                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-7445


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ABEL CASTILLO RANGEL,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:95-cr-00486-CMH-4; 1:13-cv-00050-CMH)


Argued:   December 10, 2014                 Decided:   April 1, 2015


Before DUNCAN, AGEE, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Duncan and Judge Harris joined.


ARGUED: Sejal Jhaveri, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Stephen Wiley Miller,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.    ON BRIEF: Stephen L. Braga, Appellate Litigation
Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney, Rebeca H. Bellows, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
AGEE, Circuit Judge:

      Abel Castillo Rangel was convicted in 2010 of three counts

relating to marijuana trafficking and sentenced to 121 months of

incarceration.       He later filed a motion to vacate his conviction

and sentence under 28 U.S.C. § 2255, alleging that his trial and

appellate      counsel    had   rendered        constitutionally       ineffective

assistance.         The   district    court         denied   his   motion,    and   we

granted a certificate of appealability identifying three issues:

1)   whether    Rangel’s     trial     counsel        was    ineffective     for    not

requesting an instruction that the jury find a drug weight based

on   the   amount    attributable      to      or    reasonably    foreseeable      by

Rangel; 2) whether his appellate counsel was ineffective for not

raising the failure to request that instruction as an issue on

direct appeal; and 3) whether his trial counsel was ineffective

for failing to object to the drug weight and advisory guidelines

range at sentencing.        For the reasons explained below, we affirm

the district court’s judgment.


                                   I. Background

      On November 28, 1995, a federal grand jury in Alexandria,

Virginia    indicted      Rangel     and    five      co-defendants    for     crimes

related to marijuana trafficking.               The indictment charged Rangel

in four counts: Count 1 for conspiracy to distribute over 1,000

kg of marijuana from 1990 through 1995 (21 U.S.C. § 846); Count


                                           2
4   for   possession        with     intent      to    distribute           marijuana      on

September     30,     1992     (21     U.S.C.         § 841(a));        Count        7     for

distribution     of     marijuana      on       October       1,     1992     (21     U.S.C.

§ 841(a)); and Count 10, which was later dismissed, asserting

forfeiture allegations.

     Following        his    indictment,         Rangel       absconded        to     Texas,

assumed an alias, and evaded arrest until March 23, 2010.                                   He

was subsequently tried by a jury and found guilty on the charges

in the indictment on August 25, 2010.

                                   A. Trial Evidence

     The government presented six witnesses at trial: four law

enforcement     officers       and     two       of    Rangel’s        coconspirators.

Fairfax     County     Detective      Chester         Toney        testified        that   on

September 30, 1992, he responded to a tip from a confidential

informant about an upcoming marijuana transaction at a 7-Eleven.

Detective Toney observed three men at that location, including

an individual later identified as Michael Hillman, exit Rangel’s

pickup truck carrying a bag that appeared to contain marijuana.

Police officers stopped and searched the three men and found

1.95 pounds (0.89 kg) of marijuana on Hillman.                          Rangel was not

arrested at that time.

     The next day, October 1, 1992, the informant told Detective

Toney that a second marijuana transaction would take place that

night at a McDonalds.              At the McDonalds, Detective Toney saw

                                            3
Rangel’s pickup truck and observed Rangel and another man exit

the restaurant together.           The men were then detained by police,

and officers found Rangel with $1,369 in cash and the other man

with $2,060 and 2 pounds (0.91 kg) of marijuana.                            Both men were

arrested and charged.

        Fairfax    Police     Department           Lieutenant        William       Kitzerow

testified     about       executing       a       search        warrant     for    Rangel’s

residence on February 17, 1993, four and a half months after the

McDonalds arrest.         Officers found three bricks of marijuana on a

shelf in a bedroom closet and three additional bags of marijuana

in a black bag underneath some clothing.                        The combined marijuana

weighed 5.25 pounds (2.39 kg).

        Two of Rangel’s alleged coconspirators, Michael Hillman and

Ronnie    Cadle,    testified      against         him     at    trial    about     a   broad

marijuana trafficking operation.                       Hillman stated that he was

involved with the trafficking operation from late 1990 through

his   September     30,    1992    arrest         at    the     7-Eleven.         The   group

included     approximately        seven       people,         and   Cadle    and    Hillman

identified    particular       members        of    the     operation       by    the   names

Lilo,    Gringo,   Leo,     Flaco,    and         Rangel.        Evidence    seized     from

Rangel’s    apartment       corroborated          his    association        with    some   of

these individuals: a phonebook found in the bedroom contained

entries for “Laylo” and “Gringo,” and his wallet contained a

business card for Lalo Maltos.                J.A. 341.

