United States v. Lawrence McNeill , 589 F. App'x 128 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4408
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAWRENCE MCNEILL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:12-cr-00269-D-1)
Submitted: December 19, 2014 Decided: December 30, 2014
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lee Ann Anderson McCall, Amanda F. Davidoff, Kara D. Hughley,
SULLIVAN & CROMWELL LLP, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence McNeill appeals the criminal judgment entered
by the district court after he pled guilty to conspiracy to
distribute, and possess with intent to distribute, five
kilograms or more of cocaine and 280 grams or more of cocaine
base, in violation of 21 U.S.C. 841(a)(1) (2012). McNeill
argues that the prosecutor committed misconduct by vindictively
filing a superseding indictment ∗ and that counsel provided
ineffective assistance by withdrawing her objection to the drug
quantity applied at sentencing. We affirm.
“To establish prosecutorial vindictiveness, a
defendant must show, through objective evidence, that (1) the
prosecutor acted with genuine animus toward the defendant and
(2) the defendant would not have been prosecuted but for that
animus.” United States v. Wilson, 262 F.3d 305, 314 (4th Cir.
2001). “If the defendant is unable to prove an improper motive
with direct evidence, he may still present evidence of
circumstances from which an improper vindictive motive may be
presumed.” Id. Because McNeill failed to challenge the
superseding indictment in the district court, we review this
∗
The Government argues that this claim is barred by the
appellate waiver in McNeill’s plea agreement. However, McNeill
only waived the right to direct appeal of his sentence, and did
not waive the right to appeal his conviction.
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claim for plain error. United States v. Olano, 507 U.S. 725,
731-32 (1993).
McNeill argues that a presumption of vindictiveness is
warranted where, as here, the Government files a superseding
indictment while plea negotiations are ongoing without first
warning the defendant. The controlling precedent does not
indicate plainly that the circumstances of this case warrant
such a presumption. See United States v. Carthorne, 726 F.3d
503, 516 (4th Cir. 2013) (internal quotation marks omitted),
cert. denied, 134 S. Ct. 1326 (2014) (discussing standard).
Accordingly, we find no plain error.
We decline to reach McNeill’s claim that counsel was
ineffective at sentencing. Unless an attorney’s ineffectiveness
conclusively appears on the face of the record, ineffective
assistance claims are not generally addressed on direct appeal.
United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).
Instead, such claims should be raised in a motion brought
pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Because there
is no conclusive evidence of ineffective assistance of counsel
on the face of the record, we conclude that this claim should be
raised, if at all, in a § 2255 motion.
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Accordingly, we affirm the district court’s 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
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