PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-7445

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ABEL CASTILLO RANGEL,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Claude M. Hilton, Senior 

District Judge. (1:95-cr-00486-CMH-4; 1:13-cv-00050-CMH)

Argued: December 10, 2014 Decided: April 1, 2015 

Before DUNCAN, AGEE, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in 

which Judge Duncan and Judge Harris joined.

ARGUED: Sejal Jhaveri, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, 

Charlottesville, Virginia, for Appellant. Stephen Wiley Miller, 

OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for 

Appellee. ON BRIEF: Stephen L. Braga, Appellate Litigation 

Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, 

Virginia, for Appellant. Dana J. Boente, United States 

Attorney, Rebeca H. Bellows, Assistant United States Attorney, 

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for 

Appellee.
2

AGEE, Circuit Judge:

Abel Castillo Rangel was convicted in 2010 of three counts 

relating to marijuana trafficking and sentenced to 121 months of 

incarceration. He later filed a motion to vacate his conviction 

and sentence under 28 U.S.C. § 2255, alleging that his trial and 

appellate counsel had rendered constitutionally ineffective 

assistance. The district court denied his motion, and we

granted a certificate of appealability identifying three issues:

1) whether Rangel’s trial counsel was ineffective for not 

requesting an instruction that the jury find a drug weight based 

on the amount attributable to or reasonably foreseeable by 

Rangel; 2) whether his appellate counsel was ineffective for not 

raising the failure to request that instruction as an issue on 

direct appeal; and 3) whether his trial counsel was ineffective 

for failing to object to the drug weight and advisory guidelines 

range at sentencing. For the reasons explained below, we affirm

the district court’s judgment. 

I. Background

On November 28, 1995, a federal grand jury in Alexandria, 

Virginia indicted Rangel and five co-defendants for crimes

related to marijuana trafficking. The indictment charged Rangel 

in four counts: Count 1 for conspiracy to distribute over 1,000 

kg of marijuana from 1990 through 1995 (21 U.S.C. § 846); Count 
3

4 for possession with intent to distribute marijuana on 

September 30, 1992 (21 U.S.C. § 841(a)); Count 7 for 

distribution of marijuana on October 1, 1992 (21 U.S.C. 

§ 841(a)); and Count 10, which was later dismissed, asserting 

forfeiture allegations.

Following his indictment, Rangel absconded to Texas, 

assumed an alias, and evaded arrest until March 23, 2010. He 

was subsequently tried by a jury and found guilty on the charges 

in the indictment on August 25, 2010.

A. Trial Evidence

The government presented six witnesses at trial: four law 

enforcement officers and two of Rangel’s coconspirators. 

Fairfax County Detective Chester Toney testified that on 

September 30, 1992, he responded to a tip from a confidential 

informant about an upcoming marijuana transaction at a 7-Eleven. 

Detective Toney observed three men at that location, including 

an individual later identified as Michael Hillman, exit Rangel’s 

pickup truck carrying a bag that appeared to contain marijuana. 

Police officers stopped and searched the three men and found 

1.95 pounds (0.89 kg) of marijuana on Hillman. Rangel was not 

arrested at that time. 

The next day, October 1, 1992, the informant told Detective 

Toney that a second marijuana transaction would take place that 

night at a McDonalds. At the McDonalds, Detective Toney saw 
4

Rangel’s pickup truck and observed Rangel and another man exit 

the restaurant together. The men were then detained by police, 

and officers found Rangel with $1,369 in cash and the other man

with $2,060 and 2 pounds (0.91 kg) of marijuana. Both men were 

arrested and charged.

Fairfax Police Department Lieutenant William Kitzerow

testified about executing a search warrant for Rangel’s 

residence on February 17, 1993, four and a half months after the 

McDonalds arrest. Officers found three bricks of marijuana on a 

shelf in a bedroom closet and three additional bags of marijuana 

in a black bag underneath some clothing. The combined marijuana 

weighed 5.25 pounds (2.39 kg). 

