                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0140n.06

                                        Case No. 19-3219

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               Mar 10, 2020
UNITED STATES OF AMERICA,                              )                   DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )         ON APPEAL FROM THE
v.                                                     )         UNITED STATES DISTRICT
                                                       )         COURT FOR THE SOUTHERN
DONALD HOPE,                                           )         DISTRICT OF OHIO
                                                       )
       Defendant-Appellant.                            )
                                                       )                              OPINION




BEFORE: COLE, Chief Judge; BOGGS and SUTTON, Circuit Judges

       COLE, Chief Judge. Appellant Donald Hope pleaded guilty to conspiring to possess with

intent to distribute mixtures containing heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(C), 846, and 856. At sentencing, the district court imposed a sentence of 220 months’

imprisonment. As part of the plea agreement, Hope waived his right to appeal his conviction and

sentence, except as to claims of ineffective assistance of counsel, prosecutorial misconduct, or that

his sentence exceeded the statutory maximum. Hope now avails himself of his reserved right to

appeal on the ground of ineffective assistance of counsel. Specifically, he claims that his attorney

was ineffective for not arguing that the district court was required to apply the preponderance-of-

evidence standard in making any fact-finding that would increase Hope’s base offense level under

the Sentencing Guidelines and United States v. Watts, 519 U.S. 148 (1997).
Case No. 19-3219, United States v. Hope


          We typically do not consider claims of ineffective assistance of counsel when they are

raised for the first time on direct appeal. See, e.g., United States v. Martinez, 430 F.3d 317, 338

(6th Cir. 2005). Instead, to allow the parties to “develop an adequate record on the issue,” we

normally review ineffective-assistance claims in post-conviction proceedings. United States v.

Brown, 332 F.3d 363, 369 (6th Cir. 2003) (internal citation and quotation marks omitted). The

rationale for this practice is that “[w]hen an ineffective-assistance claim is brought on direct

appeal, appellate counsel and the court must proceed on a trial record not developed precisely for

the object of litigating or preserving the claim and thus often incomplete or inadequate for this

purpose.” Massaro v. United States, 538 U.S. 500, 504–05 (2003). In short, to review an

ineffective-assistance-of-counsel claim, we require a record from which we can comprehensively

evaluate the performance of the counsel in question, and such a record is rarely available on direct

appeal.

          We are not persuaded that this is one of those rare instances. On the record currently before

us, we are unable to evaluate the effectiveness of Hope’s counsel at the sentencing hearing to

determine whether his approach was constitutionally deficient. Accordingly, and without opining

on the performance of Hope’s attorney at the sentencing hearing, we decline to reach Hope’s claim

at this juncture and affirm the judgment and sentence of the district court.




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