UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4737

UNITED STATES OF AMERICA, 

Plaintiff – Appellee, 

v. 

HENRY LEE CLYBURN, 

Defendant – Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:04-cr-00148-FDW-1) 

Submitted: February 24, 2011 Decided: March 17, 2011

Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge. 

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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: 

Upon revocation of Henry Lee Clyburn’s supervised 

release, which was imposed as part of his sentence for 

possession of a firearm by a convicted felon, the district court 

sentenced Clyburn to twenty-four months’ imprisonment and twelve 

months of supervised release. Clyburn appeals this sentence, 

asserting five grounds for vacatur: first, that the district 

court erred in vacating an eleven-month sentence it proposed and 

proceeding to address Clyburn’s request to withdraw his 

admissions to certain violations of his supervised release; 

second, that Clyburn’s trial counsel rendered ineffective 

assistance; third, that the district court acted vindictively in 

sentencing Clyburn to twenty-four months’ imprisonment; fourth, 

that the twenty-four month sentence is plainly unreasonable; and 

fifth, that the district court erred in imposing the additional 

twelve-month term of supervised release. We affirm. 

I.

Clyburn pled guilty to one count of possession of a 

firearm by a convicted felon, in violation of 18 U.S.C. 

§ 922(g)(1) (2006), and was sentenced in November 2005 to 

fifty-seven months’ imprisonment followed by three years of 

supervised release. Clyburn began serving his term of 

supervised release on August 7, 2009. In May 2010, Clyburn’s 
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probation officer petitioned the district court to revoke 

Clyburn’s supervised release, alleging in the petition that 

Clyburn had violated his supervised release by traveling to 

Florida without prior authorization (violation four) and being 

charged in state court with four criminal offenses: an April 

2010 simple assault (violation one), aiding and abetting 

(violation two), possession of marijuana (violation three), and 

driving with a revoked license and giving fictitious information 

to an officer (violation five). In an addendum to the petition, 

the probation officer alleged that Clyburn had further violated 

his supervised release by being charged in state court with 

three additional criminal offenses: resisting a public officer 

(violation six), lacking an operator’s license and giving 

fictitious information to an officer (violation seven), and 

simple assault (violation eight). 

At the revocation hearing, counsel for the Government 

moved to dismiss violations three and five and informed the 

district court that, in exchange for Clyburn’s guilty plea to 

violation one, the Government would dismiss violation two. 

Clyburn’s attorney informed the district court that Clyburn 

would admit violations one, four, six, seven, and eight, and the 

district court found that Clyburn had violated his supervised 

release. The court calculated the advisory policy statement 

range at five to eleven months’ imprisonment, see U.S. 
4

Sentencing Guidelines Manual (“USSG”) §§ 7B1.1(a)(3), (b), p.s.,

7B1.4(a), p.s. (2009), and heard argument from counsel, 

allocution from Clyburn, and the unsworn statement of the victim 

of the simple assault at issue in violation one. After 

discussing relevant sentencing factors, the district court 

announced a proposed sentence of eleven months’ imprisonment, 

followed by twenty-five months of supervised release. As the 

court was advising Clyburn of his appellate rights, Clyburn’s 

counsel interrupted and informed the court that Clyburn wished 

to withdraw his admissions to violations one and eight. 

The district court proposed that the Government 

present its evidence and admonished Clyburn that, as a result of 

the withdrawal of his admission of guilt to violation one, the 

agreement with the Government with respect to its dismissal of 

violation two was no longer binding. The court also advised 

Clyburn and ensured that he understood that it was no longer 

bound by its proposed sentence and that he faced a statutory 

maximum revocation sentence of twenty-four months’ imprisonment. 

The Government dismissed violation eight and presented the 

testimony of three witnesses pertaining to the assault at issue 

in violation one. After hearing this testimony and argument 

from counsel, the district court found that Clyburn committed 

violations one, two, four, six, and seven and revoked his 

supervised release. The court again calculated the advisory 
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policy statement range at five to eleven months’ imprisonment 

and sentenced Clyburn to twenty-four months’ imprisonment 

followed by twelve months of supervised release. This appeal 

followed. 

II.

