                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-7564


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KELVIN SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.     Norman K. Moon,
Senior District Judge. (3:07-cr-00019-nkm-mfu-1; 3:09-cv-80132-
nkm-mfu)


Argued:   October 23, 2012                 Decided:   November 14, 2012


Before GREGORY, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Davis wrote the opinion,
in which Judge Gregory joined.    Judge Shedd wrote an opinion
concurring in the judgment.


ARGUED: Lara Nell Jensen, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.   Jean Barrett Hudson, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.     ON BRIEF:
Neal L. Walters, Evan C. Mix, Third Year Law Student, Jason C.
Lynch, Third Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF
LAW, Appellate Litigation Clinic, Charlottesville, Virginia, for
Appellant.  Timothy J. Heaphy, United States Attorney, Roanoke,
Virginia, Nancy S. Healey, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DAVIS, Circuit Judge:

               Kelvin Smith appeals the district court’s denial of

his     motion       under    28     U.S.C.       § 2255,    in        which       he    asserted

ineffective          assistance       of      counsel       claims           at     sentencing.

Specifically, he argues that his attorney should have objected

to his criminal history calculation because the district court

scored a prior Virginia sentence for failure to appear; Smith

contends that the offense is similar to contempt of court, and,

thus,     excludable         under     the    advisory       sentencing             guidelines.

Although, unlike the district court, we doubt the reasonableness

of counsel’s failure to object, under the unusual circumstances

presented        here,         Smith        has     failed        to        show        prejudice.

Accordingly, we affirm.



                                              I.

               On October 17, 2007, pursuant to a plea agreement,

Smith pled guilty to conspiracy to distribute cocaine, crack

cocaine,       and    marijuana,       in     violation      of        21    U.S.C.        §   846;

distributing cocaine, in violation of 21 U.S.C. § 841(a)(1); and

being     an   unlawful      drug     user    in    possession          of    a    firearm,     in

violation of 18 U.S.C. § 922(g)(3). 1                        In his plea agreement,



      1
       Smith also pled guilty to making a false statement to
purchase a firearm, in violation of 18 U.S.C. § 924(a)(1)(A),
(Continued)
                                               3
Smith waived

      all rights . . . to appeal whatever sentence . . . is
      imposed, including any issues that relate[d] to the
      establishment   of   the  advisory   Guideline range,
      reserving only the right to appeal from a sentence in
      excess of the applicable advisory Guidelines range
      that [wa]s established at sentencing . . .

S.J.A. 57. Smith also waived

      all rights to contest the conviction or sentence . . .
      in any post-conviction proceeding, including one
      pursuant to 28 U.S.C. § 2255, excepting an appeal or
      motion based upon grounds of ineffective assistance of
      counsel . . . not known to [him] at the time of [his]
      guilty plea.

Id.   A separate provision stated that Smith “waive[d] any claim

[he] may have for ineffective assistance of counsel known and

not raised by [him] with the Court at the time of sentencing.”

Id. at 61.

               At sentencing on February 28, 2008, the district court

assigned Smith two criminal history points under the advisory

sentencing      guidelines       because     he     had   committed    his   offenses

during    “a    two     year   term     of   good    behavior.”        See   J.A.     18

(district court adopting the Presentence Investigation Report,

“PSR”).     Smith received two additional points for prior state

convictions:      one    point    for    a   2005    conviction      for   carrying   a

concealed      weapon;     and   one    point       for   a   2006   conviction     for




and brandishing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1).


                                             4
failure to appear in court for an assault and battery charge.

Smith had been fined $50 for the failure to appear conviction.

                The    four   criminal        history      points        placed    Smith   in

criminal history category III.                 With an offense level of 28, the

advisory sentencing range for Smith’s conspiracy, distribution,

and    firearm        possession   charges         was    97–121    months        in   prison.

U.S.       Sentencing     Guidelines     Manual          Ch.   5   Pt.      A     (sentencing

table)      (2007).       Had    Smith   received         three     (rather       than   four)

criminal history points, he would have fallen within criminal

history category II, and the advisory sentencing range would

have been 87–108 months.

