Evidence of Ineffectiveness Not Sufficient to Prevail on Direct Appeal

US v. Richardson: Richardson was involved in the distribution of methamphetamine. After a traffic stop, police went to his home to execute a search warrant where they found drugs, cash, and a shotgun in a car parked on the property. Richardson pleaded guilty to conspiracy and possession with intent to distribute methamphetamine pursuant to a plea agreement where he agreed to give up his right to appeal his sentence “on any ground,” aside from ineffective assistance of counsel or prosecutorial misconduct. He was sentenced to 240 months in prison, in the middle of a 210-262-month advisory Guideline range.

On appeal, the Fourth Circuit partially dismissed Richardson’s sentence and otherwise affirmed his sentence. Richardson raised two issues related to a two-level enhancement for possession of a firearm (the shotgun) during commission of the offense. The court concluded that the first issue – whether the enhancement was properly applied – was clearly precluded by the appeal waiver and was dismissed. The court then concluded that the second – that Richardson’s counsel was ineffective for failing to object to the enhancement – could not meet the high standard for finding ineffectiveness on direct appeal, as the record showed that the enhancement was properly applied, or at least did not show counsel was “unequivocally wrong” in failing to make the objection.