United States of America v. Donald Hope

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0140n.06
Case No. 19-3219
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DONALD HOPE,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
O P I N I O N
BEFORE: COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges
COLE, Chief Judge. Appellant Donald Hope pleaded guilty to conspiring to possess with
intent to distribute mixtures containing heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 846, and 856. At sentencing, the district court imposed a sentence of 220 months’
imprisonment. As part of the plea agreement, Hope waived his right to appeal his conviction and
sentence, except as to claims of ineffective assistance of counsel, prosecutorial misconduct, or that
his sentence exceeded the statutory maximum. Hope now avails himself of his reserved right to
appeal on the ground of ineffective assistance of counsel. Specifically, he claims that his attorney
was ineffective for not arguing that the district court was required to apply the preponderance-of-
evidence standard in making any fact-finding that would increase Hope’s base offense level under
the Sentencing Guidelines and United States v. Watts, 519 U.S. 148 (1997).

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Case No. 19-3219, United States v. Hope
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We typically do not consider claims of ineffective assistance of counsel when they are
raised for the first time on direct appeal. See, e.g., United States v. Martinez, 430 F.3d 317, 338
(6th Cir. 2005). Instead, to allow the parties to “develop an adequate record on the issue,” we
normally review ineffective-assistance claims in post-conviction proceedings. United States v.
Brown, 332 F.3d 363, 369 (6th Cir. 2003) (internal citation and quotation marks omitted). The
rationale for this practice is that “[w]hen an ineffective-assistance claim is brought on direct
appeal, appellate counsel and the court must proceed on a trial record not developed precisely for
the object of litigating or preserving the claim and thus often incomplete or inadequate for this
purpose.” Massaro v. United States, 538 U.S. 500, 504–05 (2003). In short, to review an
ineffective-assistance-of-counsel claim, we require a record from which we can comprehensively
evaluate the performance of the counsel in question, and such a record is rarely available on direct
appeal.
We are not persuaded that this is one of those rare instances. On the record currently before
us, we are unable to evaluate the effectiveness of Hope’s counsel at the sentencing hearing to
determine whether his approach was constitutionally deficient. Accordingly, and without opining
on the performance of Hope’s attorney at the sentencing hearing, we decline to reach Hope’s claim
at this juncture and affirm the judgment and sentence of the district court.

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