Two of Rangel’s alleged coconspirators, Michael Hillman and 

Ronnie Cadle, testified against him at trial about a broad

marijuana trafficking operation. Hillman stated that he was 

involved with the trafficking operation from late 1990 through

his September 30, 1992 arrest at the 7-Eleven. The group 

included approximately seven people, and Cadle and Hillman 

identified particular members of the operation by the names

Lilo, Gringo, Leo, Flaco, and Rangel. Evidence seized from 

Rangel’s apartment corroborated his association with some of 

these individuals: a phonebook found in the bedroom contained 

entries for “Laylo” and “Gringo,” and his wallet contained a 

business card for Lalo Maltos. J.A. 341.
5

Hillman testified that he first became involved with the 

group in December 1990, when he was approached by Lilo, who 

offered to front him marijuana for resale. Subsequently, 

Hillman met Lilo “hundreds” of times, “[g]enerally, at his 

trailer in Chantilly,” to buy single pounds of marijuana, which 

Lilo usually took from a stash of three to five pounds (1.36 to 

2.27 kg). Id. at 113-14. In addition to Lilo, Hillman would 

see Gringo, Rangel, and others at the trailer. Specifically, 

Hillman testified that he “used to run into Abel [Rangel] at the 

trailer” and that “he sold me pot.” Id. at 120. He testified 

that his September 30, 1992 arrest was the result of his attempt 

to buy one kilogram of marijuana from Rangel on behalf of his 

uncle, one of the other men present at the 7-Eleven. 

According to Hillman, at some point, Lilo offered him

$8,000 to drive to Mexico to pick up marijuana. In Mexico, 

Hillman visited a “farm thing in the country” where he saw “a 

big patch of marijuana growing” that “might have been an acre or 

a half acre.” Id. at 117-18. He got two “potato sacks” of 

marijuana at “[m]aybe 20, 30, 40 pounds a sack” (13.6 to 22.7 

kg). Id. at 118. A barn contained “tons of sacks” that he 

“th[ought]” contained marijuana, but which “[c]ould have been 

potatoes.” Id. Hillman then drove to a designated spot in the 

United States, where he retrieved the marijuana acquired in 

Mexico from a person who had carried it across the border for 
6

him in waterproof suitcases. Hillman and others packaged the 

marijuana in San Antonio, Texas and then took approximately 40 

or 50 pounds (18.1 to 22.7 kg) of marijuana back to Virginia 

hidden in tires. During another trip, financed by Lilo, Hillman 

flew to Texas and rode a bus back to Virginia with approximately

30 to 40 pounds (13.6 to 22.7 kg) of marijuana. 

Hillman estimated that he made between 5 and 10 trips to 

San Antonio to pick up marijuana. He also introduced Cadle to 

Lilo, and Cadle also began to make trips to San Antonio. Cadle 

testified that he made between 7 and 10 trips. At least one of 

Cadle’s trips was with Hillman, but the extent of the overlap is 

unclear from their testimony. 

Cadle testified that the group, including Rangel, 

instructed him to drive to San Antonio along a particular route. 

There, he would purchase marijuana, load it into the vehicle, 

and return to Virginia along another route that the group had 

also selected. Cadle testified that Rangel and Leo were his 

primary contacts for his final three trips. He “was paid a 

hundred dollars per pound” of marijuana he transported and made 

“25- to $50,000 in cash” bringing marijuana from Texas. Id. at 

71, 100. Each trip normally involved 50 pounds (22.7 kg) of 

marijuana.

During one trip in August 1992, Rangel and Leo accompanied 

Cadle to San Antonio. Trooper Jackie Clark testified at trial
7

that he stopped the men on Interstate 40 in Arkansas. He

searched Cadle’s car and found $21,000 in cash in two paper 

sacks under the backseat. He seized the $21,000, but let the 

three men go. They continued toward San Antonio. Based on what 

Cadle could understand of the conversation Rangel and Leo had in 

Spanish after the stop, he “came to the realization not to worry 

about it” because “[t]here was more money in the car.” Id. at 

79-80. He believed the additional money was “in the range of 

between” $60,000 and $80,000. Id. at 79.

