UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4898

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

CHARLES WARD, a/k/a Chuck,

Defendant – Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:09-cr-00032-JPB-DJJ-1)

Submitted: April 27, 2010 Decided: May 25, 2010

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Betsy 

C. Jividen, Acting United States Attorney, Thomas O. Mucklow, 

Assistant United States Attorney, Martinsburg, West Virginia, 

for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Charles Ward was charged in a six-count indictment 

with various felony drug offenses. Pursuant to a plea 

agreement, Ward pled guilty to Count Three of the indictment, 

which charged him with aiding and abetting in the distribution 

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006) 

and 18 U.S.C. § 2 (2006), in exchange for dismissal of all other 

counts. Ward was sentenced to 200 months in prison. He now 

appeals, arguing that his trial counsel was ineffective. For 

the reasons that follow, we affirm.

On appeal, Ward argues that he was denied the 

effective assistance of counsel at his plea hearing and 

subsequent sentencing hearing. Specifically, Ward argues that 

counsel was ineffective for failing “to fully and competently 

inform Ward of options to accepting a conditional plea agreement 

which contained a stipulation regarding relevant drug conduct 

and which contained a provision that required Ward to pay the 

$100.00 special assessment within forty (40) days following 

entry of his plea.” 

The Government argues that Ward’s appeal should be 

dismissed because he validly waived his right to appeal in his 

plea agreement. However, the Government also acknowledges that 

even a valid appellate waiver would not prevent Ward from 

appealing on the basis of an alleged violation of his Sixth 
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Amendment right to counsel in proceedings following the guilty 

plea. See United States v. Attar, 38 F.3d 727, 732-33 (4th Cir. 

1994) (finding that, where defendants sought “to challenge their 

sentences on the ground that the proceedings following entry of 

the guilty plea — including both the sentencing hearing itself 

and the presentation of the motion to withdraw their pleas —

were conducted in violation of their Sixth Amendment right to 

counsel,” “the general waiver of appeal rights contained in this 

plea agreement” could not be “construed as a waiver of the right 

to challenge their sentences on that ground”). Therefore, the 

ineffective assistance claims raised by Ward are not barred by 

his appellate waiver. 

“A claim of ineffective assistance of counsel should 

be raised by a habeas corpus motion under 28 U.S.C. § 2255

[(West Supp. 2009)] in the district court and not on direct 

appeal, unless it conclusively appears from the record that 

defense counsel did not provide effective representation.” 

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) 

(internal quotation marks and alterations omitted). To 

demonstrate ineffective assistance, a defendant must show that 

his “counsel’s representation fell below an objective standard 

of reasonableness,” and that the error was “prejudicial to the 

defense” such that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the 
4

proceeding would have been different.” Strickland v. 

Washington, 466 U.S. 668, 688, 692, 694 (1984). In the context 

of a plea agreement, where a defendant claims ineffective 

assistance, the prejudice prong is satisfied where the defendant 

shows that “there is a reasonable probability that, but for 

counsel’s errors, he would not have pleaded guilty and would 

have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 

52, 59 (1985). 

In his first claim, Ward argues that counsel “ignored 

the provision in the Plea Agreement which required Ward to pay 

the $100.00 special assessment within forty (40) days of entry 

of his guilty plea,” and “[i]nstead, counsel depended upon a 

conversation that he had with the Government, in which counsel 

was informed that Ward would receive the third point reduction 

for timely acceptance.” Ward argues that although he did not 

have the financial means to pay the special assessment, he “may 

well have been able to timely marshal the money to satisfy the 

assessment from friends and family members.” He insists that 

“[t]here is a reasonable probability that the result of the 

proceeding would have been different had Ward been properly 

advised regarding the necessity to timely pay the special 

assessment.” In the alternative, Ward claims that counsel 

should not have advised him to enter into the plea agreement 
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requiring him to pay the special assessment within forty days 

because counsel knew that Ward did not have the ability to pay.

Despite Ward’s contentions, his counsel’s alleged 

ineffectiveness regarding the special assessment is not apparent 

on the face of the record. First, Ward himself acknowledges 

that he did not have the money to pay the special assessment due 

to his indigency, and states on appeal only that he “may well 

have been able to timely marshal the money to satisfy the 

assessment from friends and family members.” Further, Ward does 

not assert that he would not have taken the plea had counsel 

properly informed him about the special assessment fee. Thus, 

even assuming counsel’s actions could be considered 

unreasonable, there is nothing in the record to demonstrate that 

Ward was prejudiced by counsel’s alleged ineffectiveness.*

Ward also asserts that, in the alternative, counsel 

should have never advised him to take the plea, because he knew 

Ward was indigent and could not afford the special assessment. 

However, the record shows that in exchange for taking the plea, 

 

 * Additionally, the record is replete with instances in 

which Ward and his counsel were reminded that only upon payment 

of the special assessment and compliance with all other terms of 

the plea agreement would the Government move for the additional 

one-level reduction. As noted, this information was conveyed by 

the Government and the court during Ward’s plea, it was 

contained within the PSR, and it was expressly noted in the plea 

agreement. 
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Ward had all five remaining counts in the indictment dismissed 

and he received a two-level reduction for acceptance of 

responsibility. According counsel the deference to which he is 

entitled under Strickland, the record does not demonstrate that 

counsel’s advice to take the plea fell below an objective 

standard of reasonableness. See Strickland, 466 U.S. at 689 

(noting that “a court must indulge a strong presumption that 

counsel's conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome 

the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy” (internal 

quotation marks omitted)). Accordingly, because the record does 

not conclusively demonstrate that counsel was ineffective, we 

conclude that Ward’s claim is not properly before this court on 

appeal.

In his second claim, Ward asserts that “counsel failed 

to inform Ward that he could enter a guilty plea and place the 

burden of proving relevant conduct upon the Government.” Ward 

now claims that if counsel had informed him that, in addition to 

going to trial or accepting the plea agreement offered by the 

Government, he had this third option, “he would not have entered 

into a plea agreement which stipulated that large quantity of 

relevant conduct.” 
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The record shows that, at the sentencing hearing, Ward 

stated to the court that counsel “never advised me that I could 

have [a] relevant conduct hearing about” the drug quantity for 

which he was responsible. However, there was no response from 

counsel on that matter at the hearing, and the record does not 

contain any affidavit or response from trial counsel indicating 

what he recalls telling Ward regarding relevant conduct and, if 

he failed to discuss it with Ward, why he chose not to disclose 

that information. Thus, any conclusion by this court regarding 

counsel’s discussions with Ward on the issue of relevant conduct 

would be premised on surmise or speculation, and we decline on 

direct appeal to consider Ward’s arguments regarding his trial 

counsel’s ineffective assistance. See United States v. Allen, 

491 F.3d 178, 191-92 (4th Cir. 2007).

Accordingly, we affirm Ward’s conviction and sentence. 

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