United States v. Dwight Gooding

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4995

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DWIGHT GOODING, a/k/a D BLACK,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00136-BO-1)

ARGUED: October 29, 2014 Decided: December 8, 2014

Before NIEMEYER, WYNN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephen C. Leckar, KALBIAN & HAGERTY, LLP, Washington,
D.C., for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

On December 19, 2013, Dwight Gooding (“Appellant”) was

sentenced to 84 months of imprisonment, plus ten years of

supervised release, resulting from his guilty plea to a charge

of conspiracy to distribute heroin. During the sentencing

hearing, defense counsel did not say a single word on

Appellant’s behalf. Appellant now brings this direct appeal

asking us to find that the record conclusively establishes a

violation of his Sixth Amendment right to the effective

assistance of counsel.

The Supreme Court has stated, “[I]n most cases a

motion brought under [28 U.S.C.] § 2255 is preferable to direct

appeal for deciding claims of ineffective assistance.” Massaro

v. United States, 538 U.S. 500, 504 (2003). The reasons behind

this preference are clear. Above all else, collateral review

provides an opportunity for a full airing of the ineffectiveness

issue -- including any explanation the defense attorney might

offer for his conduct. Here, looking only at the record on

appeal, we are loath to accept Appellant’s argument that nothing

could justify defense counsel’s decision to remain silent --

particularly where the prosecutor actually spoke in support of

Appellant and recommended a below-guideline sentence, which

Appellant in fact received.

2
 Therefore, because the record before us does not

conclusively establish a constructive denial of counsel under

the standard set forth in United States v. Cronic, 466 U.S. 648

(1984), we decline to vacate Appellant’s sentence.

I.

The criminal case underlying this appeal was the

product of a 2012 police investigation into gang-related drug

trafficking in Appellant’s home city of Henderson, North

Carolina. Investigators with the Henderson Police Department

determined that members of a gang known as the “Money Mob Gang”

were selling large amounts of heroin, as well as marijuana

soaked in formaldehyde. The investigators further concluded

that armed gang members were committing robberies and assaults

to facilitate these sales.

During this investigation, officers arranged for a

confidential informant to purchase heroin from Appellant on two

occasions. Police estimate the total amount of heroin involved

in these transactions at 0.374 grams. 1 Separately, confidential

informants bought a firearm from an unindicted person in October

1
This is the estimated weight of heroin purchased in those
two transactions. Police alleged, though, that Appellant was
carrying an additional five or six bundles, or 0.725 grams, of
heroin at the time of the second transaction.

3
2012. Police alleged that the firearm belonged to Appellant,

and that the seller made the sale on Appellant’s behalf.

Police also obtained statements from six people

claiming to have knowledge about Appellant’s participation in

the illegal drug trade. One person alleged that Appellant

received ten bricks of heroin from a supplier each week.

Another person claimed to have observed Appellant sell heroin

more than 100 times.

In May 2013, a grand jury indicted Appellant on three

charges: one count of conspiracy to distribute and possess with

intent to distribute heroin in violation of 21 U.S.C. § 846,

plus two counts of knowing and intentional distribution of

heroin in violation of § 841(a)(1). Appellant accepted a plea

agreement in lieu of trial. Pursuant to the agreement,

Appellant pled guilty to the conspiracy charge and promised to

cooperate with the Government in its investigation. In

exchange, the Government agreed to drop the two distribution

charges.

The presentence investigation report (“PSR”)

calculated Appellant’s offense level under the United States

Sentencing Guidelines at 25. This calculation was based in part

on the probation officer’s determination that Appellant was

accountable for 158.85 grams of heroin and that Appellant

possessed firearms during his drug-trafficking activities.

4
Taking Appellant’s criminal history into consideration, 2 the

probation officer concluded that the Sentencing Guidelines

imprisonment range was 110 months to 137 months.