Cadle testified that upon their arrival in San Antonio, 

Rangel and Leo told him to leave his car and take a Greyhound 

bus back to Virginia. Cadle took the bus, carrying a suitcase 

containing approximately 50 pounds (22.7 kg) of marijuana. When 

he arrived in Virginia, Gringo picked him up at the bus station 

and took him to an apartment to meet Leo and Rangel. Cadle left 

the suitcase there, and two weeks later he drove back to San 

Antonio, retrieved his vehicle, and returned with another 

delivery of about 50 pounds of marijuana. 

Cadle described the trip that led to his arrest in 

Mississippi on September 4, 1993. He flew to Dallas, Texas

where he met Rangel and Leo, and they rented a 1988 Ford 

Thunderbird, which Cadle was tasked with driving back to 

Virginia. Officer David Pinson testified about stopping Cadle 

in the Thunderbird in Mississippi on September 4, 1993. Hidden 
8

between the car’s grille and radiator, he found several packages 

of marijuana, weighing a total of 27 pounds (12.2 kg). 

Cadle also testified that he went to Lilo’s trailer in 

Chantilly “[d]ozens of times.” Id. at 74. Although Hillman 

testified Rangel was sometimes present when Hillman picked up 

pounds of marijuana, Cadle testified that he was “not really 

sure if [he] saw [Rangel] at the trailer” in Chantilly. Id. 

B. Rangel’s Verdict and Sentencing

The district court held a conference to discuss jury 

instructions, but Rangel’s counsel did not request any

instruction regarding drug weight. Specifically, he did not 

request an instruction that the jury determine drug weight based 

on Pinkerton principles –- that is, based on drugs with which 

Rangel was directly involved or drugs that were reasonably 

foreseeable to him and in furtherance of the conspiracy. See

Pinkerton v. United States, 328 U.S. 640, 647-48 (1946). 

In charging the jury, the only reference to drug weight

came in the court’s explanation to the jury of the Special 

Verdict Form:

As to Count 1, if you should find the defendant guilty 

as to Count 1, then underneath are amounts of drugs 

and you should also check the amount that you find 

that was involved as to Count 1.
9

J.A. 203. The court provided no instruction explaining how the 

jury should determine the drug weight properly attributable to 

Rangel under the Pinkerton framework. 

The jury convicted Rangel on all counts and indicated on 

the Special Verdict Form that the conspiracy “involved” more 

than 1,000 kg of marijuana. Based on the conviction for 

conspiring to distribute over 1,000 kg of marijuana, Rangel was 

subject to a 120-month mandatory minimum sentence. See 21 

U.S.C. § 841(b)(1)(A). The presentence report established his 

advisory guideline range at 121 to 151 months. In advance of 

sentencing, Rangel filed a statement in which he “denie[d] 

having any part of the conspiracy” but did not make any 

objection to the mandatory minimum sentence or guideline 

calculation. J.A. 211.

Asked at sentencing whether he had anything to say on 

Rangel’s behalf, his counsel replied, “Well there’s not much you 

can say. It’s, unfortunately, a mandatory 120-month sentence 

Mr. Rangel faces. . . . So we’d ask the Court to sentence him 

to the low end of the guideline range and appoint new counsel 

for the appeal.” Id. Rangel’s counsel did not address the 

calculation of the drug weight. The district court judge

observed that “[c]onsidering the factors . . . under Section 

3553 [is] sort of a useless endeavor in this case because 

there’s a mandatory.” Id. at 215. The judge, nevertheless, 
10

noted that he “simply [could not] think of any kind of a factor 

that would weigh in [Rangel’s] favor.” Id.

The district court sentenced Rangel to 121 months’ 

incarceration, the low end of his projected guidelines range, as 

to each of Counts 1, 4, and 7, with the sentences to run 

concurrently. This Court affirmed the judgment on appeal, and 

the Supreme Court denied Rangel’s petition for a writ of 

certiorari. United States v. Rangel, No. 10-5208, 2011 WL 

5084583 (4th Cir. Oct. 26, 2011) (per curiam), cert. denied, 132 

S. Ct. 1649 (2012).

C. Rangel’s § 2255 Petition

Rangel filed a pro se § 2255 petition to vacate his 

conviction and sentence on January 10, 2013, raising fourteen 

claims, two of which are the subject of this appeal. First, he 

argued that his trial counsel rendered ineffective assistance by 

failing to request a jury instruction regarding Pinkerton

principles and that his appellate counsel was also ineffective 

in not raising the instruction’s absence as an issue on direct 

appeal. (Below, we address this claim as two separate issues, 

one as to trial counsel and one as to appellate counsel.) 