                                              4
       Hillman testified that he first became involved with the

group in December 1990, when he was approached by Lilo, who

offered    to    front      him    marijuana        for        resale.      Subsequently,

Hillman    met    Lilo      “hundreds”     of      times,        “[g]enerally,    at    his

trailer in Chantilly,” to buy single pounds of marijuana, which

Lilo usually took from a stash of three to five pounds (1.36 to

2.27 kg).        Id. at 113-14.          In addition to Lilo, Hillman would

see Gringo, Rangel, and others at the trailer.                              Specifically,

Hillman testified that he “used to run into Abel [Rangel] at the

trailer” and that “he sold me pot.”                       Id. at 120.       He testified

that his September 30, 1992 arrest was the result of his attempt

to buy one kilogram of marijuana from Rangel on behalf of his

uncle, one of the other men present at the 7-Eleven.

       According       to   Hillman,     at       some    point,     Lilo    offered    him

$8,000 to drive to Mexico to pick up marijuana.                               In Mexico,

Hillman visited a “farm thing in the country” where he saw “a

big patch of marijuana growing” that “might have been an acre or

a half acre.”          Id. at 117-18.              He got two “potato sacks” of

marijuana at “[m]aybe 20, 30, 40 pounds a sack” (13.6 to 22.7

kg).     Id. at 118.           A barn contained “tons of sacks” that he

“th[ought]” contained marijuana, but which “[c]ould have been

potatoes.”       Id.    Hillman then drove to a designated spot in the

United    States,      where      he   retrieved         the    marijuana    acquired    in

Mexico from a person who had carried it across the border for

                                              5
him in waterproof suitcases.     Hillman and others packaged the

marijuana in San Antonio, Texas and then took approximately 40

or 50 pounds (18.1 to 22.7 kg) of marijuana back to Virginia

hidden in tires.   During another trip, financed by Lilo, Hillman

flew to Texas and rode a bus back to Virginia with approximately

30 to 40 pounds (13.6 to 22.7 kg) of marijuana.

     Hillman estimated that he made between 5 and 10 trips to

San Antonio to pick up marijuana.      He also introduced Cadle to

Lilo, and Cadle also began to make trips to San Antonio.     Cadle

testified that he made between 7 and 10 trips.     At least one of

Cadle’s trips was with Hillman, but the extent of the overlap is

unclear from their testimony.

     Cadle    testified   that   the   group,   including   Rangel,

instructed him to drive to San Antonio along a particular route.

There, he would purchase marijuana, load it into the vehicle,

and return to Virginia along another route that the group had

also selected.     Cadle testified that Rangel and Leo were his

primary contacts for his final three trips.        He “was paid a

hundred dollars per pound” of marijuana he transported and made

“25- to $50,000 in cash” bringing marijuana from Texas.     Id. at

71, 100.     Each trip normally involved 50 pounds (22.7 kg) of

marijuana.

     During one trip in August 1992, Rangel and Leo accompanied

Cadle to San Antonio.     Trooper Jackie Clark testified at trial

                                 6
that    he    stopped    the    men     on    Interstate        40    in    Arkansas.          He

searched Cadle’s car and found $21,000 in cash in two paper

sacks under the backseat.                He seized the $21,000, but let the

three men go.         They continued toward San Antonio.                      Based on what

Cadle could understand of the conversation Rangel and Leo had in

Spanish after the stop, he “came to the realization not to worry

about it” because “[t]here was more money in the car.”                                 Id. at

79-80.       He believed the additional money was “in the range of

between” $60,000 and $80,000.                Id. at 79.

       Cadle testified that upon their arrival in San Antonio,

Rangel and Leo told him to leave his car and take a Greyhound

bus back to Virginia.                Cadle took the bus, carrying a suitcase

containing approximately 50 pounds (22.7 kg) of marijuana.                                   When

he arrived in Virginia, Gringo picked him up at the bus station

and took him to an apartment to meet Leo and Rangel.                                Cadle left

the suitcase there, and two weeks later he drove back to San

Antonio,       retrieved       his     vehicle,      and    returned          with     another

delivery of about 50 pounds of marijuana.

