (5th Cir.

1993)).

We have reviewed the transcript of the plea hearing with care

(but also with the requisite deference), and find that the judge

adequately complied with Fed. R. Crim. P. 11. Likewise, we hold

that Husband knew or surely should have known that a sentence under

the Guidelines could include an upward departure. Thus, it follows

that no information would have been added to the defendant’s

knowledge, and Husband’s “knowledge and comprehension of the full

and correct information would not have been likely to affect his

willingness to plead guilty.” Goins at 402.

13
 Husband relies upon the following exchange from the plea

hearing as evidence that his plea violated Rule 11 and was not

knowing and voluntary:

THE COURT: In other words, without a background
presentence report, Mr. Husband, the only promise that I
can make to you today is that your sentence on counts one
through eight would be somewhere between a minimum of ten
years and a maximum of 20; do you understand?
THE DEFENDANT: Yes, ma’am.

J.A. 47. Husband clings to this single statement with a vise-like

grip, and extrapolates from it – particularly, the singular use of

the word “sentence” – that the judge “promised” no more than 20

years in prison in total.5

Appellant’s assertion that he did not know he might be

sentenced to more than twenty years might have more merit if this

was the only instance of the court discussing his potential

punishment. But, of course, it is not the only instance. The

judge stated, “And the maximum possible penalty on each of these

counts, then, Mr. Husband, is a maximum of 20 years imprisonment

and a minimum of ten years. Do you understand that penalty?” J.A.

35 (emphasis added). Husband replied affirmatively. The judge

also noted that Husband would be subject to supervised release,

5
Husband also puts forth the odd argument that his plea was
not knowing and voluntary because he was unaware of his appellate
counsel’s statute of limitations argument. Since we disposed of
the statute of limitations issue in Part I.A., supra, we will
expend no more effort on it here. Suffice it to say that a
criminal defendant thinking of relying on his ignorance of a
meritless affirmative defense to overcome an otherwise knowing
guilty plea may wish to consider other arguments.

14
“not more than three years on each count.” J.A. 42 (emphasis

added). Finally, the court also informed him prior to his guilty

plea that, “in relation to any sentence that the court will impose,

the United States sentencing guidelines are in effect,” J.A. 35-36,

and that, “ultimately under the law, it is up to the court to

sentence you under the federal sentencing guidelines[.]” J.A. 46.

See also J.A. 48. Husband assented to these statements, stated

that he had discussed the Guidelines with his attorney, and also

acknowledged at least twice more the court’s assurance that, under

the Guidelines he would be sentenced based on the totality of his

criminal conduct: not only on “the crimes to which you are

pleading guilty, but all of your relevant criminal conduct in

regard to the crimes to which you are pleading guilty[.]” J.A. 36.

Further, in attempting to decipher “what the defendant

actually knows when he pleads guilty on the basis of an affirmative

indication in the record,” Goins, 51 F.3d at 402, one cannot ignore

the fact that Husband was represented by a lawyer. Husband admits

to discussing the Guidelines with his lawyer (who, of course,

should have explained the Guidelines and indicated the possibility

of upward departure). Thus, any reasonable reading of the

transcript indicates that Husband knew or should have known that

the equivalent of consecutive sentences was possible through upward

departure.

15
 Finally, however, had Husband been unsure of how his sentence

would be calculated – stated otherwise, had he lied to the district

court when he acknowledged that he understood that the Guidelines

governed and that he had discussed how they worked with his lawyer

- we have no reason to believe that he would not have pled guilty.6

Given the overwhelming nature of the government’s proffered

evidence (including actual videotaping of the sexual exploitation),

Husband had no shortage of good reasons for not going to trial.

For example, he apparently got the government to drop counts 18,

19, and 20 by pleading guilty. Additionally, while we only review

a cold record, Husband expresses regret for the humiliation his

actions caused his family. It is highly likely that, in a case

with facts this uncontested, horrible, and hurtful, he did not want

the public shame of a trial. Indeed, perhaps he wished not to

force his family to endure yet another wrenching experience. In

short, Husband must have (or at the very least should have) known

that the court could upwardly depart, and even if he had not known,

it remains entirely unclear that this knowledge would have been

“likely to affect his willingness to plead guilty.” Goins, 51 F.3d

at 402.

6
Indeed, if his understanding of the sentence was truly
unclear (which seems to be the best he could hope for upon a full
and fair reading of the record), Husband said nothing and still
pled, it seems to lead to the conclusion that his sentence was not
really a primary consideration in his decision of whether to plead
guilty; that is, other things were driving him.

16
 C.

Appellant also contends that the court failed to find

sufficient evidence for his plea. “Before entering judgment on a

guilty plea, the court must determine that there is a factual basis

for the plea.” Fed. R. Crim. P. 11(b)(3). “The court need not

satisfy itself that a jury would find the defendant guilty, or even

that defendant is guilty by a preponderance of the evidence.”

United States v. Carr, 271 F.3d 172, 179 n.6 (4th Cir. 2001).

