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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13993
Non-Argument Calendar
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D.C. Docket No. 3:17-cr-00028-CAR-CHW-5
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
LACHIEVIOUS SMITH,
a.k.a. Chief,
a.k.a. Cheese,
a.k.a. Chiev,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
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(May 2, 2019)
Before MARTIN, NEWSOM and FAY, Circuit Judges.
PER CURIAM:
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Lachievious Smith appeals his 200-month sentence, imposed after he pled
guilty to one count of distribution of crack cocaine, in violation of 21 U.S.C. §
841(a)(1), (b)(1)(C), and 18 U.S.C. § 2. He argues for the first time on appeal that
he was provided ineffective assistance of counsel during sentencing because his
court-appointed counsel: (1) failed to assert any 18 U.S.C. § 3553(a) factors
warranting a variance; (2) should have known that the court could vary downward
from the guideline range even though he was classified as a career offender;
(3) failed to offer mitigating evidence or argument based on his personal history
and circumstances or the nature and history of the offense conduct; (4) failed to
seek a full three-level reduction for acceptance of responsibility; and (5) should
have argued that a downward departure was warranted because his criminal history
category of VI overstated the seriousness of his past conduct.
Whether a defendant has received ineffective assistance of counsel is a
mixed question of fact and law we review de novo. Payne v. United States,
566
F.3d 1276, 1277 (11th Cir. 2009). To succeed on an ineffective-assistance claim, a
defendant must show that (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense. Id. The proper measure of attorney
performance is “reasonableness under prevailing professional norms.” Strickland
v. Washington,
466 U.S. 668, 688,
104 S. Ct. 2052, 2065 (1984). Counsel is
“strongly presumed” to have rendered adequate assistance and to have exercised
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reasonable professional judgment. Id. at 690, 104 S. Ct. at 2066. To prove
prejudice, a defendant must show that there is a reasonable probability that the
outcome would have been different but for counsel’s unprofessional errors. Id.
at 694, 104 S. Ct. at 2068.
“Except in the rare instance when the record is sufficiently developed, we
will not address claims for ineffective assistance of counsel on direct appeal.”
United States v. Merrill,
513 F.3d 1293, 1308 (11th Cir. 2008) (alteration omitted)
(quoting United States v. Verbitskaya,
406 F.3d 1324, 1337 (11th Cir. 2005)).
Instead, a 28 U.S.C. § 2255 motion to vacate is preferable to direct appeal for
deciding ineffective-assistance-of-counsel claims. Massaro v. United States,
538
U.S. 500, 504,
123 S. Ct. 1690, 1693-94 (2003). We generally require that the
district court have an opportunity to examine an ineffective-assistance-of-counsel
claim raised by a defendant because the factual basis for such claims are “almost
never developed before a direct appeal” and can be established on collateral
review. United States v. Padgett,
917 F.3d 1312, 1317 (11th Cir. 2019) (citing
United States v. Arango,
853 F.2d 818, 823 (11th Cir. 1988)).
Smith asserts that his counsel’s failure to challenge his career-offender status
and misstatement of the law regarding the consequences of that status amounted to
ineffective assistance per se, thereby negating the need to further develop the
record. That argument is unpersuasive. First, Smith points to objections or
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arguments his counsel could have made against his career-offender status or in
favor of a downward departure or variance. However, there is nothing in the
record reflecting why counsel failed to raise those objections or arguments, the
details of Smith’s prior state-court convictions giving rise to his career-offender
status, or the circumstances surrounding the plea agreement, all of which constitute
evidence that could be elicited during an evidentiary hearing held on collateral
review. Second, the absence of evidence regarding counsel’s considerations and
decision-making renders speculative any determination we may reach regarding
the reasonableness of his conduct under prevailing professional norms. Strickland,
466 U.S. at 688, 104 S. Ct. at 2065. Finally, the lack of relevant evidence makes it
difficult to determine whether there was a reasonable probability that Smith would
have received a different sentence absent the alleged errors. Id. at 694, 104 S. Ct.
at 2068.
Because the record is devoid of evidence relevant to his ineffective-
assistance claim, we decline to address the merits of that claim for the first time on
direct appeal. See Massaro, 538 U.S. at 504, 123 S. Ct. at 1693-94; Merrill, 513
F.3d at 1308.
AFFIRMED.
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