       Cadle    described       the     trip      that     led       to     his     arrest     in

Mississippi on September 4, 1993.                        He flew to Dallas, Texas

where    he    met    Rangel     and    Leo,      and    they    rented       a     1988     Ford

Thunderbird,         which     Cadle    was       tasked    with          driving    back      to

Virginia.       Officer David Pinson testified about stopping Cadle

in the Thunderbird in Mississippi on September 4, 1993.                                 Hidden

                                              7
between the car’s grille and radiator, he found several packages

of marijuana, weighing a total of 27 pounds (12.2 kg).

       Cadle      also   testified   that       he    went    to   Lilo’s     trailer     in

Chantilly “[d]ozens of times.”                   Id. at 74.          Although Hillman

testified Rangel was sometimes present when Hillman picked up

pounds of marijuana, Cadle testified that he was “not really

sure if [he] saw [Rangel] at the trailer” in Chantilly.                            Id.

                         B. Rangel’s Verdict and Sentencing

       The     district     court    held    a       conference      to    discuss       jury

instructions,        but      Rangel’s      counsel       did      not     request       any

instruction regarding drug weight.                      Specifically, he did not

request an instruction that the jury determine drug weight based

on Pinkerton principles –- that is, based on drugs with which

Rangel      was    directly    involved     or       drugs    that    were    reasonably

foreseeable to him and in furtherance of the conspiracy.                                 See

Pinkerton v. United States, 328 U.S. 640, 647-48 (1946).

       In charging the jury, the only reference to drug weight

came   in    the    court’s    explanation       to     the   jury    of     the    Special

Verdict Form:

       As to Count 1, if you should find the defendant guilty
       as to Count 1, then underneath are amounts of drugs
       and you should also check the amount that you find
       that was involved as to Count 1.




                                            8
J.A. 203.       The court provided no instruction explaining how the

jury should determine the drug weight properly attributable to

Rangel under the Pinkerton framework.

       The jury convicted Rangel on all counts and indicated on

the Special Verdict Form that the conspiracy “involved” more

than   1,000     kg    of     marijuana.              Based    on       the    conviction        for

conspiring to distribute over 1,000 kg of marijuana, Rangel was

subject    to    a    120-month            mandatory    minimum          sentence.         See    21

U.S.C. § 841(b)(1)(A).                 The presentence report established his

advisory guideline range at 121 to 151 months.                                  In advance of

sentencing,      Rangel       filed         a   statement         in    which    he    “denie[d]

having    any    part       of       the    conspiracy”        but       did    not    make      any

objection       to    the     mandatory          minimum          sentence      or     guideline

calculation.         J.A. 211.

       Asked    at    sentencing            whether    he     had       anything      to   say    on

Rangel’s behalf, his counsel replied, “Well there’s not much you

can say.        It’s, unfortunately, a mandatory 120-month sentence

Mr. Rangel faces.            . . .         So we’d ask the Court to sentence him

to the low end of the guideline range and appoint new counsel

for the appeal.”             Id.           Rangel’s counsel did not address the

calculation      of    the       drug       weight.         The     district       court     judge

observed that “[c]onsidering the factors . . . under Section

3553   [is]     sort    of       a    useless     endeavor         in    this    case      because

there’s a mandatory.”                  Id. at 215.            The judge, nevertheless,

                                                 9
noted that he “simply [could not] think of any kind of a factor

that would weigh in [Rangel’s] favor.”                        Id.

       The    district         court     sentenced            Rangel    to        121     months’

incarceration, the low end of his projected guidelines range, as

to    each   of   Counts       1,   4,   and       7,    with    the   sentences          to    run

concurrently.        This Court affirmed the judgment on appeal, and

the    Supreme     Court       denied     Rangel’s         petition      for       a     writ   of

certiorari.         United      States        v.    Rangel,      No.   10-5208,          2011   WL

5084583 (4th Cir. Oct. 26, 2011) (per curiam), cert. denied, 132

S. Ct. 1649 (2012).

                            C. Rangel’s § 2255 Petition

       Rangel     filed    a    pro      se    §    2255      petition       to    vacate       his

conviction and sentence on January 10, 2013, raising fourteen

claims, two of which are the subject of this appeal.                                    First, he

argued that his trial counsel rendered ineffective assistance by

failing      to   request       a   jury       instruction           regarding          Pinkerton

principles and that his appellate counsel was also ineffective

in not raising the instruction’s absence as an issue on direct

appeal.       (Below, we address this claim as two separate issues,

one    as    to   trial    counsel       and       one   as     to   appellate          counsel.)