                Smith’s counsel made no objections to the calculation

of the advisory sentencing range.                    The district court sentenced

Smith      to   concurrent      terms    of    109    months       for    the     conspiracy,

distribution, and firearm possession charges. 2                           In keeping with

his agreed appeal waiver, Smith did not file a direct appeal.

                On February 13, 2009, however, Smith filed a timely

pro se motion to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255.                  Smith argued that his attorney had

provided ineffective assistance of counsel by not objecting to

       2
       Smith was also           sentenced to a concurrent 60-month sentence
for making a false               statement to purchase a firearm, and a
consecutive 84-month             term for brandishing a firearm in a drug
trafficking crime.              Smith does not challenge these aspects of
his sentence.



                                               5
the assessment of one criminal history point for his failure to

appear conviction. 3             He argued that the offense of failure to

appear was similar to contempt of court and, thus, should have

been excluded from his criminal history calculation pursuant to

§ 4A1.2 of the advisory sentencing guidelines 4 and United States

v. Tigney, 367 F.3d 200 (4th Cir. 2004). 5

                 On October 29, 2010, the district court granted the

Government’s motion to dismiss Smith’s motion under § 2255.                        The

court       found      that   Smith   had    waived   his    claim    of   ineffective

assistance of counsel because he had not “allege[d] that he did

not know of these claims at the time of his sentencing.”                          J.A.

96, 99.          The court noted in a lengthy footnote, however, that

“even       if   his    claims   [had]      not   [been]    waived,   Smith’s   claims


        3
        Smith also argued that his attorney had provided
ineffective assistance by not objecting to the amount of crack
cocaine attributable to him for sentencing purposes.      This
second argument is not material to Smith’s appeal.
        4
       Section 4A1.2 provides that, in calculating a defendant’s
criminal history category, a district court should exclude prior
sentences for certain enumerated misdemeanor and petty offenses
--and “offenses similar to them, by whatever name they are
known”--unless “(A) the sentence was a term of probation of more
than one year or a term of imprisonment of at least thirty days,
or (B) the prior offense was similar to an instant offense.”
U.S. Sentencing Guidelines Manual § 4A1.2(c) (2007).         The
enumerated offenses include contempt of court.
        5
       In Tigney, we held that the West Virginia offense of
failure to appear was similar to contempt of court, and, thus,
should have been excluded from the defendant’s criminal history.
Tigney, 367 F.3d at 200.


                                              6
nevertheless fail[ed] on the merits”:

     Smith   has    not   demonstrated   either   deficient
     performance or prejudice. Pursuant to [U.S. Sentencing
     Guidelines Manual] § 4A1.2, sentences for misdemeanor
     and petty offenses are counted, except for a list of
     offenses provided in the section and offenses similar
     to them. Failure to appear does not appear on that
     list of excluded offenses. And, Smith does not allege
     which of the listed offenses, his failure to appear
     charge is similar to. Rather, Smith relies on
     [Tigney,] a Fourth Circuit case that interprets West
     Virginia statutes. However, Virginia statutes are
     different than the West Virginia statutes at issue.
     Therefore, the court cannot find that on the facts
     presented in this case, Smith has demonstrated that
     counsel’s failure to object was constitutionally
     deficient. Further, Smith has not demonstrated that he
     was prejudiced by counsel’s failure to object because
     he has not shown that had counsel filed the objection,
     the court would have sustained the objection and
     removed the 1 point from Smith’s criminal history
     calculation. In fact, in a prior case, United States
     v. Rush, Criminal Case No. 3:06cr00013-1 (W.D. Va.
     Sept. 5, 2006), this court overruled a similar
     objection and the defendant had one point counted for
     his failure to appear conviction.

Id. at 102. n.2.

          On November 8, 2010, Smith appealed.   On May 10, 2011,

we granted a certificate of appealability on “whether Smith’s

counsel provided ineffective assistance in failing to object to

the assessment of one criminal history point for Smith’s failure

to appear conviction in Virginia.” 6



     6
       Our order also granted a certificate of appealability on
whether Smith had waived his claim of ineffective assistance of
counsel, but the Government has abandoned its procedural
challenge to Smith’s claim.


                                 7
                                       II.

                                        A.

               We consider de novo “whether specific facts constitute

ineffective       assistance     of    counsel.”            United       States    v.

Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000).                      To establish

ineffective assistance of counsel, Smith must show that (1) his

attorney’s      performance     was   deficient,     and    (2)    the    deficient

performance was prejudicial.           See Strickland v. Washington, 466

U.S. 668, 687 (1984).

               To establish deficient performance, Smith “must show

that counsel's representation fell below an objective standard

of reasonableness.” Id. at 688.              We “must be highly deferential”

in our review, taking into account “the facts of the particular

case,”    the     “prevailing    professional       norms,”       and    “counsel’s

perspective      at   the   time.”    Id.    at   689–90.     “Because      of    the

difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance[.]”                     Id. at

689.     But a defendant may rebut that presumption by “proving

that     his    attorney’s     representation       was     unreasonable      under

prevailing professional norms and that the challenged action was

not sound strategy.”          Kimmelman v. Morrison, 477 U.S. 365, 384

(1986).



                                        8
             To establish prejudice, Smith must show 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.                       “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

Id. Prejudice exists when an error results in a longer sentence

than would otherwise have been imposed.                         See Glover v. United

States,     531       U.S.    198,       202–04      (2001)     (holding        that    Sixth

Amendment prejudice resulted from an asserted error that added

six   to    21     months      to    the     defendant’s        sentence).         “If       the

defendant        cannot       demonstrate          the    requisite           prejudice,      a

reviewing        court      need    not     consider      the     performance          prong.”

Fields v. Attorney Gen., 956 F.2d 1290, 1297 (4th Cir. 1992)

(citing Strickland, 466 U.S. at 697).



                                              B.

             Smith       argues     that     his    attorney      provided      ineffective

assistance       by    failing      to     object     when    the      PSR    assessed       one

criminal history point for his prior Virginia conviction for

failure     to    appear.          Opening    Br.     9–12.       He    contends       that    a

conviction for failure to appear in a Virginia court is similar

to contempt of court, and therefore warrants no criminal history

points     under      the    advisory      sentencing      guidelines.           Id.    at    9.

Smith    essentially         argues       that,     had   counsel      timely     objected,

                                               9
there is a reasonable probability that he would have been in a

lower criminal history category, thereby within a lower advisory

guidelines sentencing range, and consequently he likely would

have received shorter concurrent sentences for his conspiracy,

distribution, and firearm possession convictions.

           In   light    of    Tigney     and    the     sentencing       guidelines’

application     notes,        we   have        serious     doubts         about    the

reasonableness of counsel’s failure to object.                  Although Tigney

involved the West Virginia offense of failure to appear, see

Tigney, 367 F.3d at 200–01, it was the most relevant Fourth

Circuit case at the time of Smith’s sentencing, and analyzed an

offense    substantially       similar    to     Smith’s.       Like       the    West

Virginia   statute,     the    Virginia       statute    “outlaws     a    particular

manner of disobeying [a court] order--by failing to appear in

court on the designated date,” 7 and “leave[s] the court with

discretion to fix the penalty.” 8


     7
       See Tigney, 367 F.3d at 202 (describing the West Virginia
statute); Va. Code Ann. § 19.2-128 (criminalizing willful
failure “to appear before any court as required”).
     8
       See Tigney, 367 F.3d at 203–04 (referring to the West
Virginia statute); Va. Code Ann. § 19.2-128 (defining failure to
appear in a Virginia court as a class 1 misdemeanor or class 6
felony); Va. Code Ann. § 18.2-11 (authorizing “either or both”
incarceration “for not more than twelve months and a fine of not
more than $2,500” for class 1 misdemeanors); Va. Code Ann. §
18.2-10 (authorizing, for class 6 felonies, “a term of
imprisonment of not less than one year nor more than five years,
or in the discretion of the jury or the court trying the case
(Continued)
                                         10
             The   sentencing    guidelines’    application       notes      also

