United States v. Bruff , 414 F. App'x 539 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON BRUFF, a/k/a Brendan,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:07-cr-00395-CCB-5)
Submitted: January 27, 2011 Decided: March 4, 2011
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gregory Stuart Smith, LAW OFFICES OF GREGORY S. SMITH,
Washington, D.C., for Appellant. Rod J. Rosenstein, United
States Attorney, James T. Wallner, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Bruff appeals from his convictions after
pleading guilty to conspiracy to distribute and possess with
intent to distribute 500 grams or more of methamphetamine and
conspiracy to launder money. Bruff contests his convictions,
based on ineffective assistance of counsel related to advice
given to him regarding whether he should withdraw his guilty
plea. Bruff contends that counsel misinformed him regarding the
drug type he would be held responsible for and his options
regarding contesting the drug quantity attributable to him. We
affirm.
On appeal, Bruff contends that his conviction should
be vacated and the case remanded so that he may withdraw his
guilty plea based on ineffective assistance of counsel clearly
appearing on the record. Bruff contends that his decision not
to withdraw his guilty plea was based on incorrect and
prejudicial legal advice that the only way to avoid a statutory
minimum ten-year sentence was to accept the plea agreement,
which stipulated a drug amount including methamphetamine, and
hope to receive a U.S. Sentencing Guidelines Manual § 5K1.1
(2009) reduction. Bruff contends counsel advised him that, if
he participated in a drug conspiracy believed to be distributing
drug A, but it turned out to be drug B, he would be accountable
for drug B (here, methamphetamine, carrying a ten-year minimum
2
sentence). Bruff asserts this advice was incorrect, clearly
appears on the record, and was prejudicial.
Claims of ineffective assistance of counsel generally
are not cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). Rather, to allow for adequate
development of the record, a defendant generally must bring his
claims in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. Id.;
United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994).
However, ineffective assistance claims are cognizable on direct
appeal if the record conclusively establishes ineffective
assistance. Massaro v. United States, 538 U.S. 1690, 1693-94
(2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir.
1999).
To demonstrate ineffective assistance, a defendant
must show that his “counsel’s representation fell below an
objective standard of reasonableness,” and that the error was
“prejudicial to the defense” such 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, 692, 694 (1984).
In the context of a plea agreement, where a defendant claims
ineffective assistance, the prejudice prong is satisfied where
the defendant shows that “there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty
3
and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985). “[A] guilty plea is constitutionally
valid if it ‘represents a voluntary and intelligent choice among
the alternative choices of action open to the defendant.’”
United States v. Moussaoui, 591 F.3d 263, 278 (4th Cir. 2010)
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
With regard to the ineffective assistance of counsel
claim, the record does not conclusively show that counsel was
ineffective for advising Bruff not to withdraw his guilty plea.
Appellate counsel states that, had it not been for trial
counsel’s ineffectiveness, “[t]here is a reasonable probability
. . . that, had Mr. Bruff been properly informed, he would have
insisted on going to trial.” There is little in the record to
support this assertion. Nor is there clear evidence from Bruff
or trial counsel concerning the discussions leading up to the
plea agreement or the reasons Bruff had for entering into the
plea agreement. Without more, Bruff’s ineffective assistance of
counsel claim is not ripe for review.
We therefore conclude that the ineffective assistance
of counsel issue is not yet ripe for review and is better suited
to be raised in a § 2255 proceeding. We affirm the convictions.
We dispense with oral argument because the facts and legal
4
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
5