Second, Rangel asserted that his trial counsel was ineffective

in failing to challenge the drug quantity and base offense level

at sentencing.



                                               10
       The    district     court       denied          Rangel’s       §    2255     petition         by

concluding in a Memorandum Opinion and Order that even if there

was an error regarding the jury instructions, Rangel could not

demonstrate        prejudice         because       he        was     sentenced         within       the

applicable guideline range.                   The court further concluded that

Rangel’s trial counsel was not ineffective for failing to object

to the offense level and guideline range at sentencing because

of     the    jury’s    finding         and       the        presentence         report,          which

attributed 1,000 kg of marijuana to Rangel.

       Rangel      filed    a    timely       notice          of     appeal,       and       we    have

jurisdiction under 28 U.S.C. § 1291.


                                      II. Discussion

       When     reviewing       an    appeal       from       the     denial      of     a    §    2255

motion,       we    review       de     novo           the     district          court’s          legal

conclusions.         United States v. Poindexter, 492 F.3d 263, 267

(4th Cir. 2007).

       To establish a claim of ineffective assistance of counsel,

a    defendant      must    show       (1)    that       “counsel’s             performance         was

deficient,” and (2) that “the deficient performance prejudiced

the    defense.”       Strickland            v.    Washington,            466    U.S.    668,       687

(1984).       To satisfy the deficiency prong, the defendant must

show     that      counsel’s         performance             “fell    below       an     objective

standard of reasonableness.”                  Id. at 688.             “Judicial scrutiny of


                                                  11
counsel’s performance must be highly deferential.”                     Id. at 689.

There    is   a    “strong     presumption      that    counsel’s    conduct    falls

within the wide range of reasonable professional assistance,”

and “that, under the circumstances, the challenged action might

be considered sound trial strategy.”                    United States v. Higgs,

663 F.3d 726, 739 (4th Cir. 2011).

      Under the prejudice prong, “[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.”         Strickland, 466 U.S. at 694.            There must be “a

probability sufficient to undermine confidence in the outcome”

of the trial.           Id.     However, a defendant is not required to

establish that “counsel’s deficient conduct more likely than not

altered the outcome of the case.”               Id. at 693.

                        A. Jury Instructions under Collins

      Rangel bases his claim of jury instruction error on this

Court’s decision in United States v. Collins, 415 F.3d 304 (4th

Cir. 2005).        In that case, we considered on direct appeal the

district      court’s    failure      to   give   an     instruction       “that,   for

purposes of setting a specific threshold drug quantity under

§ 841(b), the jury must determine what amount of cocaine base

was     attributable      to     [a    drug     conspiracy      defendant]      using

Pinkerton principles.”           Id. at 314.



                                           12
       We concluded the failure to give such an instruction was

error,      but     because      the    error       concerned    only   the      statute’s

penalty provision, the conspiracy conviction was “sound” under

§ 846. 1     Id.     Further, we recognized that without the instruction

the sentence given “effectively attributed to [the defendant],

an individual member of the conspiracy, the quantity of cocaine

base       distributed      by    the    entire       conspiracy.”         Id.      As    a

consequence, “[b]ecause the district court adopted the jury’s

drug quantity determination in its application of the sentencing

guidelines,         the   error       affected      both   the   threshold       statutory

range under § 841(b) and the district court’s application of the

guidelines.”          Id.        Because      the    district    court’s   sentence      in

Collins       was     based      on     the     jury’s      invalid     drug      quantity

determination, it “c[ould ]not stand.”                     Id.

       The government concedes that the district court’s failure

to instruct the jury to find a drug weight properly attributable

to Rangel based on Pinkerton principles was error under Collins.

                                       1. Trial Counsel

       Rangel       first     argues       that      his   trial    counsel      rendered

ineffective assistance because he did not request an instruction

stating that the jury must determine drug weight using Pinkerton


       1
       As in Collins, Rangel’s underlying conviction is “sound”
and there is no issue in this appeal as to his conviction, but
only as to the sentence he received.


                                               13
principles.               The     district           court       rejected         this      argument,

reasoning that even if trial counsel’s performance was deficient

under      Strickland,           the       error    resulted       in    no      prejudice. 2          The

district court observed that Rangel “would nonetheless face a

maximum term of twenty years imprisonment on Counts One, Four,

and Seven” under the default penalty provision for marijuana.