Second, Rangel asserted that his trial counsel was ineffective 

in failing to challenge the drug quantity and base offense level 

at sentencing.
11

The district court denied Rangel’s § 2255 petition by 

concluding in a Memorandum Opinion and Order that even if there 

was an error regarding the jury instructions, Rangel could not 

demonstrate prejudice because he was sentenced within the 

applicable guideline range. The court further concluded that 

Rangel’s trial counsel was not ineffective for failing to object 

to the offense level and guideline range at sentencing because 

of the jury’s finding and the presentence report, which 

attributed 1,000 kg of marijuana to Rangel.

Rangel filed a timely notice of appeal, and we have

jurisdiction under 28 U.S.C. § 1291.

II. Discussion

When reviewing an appeal from the denial of a § 2255 

motion, we review de novo the district court’s legal 

conclusions. United States v. Poindexter, 492 F.3d 263, 267 

(4th Cir. 2007).

To establish a claim of ineffective assistance of counsel, 

a defendant must show (1) that “counsel’s performance was 

deficient,” and (2) that “the deficient performance prejudiced 

the defense.” Strickland v. Washington, 466 U.S. 668, 687 

(1984). To satisfy the deficiency prong, the defendant must 

show that counsel’s performance “fell below an objective 

standard of reasonableness.” Id. at 688. “Judicial scrutiny of 
12

counsel’s performance must be highly deferential.” Id. at 689. 

There is a “strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance,” 

and “that, under the circumstances, the challenged action might 

be considered sound trial strategy.” United States v. Higgs, 

663 F.3d 726, 739 (4th Cir. 2011).

Under the prejudice prong, “[t]he defendant must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 694. There must be “a 

probability sufficient to undermine confidence in the outcome” 

of the trial. Id. However, a defendant is not required to 

establish that “counsel’s deficient conduct more likely than not 

altered the outcome of the case.” Id. at 693.

A. Jury Instructions under Collins

Rangel bases his claim of jury instruction error on this 

Court’s decision in United States v. Collins, 415 F.3d 304 (4th 

Cir. 2005). In that case, we considered on direct appeal the 

district court’s failure to give an instruction “that, for 

purposes of setting a specific threshold drug quantity under 

§ 841(b), the jury must determine what amount of cocaine base 

was attributable to [a drug conspiracy defendant] using 

Pinkerton principles.” Id. at 314. 
13

We concluded the failure to give such an instruction was 

error, but because the error concerned only the statute’s 

penalty provision, the conspiracy conviction was “sound” under 

§ 846.1 Id. Further, we recognized that without the instruction 

the sentence given “effectively attributed to [the defendant], 

an individual member of the conspiracy, the quantity of cocaine 

base distributed by the entire conspiracy.” Id. As a 

consequence, “[b]ecause the district court adopted the jury’s 

drug quantity determination in its application of the sentencing 

guidelines, the error affected both the threshold statutory 

range under § 841(b) and the district court’s application of the 

guidelines.” Id. Because the district court’s sentence in 

Collins was based on the jury’s invalid drug quantity 

determination, it “c[ould ]not stand.” Id.

The government concedes that the district court’s failure 

to instruct the jury to find a drug weight properly attributable 

to Rangel based on Pinkerton principles was error under Collins. 

1. Trial Counsel

Rangel first argues that his trial counsel rendered 

ineffective assistance because he did not request an instruction 

stating that the jury must determine drug weight using Pinkerton

 1 As in Collins, Rangel’s underlying conviction is “sound” 

and there is no issue in this appeal as to his conviction, but 

only as to the sentence he received. 
14

principles. The district court rejected this argument, 

reasoning that even if trial counsel’s performance was deficient 

under Strickland, the error resulted in no prejudice.2 The 

district court observed that Rangel “would nonetheless face a 

maximum term of twenty years imprisonment on Counts One, Four, 

and Seven” under the default penalty provision for marijuana. 