counsel against counting Smith’s failure to appear conviction in

his criminal history.       The application notes list five factors

for determining whether offenses are similar; two were critical

to our analysis in Tigney: the elements of the offenses, and the

respective penalties for each offense. 9                The   three remaining

factors make clear that the Virginia offense is substantially

similar to contempt of court: neither offense involves a high

level of “perceived seriousness”; 10 both involve the same level

of   culpability    (conscious   disregard     of   a   court   order); 11   and




without a jury, confinement in jail for not more than 12 months
and a fine of not more than $2,500, either or both”).
      9
       See Tigney, 367 F.3d at 200–04. Because of this, Tigney
remained highly relevant at the time of Smith’s sentencing, even
though the Tigney panel purported to apply an “elements” test--
comparing “the elements of the prior offense to the elements of
the relevant offense listed in Section 4A1.2(c)”--and the
advisory guidelines advocated a “common sense” approach. See id.
at 201–02; U.S. Sentencing Guidelines Manual § 4A1.2, appl.
n.12(A) (2007).
      10
           Indeed, Smith received only a $50 fine for his failure to
appear.
      11
        See 18 U.S.C. § 401 (criminalizing disobedience of a
lawful official court order); Va. Code Ann. § 19.2-128
(criminalizing willful failure to appear). Although the federal
contempt provision does not expressly require intent, courts
have “engrafted . . . the requirement of both a contemptuous act
and a willful, contumacious, or reckless state of mind.” In re
Joyce, 506 F.2d 373, 378 (5th Cir. 1975). See also United States
v. Burstyn, 878 F.2d 1322, 1324 (11th Cir. 1989) (to support a
conviction under § 401, the government must prove that the
(Continued)
                                     11
neither contempt of court nor failure to appear in a Virginia

court indicates a “likelihood of recurring criminal conduct.”

See U.S. Sentencing Guidelines Manual § 4A1.2, appl. n.12(A)

(2007).

            Despite      our     doubt    as     to    the      reasonableness          of

counsel’s failure to object, however, we are constrained, on the

unique facts before us, to affirm the denial of Smith’s claim

for lack of prejudice.           The district court has made clear that,

had   counsel    challenged       the    calculation       of     Smith’s       criminal

history    at   sentencing,       the    court    would        have    overruled      the

objection.      See supra pp. 6-7.              Even if this had been error,

Smith would have had no recourse: In his plea agreement, he

waived    his   right    to    appeal    “any    issues    that       related    to   the

establishment of the advisory Guideline range.” See supra p. 3. 12

Accordingly,     given    that    any    error    by     the    district    court       in

overruling an objection by counsel would have been effectively

“quarantined”     by    Smith’s    appeal       waiver    of     “any    issues       that

relate[d] to the establishment of the advisory Guideline range,”

Smith cannot show that, but for counsel’s failure to object,




violation was willful)); Floersheim v. Engman, 494 F.2d 949, 952
(D.C. Cir. 1973) (“Criminal contempt is essentially reserved for
willful contumacy and not good faith disagreement.”).
     12
        Calculation of a criminal history category plainly is a
part of “establish[ing] the advisory Guideline range.”



                                          12
there is a “reasonable probability” that he would have received

a shorter sentence. See Strickland, 466 U.S. at 694. 13



                                 III.

          For   the   reasons   set    forth,   the   judgment    of   the

district court is

                                                                 AFFIRMED.




     13
        Cf. Glover, 531 U.S. at 204 (“Here we consider the
sentencing calculation itself, a calculation resulting from a
ruling which, if it had been error, would have been correctable
on appeal.”)(emphasis added)).



                                  13
SHEDD, Circuit Judge, concurring in the judgment:

             As the majority correctly notes, under Strickland v.

Washington, 466 U.S. 668, 687 (1984), a petitioner must make two

showings to prevail on a claim for ineffective assistance of

counsel in a habeas petition under 28 U.S.C. § 2255: first, he

must show that his counsel’s performance fell below an objective

standard of reasonableness, and second, that he was prejudiced

by that deficiency.         When a petitioner fails to make one of

these showings, a court need not address the other.                 Id. at 697

(“[T]here    is   no   reason    for   a    court   deciding   an   ineffective

assistance claim to approach the inquiry in the same order or

even to address both components of the inquiry if the defendant

makes   an   insufficient       showing     on   one.”).   Because     I   agree

completely with the majority’s reasoning as to why Smith cannot

show prejudice as required under Strickland, I would not address

whether the performance by his counsel was deficient.               See id.




                                       14
