United States v. Carol Gauvreau , 675 F. App'x 388 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4209
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CAROL GAUVREAU,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:15-cr-00272-GBL-IDD-1; 1:15-po-00935-IDD-1)
Submitted: January 31, 2017 Decided: February 8, 2017
Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Phoenix A. Harris, HARRIS & CARMICHAEL PLLC, Alexandria,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Rachel G. Hertz, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a bench trial before a magistrate judge, Carol
Gauvreau was convicted of speeding and driving under the
influence. ∗ Pursuant to Fed. R. Crim. P. 33, Gauvreau moved for
a new trial based on ineffective assistance of trial counsel.
The magistrate judge denied the motion. Gauvreau appealed to
the district court, which also denied the motion. Gauvreau now
appeals the denial of her motion for a new trial to this court,
raising the same three claims of ineffective assistance of
counsel she presented below: (1) counsel was ineffective for
failing to challenge the accuracy of the laser speed detection
device based on its outdated calibration certificate;
(2) counsel was ineffective for failing to introduce evidence of
Gauvreau’s knee injury by way of a June 2015 MRI report; and
(3) counsel was ineffective for failing to introduce evidence of
Gauvreau’s prescription history.
Fed. R. Crim. P. 33 provides that, “[u]pon the defendant’s
motion, the court may vacate any judgment and grant a new trial
if the interest of justice so requires.” Fed. R. Crim. P.
33(a). Claims of ineffective assistance of counsel may be
brought as the basis for a motion for new trial under Fed. R.
∗ Gauvreau was also convicted of reckless driving, but that
conviction was subsequently vacated by the district court.
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Crim. P. 33. United States v. Russell, 221 F.3d 615, 619 (4th
Cir. 2000). “Although generally not raised in the district
court nor preserved for review on appeal, ineffective assistance
claims asserted in motions under Rule 33 — and ruled on by the
district court — may be considered on direct appeal.” Id. We
review the denial of such a motion for abuse of discretion. Id.A district court abuses its discretion when it (1) acts
“arbitrarily, as if neither by rule nor discretion,” (2) fails
to “adequately . . . take into account judicially recognized
factors constraining its exercise” of discretion, or (3) rests
its decision on “erroneous factual or legal premises.” James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
Rule 33 motions alleging ineffective assistance of counsel
“must satisfy the two-pronged test articulated by the Supreme
Court in Strickland v. Washington, [466 U.S. 668, 687 (1984)]”.
Russell, 221 F.3d at 620. The movant must show, first, that
counsel’s performance was objectively unreasonable in “that
counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. In scrutinizing
counsel’s performance, “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. Second,
the movant must show that her defense was prejudiced by
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counsel’s deficient performance. Id. at 687. To demonstrate
prejudice, the movant must show “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. Counsel’s
errors must have been “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id. at 687.
Thus, a movant “must demonstrate that but for counsel’s errors,
there is a reasonable probability that [s]he would not have been
convicted.” United States v. Luck, 611 F.3d 183, 186 (4th Cir.
2010).
We have reviewed the record and relevant legal authorities
and conclude that Gauvreau fails to satisfy the requirements of
Strickland. Because the district court did not abuse its
discretion in denying Gauvreau’s Rule 33 motion for a new trial,
we affirm the judgment of the district court. 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
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