Appellant objected to several contentions in the PSR,

including the determination that he was accountable for 158.85

grams of heroin. Appellant initially asserted that he should

have been accountable for only 40 to 60 grams. In addition,

Appellant denied any involvement in the October 2012 firearm

sale. Appellant abandoned all of these objections prior to

sentencing.

The district court sentenced Appellant on December 19,

2013. The only words spoken by defense counsel during the

sentencing hearing came at the very beginning of the proceeding,

when counsel bid the judge good morning.

In his allocution, Appellant told the court that he is

grateful to God for helping him recognize “the wrongdoing that

2
Per the PSR, Appellant’s criminal history includes ten
convictions between 2006 and 2012. These include felony
convictions in 2009 for common law robbery; possession with
intent to manufacture, sell, or deliver marijuana; and
possession of a stolen firearm. The PSR notes that defense
counsel had objected to the inclusion of one conviction: a 2011
conviction for harassing phone call(s). Defense counsel claimed
the case had been dismissed, but the probation officer stated in
the PSR that he was able to confirm that this charge did result
in a conviction. Appellant’s brief asserts that defense counsel
abandoned the objection.

5
[he] was doing in the streets.” Supp. J.A. 4. 3 Appellant said

he knows he has to accept responsibility for his actions. He

proceeded to explain that he has cooperated with the government

“to the fullest extent, tell them everything that I possibly

could tell because I’m trying to get on a new path and new life

because now I’m living for my son.” Id.

The district court replied that Appellant has “a lot

to be sorry for.” Supp. J.A. 4. When Appellant told the court

that he was not “raised to even be in this situation,” id. at 5,

the court noted that Appellant had “a whole page of priors,

arrests anyway, right? . . . So they didn’t just pick the wrong

name and put a lot of heat on you, did they?” Id.

The prosecutor informed the court that Appellant was

“one of the very few defendants who have cooperated” in the

investigation of drug trafficking in Henderson. Supp. J.A. 6.

Information provided by Appellant had already been used against

three federal defendants, she said, and was likely to be used

against others in the future. The prosecutor further told the

court that in light of Appellant’s “vast assistance,” and the

general “lack of cooperation on the parts of others,” id. at 7,

3
Citations to the “Supp. J.A.” refer to the contents of the
Supplemental Joint Appendix filed by the parties in this appeal.

6
the Government was recommending a sentence of 66 months -- well

below the Sentencing Guidelines range.

The court then proceeded to direct a series of

questions at a Henderson Police Department lieutenant. In the

course of this inquiry, the court remarked that gun violence is

a significant problem in Henderson and asked the lieutenant

about the habits of Money Mob Gang members, including whether

they operate crack houses and sleep in their cars. Upon

concluding this line of questioning, the court turned to

Appellant:

THE COURT: What kind of gun do you usually
shoot with? It’s not a trick
question. I mean, you carried a
gun all your life, so what kind
of gun do you use? Do you carry
a great big .45 or carry a .32 or
.22? Just tell me, I’m curious.
You are a gun guy, right?

APPELLANT: Not no more, sir. I wasn’t since
my first incarceration.

THE COURT: Why is it so hard to get a
question answered?

APPELLANT: Before my incarceration I carried
a .380.

Supp. J.A. 13-14. The court then sentenced Appellant to 84

months of imprisonment, plus ten years of supervised release.

II.

Appellant argues on appeal that his lawyer’s silence

during the sentencing hearing presumptively prejudiced

7
Appellant. He asks us to vacate and remand for resentencing or,

alternatively, for a hearing on the issue of ineffectiveness.

Because the district court made no findings on this issue, our

review must be de novo. See United States v. Smith, 640 F.3d

580, 596 (4th Cir. 2011).

III.

A.

Our rules of procedure endeavor to “‘induce litigants

to present their contentions to the right tribunal at the right

time.’” Massaro v. United States, 538 U.S. 500, 504 (2003)

(quoting Guinan v. United States, 6 F.3d 468, 474 (7th Cir.

