UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4614
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TODD SHONTE TYSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever, III,
Chief District Judge. (4:10-cr-00069-D-1)
Submitted: January 10, 2012 Decided: January 23, 2012
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Cooper, COOPER, DAVIS & COOPER, Fayetteville, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Todd Shonte
Tyson pled guilty to conspiracy to distribute and possess with
intent to distribute fifty grams or more of cocaine base and 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)
(2006). He was sentenced to 216 months in prison. Tyson now
appeals. We affirm.
Tyson’s presentence investigation report (PSR) stated
that he was responsible for 3705.915 grams of crack cocaine,
239.525 grams of cocaine, and 27.59 grams of marijuana, for a
marijuana equivalency of 74,166.232 kilograms, resulting in a
base offense level of 38. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c)(1) (2009). The level was reduced to 36 in accordance
with USSG 2D1.1 & cmt. (n.10(D)(1)). Tyson disputed the
accuracy of certain information in the PSR related to drug
amounts. His probation officer stated that the Government
should be prepared to offer evidence in support of the contested
amounts at sentencing.
Rather than requiring the Government to offer such
evidence, however, defense counsel conceded that information
Tyson had provided the Government established that he was
responsible for a marijuana equivalency of 30,000 kg. and that
the PSR reflected the correct base offense level. Thus, it was
unnecessary for the court to hear evidence on the drug amounts
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in question. The court found that the PSR correctly set the
base offense level at 36.
Tyson claims on appeal that counsel was ineffective
for failing to require the Government to offer proof as to the
disputed amounts. He notes that his plea agreement provided,
pursuant to U.S. Sentencing Guidelines Manual § 1B1.8 (2009),
that:
self-incriminating information provided by the
Defendant pursuant to this Agreement shall not be used
against the Defendant in determining the applicable
advisory Guideline range, except as provided by
§ 1B1.8 and except as stated in this Agreement.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal unless the record
conclusively establishes counsel’s “objectively unreasonable
performance” and resulting prejudice. United States v. Benton,
523 F.3d 424, 435 (4th Cir 2008). Rather, to allow for adequate
development of the record, a defendant ordinarily should bring
his ineffective assistance claim, if at all, in a 28 U.S.C.A.
§ 2255 (West Supp. 2011) motion. United States v. Baptiste, 596
F.3d 214, 216 n.1 (4th Cir. 2010). Here, the record does not,
on its face, establish ineffective assistance.
We accordingly affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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