USCA4 Appeal: 21-4373 Doc: 44 Filed: 11/10/2022 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4373

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARLTON KERNEL SHERRILL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:19-cr-00408-FDW-DSC-1)

Submitted: October 31, 2022 Decided: November 10, 2022

Before HARRIS and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Charles Robinson Brewer, Asheville, North Carolina, for Appellant. Anthony Joseph Enright, Assistant United States Attorney, Charlotte, North Carolina, Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 21-4373 Doc: 44 Filed: 11/10/2022 Pg: 2 of 3

PER CURIAM:

Carlton Kernel Sherrill pleaded guilty, pursuant to a written plea agreement, to

possessing a firearm as a convicted felon, in violation of

(g)(1), and

distribution of and possession with intent to distribute cocaine, in violation of

(a)(1), (b)(1)(C). The district court sentenced Sherrill to a downward variance of 120

months’ imprisonment. Sherrill’s sole argument on appeal is that he received

constitutionally ineffective assistance of counsel related to both his plea and sentencing.

The Government has moved to dismiss the appeal on the ground that the record does not

conclusively establish that counsel was ineffective and therefore Sherrill’s claims are not

cognizable on direct appeal. Sherrill opposes the Government’s motion. For the following

reasons, we deny the Government’s motion but affirm the criminal judgment.

To demonstrate constitutionally ineffective assistance of counsel, a defendant must

establish both deficient performance and prejudice. Strickland v. Washington,

(1984). An attorney’s performance is deficient if “counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.”

. We “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.”

(internal quotation marks

omitted). To establish prejudice, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

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confidence in the outcome.”

. To show prejudice in the guilty plea context, a

defendant claiming ineffective assistance “must demonstrate a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial.” Christian v. Ballard,

(4th Cir. 2015) (internal quotation

marks omitted).

Claims of ineffective assistance of counsel are cognizable on direct appeal “only

where the record conclusively establishes ineffective assistance.” United States v. Baptiste,

, 216 n.1 (4th Cir. 2010). Generally, a defendant should instead raise

ineffectiveness claims in a

motion, to permit sufficient development of

the record. Id.; see Massaro v. United States,

(2003).

Sherrill argues that his counsel’s performance was deficient in three respects. He

contends that counsel failed to move to suppress the firearm and drug evidence, failed to

review the presentence report with him, and failed to challenge the factual basis as

insufficient to support his guilty plea to the drug charge. We have reviewed the record and

conclude that it does not conclusively establish Sherrill’s claim that he received ineffective

assistance of counsel. See Baptiste,

n.1. Therefore, this claim is not

cognizable on direct appeal.

Accordingly, we deny the Government’s motion to dismiss but affirm the criminal

judgment. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

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