1993) (Easterbrook, J., concurring)). For criminal defendants

who wish to challenge their conviction or sentence on grounds of

ineffective assistance of counsel, our rules present three

options: (1) a motion for a new trial, 4 (2) a direct appeal, or

(3) a collateral challenge pursuant to 28 U.S.C. § 2255. See

United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).

4
Rule 33 of the Federal Rules of Criminal Procedure permits
a district court to “vacate any judgment and grant a new trial
if the interest of justice so requires.” Fed. R. Crim. P.
33(a). We have stated that an ineffective assistance claim “may
be brought as a motion for new trial based on ‘other grounds,’”
as provided in Rule 33(b)(2). United States v. Smith, 62 F.3d
641, 650 (4th Cir. 1995) (quoting Fed. R. Crim. P. 33). Such
motions, however, “must be filed within 14 days after the
verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). No
such motion was filed here.

8
Appellant has chosen the second option, despite this court’s

repeated warnings that we consider ineffective assistance claims

on direct appeal only under limited circumstances. See, e.g.,

United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995); Sneed

v. Smith, 670 F.2d 1348, 1354-55 (4th Cir. 1982) (per curiam);

United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970)

(per curiam).

The Supreme Court has explained why it is generally

preferable to bring an ineffective assistance claim via a § 2255

motion, rather than on direct appeal. In Massaro v. United

States, the Court reasoned that a district court will ordinarily

be “the forum best suited to developing the facts necessary to

determining the adequacy of representation during an entire

trial.” 538 U.S. at 505. A district court, it noted, may take

testimony from witnesses -- including, perhaps, the attorney who

allegedly rendered deficient performance. See id. This

opportunity is unavailable on direct appeal. Rather, the

appellate court must rely solely on trial records that are “not

developed precisely for the object of litigating or preserving

[an ineffective assistance] claim and thus [are] often

incomplete or inadequate” for the purpose at hand. Id. at 504-

05. The record may show what defense counsel did or did not

say, but the reviewing court can only speculate as to why

counsel did or did not say it.

9
 For these reasons, we have consistently held that a

defendant “may raise an ineffective assistance claim in the

first instance on direct appeal only where the ineffectiveness

conclusively appears from the record. Otherwise, ineffective

assistance claims should be raised in the district court in a

collateral proceeding under 28 U.S.C. § 2255.” United States v.

Russell, 221 F.3d 615, 619 n.5 (4th Cir. 2000) (citation

omitted) (internal quotation marks omitted).

With this in mind, we proceed to consider Appellant's

Sixth Amendment claim.

B.

Appellant argues that the trial record “confirms

conclusively” that defense counsel’s silence at the sentencing

hearing “fell below the Sixth Amendment’s threshold of

performance.” Appellant’s Br. 6. In United States v. Brown, we

indicated that an ineffectiveness claim is conclusively

established when the trial record “compel[s] the conclusion that

[counsel] was constitutionally ineffective.” 757 F.3d 183, 191-

93 (4th Cir. 2014). Our review of the record in this case

compels no such conclusion.

10
 The Sixth Amendment guarantees “[m]ore than a warm

body” at the defense table. 5 United States v. Smith, 640 F.3d

580, 589 (4th Cir. 2011) (internal quotation marks omitted).

Rather, a defendant is entitled to a “reasonably competent

attorney,” United States v. Cronic, 466 U.S. 648, 655 (1984)

(internal quotation marks omitted), who “plays the role

necessary to ensure that the trial is fair,” Strickland v.

Washington, 466 U.S. 668, 685 (1984). Thus, the Supreme Court

has said, “[t]he right to the effective assistance of counsel

is . . . the right of the accused to require the prosecution’s

case to survive the crucible of meaningful adversarial testing.”

Cronic, 466 U.S. at 656.

