UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4366

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALLEN WAYNE POSTON,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., Chief District Judge. (3:09-cr-00239-RJC-1)

Submitted: January 26, 2012 Decided: February 3, 2012

Before DUNCAN, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville, 

North Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Richard Lee Edwards, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Allen Wayne Poston pled guilty, with the benefit of a 

written guilty plea, to wire fraud and aiding and abetting the 

same, in violation of 18 U.S.C.A. § 1343 (West 2000 & Supp. 

2011), and 18 U.S.C. § 2 (2006). Subsequent to the entry of his 

guilty plea, but prior to the imposition of sentence, Poston 

moved to withdraw his guilty plea. The district court denied 

the motion. As a result of Poston’s failed motion to withdraw 

his guilty plea, the probation officer revised Poston’s 

presentence report (PSR) to eliminate the three-level downward 

adjustment for acceptance of responsibility under U.S.

Sentencing Guidelines Manual § 3E1.1 (2010). This revision led 

to an increase in the applicable Guidelines sentencing range of 

from forty-one to fifty-one months to the new range of fiftyseven to seventy-one months. At sentencing, Poston objected to 

the loss of the acceptance-of-responsibility adjustment. The 

district court overruled Poston’s objection but imposed a 

variant sentence of forty-eight months’ imprisonment. As part 

of its explanation of sentence, the district court stated the 

forty-eight-month sentence “would have been in the high end of 

the otherwise applicable guideline range” had “the original 

acceptance of responsibility” downward adjustment still applied. 

Poston appeals, arguing that trial counsel rendered 

ineffective representation when he moved to withdraw Poston’s 
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guilty plea. Poston claims counsel’s deficient performance 

prejudiced him because the loss of the acceptance-ofresponsibility adjustment led to an “unduly harsh sentence.”*

 

We may address a claim of ineffective assistance on 

direct appeal only if the lawyer’s ineffectiveness conclusively 

appears on the record. United States v. Baldovinos, 434 F.3d 

233, 239 (4th Cir. 2006). To prove his ineffective assistance 

claim, Poston 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). With respect to the first prong, “the defendant must 

show that counsel’s representation fell below an objective 

standard of reasonableness.” Id. at 688. In addition, 

“[j]udicial scrutiny of counsel’s performance must be highly 

deferential.” Id. at 689. Under the second prong of the test, 

“[t]he defendant must show that there is a reasonable 

 * Poston’s plea agreement also included an appeal waiver, in 

which Poston waived the right “to contest a conviction and/or 

sentence through an appeal or post conviction” proceeding unless 

the claims raised involved ineffective assistance of counsel or 

prosecutorial misconduct. The Government asserts the portion of 

Poston’s appeal attacking his sentence should be dismissed based 

upon Poston’s appeal waiver. We have carefully considered the 

Government’s position and have concluded, because Poston argues 

his increased sentence was the prejudice that resulted from his 

counsel’s alleged ineffective assistance, that Poston’s 

sentencing argument is part of his ineffective assistance claim 

and falls outside the scope of his appellate waiver.
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probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 

694. Finally, we need not address both components of the 

Strickland test if the defendant makes an insufficient showing 

as to either part of the test. Id. at 697. 

We conclude Poston has failed to point to conclusive 

evidence on this record establishing ineffective assistance of 

counsel. The only prejudice Poston asserts is the loss of the 

acceptance-of-responsibility downward adjustment in his offense 

level. At the sentencing hearing, however, the district court’s

explanation of its sentencing judgment persuades us that it 

would have imposed the same sentence even if Poston’s original 

forty-one to fifty-one month Guidelines range had remained 

unchanged. Thus, Poston cannot demonstrate he received a longer 

sentence as a result of trial counsel’s motion to withdraw the 

guilty plea. We therefore affirm the district court’s judgment.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional

process.

AFFIRMED