Rather, the district court “need only be subjectively satisfied

that there is a sufficient factual basis for a conclusion that the

defendant committed all of the elements of the offense. The

district court possesses wide discretion in determining whether a

sufficient factual basis exists.” United States v. Mitchell, 104

F.3d 649, 652 (4th Cir. 1997). The standard of review for such

claims is abuse of discretion. Carr, 271 F.3d at 179.

The district court decidedly did not abuse its discretion.

The judge read all eight counts, and later asked Husband whether he

wished that the judge review the eight counts again before asking

for Husband’s plea. Husband did not want to review the counts and

pled guilty. Before accepting Husband’s plea, the government

proffered its evidence, the judge asked Husband whether he agreed

with the proffer, and Husband and his counsel both agreed. The

government’s proffered evidence of guilt was overwhelming. Each

element was listed in the indictments and reasonably reviewed to

17
the judge’s subjective satisfaction in the guilty plea hearing.

Thus, the court established a sufficient basis for the plea.

D.

Husband also appeals his punishment of eight consecutive 87-

month sentences followed by eight consecutive three-year terms of

supervised release. Husband’s contention is that the combined

offense level for the eight similar counts was properly grouped in

the PSR. As such, since the 1995 Guideline-based range of 70-87

months per count fell below the (incorrect) statutory maximum of

ten years, the extent of any consecutive sentence could only rise

to the level of the (alleged) maximum.

The government, in response, rightly admits that the court

could not have run the sentences consecutively in this case absent

a departure, but argues that the consecutive sentences are

appropriate because the district court properly upwardly departed

from the Guidelines. Because he failed to object to the sentencing

below, this issue too is reviewed for plain error. United States v.

Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993).

First, as noted above and explained in footnote 4, supra, the

court erred by using the 1995, rather than the 2002, Sentencing

Guidelines. But this error was clearly in Husband’s favor: his

sentence was half of what he could have received under the 2002

18
Guidelines. More fundamentally, however, the court did not, as it

should have, clearly grant the motion for upward departure.7

Even granting that the district court erred by not officially

granting the motion for upward departure, this error does not harm

Husband because, if we were to remand, the court undoubtedly would

grant an upward departure and sentence Husband to precisely the

same 696-month sentence that he has now if we remanded the matter

to the court. Specifically, the court explains,

If for some reason the appellate court is not in
agreement with me, then my alternative ruling is that I
would upwardly depart on these matters. In other words,
I would not be in the guideline range here. I would
upwardly depart and do an appropriate sentence with an

7
The record states that, at the sentencing hearing on
7/15/2003, “Court granted gov’s motion for upward departure.”
J.A. 6. The transcript of the hearing, however, complicates
things. Essentially, it seems that the court started to rule on
the motion, discussed the grounds for upward departure, and
indicated its general, strong, and wide-based support for the
motion (“I have reviewed those cases, verified their validity, and
they support the government’s proposition,” J.A. 121) and general
disapproval of Husband’s opposition brief (“The defendant counters
that the past conduct is accounted for by the guideline
calculations, but I don’t agree. . .”). Id. The court then
further submits the reasons why the government’s position was
correct on several different grounds. Things are continually
confused, however, by the judge’s consistent use of conditional
verbs, e.g., “I would find that certainly an upward departure would
be warranted. . .”; “Likewise I would find that a departure would
be warranted because of the repetitive nature of the conduct.”;
“So basically I would find that there are all of these grounds to
depart upward.”. J.A. 123-24 (emphasis added). Ultimately, and
particularly when considering the court’s Statement of Reasons, it
appears clear enough to us that the district court errantly
believed that it could sentence Husband to consecutive terms absent
an upward departure, and thus that it did not actually grant the
government’s motion at the sentencing hearing.

19
 upward departure that would meet the goals of this
particular case.

J.A. 125-26. As noted above, the statutory maximum for the crime

is 10 years per count even if the court uses the PSR’s

recommendation (which, as the district court ultimately recognized,

is a mistake, given that the proper standard is a 20 year maximum,

but one we will not here correct because it favors Husband). Thus,

even granting that there was an error, and that it may have been

“plain,” the error certainly does not affect Husband’s substantial

rights, for he would justifiably receive precisely the same

sentence. See Olano, 507 U.S. at 732-37.

E.

Finally, Husband claims that his counsel was ineffective

because he failed to raise the statute of limitations defense.

Claims of ineffective assistance may not be raised on direct appeal

unless the record demonstrates ineffectiveness conclusively.

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997); United

States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). Ineffective

assistance of counsel claims must meet the two-step test of

Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel’s

performance is objectively deficient, and (2) the deficient

performance prejudices the defendant. Because, as explained in

Part II.A, supra, the statute of limitations argument is meritless,

20
failure to make it cannot be deficient at all, much less

“objectively” so. Likewise, Husband is in no way prejudiced by his

counsel’s conduct.

III

For all the reasons as stated above, on all issues raised by

Appellant, the district court is

AFFIRMED.

21