United States v. Ward

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4898

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHARLES WARD, a/k/a Chuck,

Defendant – Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00032-JPB-DJJ-1)

Submitted: April 27, 2010 Decided: May 25, 2010

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Betsy
C. Jividen, Acting United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Charles Ward was charged in a six-count indictment

with various felony drug offenses. Pursuant to a plea

agreement, Ward pled guilty to Count Three of the indictment,

which charged him with aiding and abetting in the distribution

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006)

and 18 U.S.C. § 2 (2006), in exchange for dismissal of all other

counts. Ward was sentenced to 200 months in prison. He now

appeals, arguing that his trial counsel was ineffective. For

the reasons that follow, we affirm.

On appeal, Ward argues that he was denied the

effective assistance of counsel at his plea hearing and

subsequent sentencing hearing. Specifically, Ward argues that

counsel was ineffective for failing “to fully and competently

inform Ward of options to accepting a conditional plea agreement

which contained a stipulation regarding relevant drug conduct

and which contained a provision that required Ward to pay the

$100.00 special assessment within forty (40) days following

entry of his plea.”

The Government argues that Ward’s appeal should be

dismissed because he validly waived his right to appeal in his

plea agreement. However, the Government also acknowledges that

even a valid appellate waiver would not prevent Ward from

appealing on the basis of an alleged violation of his Sixth

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Amendment right to counsel in proceedings following the guilty

plea. See United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.

1994) (finding that, where defendants sought “to challenge their

sentences on the ground that the proceedings following entry of

the guilty plea — including both the sentencing hearing itself

and the presentation of the motion to withdraw their pleas —

were conducted in violation of their Sixth Amendment right to

counsel,” “the general waiver of appeal rights contained in this

plea agreement” could not be “construed as a waiver of the right

to challenge their sentences on that ground”). Therefore, the

ineffective assistance claims raised by Ward are not barred by

his appellate waiver.

“A claim of ineffective assistance of counsel should

be raised by a habeas corpus motion under 28 U.S.C. § 2255

[(West Supp. 2009)] in the district court and not on direct

appeal, unless it conclusively appears from the record that

defense counsel did not provide effective representation.”

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

(internal quotation marks and alterations omitted). To

demonstrate ineffective assistance, a defendant must show that

his “counsel’s representation fell below an objective standard

of reasonableness,” and that the error was “prejudicial to the

defense” such that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 692, 694 (1984). In the context

of a plea agreement, where a defendant claims ineffective

assistance, the prejudice prong is satisfied where the defendant

shows that “there is a reasonable probability that, but for

counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill v. Lockhart, 474 U.S.

52, 59 (1985).

In his first claim, Ward argues that counsel “ignored

the provision in the Plea Agreement which required Ward to pay

the $100.00 special assessment within forty (40) days of entry

of his guilty plea,” and “[i]nstead, counsel depended upon a

conversation that he had with the Government, in which counsel

was informed that Ward would receive the third point reduction

for timely acceptance.” Ward argues that although he did not

have the financial means to pay the special assessment, he “may

well have been able to timely marshal the money to satisfy the

assessment from friends and family members.” He insists that

“[t]here is a reasonable probability that the result of the

proceeding would have been different had Ward been properly

advised regarding the necessity to timely pay the special

assessment.” In the alternative, Ward claims that counsel

should not have advised him to enter into the plea agreement

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requiring him to pay the special assessment within forty days

because counsel knew that Ward did not have the ability to pay.

Despite Ward’s contentions, his counsel’s alleged

ineffectiveness regarding the special assessment is not apparent

on the face of the record. First, Ward himself acknowledges

that he did not have the money to pay the special assessment due

to his indigency, and states on appeal only that he “may well

have been able to timely marshal the money to satisfy the

assessment from friends and family members.” Further, Ward does

not assert that he would not have taken the plea had counsel

properly informed him about the special assessment fee. Thus,

even assuming counsel’s actions could be considered

unreasonable, there is nothing in the record to demonstrate that

Ward was prejudiced by counsel’s alleged ineffectiveness. *

Ward also asserts that, in the alternative, counsel

should have never advised him to take the plea, because he knew

Ward was indigent and could not afford the special assessment.

However, the record shows that in exchange for taking the plea,

*
Additionally, the record is replete with instances in
which Ward and his counsel were reminded that only upon payment
of the special assessment and compliance with all other terms of
the plea agreement would the Government move for the additional
one-level reduction. As noted, this information was conveyed by
the Government and the court during Ward’s plea, it was
contained within the PSR, and it was expressly noted in the plea
agreement.

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Ward had all five remaining counts in the indictment dismissed

and he received a two-level reduction for acceptance of

responsibility. According counsel the deference to which he is

entitled under Strickland, the record does not demonstrate that

counsel’s advice to take the plea fell below an objective

standard of reasonableness. See Strickland, 466 U.S. at 689

(noting that “a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy” (internal

quotation marks omitted)). Accordingly, because the record does

not conclusively demonstrate that counsel was ineffective, we

conclude that Ward’s claim is not properly before this court on

appeal.

In his second claim, Ward asserts that “counsel failed

to inform Ward that he could enter a guilty plea and place the

burden of proving relevant conduct upon the Government.” Ward

now claims that if counsel had informed him that, in addition to

going to trial or accepting the plea agreement offered by the

Government, he had this third option, “he would not have entered

into a plea agreement which stipulated that large quantity of

relevant conduct.”

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 The record shows that, at the sentencing hearing, Ward

stated to the court that counsel “never advised me that I could

have [a] relevant conduct hearing about” the drug quantity for

which he was responsible. However, there was no response from

counsel on that matter at the hearing, and the record does not

contain any affidavit or response from trial counsel indicating

what he recalls telling Ward regarding relevant conduct and, if

he failed to discuss it with Ward, why he chose not to disclose

that information. Thus, any conclusion by this court regarding

counsel’s discussions with Ward on the issue of relevant conduct

would be premised on surmise or speculation, and we decline on

direct appeal to consider Ward’s arguments regarding his trial

counsel’s ineffective assistance. See United States v. Allen,

491 F.3d 178, 191-92 (4th Cir. 2007).

Accordingly, we affirm Ward’s conviction and sentence.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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