UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN HERBERT TRAPP, a/k/a Lil Herb,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:09-cr-00502-JFA-13)
Submitted: December 22, 2011 Decided: February 16, 2012
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Edye U. Moran, MORAN LAW OFFICES, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Stacey
D. Haynes, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ruben Herbert Trapp pled guilty, with the benefit of a
written plea agreement, to distribution of five grams or more of
crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)
(2006). The district court sentenced Trapp to 168 months’
imprisonment. On appeal, Trapp argues his plea counsel’s
ineffective assistance rendered his guilty plea unknowing and
involuntary and seeks to have his conviction reversed. During
the pendency of this appeal, the parties filed a joint motion to
vacate Trapp’s sentence and remand this case to the district
court to allow Trapp to be resentenced in accordance with the
Fair Sentencing Act of 2010 (FSA). Based on our consideration
of the record in this case, we affirm Trapp’s conviction, grant
the parties’ joint motion, vacate the sentence, and remand to
the district court for resentencing.
The Government offered Trapp an opportunity to plead
to a cocaine conspiracy charge or a substantive cocaine
distribution offense. He chose the latter. Apparently now
regretting his choice, Trapp asserts that his plea counsel’s
misadvice caused him to choose the plea agreement with the more
onerous sentencing consequences. He does not claim he would
have instead insisted upon going to trial on the charge against
him but for counsel’s alleged error. See Hill v. Lockhart, 474
U.S. 52, 59 (1985) (holding prejudice in ineffective assistance
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claim can be established in guilty plea context only upon
showing “a reasonable probability that, but for counsel’s
errors, [the defendant] would not have pleaded guilty and would
have insisted on going to trial”). We have carefully reviewed
the record in this case and have determined that no conclusive
evidence of ineffective assistance of counsel appears on the
face of this record. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997) (providing standard). Thus, Trapp’s
ineffective assistance claim is not cognizable on direct appeal,
but must, instead, be litigated in an appropriate proceeding for
post-conviction relief. Accordingly, we affirm Trapp’s
conviction.
Turning to the joint motion to remand, we grant the
parties’ motion to vacate Trapp’s sentence and remand to the
district court to permit that court to determine whether Trapp
may be resentenced in accordance with the FSA. By this
disposition, however, we indicate no view as to whether the FSA
is retroactively applicable to a defendant, like Trapp, whose
offense was committed prior to the August 3, 2010, effective
date of the Act, but who was sentenced after that date, leaving
that determination in the first instance to the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED IN PART;
VACATED IN PART;
AND REMANDED
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