J.A.       409    (citing        21    U.S.C.       § 841(b)(1)(C)).                 Regarding         the

guideline range, the district court found that the probation

officer          had     “more    than        a     sufficient          basis”       from    evidence

presented          at    trial        to    determine       by    a     preponderance            of    the

evidence          that    Rangel        was       accountable         for     over    1,000       kg    of

marijuana.              Id.; see also U.S.S.G. § 1B1.3; United States v.

Carter,          300    F.3d     415,       425    (4th     Cir.      2002)       (discussing          the

preponderance standard at sentencing).                                Thus, the base offense

level –- which derived from the drug weight -- would remain the

same, and the guideline range would remain at 121 to 151 months.

The    district          court    concluded          that    because          Rangel’s      121-month

sentence         was     within       “the     statutory         range      of    zero      to   twenty

years,” he “suffered no prejudice as a result of the alleged

       2
       On appeal, the government also argues that Rangel’s trial
counsel’s failure to request the instruction was not deficient
performance under Strickland’s first prong.       The government
reasons that the decision was a matter of trial strategy because
Rangel’s defense focused on actual innocence, not drug weight.
Given that the request would have taken place outside of the
jury’s presence, the government’s argument has no merit, and in
any event, was not raised below and appears to have been waived.


                                                    14
failure     of    his     counsel       to    object      to     the        Court’s    jury

instructions.”          J.A. 409.

      We agree with the district court in part.                        In finding that

the statutory range would be 0 to 20 years under the default

penalty     provision           for     marijuana,         the        district        court

misidentified      21     U.S.C.       § 841(b)(1)(C)          as     the     controlling

subsection.       While that would be correct for most drugs, the

default     sentencing          provision         for   marijuana       is     found    in

§ 841(b)(1)(D), which specifies that “[i]n the case of less than

50 kilograms of marihuana . . . such person shall . . . be

sentenced to a term of imprisonment of not more than 5 years.”

The default statutory term for marijuana is thus 0 to 5 years

rather than 0 to 20 years as the district court stated.

      That mistake is without consequence here, however, as the

district court was not constrained to review its sentence under

only the default provision.                  Although resentencing under the

default provision is a potential remedy for a successful direct

appeal of a Collins error, a court’s review of a Collins error

for   prejudice    in     the    §    2255   context     is    not     so    constrained.

Under Strickland, Rangel must show a reasonable probability of a

different    result,      “sufficient        to     undermine       confidence    in    the

outcome” of the trial.               466 U.S. at 694.           We do not find that

Rangel meets that standard.



                                             15
       Our review of the record shows that Rangel’s sentence would

have been the same even with a proper jury instruction.                          First,

there is no reasonable probability that a proper jury finding

would have resulted in a statutory range that precluded Rangel’s

121-month sentence.        The jury would have needed to find Rangel

responsible for only 50 kg of marijuana to push the statutory

range from the 5-year maximum of § 841(b)(1)(D) to the 20-year

maximum      under   § 841(b)(1)(C).          In    light    of    the    overwhelming

evidence that Rangel was responsible for substantially more than

50 kg of marijuana –- in particular, the multiple drug purchases

in Texas -- there was no reasonable probability that the jury

would   have    attributed     less   than     50    kg     to    Rangel.      Rangel’s

statutory sentence range, then, would have had a maximum of at

least 20-years, far exceeding his ultimate 121-month sentence.

       Having concluded that the district court could have imposed

a 121-month sentence had the Collins error not occurred, the

question     then    becomes   whether    the       district      court      would   have

imposed that sentence.         Collins recognizes that if the district

court “adopted the jury’s drug quantity determination in its

application of the sentencing guidelines,” then that error will

have “affected both the threshold statutory range under § 841(b)

and the district court’s application of the guidelines.”                             415

F.3d    at    314.     Consequently,     Rangel       must       show    a   reasonable

probability that, but for the Collins error, the district court

                                         16
would have found him responsible for less than 1,000 kg, the

amount that placed him in the 121- to 151-month guideline range.

