UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4366
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALLEN WAYNE POSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00239-RJC-1)
Submitted: January 26, 2012 Decided: February 3, 2012
Before DUNCAN, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Allen Wayne Poston pled guilty, with the benefit of a
written guilty plea, to wire fraud and aiding and abetting the
same, in violation of 18 U.S.C.A. § 1343 (West 2000 & Supp.
2011), and 18 U.S.C. § 2 (2006). Subsequent to the entry of his
guilty plea, but prior to the imposition of sentence, Poston
moved to withdraw his guilty plea. The district court denied
the motion. As a result of Poston’s failed motion to withdraw
his guilty plea, the probation officer revised Poston’s
presentence report (PSR) to eliminate the three-level downward
adjustment for acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1 (2010). This revision led
to an increase in the applicable Guidelines sentencing range of
from forty-one to fifty-one months to the new range of fifty-
seven to seventy-one months. At sentencing, Poston objected to
the loss of the acceptance-of-responsibility adjustment. The
district court overruled Poston’s objection but imposed a
variant sentence of forty-eight months’ imprisonment. As part
of its explanation of sentence, the district court stated the
forty-eight-month sentence “would have been in the high end of
the otherwise applicable guideline range” had “the original
acceptance of responsibility” downward adjustment still applied.
Poston appeals, arguing that trial counsel rendered
ineffective representation when he moved to withdraw Poston’s
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guilty plea. Poston claims counsel’s deficient performance
prejudiced him because the loss of the acceptance-of-
responsibility adjustment led to an “unduly harsh sentence.” *
We may address a claim of ineffective assistance on
direct appeal only if the lawyer’s ineffectiveness conclusively
appears on the record. United States v. Baldovinos, 434 F.3d
233, 239 (4th Cir. 2006). To prove his ineffective assistance
claim, Poston must show (1) “that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). With respect to the first prong, “the defendant must
show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. In addition,
“[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. Under the second prong of the test,
“[t]he defendant must show that there is a reasonable
*
Poston’s plea agreement also included an appeal waiver, in
which Poston waived the right “to contest a conviction and/or
sentence through an appeal or post conviction” proceeding unless
the claims raised involved ineffective assistance of counsel or
prosecutorial misconduct. The Government asserts the portion of
Poston’s appeal attacking his sentence should be dismissed based
upon Poston’s appeal waiver. We have carefully considered the
Government’s position and have concluded, because Poston argues
his increased sentence was the prejudice that resulted from his
counsel’s alleged ineffective assistance, that Poston’s
sentencing argument is part of his ineffective assistance claim
and falls outside the scope of his appellate waiver.
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probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at
694. Finally, we need not address both components of the
Strickland test if the defendant makes an insufficient showing
as to either part of the test. Id. at 697.
We conclude Poston has failed to point to conclusive
evidence on this record establishing ineffective assistance of
counsel. The only prejudice Poston asserts is the loss of the
acceptance-of-responsibility downward adjustment in his offense
level. At the sentencing hearing, however, the district court’s
explanation of its sentencing judgment persuades us that it
would have imposed the same sentence even if Poston’s original
forty-one to fifty-one month Guidelines range had remained
unchanged. Thus, Poston cannot demonstrate he received a longer
sentence as a result of trial counsel’s motion to withdraw the
guilty plea. We therefore affirm the district court’s judgment.
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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