United States v. Husband , 119 F. App'x 475 ( 2005 )

Vacated by Supreme Court, October 3, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JIMMY RICHARD HUSBAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (CR-02-125)
Argued: September 30, 2004 Decided: January 11, 2005
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Wilkinson and Judge Shedd joined.
ARGUED: Marcia Gail Shein, Decatur, Georgia, for Appellant. Arenda
L. Wright Allen, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Paul J. McNulty, United States Attorney, Michael J. Elston,
Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
GREGORY, Circuit Judge:
In April 2003, Jimmy Richard Husband (“Husband” or
“Appellant”) pled guilty in the United States District Court for
the Eastern District of Virginia to eight counts of sexual
exploitation of a minor in violation of 18 U.S.C. § 2251(a) and
(d). The court accepted Husband’s plea and subsequently sentenced
him to 87 months of imprisonment for each of the eight counts and
ordered that the sentences be run consecutively, for a total of 696
months, followed by eight three-year periods of supervised release,
also to be run consecutively. Husband timely appeals on five
grounds: (1) that he was prosecuted and convicted of crimes for
which the governing statute of limitation had expired; (2) that his
plea was not voluntary and knowing under Fed. R. Crim. P. 11
because the court misinformed him of the actual penalty he could
face; (3) that the court failed to establish an adequate factual
basis for accepting his plea; (4) that the court violated the
Sentencing Guidelines by sentencing him to consecutive rather than
concurrent terms; and (5) that his counsel ineffectively assisted
him because his counsel failed to raise and argue the statute of
limitations defense.
None of Husband’s grounds for appeal is meritorious.
Accordingly, we affirm.
2
I
The immediately following facts are admitted by Appellant:
“Jane Doe,”1 Husband’s daughter by adoption and the primary victim
in this case, was born in late 1979. In 2001, Husband and his
family relocated to Newport News, Virginia from West Monroe, New
York. On January 8, 2002, a videotape was discovered that depicted
eight scenes of Jane Doe in sexually explicit activities. Three
days later, Husband was arrested and charged with possession of
child pornography.
The record makes plain that these events then occurred. On
October 15, 2002, a federal grand jury returned a twenty-count
indictment against Husband, alleging seventeen counts of sexual
exploitation of a minor in violation of 18 U.S.C. § 2251(a) and
(d), one count of transportation of child pornography in violation
of 18 U.S.C. § 2252A(a)(1) (“Count 18"), and two counts of
possession of child pornography, both in violation of 18 U.S.C. §§
2252A(a)(5)(B) and 2256(1) and (2) (“Counts 19 and 20"). On
December 16, 2002, Husband pled not guilty to all counts, and a
jury trial was scheduled. On March 27, 2003, after numerous
pretrial motions and pleadings, the district court dismissed the
last nine sexual exploitation counts upon the United States’ motion
1
Out of respect of the victim, we will attempt to minimize
revelation of details that would reveal her identity.
Unfortunately, the details of this case often make it difficult to
do so.
3
because the conduct charged in those counts took place after Doe
turned eighteen years old, leaving only counts one through eight to
survive. On April 7, 2003, immediately before the jury trial was
scheduled to begin, and without the benefit of a plea agreement,
Husband pled guilty to the sexual exploitation counts remaining
against him. The court subsequently dismissed counts eighteen
through twenty with prejudice.
The facts that are most relevant for this appeal took place at
the plea hearing. After the judge established Husband’s
competence, Husband indicated that he wished to plead guilty. The
following exchange then occurred between the court and Husband:
THE COURT: And the maximum possible penalty on each of
these counts, then, Mr. Husband, is a maximum of 20 years
imprisonment and a minimum of ten years. Do you
understand that penalty?
THE DEFENDANT: Yes, ma’am.
J.A. 35. After establishing that Husband would be a felon and lose
substantial rights if he pled guilty, the court then informed him
that, “in relation to any sentence that the court will impose, the
United States sentencing guidelines are in effect[,]” J.A. 35-36,
and that, “ultimately under the law, it is up to the court to
sentence you under the federal sentencing guidelines.” J.A. 46.
