United States v. Arron Bernard Clark , 671 F. App'x 1038 ( 2016 )

Case: 16-10362 Date Filed: 12/22/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10362
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00008-LGW-RSB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARRON BERNARD CLARK,
a.k.a. AC,
a.k.a. Mayor,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(December 22, 2016)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 16-10362 Date Filed: 12/22/2016 Page: 2 of 3
Arron Clark appeals his 300-month sentence after pleading guilty to
conspiracy to distribute controlled substances, 21 U.S.C. § 846, and possession of a
firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)
claiming ineffective assistance of counsel. The government again asserts that
Clark’s appeal should be dismissed pursuant to the appeal waiver in Clark’s plea
agreement. We denied the government’s previously filed motion to dismiss
because Clark challenged the validity of his guilty plea on the basis of ineffective
assistance of counsel.
I.
As an initial matter, the appeal should not be dismissed pursuant to the
appeal waiver. Under the law-of-the-case doctrine, when we have previously
decided on a rule of law, that decision continues “to govern the same issues in
subsequent stages in the same case.” United States v. Siegelman, 786 F.3d 1322,
1327 (11th Cir. 2015), cert. denied, 136 S. Ct. 798 (2016) (emphasis omitted). A
previous decision, be it a finding of fact or conclusion of law, “binds all
subsequent proceedings in the same case not only as to explicit rulings, but also as
to issues decided necessarily by implication on the prior appeal.” United States v.
Anderson, 772 F.3d 662, 668 (11th Cir. 2014) (internal quotation marks omitted).
Because we previously denied the government’s motion to dismiss pursuant to
Clark’s appeal waiver, concluding that Clark’s ineffective assistance of counsel
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claim is not barred, a conclusion to the contrary is precluded by the law of the case
doctrine. See Siegelman, 786 F.3d at 1327.
II.
Clark argues that his trial counsel was ineffective during plea negotiations
because he did not explain the need to seek a downward departure for substantial
assistance, and because he did not seek immunity for cooperating with the
government.
When appropriate, we review a claim of ineffective assistance of counsel de
novo, but generally, we will not consider these claims “where the district court did
not entertain the claim nor develop a factual record.” United States v. Bender, 290
F.3d 1279, 1284 (11th Cir. 2002). The preferred means for deciding a claim of
ineffective assistance of counsel is through a 28 U.S.C. § 2255 motion, “even if the
record contains some indication of deficiencies in counsel’s performance.” United
States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010) (internal quotation marks
omitted). Because the extent and quality of Clark’s trial counsel’s advice
regarding the plea negotiations cannot be sufficiently ascertained from the record,
we decline to review Clark’s ineffective-assistance-of-counsel claim on direct
appeal. See id. Accordingly, we affirm.
AFFIRMED.
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