       The     record   demonstrates        that     in    all    likelihood,       even

without the Collins error, the district court would have found

by a preponderance of the evidence that Rangel was responsible

for 1,000 kg of marijuana.           First, the jury established beyond a

reasonable doubt that the conspiracy involved at least 1,000 kg,

and there is no basis to conclude that Rangel would not have

reasonably foreseen the conspiracy’s full scope.                         Further, the

trial testimony established that Rangel was a management figure

in   the     conspiracy     and   helped    coordinate        multiple      large-scale

drug purchases.         The record thus supports the district court’s

conclusion by a preponderance of the evidence that Rangel would

have    foreseen      the   full    scope       of   the   conspiracy,       with   its

accompanying 1,000 kg of marijuana.

       Moreover, independent of the jury finding, our review of

the record shows that the district court would have attributed

1,000 kg of marijuana to Rangel.                 He was a management figure in

a    conspiracy      that   lasted       several     years,      crossing    half   the

country, and even extending into Mexico.                   More than that, Rangel

was the point-man for numerous trips to Texas, where 50 pound

(22.7 kg) quantities of marijuana were regularly obtained.                           In

addition, Hillman testified as to the “hundreds” of times he

bought       pound   quantities     at     the    trailer,       often   with   Rangel

                                           17
present, and taken from a multi-pound stash (0.45 kg per pound).

We thus conclude that the district court’s finding that Rangel

was   responsible      for   1,000   kg    of    marijuana       was   not     the      mere

adoption of the Collins-error jury finding.

      Nor does the record support Rangel’s contention that the

10-year    (120-month)       statutory     minimum    affected         his    sentence.

The district court’s independent 1,000 kg finding resulted in a

121- to 151-month guideline range, and Rangel was sentenced at

the bottom of that range.            As the district court explained in

denying    Rangel’s     habeas   petition,        “[e]ven       without      the    jury’s

finding, the base offense level would have been 32 based on the

evidence presented at trial and the information contained in the

Presentence Report.”          J.A. 411.         Rangel emphasizes the judge’s

statement at sentencing that considering the § 3553 sentencing

factors was “sort of a useless endeavor in this case because

there’s    a     mandatory”    minimum         sentence,    but     that      statement

addressed only the availability of a below-guideline sentence.

Id. at 215.       It is clear from the sentencing transcript that the

district       court   considered       Rangel     undeserving         of     a    below-

guideline sentence: the judge “simply [could not] think of any

kind of a factor that would weigh in [Rangel’s] favor.”                           Id.

      In sum, the record supports the conclusion that a properly

instructed      jury   would     have     attributed       at     least      50    kg     of

marijuana to Rangel, with a resulting statutory range of 0 to 20

                                          18
years.     That statutory range would have included the 121- to

151-month guideline range from the court’s independent 1,000 kg

finding at sentencing.                In all likelihood, then, Rangel still

would have received the same guideline range and the same 121-

month    sentence.           Having     failed     to     demonstrate         a    reasonable

probability       of   a     different    outcome,        Rangel       does       not    satisfy

Strickland’s       prejudice      prong       on   this       issue.     Rangel’s         trial

counsel, therefore, did not render constitutionally ineffective

assistance by failing to request an instruction to determine

drug weight based on Pinkerton principles under Collins.

                                  2. Appellate Counsel

     For    similar          reasons,    we    conclude         that    Rangel          was   not

prejudiced    by       his    appellate       counsel’s        failure    to       raise      the

Collins error as an issue on direct appeal. 3                          To show prejudice

in the context of appellate representation, a petitioner must

establish     a    “reasonable          probability        .    .   .    he       would       have

prevailed    on    his       appeal”    but    for      his    counsel’s      unreasonable

failure to raise an issue.               Smith v. Robbins, 528 U.S. 259, 285-

86 (2000); see also United States v. Mannino, 212 F.3d 835, 845-

46 (3d Cir. 2000) (“The test for prejudice under Strickland is

not whether petitioners would likely prevail upon remand, but


     3
       Because we resolve the claim under Strickland’s prejudice
prong, it is unnecessary to decide whether appellate counsel’s
omission of the Collins issue constituted deficient performance.


                                              19
whether we would have likely reversed and ordered a remand had

the issue been raised on direct appeal.”).

        Having reviewed the record in this case, we conclude that

Rangel’s       Collins        claim       would        not    have     had     a     reasonable

probability         of    success     had      it   been      raised    on    direct    appeal.

