Criminal: Defendant fails to show ineffective assistance of counsel during plea hearing

Where the defendant argued he received ineffective assistance of counsel during his plea hearing, because his counsel did not object to a firearm enhancement applied by the district court, but the enhancement was likely proper, the ineffective assistance claim was rejected.

Background

In 2023, pursuant to a written plea agreement, Tovis Ation Richardson pled guilty to two counts: (1) conspiracy to distribute and possess with intent to distribute methamphetamine and (2) possession with intent to distribute methamphetamine. He later received a 240-month sentence.

Sentencing enhancement

Richardson first argues the district court erred in applying a sentencing enhancement for firearm possession. But Richardson’s plea agreement contains an appeal waiver: “The Defendant agrees: . .  . To waive knowingly and expressly the right to appeal the conviction and whatever sentence is imposed on any ground . . . excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct not known to the Defendant at the time of [his] guilty plea.”

When, as here, “the government seeks to enforce an appeal waiver and has not breached the plea agreement, we will enforce the waiver if it is valid and if the issue being appealed falls within its scope.” Here, Richardson does not contest that his waiver was knowing and intelligent. This court’s review of the record supports this concession. His waiver is therefore valid.

The first issue that Richardson raises is the application of the firearm enhancement. Richardson’s waiver clearly and unambiguously applies to this issue. His waiver explicitly forecloses appeals “on any ground,” including appeals “pursuant to 18 U.S.C § 3742.” Section 3742(a)(2) would otherwise permit an appeal based on “an incorrect application of the sentencing guidelines.”

Richardson pivots to arguing that the “failure to correct [the firearm enhancement] would result in a miscarriage of justice.” Richardson is correct that this court “will refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of justice.” But Richardson’s alleged “miscarriage of justice” is merely a re-packaged Guidelines claim that aims to re-bargain the terms of his waiver. Therefore, even assuming his eligibility for a sentencing reduction under § 4C1.1, the court’s “failure to correct” this issue would not result in a miscarriage of justice.

Ineffective assistance

The second issue that Richardson raises is ineffective assistance—specifically, his counsel’s failure to object to the firearm enhancement. His waiver does not cover this issue. To establish ineffective assistance, “the defendant must show that counsel’s performance was deficient” and “that the deficient performance prejudiced the defense.” When, as here, the claim is made on direct appeal, it must “conclusively appear[] in the trial record itself that the defendant was not provided . . . effective representation.”

Here, counsel was not “unequivocally wrong on the law.” More aptly, there is no “relevant authority strongly suggesting that [the] enhancement is not proper.” In fact, this court’s case law investigation revealed the opposite. Therefore, Richardson’s counsel could have reasonably concluded that his objection would fail. And reasonable decisions of counsel are not constitutionally deficient decisions.

If this court were to find the opposite here, and thereby hold that counsel is constitutionally deficient when he does not raise what is likely a losing objection, it risks setting a dangerously low bar for reasonable performance, especially on direct appeal. Because Richardson’s ineffective assistance claim fails to meet the first prong (deficient performance), this court need not examine the second (prejudice).

Affirmed.

United States v. Richardson, Case No. 23-4471, July 28, 2025. 4th Cir. (Floyd), from EDNC at Raleigh (Dever III). Michelle Ann Liguori for Appellant. Jacob D. Pugh for Appellee. VLW 025-2-286. 18 pp.