Most of the time, a Sixth Amendment ineffectiveness

claim will be analyzed under the two-part test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). See Harding v.

Lewis, 834 F.2d 853, 859 (9th Cir. 1987). Under the Strickland

test, a defendant must show, first, that counsel’s performance

was deficient, and, second, that the “deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687. We have

no occasion to apply the Strickland test here because Appellant

5
The Sixth Amendment states in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.”
U.S. Const. amend. VI.

11
has made no showing of prejudice. Indeed, Appellant conceded at

oral argument that Strickland does not govern his appeal.

Rather, Appellant asserts that this is one of those

rare cases in which we simply presume that counsel’s performance

prejudiced the defense. See James v. Harrison, 389 F.3d 450,

455 (4th Cir. 2004) (explaining that a presumption of prejudice

arises under “certain circumstances” in which “prejudice ‘is so

likely that case-by-case inquiry . . . is not worth the cost’”

(alteration in original) (quoting Strickland, 466 U.S. at 692));

see also Hollenback v. United States, 987 F.2d 1272, 1275 (7th

Cir. 1993) (outlining “an exception to the Strickland

standard . . . for certain circumstances that are so egregiously

prejudicial that ineffective assistance of counsel is

presumed”). In Cronic, the Supreme Court identified three

“circumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified.” 466 U.S. at 658. Those circumstances are: (1)

“when the defendant is completely denied counsel ‘at a critical

stage of his trial’”; (2) when “there has been a constructive

denial of counsel”; and (3) “‘when although counsel is available

to assist the accused during trial, the likelihood that any

lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of the

12
trial.’” Glover v. Miro, 262 F.3d 268, 275 (4th Cir. 2001)

(quoting Cronic, 466 U.S. at 659-60). “A finding of per-se

prejudice under any of these three prongs is an extremely high

showing for a criminal defendant to make.” Id. (internal

quotation marks omitted).

Appellant places this case in the second category,

arguing that his lawyer’s silence at the sentencing hearing

amounted to a constructive denial of counsel. A constructive

denial exists when “a lawyer ‘entirely fails to subject the

prosecution’s case to meaningful adversarial testing,’ thus

making ‘the adversary process itself presumptively unreliable.’”

Glover, 262 F.3d at 275 (quoting Cronic, 466 U.S. at 659). It

is not enough to allege that counsel was effective at some

points of a sentencing proceeding but ineffective at others;

rather, “the attorney’s failure must be complete.” Bell v.

Cone, 535 U.S. 685, 696-97 (2002).

Appellant contends that, in this case, “there was no

one speaking for the defendant at all” at the sentencing

hearing. Reply Br. 9. Not so. Appellant himself, with counsel

at his side, delivered a heartfelt allocutory statement

expressing remorse for his criminal conduct and asserting a

13
desire to change his ways. 6 More importantly, the prosecution

commended Appellant for his “vast assistance” in ongoing

criminal investigations and urged the court to issue a sentence

well below the Sentencing Guidelines range. The prosecution

made these statements without presenting any evidence against

Appellant at the sentencing hearing. Under the circumstances,

we cannot say a defense lawyer would be unwise to sit back and

let the Government do the talking. Cf. Warner v. Ford, 752 F.2d

622, 625 (11th Cir. 1985) (suggesting that, in an adversarial

proceeding, “[s]ilence can constitute . . . strategy.”).

The Government’s posture at Appellant’s sentencing

hearing distinguishes this case from several of the cases

Appellant cites in support of his position. In those cases, the

Government presented evidence that defense counsel neglected to

6
To be sure, an allocutory statement does not absolve a
defense attorney of his responsibility to effectively represent
his client. This case, however, does not require us to decide
whether defense counsel fell short of his obligations under the
Sixth Amendment, and we do not so do. The question before us is
simply whether the record on direct appeal conclusively
establishes a constructive denial of counsel under Cronic. In
this context, we find Appellant’s allocutory statement worthy of
note. Without a fully developed record, there is no way to know
whether it was a strategic decision for Appellant to speak in
lieu of counsel, nor whether defense counsel played some role in
helping Appellant craft his statement.