Because Rangel did not raise the issue at trial, the standard of

review on appeal would have been plain error.                              To prevail, then,

he would have had to show that 1) an error occurred, 2) the

error    was       plain,    and    3)    the       error     affected       his    substantial

rights.       United States v. Olano, 507 U.S. 725, 732 (1993); see

also Fed. R. Crim. P. 52.                      Affecting substantial rights, “in

most cases,” means that “the error must have been prejudicial:

It   must      have       affected       the      outcome      of    the     district       court

proceeding.”             Olano,     507     U.S.       at    734.      This     outcome-based

standard is similar to Strickland’s prejudice inquiry.                                  Compare

United States v. Marcus, 560 U.S. 258, 262 (2010) (prejudice, to

prove an effect on “substantial rights” for plain error review,

means    “a    reasonable         probability          that    the     error       affected    the

outcome       of    the     trial”),        with       Strickland,      466     U.S.    at     694

(prejudice,         to      establish       ineffective          assistance,          means     “a

reasonable         probability      that,       but     for    counsel’s       unprofessional

errors,       the        result     of      the        proceeding       would        have     been

different”).             Finally, even with those three requirements met,

we need not correct a plain error that “did not seriously affect

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the     fairness,     integrity,       or    public      reputation      of     judicial

proceedings.”        United States v. Jeffers, 570 F.3d 557, 570 (4th

Cir. 2009) (declining to notice a Collins error that did not

seriously affect the trial’s fairness); see also Olano, 507 U.S.

at 736.

      We have established that Collins errors satisfy the first

two requirements: an error occurred and the error was plain.

See, e.g., United States v. Foster, 507 F.3d 233, 251 (4th Cir.

2007).     We conclude, however, that if there was error here, it

did not affect Rangel’s substantial rights because it did not

affect    the      ultimate     outcome     of   the    sentencing      phase    of   his

trial.        As   explained     above      regarding     Rangel’s      trial    counsel

claim,    a    properly       instructed     jury      would   have    attributed     in

excess of 50 kg to Rangel, which would authorize a statutory

maximum sentence of 20 years.                    Similarly, the district court

would    have      then   found    Rangel        responsible     for    1,000    kg    of

marijuana by a preponderance of the evidence at sentencing, thus

setting the 121- to 151- month guideline range.                          Because that

finding would have resulted in the same 121-month sentence at

the low end of the guidelines that Rangel received, the outcome

would    have      been   the   same   with      or    without   a     Collins   error.

Again, the district court stated this plainly: “Even without the

jury’s finding, the base offense level would have been 32 based

on the evidence presented at trial and the information contained

                                            21
in   the     Presentence        Report.”           J.A.   411.        Rangel       provides    no

viable basis for his contention that the district court, despite

its express statement, would have found him responsible for some

lesser weight.              See Olano, 507 U.S. at 734 (observing that on

plain      error       review,        the    petitioner            bears    the      burden    of

persuasion with respect to prejudice).

       Because the record before us demonstrates that any Collins

error would not have affected Rangel’s substantial rights, a

direct appeal on that issue would have had limited chance of

success.        Accordingly, Rangel does not demonstrate prejudice and

therefore         did         not      receive        constitutionally              ineffective

assistance from his appellate counsel.

                                    B. Argument at Sentencing

       Rangel         next    contends       that      his     trial       counsel     provided

ineffective assistance at sentencing by failing to challenge the

district court’s drug weight finding and the resulting guideline

range.

       For      our    purposes,       it   is     sufficient        to     assume    deficient

performance and to turn again directly to the prejudice prong.

In   doing      so,    we     conclude      that      Rangel       suffered    no    prejudice;

there      is    not    a     reasonable         probability         that     he    would     have

received a more favorable outcome had his counsel challenged the

drug    weight.          As    explained      above,         the    district       court    found

Rangel responsible for 1,000 kg based on the evidence at trial,

                                                 22
the   probation   officer’s      unchallenged      representations,       and    the

evidence    presented    in   the    presentence       report.      We   need     not

speculate as to what the district court would have found, as it

wrote    unequivocally    that      it   found    1,000     kg   attributable      to

Rangel by a preponderance of the evidence, irrespective of the

jury’s finding.        The guideline range and ultimate sentence flow

directly from the district court’s drug weight finding.                        Rangel

points to no argument or factor that his counsel should have

raised    that   the   district     court     failed   to   consider     and    which

might have changed its view.             He accordingly fails to establish

prejudice to support his claim that his trial counsel rendered

ineffective assistance at sentencing by failing to object to the

drug weight finding.


                                         III.

        For the foregoing reasons, the judgment of the district

court is

                                                                         AFFIRMED.




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