United States v. Floyd Wallace

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0333n.06
Case No. 21-5661
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
FILED
UNITED STATES OF AMERICA, Aug 17, 2022
)
Plaintiff - Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
FLOYD WALLACE, ) THE WESTERN DISTRICT OF
Defendant - Appellant. ) TENNESSEE
)
) OPINION
Before: BATCHELDER, WHITE, and MURPHY, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. In this appeal, Floyd Wallace claims that
he received ineffective assistance of counsel (IAC) during sentencing because his counsel declined
to argue that Wallace’s prior conviction for aggravated assault was not a predicate felony under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). We affirm.
The federal prosecutor charged Wallace with being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1), and possession of a firearm after a conviction for misdemeanor domestic
violence, § 922(g)(9). Wallace entered a guilty plea to both counts pursuant to a plea agreement
in which he waived, among other things, his right to appeal a sentence within the advisory
guidelines range. The waiver did not apply to claims of prosecutorial misconduct or IAC.
At sentencing, the district court calculated a guidelines range of 180 to 210 months in
prison. But Wallace had prior felony convictions: two for aggravated robbery, T.C.A. § 39-13-
402, and another for aggravated assault, T.C.A. § 39-13-102. The court found all three to be
predicate felonies under the ACCA, thus triggering the 180-month mandatory minimum sentence,
No. 21-5661, United States v. Wallace
18 U.S.C. § 924(e)(1). Despite an invitation from the court, Wallace’s counsel declined to argue
that those convictions were not ACCA predicates. The court sentenced Wallace to 180 months in
prison.
On appeal, Wallace claims IAC due to his counsel’s failure to argue that aggravated assault
under Tennessee law is not an ACCA predicate felony. To prevail, Wallace must show that his
counsel’s failure fell below “an objective standard of reasonableness” and that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
We generally do not decide IAC claims on direct appeal. See Massaro v. United States,
538 U.S. 500, 504 (2003). Given the nature of IAC claims, the record on direct appeal is not
“developed precisely for the object of litigating or preserving” the IAC claim. See United States
v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012) (quoting Massaro, 538 U.S. at 504-05). Therefore,
IAC claims “are more properly [decided] in a post-conviction proceeding under 28 U.S.C. § 2255,
after the parties have had the opportunity to develop an adequate record on the issue from which
the [] court is capable of arriving at an informed decision.” United States v. Williams, 612 F.3d
500, 508 (6th Cir. 2010) (quotation marks and citation omitted).
“We make an exception only in the rare case in which the record is adequate to review the
claim on direct appeal.” United States v. Gilbert, 838 F. App’x 181, 183 (6th Cir. 2021) (citing
United States v. Pruitt, 156 F.3d 638, 646 (6th Cir. 1998)). Wallace has not shown that this is the
exceptional record or rare IAC claim that would warrant adjudication on direct appeal.
We AFFIRM the judgment of the district court.
2