Husband acknowledged his assent, admitting that he had discussed
the Guidelines with his attorney, and also acknowledged that, under
the Guidelines he would be sentenced based not only on “the crimes
to which you are pleading guilty, but all of your relevant criminal
4
conduct in regard to the crimes to which you are pleading
guilty[.]” J.A. 36. The district court then reaffirmed that “you
are pleading guilty to the indictment, counts 1 through 8, and
those all involve charges of sexual exploitation of a minor[,]”
J.A. 37, and restated each count. The judge then clarified that
Husband would be subject to supervised release, “not more than
three years on each count.” J.A. 42. After noting that Husband
would not later be able to withdraw his guilty plea because he did
not like the sentence, the following statements were made:
THE COURT: In other words, without a background
presentence report, Mr. Husband, the only promise that I
can make to you today is that your sentence on counts 1
through 8 would be somewhere between a minimum of 10
years and a maximum of 20; do you understand?
THE DEFENDANT: Yes, ma’am.
J.A. 47. Finally, after ensuring that Husband had no questions
about the sentencing guidelines or their application to his case,
and ensuring with Husband’s attorney that no meritorious defenses
existed, the district court finally allowed Husband to plead
guilty.
The government then proffered evidence of Husband’s guilt.
The evidence included a videotape of the defendant sexually
exploiting his minor daughter on multiple occasions in their New
York home. The videotape was discovered by Husband’s other
daughter on January 8, 2002 in Newport News, Virginia. Also
included was an oral confession by Husband that he engaged in
sexual activity with Doe and videotaped it over a five- to six-year
5
period. Husband also handwrote a two-page statement corroborating
his oral admissions and noting that his sexual desire for Doe began
when she was “about six or eight.” J.A. 53.2 After the proffer,
the following exchange occurred:
THE COURT: All right.... Mr. Collins, you have heard
what the United States claims it could prove had you
called upon it to present a case against this defendant.
Do you agree with the proffer?
MR. COLLINS: I agree that would be their evidence, yes
ma’am.
THE COURT: Mr. Husband, do you agree with the proffer?
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you still wish to plead guilty?
MR. HUSBAND: Yes, ma’am.
THE COURT: All right. Then, based upon your guilty pleas
and the government’s proffer of evidence and your
agreement therewith, I would find as a fact that you did
commit the sexual exploitation of a minor, as set forth
in counts 1 through 8 of the indictment, and I accept
your guilty pleas.
J.A. 58-59.
The Presentence Investigation Report (“PSR”) concluded that
the offenses occurred in 1995 and 1996, so the appropriate
Guidelines were from 1995, which relied on a statutory scheme with
a maximum penalty of 10 years per count (not 20, as the judge
stated, apparently relying upon a later version of the Guidelines).
The PSR also found that the offense level was 27 and that Husband’s
criminal history category was I, which totaled 70-87 months, and
2
His written admission, however, claimed “oral sex was never
done to climax, and there was never penetration of her vagina or
anus by me or any other object.” J.A. 54. The government
proffered a number of witnesses who would refute this claim.
6
that an upward departure may be warranted. The government filed
its position on Husband’s sentence on June 30th, and Husband filed
a “Response... to the Government’s Motion for Upward Departure” on
July 9th.
The sentencing hearing took place on July 15th, 2003.
Husband’s counsel did not object to the PSR. He did, however, say
he spoke with someone in the probation office, “who assured us that
the standard is concurrent sentences.” J.A. 117. The judge
interrupted immediately, stating,
Im not going to accept any such argument on the
record.... I want to make the record clear, there was no
plea agreement whatsoever in this case.... I asked him if
any promise had been made to him in return for the plea,
and he said no. And I made it clear to him that he faced
20 years.
J.A. 117. After more discussion by the judge as to why a probation
officer’s statements were inapposite, Husband’s counsel replied, “I
just wanted the court to be aware that that was a primary
consideration in the entering of a plea,” J.A. 118, whereupon the
judge cut counsel off again, making clear that the court would not
hear such arguments:
THE COURT: Frankly, if you want to know the truth, it
matters not to me, because if that was a primary
consideration, then that should have been made known to
the court, and it was never made known to the court....
I know what the plea colloquy was, and I know that it was
never discussed that sentences would run concurrently.
I advised him that he could get 20 years on each count of
conviction. That’s what he was advised of.
7
MR. COLLINS: Yes, ma’am. Nothing further.
THE COURT: All right.
J.A. 118-19.
In support of its request for an upward departure, the
government called four witnesses – the case agent, the victim, the
victim’s mother, and a clinical social worker – to testify to the
especially heinous and prolonged nature of the sexual abuse. We
will spare the reader the details by noting only that the evidence
was, simply put, sad, horrible, and clearly damning.