14
challenge. 7 See Miller v. Martin, 481 F.3d 468, 473 (7th Cir.

2007) (per curiam) (finding a constructive denial of counsel at

a sentencing hearing in which the defense lawyer, by his own

admission, “did not offer a shred of mitigating evidence,”

object to errors in the PSR, or “even lobby for a sentence lower

than the one urged by the State”); Patrasso v. Nelson, 121 F.3d

297, 303-05 (7th Cir. 1997) (holding that defense counsel was

constitutionally ineffective for failing to rebut adverse

evidence at the sentencing hearing); Harding v. Davis, 878 F.2d

1341, 1343 (11th Cir. 1989) (presuming prejudice under Cronic

where defense counsel was silent throughout client’s criminal

trial). In Patrasso v. Nelson, the Seventh Circuit condemned as

“especially grievous” defense counsel’s failure to even attempt

to contradict the prosecution’s case at sentencing, given that

“the facts and circumstances presented [by the prosecution] at

trial and relied upon heavily at sentencing were one-sided and

very possibly inaccurate.” 121 F.3d at 304-05. Here, by

contrast, there was no case for the defense to contest.

Instead, Appellant’s gripe with defense counsel, it

would seem, is not that he failed to challenge the prosecutor,

but rather that he failed to challenge the court. See

7
We note as well that the Sixth Amendment ineffectiveness
claims in these cases were presented in habeas petitions, rather
than on direct appeal.

15
Appellant’s Br. 13 (asserting that “the district judge’s

attitude towards the defendant was troubling,” and that the

judge’s “brusqueness should have set off an amber light to

defense counsel that intercession was necessary”). This is a

very different sort of complaint, as it raises potentially

complex questions about the interchange between counsel and the

bench. No doubt, there will be times when the tenor of a

court’s colloquy might well persuade counsel that silence is his

best option. 8

This is not an instance of a lawyer sleeping through

trial. See, e.g., Burdine v. Johnson, 262 F.3d 336, 341 (5th

Cir. 2001) (en banc) (holding that “a defendant’s Sixth

Amendment right to counsel is violated when that defendant’s

counsel is repeatedly unconscious through not insubstantial

portions of the defendant’s capital murder trial”); Tippins v.

8
Appellant identifies four matters that, in his view,
defense counsel should have brought to the court’s attention --
specifically, Appellant’s “poly-substance abuse,” his parents’
gainful employment, his “stable relationship with his infant son
and the baby’s mother,” and his efforts at rehabilitation.
Appellant’s Reply Br. 13 (internal quotation marks omitted).
Counsel might also have noted that Appellant was making
voluntary child support payments at the time of his arrest. In
fact, though, Appellant’s allocutory statement referred to both
his love for his son and his efforts to turn his life around.
Interrupting the court’s colloquy to raise these points again
would have been redundant and quite possibly unwise. Moreover,
each of these points was addressed in the PSR, and it is not at
all clear what the defense stood to gain from mentioning them
again.

16
Walker, 77 F.3d 682, 687 (2d Cir. 1996) (concluding that a

criminal defendant “suffered prejudice, by presumption or

otherwise, if his counsel was repeatedly unconscious at trial

for periods of time in which defendant’s interests were at

stake”); Javor v. United States, 724 F.2d 831, 833 (9th Cir.

1984) (“[W]hen an attorney for a criminal defendant sleeps

through a substantial portion of the trial, such conduct is

inherently prejudicial and thus no separate showing of prejudice

is necessary.”). Nor, for that matter, does this case resemble

other out-of-circuit cases that Appellant commends to our

attention. In one of those cases, Martin v. Rose, an attorney

who mistakenly believed that mounting a defense at his client’s

sex offense trial would waive his pretrial motions declared in

open court that he would not participate in the trial. See 744

F.2d 1245, 1247-48 (6th Cir. 1984). Such “total lack of

participation,” the Sixth Circuit held, was “constitutional

error even without any showing of prejudice.” Id. at 1250-51.

