                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0088n.06
                                                                                        FILED
                                                                                  Feb 06, 2020
                                        Case No. 19-1521
                                                                              DEBORAH S. HUNT, Clerk

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
MICHAEL MARCUS DILLARD,                             )       MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________                )


Before: MERRITT, CLAY, and GRIFFIN, Circuit Judges.

       MERRITT, Circuit Judge. Defendant Michael Dillard conspired with others to steal

credit cards from mailboxes and use them to purchase merchandise and gift cards. In this direct

appeal, defendant attempts to skirt the restrictions in his plea agreement where he agreed to waive

any attack on unpreserved objections to his sentence by arguing instead that his counsel was

ineffective for failing to object to his sentencing-guideline calculations. Specifically, defendant

contends that his counsel was ineffective for failing to raise claims related to defendant’s role in

the conspiracy, and the amount-of-loss calculation. Raising ineffective-assistance-of-counsel

claims on direct appeal is disfavored under our precedent except in extraordinary circumstances

not present here. We therefore affirm the judgment of the district court.
Case No. 19-1521, United States v. Dillard


                                                  I.

   Defendant, a college student in Michigan at the time of his arrest, was part of a group of seven

individuals that stole credit cards from mailboxes and used them to buy merchandise and gift cards.

He was arrested on July 17, 2018, and charged with conspiracy, access device fraud, possession

of stolen mail, and two counts of aggravated identity theft. Defendant pleaded guilty in a written

plea agreement to one count of conspiracy to commit fraud and aggravated identity theft in

violation of 18 U.S.C. § 371, specifically admitting to overt acts in furtherance of the conspiracy

during June and July of 2018.

       Ample evidence of defendant’s involvement in the conspiracy is contained in the record,

including the following: (1) a search warrant executed on defendant’s vehicle turned up stolen

mail, a credit card assigned to someone other than defendant, and a gift card; (2) a surveillance

tape from a Best Buy store in Ann Arbor on June 5, 2018, showing defendant and a coconspirator,

Edward Rolle, buying merchandise. Rolle told law enforcement that they were using stolen credit

cards that day; (3) defendant traveled to Detroit with codefendants because he knew where they

could sell illegally purchased gift cards and electronics; (4) video evidence that defendant

physically removed mail from mailboxes; and (5) defendant possessed a mechanical device called

an “embosser” that can imprint names and numbers to create credit or debit cards.

   The plea agreement agreed to by defendant waived all rights to direct appeal or collateral attack

on his sentence or conviction except in six enumerated instances. The two exceptions relevant to

this appeal allow defendant to appeal or seek collateral relief only when “the district court

incorrectly determined the Sentencing Guideline range, if the defendant objected at sentencing on

that basis,” and when “an attorney who represented defendant during the course of this criminal

case provided ineffective assistance of counsel.” Plea Agreement ¶ 17. In exchange for these



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waivers, the government dismissed all but the conspiracy charge against defendant and did not

oppose defendant’s request for an acceptance-of-responsibility reduction. At his plea hearing,

defendant, who was at all times represented by counsel, stated he understood the plea agreement,

including the waiver-of-appeal provisions. Plea Hr’g Tr. at 4, 17-18.

   After defendant pleaded guilty, a presentence report was prepared. The first draft found

defendant responsible for the entire $323,765.60 loss attributed to the conspiracy, which would

have resulted in a 12-level increase in his offense level. U.S.S.G. § 2B1.1(b). In response,

defendant claimed he was only in the conspiracy from June 6, 2018, to July 16, 2018, while most

of the other defendants “were involved for a much longer time.” The government conceded it did

not know exactly when defendant joined the conspiracy, and agreed that defendant could not be

held responsible for the conduct of others that occurred before he joined the conspiracy. See

U.S.S.G. § 1B1.3, cmt. n.3(B). As a result, the loss amount attributable to defendant was decreased

to $242,150.08. Defendant also received a three-level reduction for acceptance of responsibility.

The revised presentence report, dated April 15, 2019, reflects a total offense level of 15, and a

criminal history category of III, resulting in a guideline range of 24-30 months. Defendant’s

criminal history category of III was calculated based on multiple infractions when he was 21 for

driving without a license or on a suspended license, one marijuana possession charge, and a

probation violation for one of the driving infractions when he was arrested for the conduct at issue

in this case. Defendant filed no objections to the presentence report.

   In addition to not filing any objections to his presentence report, defendant did not object at

his sentencing hearing to the scoring of the guidelines. Defendant did, however, file a motion for

downward variance pursuant to the 18 U.S.C. § 3553(a) factors, and for a downward departure

based on the nature of defendant’s criminal history. Specifically, defendant argued that his



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Case No. 19-1521, United States v. Dillard


criminal history category of III overstated the seriousness of his criminal past because all his

criminal history points are for nonviolent and minor violations such as driving infractions and a

marijuana possession charge.

   At his sentencing hearing, the district court disagreed that a downward departure was

warranted, but it took the arguments into consideration for a downward variance under § 3553(a).

Sent’g Hr’g Tr. at 7. The court noted that defendant’s conduct was similar to codefendants Edward

Rolle and Johnson, who received 12-month sentences, six months below the low end of their

guideline ranges of 18-24 months. The court granted defendant’s motion for a downward variance

and sentenced him to 18 months in prison, six months below the low end of his guideline range of

24-30 months. The court noted that the downward variance of six months was the same as that

received by similarly situated codefendants Edward Rolle and Johnson, but indicated that

defendant’s sentence was longer than Rolle’s and Johnson’s due to defendant’s higher criminal

history category. This timely appeal followed.