The court took great pains to establish adequate grounds for
Husband’s sentence by noting that the prolonged and heinous and
degrading behavior over an extremely long period of time along with
the repetitive nature of the conduct was sufficient to upwardly
depart. But, it generally appears that, in fact, the court never
officially granted the motion for upward departure. See infra n.
7. Rather, the court simply sentenced Husband to 87 months for
each count to run consecutively for a total of 696 months, in
apparent belief that this was appropriate absent an upward
departure. In justifying the decision, the court noted,
So basically I would find that there are all of these
grounds to depart upward. If for some reason the
consecutive sentences don’t hold, I want to make it clear
that this would be an alternative grounds for the court
to depart upward. However, I’m of the opinion that in
this particular case I do not believe that the sentence
imposed on the counts and letting them run concurrently
would be at all adequate under the factors set forth in
the law. The sentence would be somewhere between – 70 to
87 months is the guideline range, and certainly an 87-
month sentence is not sufficient to punish, to remedy
8
this conduct, to meet the heinous activity that has
occurred in this particular case. . . . the thrust of
this is that the court can run the sentences consecutive
if necessary to achieve the appropriate total punishment,
considering all of the matters that I have found as a
fact here today, which are basically facts in the
presentence report. . . . the way I would propose to
proceed is to sentence him within the guidelines on each
of the counts and to run those sentences consecutively.
J.A. 124-26. Again, Husband did not object. Now, however, he
appeals on the above-stated grounds.
II.
We now address each of Husband’s arguments in turn. The short
answer is that we affirm on all counts.
A.
Husband first argues that the applicable statute of limitation
had expired, and thus that his guilty plea should not have been
accepted. Because Husband failed to object below, plain error
review governs. See Fed. R. Crim. P. 52(b); United States v.
Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993). This means, of course,
that Husband must clear the high hurdle of proving that (1) there
was error, (2) the error was plain, (3) the error affected
substantial rights, and (4) the error “‘seriously affect(s) the
fairness, integrity or public reputation of judicial proceedings.’”
United States v. Olano, 507 U.S. 725, 732-37 (1993); United States
v. Martinez, 277 F.3d 517, 524 (4th Cir. 2002).
9
It has long been the law in this circuit that a valid guilty
plea waives all non-jurisdictional defenses. See, e.g., United
States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993) (voluntary
guilty plea waives all nonjurisdictional defects); Bloombaum v.
United States, 211 F.2d 944, 945 (4th Cir. 1954) (same). Applying
this rule here, we find that Husband’s plea waives his statute of
limitations argument, which is, of course, a non-jurisdictional
affirmative defense. See, e.g., United States v. Matzkin, 14 F.3d
1014, 1017-18 (4th Cir. 1994) (statute of limitations is not a
jurisdictional defense and can be waived; counsel’s failure to seek
statute of limitations jury instruction was not plain error even
though it was “not an intentional relinquishment of a known right;
but was a failure to make the timely assertion of that right”);
United States v. Williams, 684 F.2d 296, 299 (4th Cir. 1982), cert.
denied, 459 U.S. 1110 (1983) (18 U.S.C. § 3282 is not
jurisdictional, but affirmative defense that may be waived).
While this is surely enough to end the inquiry, because the
statute of limitations issue becomes relevant to subsequent
arguments, we note that Husband’s statute of limitations claim is
meritless for a number of reasons, not the least of which is that
the final element of his crime was not complete until 2001, when
the tape was transported across state lines.3 The statute of
3
The grand jury indictment implied that the “jurisdictional
element” relied upon in this case was the third prong of § 2251 –
that the tape was transported from New York to Virginia at some
10
limitations does not begin until all the elements necessary for the
crime are completed. See, e.g., United States v. Crossley, 224
F.3d 847, 859 (6th Cir. 2000) (statute of limitations begins to run
only when all elements of crime have occurred); United States v.
United Med. and Surgical Supply Corp., 989 F.2d 1390, 1398 (4th
Cir. 1993) (securities or mail fraud is not complete until sale of
security or use of the mail). Thus, the clock did not begin
running until 2001, when the tape was transported across state
lines, not 1995, when actions that were filmed took place. See
United States v. Sirois, 87 F.3d 34, 39 (2d Cir. 1996). As such,
the case was unquestionably within any applicable statute of
limitations.