A similarly ill-conceived approach was at work in

Miller v. Martin. There, a defense attorney instructed his

client to keep silent throughout the sentencing hearing,

apparently because he expected the appellate court would agree

to order a new trial. 481 F.3d at 470. The lawyer decided that

he, too, would remain mute, except to inform the sentencing

court that his client did not recognize the court’s authority.

17
Id. The Seventh Circuit held that counsel’s “advocacy at

sentencing was so non-existent as to fall within even [Cronic’s]

very narrow exception.” Id. at 473.

The case before us is different. Counsel in this case

neither disclaimed his responsibilities nor declared his

resistance to the court’s jurisdiction. He simply kept mum,

permitting the prosecution to advocate for a below-guideline

sentence. Based solely on our review of the record before us,

we cannot say that this decision was so indicative of prejudice

that a case-specific inquiry would not be worthwhile.

IV.

As Appellant concedes, it is well settled in this

circuit that “a claim of ineffective assistance should be raised

in a 28 U.S.C. § 2255 motion in the district court.” United

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

quotation marks omitted). Nevertheless, Appellant argues that,

at the very least, we ought to remand his case to the district

court with instructions to conduct a full hearing on his

ineffective assistance claim. Appellant has not persuaded us

that remand would be proper in this case.

There is widespread agreement among our sister

circuits that post-conviction proceedings are generally the

proper avenue for ineffective assistance claims. See, e.g.,

United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012);

18
United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir.

2010); United States v. Yauri, 559 F.3d 130, 133 (2d Cir. 2009);

United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006); United

States v. Medina, 427 F.3d 88, 91 (1st Cir. 2005); United States

v. Gordon, 346 F.3d 135, 136 (5th Cir. 2003) (per curiam);

United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003); cf.

United States v. Flores, 739 F.3d 337, 341-42 (7th Cir. 2014)

(advising criminal defendants that § 2255 “affords the only

realistic chance of success” on a claim of ineffective

assistance). But see United States v. Todd, 287 F.3d 1160, 1164

(D.C. Cir. 2002) (providing that “where, as here, an ineffective

assistance claim cannot be resolved on the current record, this

circuit remands”). Two of those circuits, the Second and Third,

have found reason to remand for proceedings in the district

court, but in limited circumstances. While the Second Circuit

has indicated that it ordinarily would not remand an ineffective

assistance claim, it made an exception in a case where the

Government consented to a remand on a separate ineffectiveness

claim. See Yauri, 559 F.3d at 133. Similarly, in Government of

the Virgin Islands v. Vanterpool, the Third Circuit reaffirmed

its general practice of eschewing ineffective assistance claims

on direct appeal but remanded because the appellant would have

been ineligible for collateral relief. See 767 F.3d 157, 163-64

(3d Cir. 2014).

19
 Neither of these circumstances is presented here.

Instead, Appellant argues that remand is appropriate because his

claim of ineffectiveness is strong, and because relegation to a

§ 2255 proceeding “would be inefficient in the extreme.”

Appellant’s Br. 19. Our court, however, is not in the habit of

deciding which claims, if any, are so strong that the efficiency

of remand would be preferable to collateral review. Rather, we

have clearly and consistently stated that a § 2255 motion is the

“proper avenue” for claims ill suited for review on direct

appeal. United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010). Appellant has given us no reason to deviate from

this practice. Appellant may pursue his ineffective assistance

claim by filing a timely motion for habeas relief under § 2255,

if he so desires.

V.

For the foregoing reasons, the judgment of the

district court is

AFFIRMED.

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