United States v. Scott Midkiff ( 2023 )


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  • USCA4 Appeal: 22-4399      Doc: 30         Filed: 02/07/2023     Pg: 1 of 3
    UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 22-4399
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    SCOTT LEE MIDKIFF,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern District of West Virginia, at
    Huntington. Robert C. Chambers, District Judge. (3:21-cr-00109-1)
    Submitted: January 26, 2023                                       Decided: February 7, 2023
    Before KING and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    ON BRIEF: Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston,
    West Virginia, for Appellant. William S. Thompson, United States Attorney, Joseph F.
    Adams, Assistant United States Attorney, OFFICE OF THE UNITED STATES
    ATTORNEY, Huntington, West Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    USCA4 Appeal: 22-4399      Doc: 30         Filed: 02/07/2023      Pg: 2 of 3
    PER CURIAM:
    Scott Lee Midkiff pled guilty to conspiracy to distribute 50 grams or more of
    methamphetamine and 40 grams or more of fentanyl, in violation of 
    21 U.S.C. § 846
    . 1 The
    district court attributed 4,459.187 kilograms of converted drug weight to Midkiff,
    calculated his advisory range under the U.S. Sentencing Guidelines Manual (2021) at 188
    to 235 months’ imprisonment, and sentenced him to 204 months’ imprisonment.
    On appeal, Midkiff argues that trial counsel rendered ineffective assistance in not providing
    him copies of the discovery produced by the Government, in misrepresenting the strength
    of the case against him, and in failing to object to the drug weight attributed to him at
    sentencing. 2
    This court typically will not review a claim of ineffective assistance of counsel made
    on direct appeal, United States v. Maynes, 
    880 F.3d 110
    , 113 n.1 (4th Cir. 2018), “[u]nless
    an attorney’s ineffectiveness conclusively appears on the face of the record,” United
    States v. Faulls, 
    821 F.3d 502
    , 507 (4th Cir. 2016). To establish ineffective assistance by
    trial counsel, Midkiff must satisfy the two-part test set out in Strickland v. Washington,
    1
    Midkiff entered his guilty plea pursuant to a plea agreement waiving his right to
    seek appellate review of his conviction and sentence but reserving his right to appeal based
    on a claim of ineffective assistance of counsel. This court previously granted the
    Government’s motion to dismiss Midkiff’s appeal in part and dismissed his appellate claim
    challenging the drug weight attributed to him. United States v. Midkiff, No. 22-4399
    (4th Cir. Nov. 14, 2022) (unpublished order).
    2
    We decline to consider Midkiff’s argument that trial counsel also rendered
    ineffective assistance by making confusing and disparaging remarks about him at the
    sentencing hearing because this issue was raised for the first time in his reply brief.
    See Grayson O Co. v. Agadir Int’l LLC, 
    856 F.3d 307
    , 316 (4th Cir. 2017).
    2
    USCA4 Appeal: 22-4399       Doc: 30         Filed: 02/07/2023      Pg: 3 of 3
    
    466 U.S. 668
     (1984). He “must show that counsel’s performance was [constitutionally]
    deficient” and “that the deficient performance prejudiced the defense.” 
    Id. at 687
    . After
    review, we conclude that ineffective assistance by trial counsel does not conclusively
    appear on the face of the record. Midkiff’s claims “should be raised, if at all, in a 
    28 U.S.C. § 2255
     motion.” Faulls, 
    821 F.3d at 508
    . We therefore decline to address these claims at
    this juncture.
    Accordingly, we affirm the criminal judgment. 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
    3
    

Document Info

Docket Number: 22-4399

Filed Date: 2/7/2023

Precedential Status: Non-Precedential

Modified Date: 2/9/2023