B.
Husband also argues that his guilty plea was involuntary
because the district court failed to advise him of the true penalty
he faced as a result of his guilty plea. As noted above, the trial
judge, apparently relying on a more current version of the
Sentencing Guidelines, told Husband at the plea hearing that he was
subject to 10 to 20 years of prison for each count (and then,
unnamed time. At the plea hearing, the government also noted that
the tape showed conduct from New York and was found in Virginia.
Thus, the government contends that the crime was inchoate until
2001. Husband’s counsel apparently agreed: at the sentencing
hearing, Husband’s counsel admitted that, “It was, in fact, his
taking it across state lines that made it a federal case.” J.A.
115.
11
Husband contends, for all counts). The PSR, however, subsequently
recommended – and Husband was evidently ultimately sentenced under
– the 1995 Sentencing Guidelines, which mandated a maximum 10-year
sentence per count.4 The real issue here, though, is that the
court sentenced Husband to consecutive terms. Husband argues that
he was given more punishment than he was warned of, and that, as a
result, his plea was unknowing and involuntary.
Trial courts conducting plea colloquies are given deference.
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991), cert.
denied, 503 U.S. 997 (1992) (“this Court should accord deference to
the trial court's decision as to how best to conduct the mandated
colloquy with the defendant”). Consequently, “any Rule 11
violations should be evaluated under a harmless error standard.”
Id. at 117. See also Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity or variance which does not affect substantial rights
shall be disregarded.”).
4
The PSR mistakenly relied upon the idea that the crimes were
completed in 1995, and thus that the 1995 Sentencing Guidelines
were in effect. This was error because, as we explained in Part
II.A, supra, the crime was inchoate until 2001, when the videotape
crossed state lines. Section 1B1.11 of the Guidelines requires
courts to use the “Guidelines Manual in effect on the date that the
defendant is sentenced[,]” unless doing so would violate the ex
post facto clause. Because Husband was Sentenced on July 15, 2003,
and because the 2002 Guidelines were identical to those in effect
in 2001 for purposes of Husband’s crime, the 2002 Sentencing
Guidelines should have been used. However, since Husband was
sentenced under a Guidelines scheme counseling the 1995 statutory
maximum of 10 years per count rather than the 2001 statutory
maximum 20, the error was in Husband’s favor, and thus harmless.
12
In accepting a guilty plea, the court must simply determine
“whether the defendant's knowledge and comprehension of the full
and correct information would have been likely to affect his
willingness to plead guilty.” United States v. Goins, 51 F.3d 400,
402 (4th Cir. 1995). In determining whether a defendant’s plea is
acceptable, the court should focus on “three main elements”:
The court must first ascertain what the defendant
actually knows when he pleads guilty on the basis of an
affirmative indication in the record. Second, the court
must decide what information would have been added to the
defendant's knowledge by compliance with Rule 11.
Finally, the court must determine how the additional or
corrected information would have likely affected the
defendant's decision.
Id. (citing United Stats v. Padilla, 23 F.3d 1220, 1222 (7th Cir.
1994) and United States v. Johnson, 1 F.3d 296, 302 (5th Cir.
1993)).
We have reviewed the transcript of the plea hearing with care
(but also with the requisite deference), and find that the judge
adequately complied with Fed. R. Crim. P. 11. Likewise, we hold
that Husband knew or surely should have known that a sentence under
the Guidelines could include an upward departure. Thus, it follows
that no information would have been added to the defendant’s
knowledge, and Husband’s “knowledge and comprehension of the full
and correct information would not have been likely to affect his
willingness to plead guilty.” Goins at 402.
13
Husband relies upon the following exchange from the plea
hearing as evidence that his plea violated Rule 11 and was not
knowing and voluntary:
THE COURT: In other words, without a background
presentence report, Mr. Husband, the only promise that I
can make to you today is that your sentence on counts one
through eight would be somewhere between a minimum of ten
years and a maximum of 20; do you understand?
THE DEFENDANT: Yes, ma’am.
J.A. 47. Husband clings to this single statement with a vise-like
grip, and extrapolates from it – particularly, the singular use of
the word “sentence” – that the judge “promised” no more than 20
years in prison in total.5
Appellant’s assertion that he did not know he might be
sentenced to more than twenty years might have more merit if this
was the only instance of the court discussing his potential
punishment. But, of course, it is not the only instance. The
judge stated, “And the maximum possible penalty on each of these
counts, then, Mr. Husband, is a maximum of 20 years imprisonment
and a minimum of ten years. Do you understand that penalty?” J.A.
