United States v. Smith

MEMORANDUM *

Marvin N. Smith appeals the district court’s denial of his Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 . We granted Smith an expanded Certificate of Appealability on the following issues: (1) whether trial counsel provided ineffective assistance at the plea stage; (2) whether trial counsel provided ineffective assistance at sentencing; and (3) whether appellate counsel rendered ineffective assistance and whether consideration of appellate ineffective assistance is barred by Smith’s waiver of the right to appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2255, and we affirm.

Neither Smith’s trial counsel nor his appellate counsel performed deficiently. At the plea stage, Smith’s trial counsel negotiated a plea agreement in which Smith agreed to plead guilty if the government would: (1) stipulate that the base offense level for his offense would be 34, which could be reduced to 31 if the court found that he accepted responsibility for the crime; (2) move to dismiss Count I of the indictment; (3) recommend a two-level reduction under U.S.S.G. § 3E1.1; (4) recommend an additional one-level reduction in sentence if certain…