J.A. 409 (citing 21 U.S.C. § 841(b)(1)(C)). Regarding the 

guideline range, the district court found that the probation 

officer had “more than a sufficient basis” from evidence 

presented at trial to determine by a preponderance of the 

evidence that Rangel was accountable for over 1,000 kg of 

marijuana. Id.; see also U.S.S.G. § 1B1.3; United States v. 

Carter, 300 F.3d 415, 425 (4th Cir. 2002) (discussing the 

preponderance standard at sentencing). Thus, the base offense 

level –- which derived from the drug weight -- would remain the 

same, and the guideline range would remain at 121 to 151 months. 

The district court concluded that because Rangel’s 121-month 

sentence was within “the statutory range of zero to twenty 

years,” he “suffered no prejudice as a result of the alleged 

 2 On appeal, the government also argues that Rangel’s trial 

counsel’s failure to request the instruction was not deficient 

performance under Strickland’s first prong. The government 

reasons that the decision was a matter of trial strategy because 

Rangel’s defense focused on actual innocence, not drug weight. 

Given that the request would have taken place outside of the 

jury’s presence, the government’s argument has no merit, and in 

any event, was not raised below and appears to have been waived. 
15

failure of his counsel to object to the Court’s jury 

instructions.” J.A. 409.

We agree with the district court in part. In finding that 

the statutory range would be 0 to 20 years under the default 

penalty provision for marijuana, the district court 

misidentified 21 U.S.C. § 841(b)(1)(C) as the controlling 

subsection. While that would be correct for most drugs, the 

default sentencing provision for marijuana is found in 

§ 841(b)(1)(D), which specifies that “[i]n the case of less than 

50 kilograms of marihuana . . . such person shall . . . be 

sentenced to a term of imprisonment of not more than 5 years.” 

The default statutory term for marijuana is thus 0 to 5 years 

rather than 0 to 20 years as the district court stated. 

That mistake is without consequence here, however, as the 

district court was not constrained to review its sentence under 

only the default provision. Although resentencing under the 

default provision is a potential remedy for a successful direct 

appeal of a Collins error, a court’s review of a Collins error 

for prejudice in the § 2255 context is not so constrained. 

Under Strickland, Rangel must show a reasonable probability of a 

different result, “sufficient to undermine confidence in the 

outcome” of the trial. 466 U.S. at 694. We do not find that 

Rangel meets that standard. 
16

Our review of the record shows that Rangel’s sentence would 

have been the same even with a proper jury instruction. First, 

there is no reasonable probability that a proper jury finding 

would have resulted in a statutory range that precluded Rangel’s 

121-month sentence. The jury would have needed to find Rangel 

responsible for only 50 kg of marijuana to push the statutory 

range from the 5-year maximum of § 841(b)(1)(D) to the 20-year 

maximum under § 841(b)(1)(C). In light of the overwhelming 

evidence that Rangel was responsible for substantially more than 

50 kg of marijuana –- in particular, the multiple drug purchases 

in Texas -- there was no reasonable probability that the jury 

would have attributed less than 50 kg to Rangel. Rangel’s 

statutory sentence range, then, would have had a maximum of at 

least 20-years, far exceeding his ultimate 121-month sentence.

Having concluded that the district court could have imposed 

a 121-month sentence had the Collins error not occurred, the 

question then becomes whether the district court would have

imposed that sentence. Collins recognizes that if the district 

court “adopted the jury’s drug quantity determination in its 

application of the sentencing guidelines,” then that error will 

have “affected both the threshold statutory range under § 841(b) 

and the district court’s application of the guidelines.” 415 

F.3d at 314. Consequently, Rangel must show a reasonable 

probability that, but for the Collins error, the district court 
17

would have found him responsible for less than 1,000 kg, the 

amount that placed him in the 121- to 151-month guideline range. 