Clyburn claims that the district erred in vacating the 

eleven-month prison sentence. In Clyburn’s view, the court, by 

announcing the proposed sentence of eleven months’ imprisonment, 

ascertaining that no party objected to that sentence, and then 

immediately thereafter advising him of his appellate rights, 

imposed a revocation sentence of eleven months’ imprisonment. 

Having imposed such a sentence, the court, Clyburn contends, 

should have then adjourned the revocation proceeding and erred 

by vacating the eleven-month sentence and proceeding to address 

his request to withdraw his admissions to violations one and 

eight. 

Because Clyburn did not object to these actions in the 

district court, we review this claim for plain error. 

See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009). 

To prevail under this standard, Clyburn must establish that an 

error was made, is plain, and affected his substantial rights. 

Id. at 1428-29. In the sentencing context, an error affects 

substantial rights if, absent the error, a lower sentence would 
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have been imposed. United States v. Knight, 606 F.3d 171, 178 

(4th Cir. 2010). 

We conclude that Clyburn fails to make the required 

showing. His assertion that the district court imposed an 

eleven-month prison sentence is simply incorrect. Rather, the 

court merely announced a proposed sentence of eleven months’ 

imprisonment. That the court announced a proposed sentence and 

then made a seriatim announcement of Clyburn’s appellate rights 

does not, without more, amount to the imposition of that 

proposed sentence. Because the district court did not impose an 

eleven-month prison term, Clyburn’s claim that the district 

court erred in vacating that term and proceeding to address his 

request to withdraw his admissions to violations one and eight 

is without merit. Clyburn thus fails to show error — plain or 

otherwise — by the district court, and this claim therefore 

fails.

 

III.

Next, Clyburn suggests that trial counsel rendered 

ineffective assistance. Claims of ineffective assistance of 

counsel generally are not cognizable on direct appeal. United 

States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to 

allow for adequate development of the record, a defendant must 

bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2010) 
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motion. Id. An exception exists where the record conclusively 

establishes ineffective assistance. United States v. 

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). 

To succeed on his claim, Clyburn must show that 

(1) trial counsel’s performance was constitutionally deficient 

and (2) such deficient performance was prejudicial. Strickland 

v. Washington, 466 U.S. 668, 687-88, 692 (1984). To satisfy the 

performance prong, Clyburn must demonstrate that trial counsel’s 

performance fell below an objective standard of reasonableness 

under “prevailing professional norms.” Id. at 688. The 

prejudice prong is satisfied if Clyburn can demonstrate that 

“there is a reasonable probability that, but for [trial] 

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. 

Clyburn asserts that, by informing the district court 

that he objected to and wished to withdraw his admissions to 

violations one and eight, trial counsel rendered ineffective 

assistance by “sell[ing] him out to” the district court. 

Clyburn, however, fails to explain how counsel’s act of 

informing the district court of Clyburn’s position on those 

violations amounts to performance falling below an objective 

standard of reasonableness under prevailing professional norms. 

Moreover, he does not suggest that, but for counsel’s error, the 

result of the revocation hearing would have been different. 
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Accordingly, because ineffective assistance of counsel does not 

conclusively appear on this record, this claim is not cognizable 

in this appeal. 

IV.

Clyburn also claims that the district court’s decision 

to impose the twenty-four month prison sentence was vindictive. 

More specifically, he claims that the district court’s 

sentencing decision was motivated by a desire to punish him for 

expressing his unhappiness with the eleven-month prison 

sentence. “[I]t is beyond doubt that a sentence enhanced, 

whether before or after commencement of service, because of the 

vindictiveness or other plainly improper motive of the trial 

court would be fundamentally unfair and . . . den[ies] the 

defendant due process.” United States v. Lundien, 769 F.2d 981, 

987 (4th Cir. 1985). Generally, however, judicial 

vindictiveness will not be presumed, and the burden remains with 

the defendant to prove actual vindictiveness. See Alabama v. 

Smith, 490 U.S. 794, 799 (1989). 

We find no evidence in the record that the district 

court acted vindictively in sentencing Clyburn to the twentyfour month prison term. After Clyburn withdrew his admissions 

to violations one and eight, the district court ensured that he 

understood that the eleven-month sentence was only a proposed 
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sentence it was not bound to impose. Thus, any expectation 

Clyburn may have had as to the length of his revocation sentence 

had not crystallized such that it would be unfair to defeat it 

by allowing the court to hear the Government’s evidence on those 

violations Clyburn belatedly contested. See Lundien, 769 F.2d 

at 987. Moreover, as the district court explained, it imposed 

the twenty-four month sentence not to punish Clyburn for 

withdrawing his admissions, but because that sentence was 

appropriate in light of relevant 18 U.S.C. § 3553(a) (2006) 

sentencing factors applicable to revocation sentences. 

