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United States v. Lane ( 2021 )


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  • Case: 18-11304     Document: 00515726615         Page: 1     Date Filed: 01/29/2021
United States Court of Appeals
for the Fifth Circuit                        United States Court of Appeals
Fifth Circuit
FILED
January 29, 2021
No. 18-11304
Summary Calendar                  Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Marshall Curtis Lane,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CV-143
USDC No. 1:13-CR-84-3
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Pursuant to a certificate of appealability granted by this court,
Marshall Curtis Lane, federal prisoner # 47535-177, appeals the district
court’s denial of his
    28 U.S.C. § 2255
     motion challenging his 2014 drug
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 18-11304      Document: 00515726615           Page: 2    Date Filed: 01/29/2021
No. 18-11304
conspiracy conviction and sentence, wherein he claimed, in pertinent part,
that his trial counsel performed in a constitutionally deficient manner by
failing to consult with him regarding an appeal.
Because Lane did not object to the magistrate judge’s report and
recommendation, our review is for plain error. See United States v. Young,
    585 F.3d 199
    , 202 & n.10 (5th Cir. 2009). To prevail, Lane must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States,
    556 U.S. 129
    , 135 (2009). If he makes such a
showing, we have the discretion to correct the error but only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.”
    Id.
     (internal quotation marks and citation omitted).
Lane has not shown reversible plain error in the district court’s
rejection of his ineffective assistance claim. See
    id.
     First, we are unpersuaded
that there was a nonfrivolous issue for appeal with respect to the validity of
the appeal waiver such that a rational defendant would have wanted to
appeal. See Roe v. Flores-Ortega,
    528 U.S. 470
    , 480 (2000); see also United
States v. McKinney,
    406 F.3d 744
    , 746 & n.2 (5th Cir. 2005).
Next, Lane has not shown clear or obvious error as to his claim that
the district court applied an incorrect or more onerous standard in analyzing
whether he had reasonably demonstrated to counsel his interest in appealing,
particularly given that the court twice cited the correct standard. See Flores-
Ortega,
    528 U.S. at 480
    ; United States v. Whitelaw,
    580 F.3d 256
    , 260 (5th
Cir. 2009). Finally, even if we assume without deciding that the district court
clearly and obviously erred in determining that Lane’s concerns about his
sentencing did not reasonably demonstrate to counsel his interest in
appealing, Lane has not shown that he satisfies the remaining prongs of plain
error review or addressed the Government’s proposed alternative grounds
for affirming the judgment of the district court. See United States v. Caravayo,
2
Case: 18-11304      Document: 00515726615          Page: 3   Date Filed: 01/29/2021
No. 18-11304
    809 F.3d 269
    , 273-74 (5th Cir. 2015); United States v. Scroggins,
    599 F.3d 433
    ,
446-47 (5th Cir. 2010).
AFFIRMED.
3