United States v. Ward ( 2023 )

Case: 23-60195 Document: 00516925481 Page: 1 Date Filed: 10/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-60195
Summary Calendar FILED
____________ October 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Boris Ward,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:19-CR-3-1
______________________________
Before Willett, Duncan, and Douglas, Circuit Judges.
Per Curiam: *
A jury convicted Boris Ward of possession of methamphetamine
(mixture) with intent to distribute, possession of 50 grams or more of
methamphetamine with intent to distribute, possession of a firearm by a
felon, and possession of a firearm in furtherance of a drug trafficking crime.
The district court sentenced him within the guidelines range to a total of 295
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-60195 Document: 00516925481 Page: 2 Date Filed: 10/10/2023
No. 23-60195
months of imprisonment, followed by a five-year term of supervised release.
On appeal, Ward contends that his trial counsel rendered ineffective
assistance and the district court abused its discretion by denying his request
for a downward variance.
Ward argues that his trial counsel rendered ineffective assistance by
(1) failing to understand the Government’s plea offer and to adequately
explain it, (2) advising Ward to reject a proposed stipulation to a previous
felony conviction and failing to object to the introduction of evidence of
Ward’s prior conviction, and (3) failing to object to the introduction of
photographs of methamphetamine sold by Ward in lieu of the drugs
themselves, which had been destroyed by mistake. However, generally,
claims of “ineffective assistance of counsel should not be litigated on direct
appeal.” United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014) (internal
quotation marks and citation omitted).
Here, the record does not allow us “to fairly evaluate the merits of the
claim[s].” Id. (internal quotation marks and citation omitted). The record
does not substantially detail trial counsel’s knowledge, understanding of the
case, investigations, legal research, advice to Ward, or strategic decisions
made during the representation. See United States v. Bounds, 943 F.2d 541,
544 (5th Cir. 1991). Ward did not file any post-trial motions contesting his
counsel’s actions or otherwise complain about his counsel’s performance.
See United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Finally, his
claims are not based on purely legal issues but rather on counsel’s actions or
failures to act. See United States v. Diehl, 775 F.3d 714, 719 (5th Cir. 2015).
Therefore, we decline to consider Ward’s claims of ineffective assistance of
counsel at this time without prejudice to his right to raise them in a 28 U.S.C.
§ 2255 motion. See, e.g., United States v. Gulley, 526 F.3d 809, 821-22 (5th
Cir. 2008).
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No. 23-60195
Further, Ward claims that the distinction in the Sentencing
Guidelines between methamphetamine mixture and d-methamphetamine
hydrochloride, or “Ice,” resulted in an unwarranted sentencing disparity in
his case. See generally U.S.S.G. § 2D1.1(c). He argues that the district court
should have granted his request for a downward variance to account for this
disparity. This argument “amounts to a challenge to the substantive
reasonableness of [his] sentence,” which we review for abuse of discretion,
while maintaining a presumption that a within-guidelines sentence is
reasonable. United States v. Douglas, 957 F.3d 602, 609 (5th Cir. 2020)
(internal quotation marks, brackets, and citation omitted).
While the district court has the discretion to sentence a defendant
based on policy disagreements with how the Guidelines treat different forms
of methamphetamine, it is not required to do so, and a within-guidelines
sentence is not substantively unreasonable merely because the
methamphetamine Guideline is “not empirically-based.” United States v.
Lara, 23 F.4th 459, 486 (5th Cir.), cert. denied, 142 S. Ct. 2790 (2022); see
United States v. Malone, 828 F.3d 331, 338-39 (5th Cir. 2016). In this case,
the record indicates that the district court was aware of its discretion to vary
downward for policy reasons and chose not to exercise its discretion. See
Malone, 828 F.3d at 338-39. Additionally, the record shows that the district
court relied on appropriate 18 U.S.C. § 3553(a) factors in determining the
sentence. See Douglas, 957 F.3d at 609-10. Nothing suggests that the district
court failed to consider a factor that should have received significant weight,
gave significant weight to an improper factor, or made a clear error of
judgment in balancing the sentencing factors. See id. at 609. Therefore,
Ward has failed to rebut the presumption that his within-guidelines sentence
is reasonable. See Lara, 23 F.4th at 486; Douglas, 957 F.3d at 609.
The judgment of the district court is AFFIRMED.
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