United States Court of Appeals

for the Fifth Circuit

No. 18-11304

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Marshall Curtis Lane, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:15-CV-143

USDC No. 1:13-CR-84-3

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:*

Pursuant to a certificate of appealability granted by this court, 

Marshall Curtis Lane, federal prisoner # 47535-177, appeals the district 

court’s denial of his 28 U.S.C. § 2255 motion challenging his 2014 drug 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2021

Lyle W. Cayce

Clerk

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conspiracy conviction and sentence, wherein he claimed, in pertinent part, 

that his trial counsel performed in a constitutionally deficient manner by 

failing to consult with him regarding an appeal. 

Because Lane did not object to the magistrate judge’s report and 

recommendation, our review is for plain error. See United States v. Young, 

585 F.3d 199, 202 & n.10 (5th Cir. 2009). To prevail, Lane must show a 

forfeited error that is clear or obvious and that affects his substantial rights. 

See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a 

showing, we have the discretion to correct the error but only if it “seriously 

affect[s] the fairness, integrity or public reputation of judicial proceedings.” 

Id. (internal quotation marks and citation omitted). 

Lane has not shown reversible plain error in the district court’s 

rejection of his ineffective assistance claim. See id. First, we are unpersuaded 

that there was a nonfrivolous issue for appeal with respect to the validity of 

the appeal waiver such that a rational defendant would have wanted to 

appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000); see also United

States v. McKinney, 406 F.3d 744, 746 & n.2 (5th Cir. 2005).

Next, Lane has not shown clear or obvious error as to his claim that 

the district court applied an incorrect or more onerous standard in analyzing 

whether he had reasonably demonstrated to counsel his interest in appealing, 

particularly given that the court twice cited the correct standard. See FloresOrtega, 528 U.S. at 480; United States v. Whitelaw, 580 F.3d 256, 260 (5th 

Cir. 2009). Finally, even if we assume without deciding that the district court 

clearly and obviously erred in determining that Lane’s concerns about his 

sentencing did not reasonably demonstrate to counsel his interest in 

appealing, Lane has not shown that he satisfies the remaining prongs of plain 

error review or addressed the Government’s proposed alternative grounds 

for affirming the judgment of the district court. See United States v. Caravayo, 

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809 F.3d 269, 273-74 (5th Cir. 2015); United States v. Scroggins, 599 F.3d 433, 

446-47 (5th Cir. 2010).

AFFIRMED.

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