                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4366


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALLEN WAYNE POSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00239-RJC-1)


Submitted:   January 26, 2012             Decided:   February 3, 2012


Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Allen Wayne Poston pled guilty, with the benefit of a

written guilty plea, to wire fraud and aiding and abetting the

same, in violation of 18 U.S.C.A. § 1343 (West 2000 & Supp.

2011), and 18 U.S.C. § 2 (2006).            Subsequent to the entry of his

guilty plea, but prior to the imposition of sentence, Poston

moved to withdraw his guilty plea.              The district court denied

the motion.     As a result of Poston’s failed motion to withdraw

his   guilty      plea,   the     probation     officer      revised     Poston’s

presentence report (PSR) to eliminate the three-level downward

adjustment     for     acceptance     of      responsibility          under   U.S.

Sentencing Guidelines Manual § 3E1.1 (2010).                 This revision led

to an increase in the applicable Guidelines sentencing range of

from forty-one to fifty-one months to the new range of fifty-

seven to seventy-one months.          At sentencing, Poston objected to

the loss of the acceptance-of-responsibility adjustment.                         The

district     court    overruled    Poston’s     objection       but    imposed     a

variant sentence of forty-eight months’ imprisonment.                     As part

of its explanation of sentence, the district court stated the

forty-eight-month sentence “would have been in the high end of

the   otherwise      applicable   guideline     range”    had    “the    original

acceptance of responsibility” downward adjustment still applied.

           Poston     appeals,    arguing     that   trial   counsel     rendered

ineffective representation when he moved to withdraw Poston’s

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guilty      plea.            Poston    claims    counsel’s         deficient      performance

prejudiced             him    because      the       loss     of     the    acceptance-of-

responsibility adjustment led to an “unduly harsh sentence.” *

               We may address a claim of ineffective assistance on

direct appeal only if the lawyer’s ineffectiveness conclusively

appears on the record.                   United States v. Baldovinos, 434 F.3d

233, 239 (4th Cir. 2006).                  To prove his ineffective assistance

claim,      Poston       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).       With respect to the first prong, “the defendant must

show       that    counsel’s          representation        fell    below    an    objective

standard          of    reasonableness.”             Id.     at    688.      In     addition,

“[j]udicial            scrutiny    of    counsel’s       performance       must    be   highly

deferential.”            Id. at 689.        Under the second prong of the test,

“[t]he       defendant          must     show     that      there     is     a     reasonable


       *
       Poston’s plea agreement also included an appeal waiver, in
which Poston waived the right “to contest a conviction and/or
sentence through an appeal or post conviction” proceeding unless
the claims raised involved ineffective assistance of counsel or
prosecutorial misconduct. The Government asserts the portion of
Poston’s appeal attacking his sentence should be dismissed based
upon Poston’s appeal waiver.    We have carefully considered the
Government’s position and have concluded, because Poston argues
his increased sentence was the prejudice that resulted from his
counsel’s   alleged   ineffective   assistance,   that   Poston’s
sentencing argument is part of his ineffective assistance claim
and falls outside the scope of his appellate waiver.



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probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”                                Id. at

694.     Finally,      we    need    not    address     both    components          of    the

Strickland test if the defendant makes an insufficient showing

as to either part of the test.              Id. at 697.

            We conclude Poston has failed to point to conclusive

evidence on this record establishing ineffective assistance of

counsel.     The only prejudice Poston asserts is the loss of the

acceptance-of-responsibility downward adjustment in his offense

level.     At the sentencing hearing, however, the district court’s

explanation     of    its    sentencing      judgment     persuades          us    that    it

would have imposed the same sentence even if Poston’s original

forty-one      to    fifty-one      month    Guidelines        range    had       remained

unchanged.      Thus, Poston cannot demonstrate he received a longer

sentence as a result of trial counsel’s motion to withdraw the

guilty plea.        We therefore affirm the district court’s judgment.

            We dispense with oral argument because the facts and

legal    contentions        are   adequately      presented      in    the        materials

before   the    court    and      argument      would   not    aid     the    decisional

process.

                                                                                   AFFIRMED




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