While Clyburn is correct that the district court based 

its sentencing decision in part on his behavior at the 

revocation hearing, a district court may, in imposing a 

revocation sentence, properly consider the defendant’s 

characteristics and history. 18 U.S.C. § 3553(a)(1), 

18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2010). Here, the 

district court did just that, making note of Clyburn’s criminal 

history and failure to show remorse by admitting his guilt on 

violation one, and the court’s assessment that Clyburn initially 

agreed to plead guilty to the violation only because he expected 

that doing so would result in a favorable sentence and not 

because he was guilty of the violation. Because the record 

demonstrates valid reasons for the court’s imposition of the 

twenty-four month sentence, there is no basis from which to 
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presume that the court acted with vindictiveness or any other 

improper motive in imposing the sentence. See Smith, 490 U.S. 

at 799. Accordingly, this claim fails. 

V.

Clyburn also summarily claims that the twenty-four 

month revocation sentence is unreasonable. This court will 

affirm a sentence imposed after revocation of supervised release 

if it is within the applicable statutory maximum and is not 

“plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 

437, 439-40 (4th Cir. 2006). In determining whether a 

revocation sentence is “plainly unreasonable,” we first assess 

the sentence for unreasonableness, “follow[ing] generally the 

procedural and substantive considerations that we employ in our 

review of original sentences.” Id. at 438. A revocation 

sentence is procedurally reasonable if the district court 

considered the Guidelines’ Chapter 7 advisory policy statements 

and the 18 U.S.C. § 3553(a) factors that it is permitted to 

consider in a supervised release revocation case. Id. at 440. 

A revocation sentence is substantively reasonable if the 

district court stated a proper basis for concluding the 

defendant should receive the sentence imposed, up to the 

statutory maximum. Id. Only if a sentence is found 

procedurally or substantively unreasonable will we “then decide 
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whether the sentence is plainly unreasonable.” Id. at 439 

(emphasis omitted). A sentence is “plainly” unreasonable if it 

is clearly or obviously unreasonable. Id. 

Clyburn fails to show that his twenty-four month 

prison sentence is plainly unreasonable. It is undisputed that 

the sentence does not exceed the applicable statutory maximum of 

two years’ imprisonment, see 18 U.S.C. § 3559(a)(3) (2006); 

18 U.S.C.A. § 3583(e)(3), and Clyburn has not asserted or 

demonstrated any claim of procedural or substantive 

unreasonableness in the sentence. Accordingly, this claim 

likewise fails. 

VI.

Finally, Clyburn claims that the district court erred 

in imposing the additional twelve-month term of supervised 

release. Because Clyburn did not object to the imposition of 

the additional term of supervised release at the revocation 

hearing, we review this claim for plain error. See Puckett, 

129 S. Ct. at 1428-29. 

Section 3583(h) of Title 18 of the United States Code 

limits the maximum term of supervised release imposed upon 

revocation to “the term of supervised release authorized by 

statute for the offense that resulted in the original term of 

supervised release, less any term of imprisonment that was 
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imposed upon revocation of supervised release.” 18 U.S.C.A. 

§ 3583(h). Clyburn’s gun possession conviction is a Class C 

felony, see 18 U.S.C. §§ 924(a)(2), 3559(a)(3) (2006), and three 

years is the statutory maximum term of supervised release 

authorized for such an offense, see 18 U.S.C.A. § 3583(b)(2). 

Applying the requirement in § 3583(h) that any term of 

imprisonment imposed upon revocation be subtracted from the 

statutorily-authorized term of supervised release, the district 

court here was permitted to impose up to a one-year term of 

supervised release upon revocation. That is exactly the 

sentence the district court imposed. This sentence complies 

with the applicable statutes and, contrary to Clyburn’s 

argument, the relevant policy statement, see USSG § 7B1.3(g)(2), 

p.s. 

VII.

Accordingly, we affirm the district court’s judgment 

and deny as moot Clyburn’s motion to expedite our decision. 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