21

- 842 United States v. McCullough



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 1 6 t h da y of D e c e m b e r , two thousand twenty

- two

. 3 4 PRESENT: 5 AMALYA L. KEARSE , 6 MICHAEL H. PARK , 7 STEVEN J. MENASHI , 8 Circuit Judges. 9

________________________ _____________ 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellee. 15 16

v. 21

- 842 17 18 TROY L. McCULLOUGH, 19 20 Defendant

- Appella nt

. * 21

_____________________________________ 22 23 F OR APPELLEE : T IFFANY H. L EE , Assistant United States 24 Attorney, of Counsel, for Trini E. Ross, 25 United States Attorney for the Western 26 District of New York, Buffalo, N.Y. 27 28

* The Clerk is respectfully directed to amend the caption accordingly.2 F OR DEFENDANT

- APPELLANT: S USAN C. W OLFE , Riverdale, N.Y. 1 2 Appeal from a judgment of the United States District Court for the Western District of New 3
York ( Siragusa
, J

. ). 4

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 5

DECREED that the appeal is DISMISSED in part and REMANDED in part for the district court 6

to conduct factfinding regarding the ineffective assistance of counsel claim. 7
Troy L. McCullough pleaded guilty to Hobbs Act robbery and brandishing a firearm in 8
connection with that robbery. His plea agreement stipulated that he qualified as a “Career 9
Offender” for purposes of United States Sentencing Guideline s § 4B1.1(a) . The district court, 10
applying that guideline, sentenced McCullough to 262 months of imprisonment, the bottom of the 11
parties’ stipulated guidelines range. McCullough appealed , arguing that the district court’s 12
appli cation of the C areer O ffender guideline was plainly erroneous and that his counsel was 13
ineffective for failing to object on th o se grounds . The United States concedes the first point in 14
light of United States v. Chappelle , 41 F.4th 102 (2d Cir. 2022). But the government seeks to 15
enforce the “waiv[er]” of McCullough’s “right to appeal .

. . any component of a sentence .

. . 16
which falls within or is less than the [stipulated] sentencing range” contained in McCullough’s 17
plea agreement
, and it urges us to decline to hear the ineffective assistance of counsel claim at this 18

stage . App’x at 88. We assume the parties’ familiarity with the facts, the procedural posture, and 19
the issues on appeal. 20
“Waivers of the right to appeal a sentence are presumptively enforceable, and the 21
exceptions to this rule occupy a very circumscribed area of our jurisprudence.” United States v. 22

Borden , 16 F.4th 351, 354

- 55 (2d Cir. 2021) (cleaned up)

. Such exceptions include “challenges 23
to the process leading to the plea,” Unite d States v. Lloyd , 901 F.3d 111, 118 (2d Cir. 2018), 243 show ing that the plea “was not made knowingly, voluntarily, and competently ,” Sanford v. United 1

States , 841 F.3d 578, 580 (2d Cir. 2016) (cleaned up). We thus begin with McCullough’s claim 2

of ineffectiv e assistance of counsel. That claim may avoid McCullough’s appeal waiver

. See 3
Lloyd , 901 F.3d at 124 (“[A] guilty plea would be invalid and [the] appeal waiver unenforceable 4
if [the appellant] prevailed on his claim that he received constitutionally inef fective assistance of 5
counsel during his plea proceedings.”); accord Parisi v. United States , 529 F.3d 134, 138 (2d Cir. 6

2008 ) ( “ T o raise a claim despite a guilty plea or appeal waiver, the petitioner [may] show that the 7
plea agreement was not knowing and voluntary because the advice he received from counsel was 8
not within acceptable standards” ( cleaned up ) )

. 9

Our review of the issue is complicated because McCullough raises his claim on direct 10
appeal. “ O ur established practice on direct appeal .

. . when addressing ineffective assistance 11
claims with regard to the district court proceedings, is to consider three options: .

. . (1) dec line to 12
hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for a writ 13
of habeas corpus .

. . ; (2) remand the claim to the district court for necessary factfinding; or (3) 14

decide the claim on the record before us.” Lloyd , 901 F.3d at 124 (cleaned up). We decline to 15

resolve McCullough’s ineffective assistance of counsel claim on the record before us because “the 16
record is devoid of testimony or other evidence from [McCullough’s] prior counsel or otherwise 17
regarding [his] representation .

. . leading up to .

. . the guilty plea and subsequent sentencing.” Id. 18

at 125. We accordingly remand the ineffective assistance of counsel claim to the district court to 19

address it in the first instance

. In doing so, the distric t court should consider whether 20
McCullough’s counsel “fell below an objective standard of reasonableness” and whether 21
McCullough suffered “prejudice arising from [his] counsel’s allegedly deficient representation.” 22

Parisi , 529 F.3d at 140 (cleaned up). I f the district court determines that the plea agreement does 234 not prevent McCullough from seeking reconsideration of his sentence, the district court may 1
proceed to consider the Career Offender issue. 2
For purposes of this appeal, however, because the curre nt “record does not permit 3
assessment of the claim of ineffective assistance and its potential effect on the appeal waiver,” the 4
waiver “will be provisionally enforced as to any appellate claim that falls under the appeal waiver.” 5
United States v. Oladimej i , 463 F.3d 152, 155 (2d Cir. 2006). And McCullough’s sentencing 6
challenge falls within his appeal waiver . “[A] defendant’s inability to foresee a change in the law 7
does not supply a basis for failing to enforce an appeal waiver.” Sanford , 841 F.3d at 58 0 (cleaned 8
up). “This Court has upheld waiver provisions even .

. . where the sentence was conceivably 9
imposed .

. . in violation of the Guidelines, but yet was still within the range contemplated in the 10
plea agreement.” Id. (cleaned up) (enforcing an appeal waiver when the defendant was sentenced 11
under a guidelines provision later held to be unconstitutional); see also, e.g.
, United States v. Avery
, 12
762 F. App’x 50, 52 & n.1 (2d Cir. 2019) (explaining that a change in the int erpretation of the 13
sentencing guidelines would not excuse an appeal waiver). We therefore provisionally dismiss 14
McCullough’s challenge to the error in his sentence as barred by his appeal waiver without 15
prejudice to his raising the issue again should he s ucceed “in proving that his appeal waiver should 16

be voided because he received ineffective assistance of counsel

. ” Oladimeji , 463 F.3d at 155

. 17
For the foregoing reasons, we DISMISS the appeal in part and REMAND in part

. In the 18
interest of judicial econom y, all further proceedings and subsequent appeals shall be referred to 19
this panel. 20

FOR THE COURT: 21 Catherine O ’ Hagan Wolfe, Cler k of Court 22