35 (emphasis added). Husband replied affirmatively. The judge
also noted that Husband would be subject to supervised release,
5
Husband also puts forth the odd argument that his plea was
not knowing and voluntary because he was unaware of his appellate
counsel’s statute of limitations argument. Since we disposed of
the statute of limitations issue in Part I.A., supra, we will
expend no more effort on it here. Suffice it to say that a
criminal defendant thinking of relying on his ignorance of a
meritless affirmative defense to overcome an otherwise knowing
guilty plea may wish to consider other arguments.
14
“not more than three years on each count.” J.A. 42 (emphasis
added). Finally, the court also informed him prior to his guilty
plea that, “in relation to any sentence that the court will impose,
the United States sentencing guidelines are in effect,” J.A. 35-36,
and that, “ultimately under the law, it is up to the court to
sentence you under the federal sentencing guidelines[.]” J.A. 46.
See also J.A. 48. Husband assented to these statements, stated
that he had discussed the Guidelines with his attorney, and also
acknowledged at least twice more the court’s assurance that, under
the Guidelines he would be sentenced based on the totality of his
criminal conduct: not only on “the crimes to which you are
pleading guilty, but all of your relevant criminal conduct in
regard to the crimes to which you are pleading guilty[.]” J.A. 36.
Further, in attempting to decipher “what the defendant
actually knows when he pleads guilty on the basis of an affirmative
indication in the record,” Goins, 51 F.3d at 402, one cannot ignore
the fact that Husband was represented by a lawyer. Husband admits
to discussing the Guidelines with his lawyer (who, of course,
should have explained the Guidelines and indicated the possibility
of upward departure). Thus, any reasonable reading of the
transcript indicates that Husband knew or should have known that
the equivalent of consecutive sentences was possible through upward
departure.
15
Finally, however, had Husband been unsure of how his sentence
would be calculated – stated otherwise, had he lied to the district
court when he acknowledged that he understood that the Guidelines
governed and that he had discussed how they worked with his lawyer
- we have no reason to believe that he would not have pled guilty.6
Given the overwhelming nature of the government’s proffered
evidence (including actual videotaping of the sexual exploitation),
Husband had no shortage of good reasons for not going to trial.
For example, he apparently got the government to drop counts 18,
19, and 20 by pleading guilty. Additionally, while we only review
a cold record, Husband expresses regret for the humiliation his
actions caused his family. It is highly likely that, in a case
with facts this uncontested, horrible, and hurtful, he did not want
the public shame of a trial. Indeed, perhaps he wished not to
force his family to endure yet another wrenching experience. In
short, Husband must have (or at the very least should have) known
that the court could upwardly depart, and even if he had not known,
it remains entirely unclear that this knowledge would have been
“likely to affect his willingness to plead guilty.” Goins, 51 F.3d
at 402.
6
Indeed, if his understanding of the sentence was truly
unclear (which seems to be the best he could hope for upon a full
and fair reading of the record), Husband said nothing and still
pled, it seems to lead to the conclusion that his sentence was not
really a primary consideration in his decision of whether to plead
guilty; that is, other things were driving him.
16
C.
Appellant also contends that the court failed to find
sufficient evidence for his plea. “Before entering judgment on a
guilty plea, the court must determine that there is a factual basis
for the plea.” Fed. R. Crim. P. 11(b)(3). “The court need not
satisfy itself that a jury would find the defendant guilty, or even
that defendant is guilty by a preponderance of the evidence.”
United States v. Carr, 271 F.3d 172, 179 n.6 (4th Cir. 2001).
Rather, the district court “need only be subjectively satisfied
that there is a sufficient factual basis for a conclusion that the
defendant committed all of the elements of the offense. The
district court possesses wide discretion in determining whether a
sufficient factual basis exists.” United States v. Mitchell, 104
F.3d 649, 652 (4th Cir. 1997). The standard of review for such
claims is abuse of discretion. Carr, 271 F.3d at 179.
The district court decidedly did not abuse its discretion.
