UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4662

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES RODERCK BROWN, a/k/a JB,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Clarksburg. Irene M. Keeley, Chief

District Judge. (CR-04-87)

Submitted: August 29, 2008 Decided: September 10, 2008

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jane Moran, JANE MORAN LAW OFFICE, Williamson, West Virginia, for

Appellant. Sharon L. Potter, United States Attorney, David E.

Godwin, Assistant United States Attorney, Clarksburg, West

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

James Roderck Brown appeals from his conviction after

pleading guilty to maintaining a drug involved premises in

violation of 21 U.S.C.A. § 856(a)(1), (b) (West 2000 & Supp. 2008).

On appeal, Brown argues that he received ineffective assistance of

trial counsel during his guilty plea and sentencing proceedings.

He also contends that the lengthy delay on appeal due to multiple

substitutions of appointed counsel resulted in a violation of his

due process rights. Finding no error, we affirm.

Brown alleges that trial counsel was ineffective because

he did not zealously investigate defenses to the charges; did not

throughly cross-examine the Government witness who testified to

establish the factual basis for the plea; did not argue for a

sentence of 180 months, the low end of the range specified in the

plea agreement; and did not contest the quantity of drugs

attributed or a firearm enhancement. Unless an attorney’s

ineffectiveness is apparent on the face of the record, ineffective

assistance claims are not generally addressed on direct appeal.

United States v. James, 337 F.3d 387, 391 (4th Cir. 2003); United

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

standard and noting that ineffective assistance of counsel claims

generally should be raised by motion under 28 U.S.C. § 2255

(2000)).
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To succeed on a claim of ineffective assistance, Brown

must show that: (1) counsel’s performance fell below an objective

standard of reasonableness; and (2) counsel’s deficient performance

was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88

(1984). Under the first prong of Strickland, a defendant must

demonstrate that counsel’s performance “fell below an objective

standard of reasonableness” under prevailing professional norms.

Id. at 688. To satisfy the second prong of Strickland, a defendant

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id. However, to satisfy Strickland’s second prong in the guilty

plea context, a petitioner must show a reasonable probability that,

but for counsel’s unprofessional errors, he would not have pled

guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Brown does not contend on appeal that, but for trial

counsel’s alleged lack of a defense against the charge, he would

not have pleaded guilty. At no time did Brown attempt to withdraw

his plea, and he, in fact, affirmed at the plea hearing that he was

satisfied with the services of his attorney. The Government had

evidence of three controlled drug buys with recordings of the phone

calls setting up the buys. The cocaine base received during the
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buys was sent to and analyzed by a laboratory. In addition, the

Government contended that nine persons who were involved in the

drug activity were available to testify. Brown’s co-defendant had

also pleaded guilty and agreed to testify against Brown regarding

the charges. 

The remaining two ineffective assistance of trial counsel

claims involve counsel’s representation at sentencing. Brown

claims that counsel should have filed objections to the presentence

report and should not have agreed to a sentencing range of 210 to

240 months instead of 180 months as the lower range. He also

claims that counsel did not contest evidence of drug amount and the

gun enhancement. Brown affirmed that the 210 to 240 month

Guidelines range was properly calculated at sentencing. Further,

the gun enhancement was applicable because several witnesses stated

that Brown often carried a firearm. The enhancement was not based

on the presence of a firearm at the time of arrest. While a

district court retains the discretion to apply a downward variance

and therefore a 180-month sentence may have been a possibility, the

Guidelines range was properly calculated, and the court considered

the 18 U.S.C.A. § 3553(a) (West Supp. 2008) factors in crafting the

sentence. Therefore, there appears to be no ineffective assistance

in failing to challenge the Guidelines range calculation. In light

of these and other facts, we conclude that ineffective assistance

of trial counsel is not apparent on the face of the record and
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therefore will not be addressed and is best adjudicated in a 28

U.S.C. § 2255 (2000) motion.

Next, Brown argues that the two-year and nine-month delay

of this appeal resulted in a violation of his due process rights.

Brown states that, because current appellate counsel could not

recreate the entire case file of trial counsel, he was prejudiced.

He also states he suffered anxiety because he was effectively

without representation to appeal his 240-month sentence.

This court has recognized that an “undue delay in

processing an appeal may rise to the level of a due process

violation.” United States v. Johnson, 732 F.2d 379, 381 (4th Cir.

1984). In determining whether such a delay results in the denial

of a speedy appeal, we adopted the four-factor speedy-trial test of

Barker v. Wingo, 407 U.S. 514, 530 (1972). Johnson, 732 F.2d at

381-82. The four factors are: (1) the length of the delay; (2) the

reason for the delay; (3) the defendant’s assertion of his speedy

appeal right; and (4) prejudice to the defendant. Johnson, 732

F.2d at 381-82 (citing Barker, 407 U.S. at 530). In Johnson, we

held that the two-year delay in that case was “in the range of

magnitude of delay as a result of which courts have indicated that

due process may have been denied.” 732 F.2d at 382. 

Here, the two-year and nine-month delay alleged in this

case would be sufficient to trigger the balancing test. See

Smith v. Kansas, 356 F.2d 654, 657 (10th Cir. 1966) (recognizing
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constitutional implications of one-year delay in appeal from

post-conviction proceeding). The reason for the delay is entirely

due to the need for substitute appellate counsel. Brown timely

asserted his right to appeal. Therefore, the first three factors

of the test weigh in Brown’s favor.

Brown, however, still needs to demonstrate that he has

suffered prejudice from the delay. Brown’s brief confuses

prejudice related to the ineffective assistance of trial claims,

which are unrelated to the delay, and the prejudice related to

appellate delay. Brown has now presented his claims, and they are

without merit; therefore, his substantial rights have not been

violated. Anxiety alone over case status is not sufficient to

find that there was prejudice affecting Brown’s substantial rights.

 We therefore affirm the 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