The record demonstrates that in all likelihood, even 

without the Collins error, the district court would have found

by a preponderance of the evidence that Rangel was responsible 

for 1,000 kg of marijuana. First, the jury established beyond a 

reasonable doubt that the conspiracy involved at least 1,000 kg, 

and there is no basis to conclude that Rangel would not have 

reasonably foreseen the conspiracy’s full scope. Further, the 

trial testimony established that Rangel was a management figure

in the conspiracy and helped coordinate multiple large-scale 

drug purchases. The record thus supports the district court’s 

conclusion by a preponderance of the evidence that Rangel would 

have foreseen the full scope of the conspiracy, with its 

accompanying 1,000 kg of marijuana. 

Moreover, independent of the jury finding, our review of 

the record shows that the district court would have attributed

1,000 kg of marijuana to Rangel. He was a management figure in 

a conspiracy that lasted several years, crossing half the 

country, and even extending into Mexico. More than that, Rangel 

was the point-man for numerous trips to Texas, where 50 pound 

(22.7 kg) quantities of marijuana were regularly obtained. In 

addition, Hillman testified as to the “hundreds” of times he 

bought pound quantities at the trailer, often with Rangel 
18

present, and taken from a multi-pound stash (0.45 kg per pound). 

We thus conclude that the district court’s finding that Rangel 

was responsible for 1,000 kg of marijuana was not the mere 

adoption of the Collins-error jury finding. 

Nor does the record support Rangel’s contention that the

10-year (120-month) statutory minimum affected his sentence. 

The district court’s independent 1,000 kg finding resulted in a 

121- to 151-month guideline range, and Rangel was sentenced at 

the bottom of that range. As the district court explained in 

denying Rangel’s habeas petition, “[e]ven without the jury’s 

finding, the base offense level would have been 32 based on the 

evidence presented at trial and the information contained in the 

Presentence Report.” J.A. 411. Rangel emphasizes the judge’s 

statement at sentencing that considering the § 3553 sentencing 

factors was “sort of a useless endeavor in this case because 

there’s a mandatory” minimum sentence, but that statement 

addressed only the availability of a below-guideline sentence. 

Id. at 215. It is clear from the sentencing transcript that the 

district court considered Rangel undeserving of a belowguideline sentence: the judge “simply [could not] think of any 

kind of a factor that would weigh in [Rangel’s] favor.” Id.

In sum, the record supports the conclusion that a properly 

instructed jury would have attributed at least 50 kg of 

marijuana to Rangel, with a resulting statutory range of 0 to 20 
19

years. That statutory range would have included the 121- to 

151-month guideline range from the court’s independent 1,000 kg

finding at sentencing. In all likelihood, then, Rangel still 

would have received the same guideline range and the same 121-

month sentence. Having failed to demonstrate a reasonable 

probability of a different outcome, Rangel does not satisfy 

Strickland’s prejudice prong on this issue. Rangel’s trial 

counsel, therefore, did not render constitutionally ineffective 

assistance by failing to request an instruction to determine 

drug weight based on Pinkerton principles under Collins.

2. Appellate Counsel

For similar reasons, we conclude that Rangel was not 

prejudiced by his appellate counsel’s failure to raise the 

Collins error as an issue on direct appeal.3 To show prejudice 

in the context of appellate representation, a petitioner must 

establish a “reasonable probability . . . he would have 

prevailed on his appeal” but for his counsel’s unreasonable 

failure to raise an issue. Smith v. Robbins, 528 U.S. 259, 285-

86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-

46 (3d Cir. 2000) (“The test for prejudice under Strickland is 

not whether petitioners would likely prevail upon remand, but 

 3 Because we resolve the claim under Strickland’s prejudice 

prong, it is unnecessary to decide whether appellate counsel’s 

omission of the Collins issue constituted deficient performance. 
20

whether we would have likely reversed and ordered a remand had 

the issue been raised on direct appeal.”).

Having reviewed the record in this case, we conclude that 

Rangel’s Collins claim would not have had a reasonable 

probability of success had it been raised on direct appeal. 

