                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 16-4209


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

CAROL GAUVREAU,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:15-cr-00272-GBL-IDD-1; 1:15-po-00935-IDD-1)


Submitted:   January 31, 2017               Decided:   February 8, 2017


Before GREGORY, Chief Judge, TRAXLER, Circuit Judge, and DAVIS,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Phoenix A. Harris, HARRIS & CARMICHAEL PLLC, Alexandria,
Virginia, for Appellant.       Dana J. Boente, United States
Attorney, Rachel G. Hertz, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Following a bench trial before a magistrate judge, Carol

Gauvreau    was    convicted      of   speeding    and    driving     under    the

influence. ∗     Pursuant to Fed. R. Crim. P. 33, Gauvreau moved for

a new trial based on ineffective assistance of trial counsel.

The magistrate judge denied the motion.                  Gauvreau appealed to

the district court, which also denied the motion.                   Gauvreau now

appeals the denial of her motion for a new trial to this court,

raising    the    same    three   claims    of   ineffective    assistance      of

counsel she presented below: (1) counsel was ineffective for

failing to challenge the accuracy of the laser speed detection

device     based     on     its    outdated       calibration       certificate;

(2) counsel was ineffective for failing to introduce evidence of

Gauvreau’s knee injury by way of a June 2015 MRI report; and

(3) counsel was ineffective for failing to introduce evidence of

Gauvreau’s prescription history.

     Fed. R. Crim. P. 33 provides that, “[u]pon the defendant’s

motion, the court may vacate any judgment and grant a new trial

if the interest of justice so requires.”                   Fed. R. Crim. P.

33(a).     Claims    of    ineffective      assistance    of   counsel   may    be

brought as the basis for a motion for new trial under Fed. R.


     ∗ Gauvreau was also convicted of reckless driving, but that
conviction was subsequently vacated by the district court.



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Crim. P. 33.        United States v. Russell, 221 F.3d 615, 619 (4th

Cir.    2000).      “Although     generally           not      raised    in       the     district

court nor preserved for review on appeal, ineffective assistance

claims asserted in motions under Rule 33 — and ruled on by the

district court — may be considered on direct appeal.”                                     Id.     We

review the denial of such a motion for abuse of discretion.                                      Id.

A     district    court    abuses        its       discretion         when       it     (1)     acts

“arbitrarily, as if neither by rule nor discretion,” (2) fails

to “adequately . . . take into account judicially recognized

factors constraining its exercise” of discretion, or (3) rests

its decision on “erroneous factual or legal premises.”                                    James v.

Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).

       Rule 33 motions alleging ineffective assistance of counsel

“must satisfy the two-pronged test articulated by the Supreme

Court in Strickland v. Washington, [466 U.S. 668, 687 (1984)]”.

Russell, 221 F.3d at 620.                 The movant must show, first, that

counsel’s     performance        was     objectively            unreasonable            in    “that

counsel made errors so serious that counsel was not functioning

as     the   ‘counsel’     guaranteed              the     defendant         by       the     Sixth

Amendment.”        Strickland,         466     U.S.       at   687.         In    scrutinizing

counsel’s        performance,       “a       court         must     indulge           a       strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance.”                           Id. at 689.                Second,

the     movant    must    show    that         her       defense      was     prejudiced          by

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counsel’s deficient performance.                 Id. at 687.       To demonstrate

prejudice, the movant must show “a reasonable probability that,

but    for   counsel’s   unprofessional          errors,    the    result    of   the

proceeding would have been different.”                   Id. at 694.       Counsel’s

errors must have been “so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.”                         Id. at 687.

Thus, a movant “must demonstrate that but for counsel’s errors,

there is a reasonable probability that [s]he would not have been

convicted.”     United States v. Luck, 611 F.3d 183, 186 (4th Cir.

2010).

       We have reviewed the record and relevant legal authorities

and conclude that Gauvreau fails to satisfy the requirements of

Strickland.        Because    the       district    court   did    not    abuse   its

discretion in denying Gauvreau’s Rule 33 motion for a new trial,

we affirm the judgment of the district court.                     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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