The judge read all eight counts, and later asked Husband whether he
wished that the judge review the eight counts again before asking
for Husband’s plea. Husband did not want to review the counts and
pled guilty. Before accepting Husband’s plea, the government
proffered its evidence, the judge asked Husband whether he agreed
with the proffer, and Husband and his counsel both agreed. The
government’s proffered evidence of guilt was overwhelming. Each
element was listed in the indictments and reasonably reviewed to
17
the judge’s subjective satisfaction in the guilty plea hearing.
Thus, the court established a sufficient basis for the plea.
D.
Husband also appeals his punishment of eight consecutive 87-
month sentences followed by eight consecutive three-year terms of
supervised release. Husband’s contention is that the combined
offense level for the eight similar counts was properly grouped in
the PSR. As such, since the 1995 Guideline-based range of 70-87
months per count fell below the (incorrect) statutory maximum of
ten years, the extent of any consecutive sentence could only rise
to the level of the (alleged) maximum.
The government, in response, rightly admits that the court
could not have run the sentences consecutively in this case absent
a departure, but argues that the consecutive sentences are
appropriate because the district court properly upwardly departed
from the Guidelines. Because he failed to object to the sentencing
below, this issue too is reviewed for plain error. United States v.
Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993).
First, as noted above and explained in footnote 4, supra, the
court erred by using the 1995, rather than the 2002, Sentencing
Guidelines. But this error was clearly in Husband’s favor: his
sentence was half of what he could have received under the 2002
18
Guidelines. More fundamentally, however, the court did not, as it
should have, clearly grant the motion for upward departure.7
Even granting that the district court erred by not officially
granting the motion for upward departure, this error does not harm
Husband because, if we were to remand, the court undoubtedly would
grant an upward departure and sentence Husband to precisely the
same 696-month sentence that he has now if we remanded the matter
to the court. Specifically, the court explains,
If for some reason the appellate court is not in
agreement with me, then my alternative ruling is that I
would upwardly depart on these matters. In other words,
I would not be in the guideline range here. I would
upwardly depart and do an appropriate sentence with an
7
The record states that, at the sentencing hearing on
7/15/2003, “Court granted gov’s motion for upward departure.”
J.A. 6. The transcript of the hearing, however, complicates
things. Essentially, it seems that the court started to rule on
the motion, discussed the grounds for upward departure, and
indicated its general, strong, and wide-based support for the
motion (“I have reviewed those cases, verified their validity, and
they support the government’s proposition,” J.A. 121) and general
disapproval of Husband’s opposition brief (“The defendant counters
that the past conduct is accounted for by the guideline
calculations, but I don’t agree. . .”). Id. The court then
further submits the reasons why the government’s position was
correct on several different grounds. Things are continually
confused, however, by the judge’s consistent use of conditional
verbs, e.g., “I would find that certainly an upward departure would
be warranted. . .”; “Likewise I would find that a departure would
be warranted because of the repetitive nature of the conduct.”;
“So basically I would find that there are all of these grounds to
depart upward.”. J.A. 123-24 (emphasis added). Ultimately, and
particularly when considering the court’s Statement of Reasons, it
appears clear enough to us that the district court errantly
believed that it could sentence Husband to consecutive terms absent
an upward departure, and thus that it did not actually grant the
government’s motion at the sentencing hearing.
19
upward departure that would meet the goals of this
particular case.
J.A. 125-26. As noted above, the statutory maximum for the crime
is 10 years per count even if the court uses the PSR’s
recommendation (which, as the district court ultimately recognized,
is a mistake, given that the proper standard is a 20 year maximum,
but one we will not here correct because it favors Husband). Thus,
even granting that there was an error, and that it may have been
“plain,” the error certainly does not affect Husband’s substantial
rights, for he would justifiably receive precisely the same
sentence. See Olano, 507 U.S. at 732-37.
E.
Finally, Husband claims that his counsel was ineffective
because he failed to raise the statute of limitations defense.
Claims of ineffective assistance may not be raised on direct appeal
unless the record demonstrates ineffectiveness conclusively.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997); United
States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). Ineffective
assistance of counsel claims must meet the two-step test of
Strickland v. Washington, 466 U.S. 668, 687 (1984): (1) counsel’s
performance is objectively deficient, and (2) the deficient
performance prejudices the defendant. Because, as explained in
Part II.A, supra, the statute of limitations argument is meritless,
20
failure to make it cannot be deficient at all, much less
“objectively” so. Likewise, Husband is in no way prejudiced by his
counsel’s conduct.
III
For all the reasons as stated above, on all issues raised by
Appellant, the district court is
AFFIRMED.
21