                                                 II.

       To establish a claim for ineffective assistance of counsel, a defendant must show that: (1)

his attorney’s representation “fell below an objective standard of reasonableness;” and (2) “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687–88

(1984). “As a general rule, a defendant may not raise ineffective assistance of counsel claims for

the first time on direct appeal, since there has not been an opportunity to develop and include in

the record evidence bearing on the merits of the allegations.” United States v. Wunder, 919 F.2d

34, 37 (6th Cir. 1990) (per curiam). The typical method for raising such claims is in a post-

conviction proceeding under 28 U.S.C. § 2255. The reasons for the general rule are several: to

allow the litigation to more fully develop such that the reviewing court might be able to discern



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Case No. 19-1521, United States v. Dillard


the distinction between an attorney’s calculated risk and a true mistake; to help assure that issues

are completely developed before being decided; to avoid putting appellate counsel in the position

of relying on trial counsel for assistance while simultaneously arguing he was deficient, or, as

happens frequently, arguing that he himself was deficient where defendant is represented by the

same counsel at trial and on appeal; and to allow the district court to decide in the first instance

the factual and legal issues underlying the ineffective assistance claim. See United States v.

Sypher, 684 F.3d 622, 626 (6th Cir. 2012); United States v. Walden, 625 F.3d 961, 967 (6th Cir.

2010).

         Defendant contends that he received ineffective assistance of counsel because his counsel

failed to object to the presentence report’s amount-of-loss calculation and to the failure of

defendant to receive a reduction for a lesser role in the conspiracy. It should first be noted that

defendant never indicated any disagreement with his counsel to the court, even when directly asked

by the district court judge. Defendant does not contend that his plea was not knowing and

voluntary. He stated in open court that he understood his plea agreement and that he was waiving

his right to appeal except for specified issues. The record below does not demonstrate any hint of

disagreement between defendant and counsel, or reveal anything blatantly troubling or plainly

erroneous about counsel’s handling of the case indicating that counsel was ineffective.

         Without any red flags clearly raised by the record below, questions about counsel’s strategy

and his interactions with defendant would need to be answered before any determination about

counsel’s performance could reasonably be made. Because the district court did not address the

issue of attorney performance in the first instance, we would be left to speculate on an undeveloped

record about the reasons behind counsel’s decision-making, including the lack of objection to the

presentence report guideline calculations. See United States v. McCarty, 628 F.3d 284, 296 (6th



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Case No. 19-1521, United States v. Dillard


Cir. 2010) (holding that when the appellate record “consists largely of unsubstantiated allegations

without affidavits from defense counsel or [the defendant],” it is not adequately developed).

Looking briefly at the two arguments defendant raises to support his ineffective-assistance-of-

counsel claim, the record on appeal does not demonstrate that what defendant calls mistakes by

his counsel were not in fact reasonable, strategic choices, so defendant’s claim cannot succeed on

direct appeal.

       A. Defendant’s Role in the Offense

       The two-level “minor participant” adjustment “applies only if the defendant is ‘less

culpable than most other participants and substantially less culpable than the average participant.’”

United States v. Griffith, 663 F. App’x 446, 454 (6th Cir. 2016) (quoting United States v. Lanham,

617 F.3d 873, 888 (6th Cir. 2010)). Defendant was involved in all aspects of the conspiracy:

stealing mail and then using stolen cards to conduct fraudulent transactions. He was actively

participating in the conspiracy when he was arrested. This record indicates that he was an

“average” participant. By contrast, codefendant Travis Rolle received an enhancement for his role

as an organizer, leader, manager or supervisor of others. The only way in which defendant’s role

could be described as “minor” arises from his argument that he only participated in the conspiracy

for less than two months before it was discovered by police. However, defendant did not withdraw

from the conspiracy voluntarily. The fraud ring was broken up by law enforcement and its

participants arrested in July 2018, otherwise defendant likely would have continued in the

conspiracy. This suggests that defendant’s role could be considered “average,” and we cannot

determine that counsel’s performance was deficient for failing to argue that defendant should be

considered a minor participant in the conspiracy.




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Case No. 19-1521, United States v. Dillard


       B. Amount-of-Loss Calculation

       The initial amount attributed to defendant was the entire $323,765.60 loss associated with

the conspiracy. After conceding that it did not know the exact date that defendant joined the

conspiracy, the government agreed to lower the amount attributable to defendant to $242,150.08,

an estimate of the amount of loss covering the six-week period in June and July 2018 when

defendant has conceded he was part of the conspiracy. Based on the government’s agreement to

lower the amount-of-loss calculation, the current record does not show that it was unreasonable

for counsel not to object to the recalculated amount.

       The record is silent as to counsel’s strategy, but he procured a below-guidelines-range

sentence for defendant, rendering defendant’s claim that counsel was ineffective unpersuasive on

this record. Defendant has wholly failed to offer any argument rebutting the general rule that

ineffective-assistance-of-counsel claims should be raised in a post-conviction proceeding rather

than on direct appeal. He has not demonstrated that his counsel’s representation “fell below an

objective standard of reasonableness,” and he has not demonstrated that his counsel’s “deficient

performance” prejudiced him. Strickland, 466 U.S. at 687-88. He was treated the same as the

other similarly situated defendants as to role in the offense and amount of loss, and his longer

sentence was the result of a higher criminal history category than the similarly situated

codefendants. While this record cannot support an ineffective-assistance claim on direct appeal,

defendant is free to pursue such a claim in post-conviction proceedings, and we express no opinion

on the merits of such a claim.

       For the foregoing reasons, the judgment of the district court is affirmed.




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