                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-4408


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LAWRENCE MCNEILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00269-D-1)


Submitted:   December 19, 2014             Decided:   December 30, 2014


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lee Ann Anderson McCall, Amanda F. Davidoff, Kara D. Hughley,
SULLIVAN & CROMWELL LLP, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                Lawrence McNeill appeals the criminal judgment entered

by the district court after he pled guilty to conspiracy to

distribute,           and     possess        with    intent      to     distribute,     five

kilograms or more of cocaine and 280 grams or more of cocaine

base,      in   violation       of    21     U.S.C.    841(a)(1)       (2012).     McNeill

argues that the prosecutor committed misconduct by vindictively

filing      a    superseding         indictment ∗      and    that      counsel   provided

ineffective assistance by withdrawing her objection to the drug

quantity applied at sentencing.                     We affirm.

                “To         establish        prosecutorial            vindictiveness,     a

defendant must show, through objective evidence, that (1) the

prosecutor acted with genuine animus toward the defendant and

(2) the defendant would not have been prosecuted but for that

animus.”        United States v. Wilson, 262 F.3d 305, 314 (4th Cir.

2001).       “If the defendant is unable to prove an improper motive

with       direct      evidence,        he     may    still      present     evidence    of

circumstances from which an improper vindictive motive may be

presumed.”            Id.       Because       McNeill     failed       to   challenge   the

superseding indictment in the district court, we review this



       ∗
       The Government argues that this claim is barred by the
appellate waiver in McNeill’s plea agreement.  However, McNeill
only waived the right to direct appeal of his sentence, and did
not waive the right to appeal his conviction.


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claim for plain error.               United States v. Olano, 507 U.S. 725,

731-32 (1993).

            McNeill argues that a presumption of vindictiveness is

warranted where, as here, the Government files a superseding

indictment    while     plea     negotiations           are    ongoing       without    first

warning    the     defendant.            The    controlling         precedent        does   not

indicate plainly that the circumstances of this case warrant

such a presumption.             See United States v. Carthorne, 726 F.3d

503, 516 (4th Cir. 2013) (internal quotation marks omitted),

cert.   denied,      134   S.    Ct.      1326      (2014)     (discussing        standard).

Accordingly, we find no plain error.

            We decline to reach McNeill’s claim that counsel was

ineffective at sentencing.                Unless an attorney’s ineffectiveness

conclusively       appears      on   the       face    of    the    record,      ineffective

assistance claims are not generally addressed on direct appeal.

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

Instead,    such     claims      should        be     raised    in      a   motion    brought

pursuant     to    28   U.S.C.       §    2255      (2012),        in    order   to    permit

sufficient        development        of    the      record.             United   States     v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).                             Because there

is no conclusive evidence of ineffective assistance of counsel

on the face of the record, we conclude that this claim should be

raised, if at all, in a § 2255 motion.



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           Accordingly, we affirm the district court’s 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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