United States v. Lawrence McNeill , 589 F. App'x 128 ( 2014 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4408
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    LAWRENCE MCNEILL,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.   James C. Dever III,
    Chief District Judge. (5:12-cr-00269-D-1)
    Submitted:   December 19, 2014             Decided:   December 30, 2014
    Before KING, GREGORY, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Lee Ann Anderson McCall, Amanda F. Davidoff, Kara D. Hughley,
    SULLIVAN & CROMWELL LLP, Washington, D.C., 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    Unpublished opinions are not binding precedent in this circuit.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:
    Lawrence McNeill appeals the criminal judgment entered
    by the district court after he pled guilty to conspiracy to
    distribute,           and     possess        with    intent      to     distribute,     five
    kilograms or more of cocaine and 280 grams or more of cocaine
    base,      in   violation       of    21     U.S.C.    841(a)(1)       (2012).     McNeill
    argues that the prosecutor committed misconduct by vindictively
    filing      a    superseding         indictment ∗      and    that      counsel   provided
    ineffective assistance by withdrawing her objection to the drug
    quantity applied at sentencing.                     We affirm.
    “To         establish        prosecutorial            vindictiveness,     a
    defendant must show, through objective evidence, that (1) the
    prosecutor acted with genuine animus toward the defendant and
    (2) the defendant would not have been prosecuted but for that
    animus.”        United States v. Wilson, 
    262 F.3d 305
    , 314 (4th Cir.
    2001).       “If the defendant is unable to prove an improper motive
    with       direct      evidence,        he     may    still      present     evidence    of
    circumstances from which an improper vindictive motive may be
    presumed.”            
    Id. Because McNeill
        failed       to   challenge   the
    superseding indictment in the district court, we review this
    ∗
    The Government argues that this claim is barred by the
    appellate waiver in McNeill’s plea agreement.  However, McNeill
    only waived the right to direct appeal of his sentence, and did
    not waive the right to appeal his conviction.
    2
    claim for plain error.               United States v. Olano, 
    507 U.S. 725
    ,
    731-32 (1993).
    McNeill argues that a presumption of vindictiveness is
    warranted where, as here, the Government files a superseding
    indictment    while     plea     negotiations           are    ongoing       without    first
    warning    the     defendant.            The    controlling         precedent        does   not
    indicate plainly that the circumstances of this case warrant
    such a presumption.             See United States v. Carthorne, 
    726 F.3d 503
    , 516 (4th Cir. 2013) (internal quotation marks omitted),
    cert.   denied,      134   S.    Ct.      1326      (2014)     (discussing        standard).
    Accordingly, we find no plain error.
    We decline to reach McNeill’s claim that counsel was
    ineffective at sentencing.                Unless an attorney’s ineffectiveness
    conclusively       appears      on   the       face    of    the    record,      ineffective
    assistance claims are not generally addressed on direct appeal.
    United States v. Benton, 
    523 F.3d 424
    , 435 (4th Cir. 2008).
    Instead,    such     claims      should        be     raised    in      a   motion    brought
    pursuant     to    28   U.S.C.       §    2255      (2012),        in    order   to    permit
    sufficient        development        of    the      record.             United   States     v.
    Baptiste, 
    596 F.3d 214
    , 216 n.1 (4th Cir. 2010).                             Because there
    is no conclusive evidence of ineffective assistance of counsel
    on the face of the record, we conclude that this claim should be
    raised, if at all, in a § 2255 motion.
    3
    Accordingly, we affirm the district court’s judgment.
    We   dispense   with   oral   argument   because    the   facts   and   legal
    contentions     are   adequately   presented   in   the   materials     before
    this court and argument would not aid the decisional process.
    AFFIRMED
    4
    

Document Info

Docket Number: 14-4408

Citation Numbers: 589 F. App'x 128

Judges: King, Gregory, Shedd

Filed Date: 12/30/2014

Precedential Status: Non-Precedential

Modified Date: 11/6/2024