Because Rangel did not raise the issue at trial, the standard of 

review on appeal would have been plain error. To prevail, then, 

he would have had to show that 1) an error occurred, 2) the 

error was plain, and 3) the error affected his substantial 

rights. United States v. Olano, 507 U.S. 725, 732 (1993); see

also Fed. R. Crim. P. 52. Affecting substantial rights, “in 

most cases,” means that “the error must have been prejudicial: 

It must have affected the outcome of the district court 

proceeding.” Olano, 507 U.S. at 734. This outcome-based 

standard is similar to Strickland’s prejudice inquiry. Compare

United States v. Marcus, 560 U.S. 258, 262 (2010) (prejudice, to 

prove an effect on “substantial rights” for plain error review, 

means “a reasonable probability that the error affected the 

outcome of the trial”), with Strickland, 466 U.S. at 694 

(prejudice, to establish ineffective assistance, means “a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different”). Finally, even with those three requirements met, 

we need not correct a plain error that “did not seriously affect 
21

the fairness, integrity, or public reputation of judicial 

proceedings.” United States v. Jeffers, 570 F.3d 557, 570 (4th 

Cir. 2009) (declining to notice a Collins error that did not 

seriously affect the trial’s fairness); see also Olano, 507 U.S. 

at 736.

We have established that Collins errors satisfy the first 

two requirements: an error occurred and the error was plain. 

See, e.g., United States v. Foster, 507 F.3d 233, 251 (4th Cir. 

2007). We conclude, however, that if there was error here, it

did not affect Rangel’s substantial rights because it did not 

affect the ultimate outcome of the sentencing phase of his 

trial. As explained above regarding Rangel’s trial counsel 

claim, a properly instructed jury would have attributed in 

excess of 50 kg to Rangel, which would authorize a statutory 

maximum sentence of 20 years. Similarly, the district court 

would have then found Rangel responsible for 1,000 kg of 

marijuana by a preponderance of the evidence at sentencing, thus 

setting the 121- to 151- month guideline range. Because that 

finding would have resulted in the same 121-month sentence at 

the low end of the guidelines that Rangel received, the outcome 

would have been the same with or without a Collins error. 

Again, the district court stated this plainly: “Even without the 

jury’s finding, the base offense level would have been 32 based 

on the evidence presented at trial and the information contained 
22

in the Presentence Report.” J.A. 411. Rangel provides no 

viable basis for his contention that the district court, despite 

its express statement, would have found him responsible for some 

lesser weight. See Olano, 507 U.S. at 734 (observing that on 

plain error review, the petitioner bears the burden of 

persuasion with respect to prejudice). 

Because the record before us demonstrates that any Collins

error would not have affected Rangel’s substantial rights, a 

direct appeal on that issue would have had limited chance of 

success. Accordingly, Rangel does not demonstrate prejudice and 

therefore did not receive constitutionally ineffective 

assistance from his appellate counsel.

B. Argument at Sentencing

Rangel next contends that his trial counsel provided 

ineffective assistance at sentencing by failing to challenge the 

district court’s drug weight finding and the resulting guideline 

range. 

For our purposes, it is sufficient to assume deficient 

performance and to turn again directly to the prejudice prong. 

In doing so, we conclude that Rangel suffered no prejudice; 

there is not a reasonable probability that he would have 

received a more favorable outcome had his counsel challenged the 

drug weight. As explained above, the district court found 

Rangel responsible for 1,000 kg based on the evidence at trial, 
23

the probation officer’s unchallenged representations, and the 

evidence presented in the presentence report. We need not 

speculate as to what the district court would have found, as it 

wrote unequivocally that it found 1,000 kg attributable to 

Rangel by a preponderance of the evidence, irrespective of the 

jury’s finding. The guideline range and ultimate sentence flow 

directly from the district court’s drug weight finding. Rangel 

points to no argument or factor that his counsel should have 

raised that the district court failed to consider and which 

might have changed its view. He accordingly fails to establish 

prejudice to support his claim that his trial counsel rendered

ineffective assistance at sentencing by failing to object to the 

drug weight finding. 

III.

For the foregoing reasons, the judgment of the district 

court is

AFFIRMED.