NOT RECOMMENDED FOR PUBLICATION File Name: 21a0015n.06

No. 19

- 2232

UNITED STATES COURTS OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee
,

v.
DOMINIQUE GILBERT
,
Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: COLE, Chief Judge; SILER and GIBBONS, Circuit Judges

.
JULIA SMITH GIBBONS , Circuit Judge

. I n October of 201 9 , defendant Dominique

Gilbert was sentenced to 39 months of imprisonment after pleading guilty to offenses under

18 U.S.C. § 1029(a)(4) and 18 U.S.C. § 1028A(a)(1). The only question Gilbert raises on this
direct appeal is whether his counsel provided ineffective assistance. Because dire ct appeal is not
the proper vehicle to address Gilbert’s claim of ineffective assistance of counsel, we affirm the
district court’s judgment.

I.
On August 1, 2018, a federal criminal complaint was filed against Gilbert charging him

with four offenses rela ted to identity theft. On September 18, 2018, Gilbert appeared in federal
court on a writ of habeas corpus ad prosequendum and consented to federal detention. Previously,
Gilbert was being held in state custody for a parole violation. The grand jury iss ued an Indictment
against Gilbert on January 16, 2019, charging him with one count of possession of device

- makingNo. 19

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, United States v. Gilbert

- 2

-

equipment in violat ion of 18 U.S.C. § 1029(a)(4) and one count of possession of counterfeit access

devices in violation of 18 U.S.C. § 1029(a) (3). Gilbert was arraigned on January 22, 2019 and
entered a plea of not guilty. He remained in federal custody.
On May 16, 2019, the grand jury issued a Superseding Indictment charging Gilbert with
possession of device

- making equipment in violation of 18 U.S.C. § 1029(a)(4) and aggravated
identity theft and aiding and abetting in violation of 18 U.S.C. § 1028A(a)(1) and 18 U.S.C. § 2

. On May 28, 2019, Gilbert pled guilty to both counts of the Superseding Indictment.
During preparation fo r the sentencin g, Gilbert’s counsel learned that Gilbert would not be

able to count the time he had been detained in federal custody towards his federal sentence because
he was being detained on a writ of habeas corpus ad prosequendum from the state

. Sinc e he was
detained pursuant to the writ, Gilbert would only receive credit towards his state sentence

. Up
until that time, both Gilbert and his counsel had believed that he was receiving federal credit while

detained. By the time that counsel realized the mistake, Gilbert had been in federal custody for
approximately fifteen months.
At the sentencing hearing, Gilbert’s counsel told the court that the error concerned him
“because quite frankly, I feel that I didn’t do an adequate job in advising my client in terms of how

time counts.” DE 33, Sentencing Hr’g Transcript, Page ID 145. His counsel explained that Gilbert

believes that had he rema ined in state custody, his sentence for his parole violation would have

been less than twelve months
, and at the end of that time he would have been turned back over to
federal custody and been able to count the remaining months of his detention towards his federal

sentence. When questioned by the court, the government acknowledged that the state authori ties

will sometimes impose shorter sentences when a defendant also has a pending federal charge so
that the state does not have to pay for the defendant’s detention. Gilbert’s counsel admitted,No. 19

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, United States v. Gilbert

- 3

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however, that he had no proof regarding what sentence the Mic higan D epartment of C orrections

would have imposed if Gilbert had returned to state custody and that his belief that the sentence

would have been less than twelve months was speculation on his part

. Counsel also speculated

that if he had known Gilbert was not receiving federal credit while he was detained, he may have
handled the plea negotiations differently.
After his counsel explained the misunderstanding, the district court asked Gilbert whether
he still wished to continue with his plea

. Gilbert conf irmed that he did and told the court that he
was still satisfied with his counsel’s representation. The district court then sentenced Gilbert to 15
months of imprisonment on Count 1 to run concurrently with Gilbert’s state sentence and 24
months of impris onment on Count 2 to be served consecutive to Count 1 and any state sentence.
Gilbert filed a timely appeal , arguing that his attorney provided ineffective assistance of counsel
by incorrectly telling him he was receiving federal credit for the time he was detained in federal
custody.

II.

To prevail on a Sixth Amendment ineffective

- assistance

- of

- counsel claim, Gilbert must

show that his counsel’s conduct fell below “an objective standard of reasonableness” and that

“there is a reasonable probability th at, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington
, 466 U.S. 668, 68 8, 694 (1984).

We generally do not review claims of ineffective assistance of counsel o n direct appeal because

such claims are better suited to adjudication in post

- conviction proceedings. Massaro v. United

States
, 538 U.S. 500, 504 (2003) ; United States v. Ferguson
, 669 F.3d 756, 762 (6th Cir. 2012);
United States v. Bradley
, 400 F.3d 459, 461

– 62 (6th Cir

. 2005). On direct appeal, the record is
often inadequate or incomplete because the proceedings at the trial court were not “developedNo. 19

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, United States v. Gilbert

- 4

-

precisely for the object of litigati ng or preserving” an ineffective

- assistance

- of

- counsel claim

. Ferguson , 669 F.3d at 762 (quoting Massaro, 538 U.S. at 504

– 05 ). Requiring the defendant to

file a § 2255 motion “ allows the claim to be litigated in the first instance in the district court, wh ich
is ‘the forum best suited to developing the facts necessary to determining the adequacy of
representation’ because it may take testimony from witnesses including the defendant, prosecution,

and counsel .” Id. (quoting Massaro , 538 U.S. 505

– 06.) We make an exception only in the rare
case in which the record is adequate to review the claim on direct appeal. See United States v.

Pruitt, 156 F.3d 638, 646 (6th Cir. 1998). To be permitted to proceed on direct appeal, t he
defendant must provide a “ substa ntive argument concerning why the record here is sufficiently
developed for us to rule on his ineffective

- assistance claim on direct review.” United States v.

Williams , 61 2 F.3d 500, 508

– 09 (6th Cir. 2010).

Gilbert has not shown that his is the exceptio nal ineffective

- assistance

- of

- counsel claim

that should be adjudicated on direct appeal

. The record is inadequate to fairly evaluate either prong

of Strickland

. First, the only evidence Gilbert identifies to prove that his counsel ’s performance

was deficient i s his counsel’s statement to the court at the sentencing hearing that he felt that he

did not “do an adequate job.” DE 33, Sentencing Hr’g Transcript, Page ID 145. T here is no record

of what specifi cally his counsel told Gilbert about how his time would be credited while in federal
custody. Second, the record contains only speculation as to whether Gilbert was prejudiced by his

counsel’s alleged error. Gilbert’s counsel told the court that Gilbert believed that if he had been

returned to state custody “he would have already been paroled through the state and then turned

over to the [federal government.]” Id. at Page ID 147. But there is no evidence in the record of

what the state parole board would have agreed to; Gilbert’s counsel even acknowledge d that

“there’s speculation on his part.” Id. at Page ID 147

– 48. There is also no testimony about howNo. 19

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, United States v. Gilbert

- 5

-

Gilbert’ s trial counsel may have changed his strategy during plea negotiations had he been properly

informed. Finally, the record gives no indication of whether Gilbert would have agreed to

postpone his jury trial as he did several times if he had known he was no t receiving federal credit.
Simply put, the record is insufficient to properly evaluate Gilbert’s ineffective

- assistance

- of

counsel claim. We therefore decline to review Gilbert’s claim and leave it to be resolved in post

conviction proceedings.

I II

. The judgment and sentence of the district court is affirmed

.