                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4995



UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

           v.

DWIGHT GOODING, a/k/a D BLACK,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:13-cr-00136-BO-1)


ARGUED:   October 29, 2014                 Decided:   December 8, 2014


Before NIEMEYER, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Stephen C. Leckar, KALBIAN & HAGERTY, LLP, Washington,
D.C., for Appellant.    Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.        ON
BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            On December 19, 2013, Dwight Gooding (“Appellant”) was

sentenced   to     84    months    of       imprisonment,       plus       ten    years    of

supervised release, resulting from his guilty plea to a charge

of   conspiracy    to    distribute          heroin.      During          the    sentencing

hearing,    defense       counsel       did       not   say     a    single       word     on

Appellant’s behalf.          Appellant now brings this direct appeal

asking us to find that the record conclusively establishes a

violation     of   his     Sixth     Amendment          right       to    the     effective

assistance of counsel.

            The    Supreme    Court         has    stated,      “[I]n      most    cases    a

motion brought under [28 U.S.C.] § 2255 is preferable to direct

appeal for deciding claims of ineffective assistance.”                               Massaro

v. United States, 538 U.S. 500, 504 (2003).                         The reasons behind

this preference are clear.                  Above all else, collateral review

provides an opportunity for a full airing of the ineffectiveness

issue -- including any explanation the defense attorney might

offer for his conduct.              Here, looking only at the record on

appeal, we are loath to accept Appellant’s argument that nothing

could justify defense counsel’s decision to remain silent --

particularly where the prosecutor actually spoke in support of

Appellant    and    recommended         a    below-guideline             sentence,    which

Appellant in fact received.



                                              2
                 Therefore,        because    the    record    before     us   does   not

conclusively establish a constructive denial of counsel under

the standard set forth in United States v. Cronic, 466 U.S. 648

(1984), we decline to vacate Appellant’s sentence.

                                              I.

                 The    criminal      case    underlying      this    appeal   was    the

product of a 2012 police investigation into gang-related drug

trafficking            in   Appellant’s      home     city    of     Henderson,   North

Carolina.          Investigators with the Henderson Police Department

determined that members of a gang known as the “Money Mob Gang”

were       selling      large   amounts      of    heroin,    as   well   as   marijuana

soaked      in    formaldehyde.         The       investigators      further   concluded

that armed gang members were committing robberies and assaults

to facilitate these sales.

                 During     this    investigation,      officers       arranged   for   a

confidential informant to purchase heroin from Appellant on two

occasions.         Police estimate the total amount of heroin involved

in these transactions at 0.374 grams. 1                   Separately, confidential

informants bought a firearm from an unindicted person in October




       1
       This is the estimated weight of heroin purchased in those
two transactions.    Police alleged, though, that Appellant was
carrying an additional five or six bundles, or 0.725 grams, of
heroin at the time of the second transaction.



                                               3
2012.       Police alleged that the firearm belonged to Appellant,

and that the seller made the sale on Appellant’s behalf.

              Police       also      obtained         statements       from       six     people

claiming to have knowledge about Appellant’s participation in

the    illegal      drug     trade.       One       person     alleged      that     Appellant

received      ten     bricks      of    heroin        from    a    supplier        each    week.

Another person claimed to have observed Appellant sell heroin

more than 100 times.

              In May 2013, a grand jury indicted Appellant on three

charges: one count of conspiracy to distribute and possess with

intent to distribute heroin in violation of 21 U.S.C. § 846,

plus    two   counts       of     knowing      and     intentional         distribution       of

heroin in violation of § 841(a)(1).                         Appellant accepted a plea

agreement      in     lieu      of     trial.         Pursuant       to     the     agreement,

Appellant pled guilty to the conspiracy charge and promised to

cooperate      with       the     Government         in      its   investigation.              In

exchange, the Government agreed to drop the two distribution

charges.

              The         presentence           investigation              report         (“PSR”)

calculated     Appellant’s           offense        level    under    the     United       States

Sentencing Guidelines at 25.                This calculation was based in part

on    the   probation        officer’s      determination            that    Appellant       was

accountable         for    158.85      grams     of    heroin        and    that     Appellant

possessed      firearms         during      his       drug-trafficking             activities.

                                                4
Taking   Appellant’s     criminal    history         into    consideration, 2      the

probation     officer    concluded    that         the   Sentencing       Guidelines

imprisonment range was 110 months to 137 months.

            Appellant objected to several contentions in the PSR,

including the determination that he was accountable for 158.85

grams of heroin.        Appellant initially asserted that he should

have been accountable for only 40 to 60 grams.                      In addition,

Appellant denied any involvement in the October 2012 firearm

sale.    Appellant      abandoned    all      of    these    objections    prior    to

sentencing.

            The district court sentenced Appellant on December 19,

2013.    The   only     words   spoken       by    defense   counsel   during      the

sentencing hearing came at the very beginning of the proceeding,

when counsel bid the judge good morning.

            In his allocution, Appellant told the court that he is

grateful to God for helping him recognize “the wrongdoing that




     2
       Per the PSR, Appellant’s criminal history includes ten
convictions between 2006 and 2012.        These include felony
convictions in 2009 for common law robbery; possession with
intent   to  manufacture,  sell,   or  deliver   marijuana;  and
possession of a stolen firearm.     The PSR notes that defense
counsel had objected to the inclusion of one conviction: a 2011
conviction for harassing phone call(s). Defense counsel claimed
the case had been dismissed, but the probation officer stated in
the PSR that he was able to confirm that this charge did result
in a conviction. Appellant’s brief asserts that defense counsel
abandoned the objection.



                                         5
[he] was doing in the streets.”       Supp. J.A. 4. 3    Appellant said

he knows he has to accept responsibility for his actions.            He

proceeded to explain that he has cooperated with the government

“to the fullest extent, tell them everything that I possibly

could tell because I’m trying to get on a new path and new life

because now I’m living for my son.”     Id.

          The district court replied that Appellant has “a lot

to be sorry for.”   Supp. J.A. 4.      When Appellant told the court

that he was not “raised to even be in this situation,” id. at 5,

the court noted that Appellant had “a whole page of priors,

arrests anyway, right? . . .    So they didn’t just pick the wrong

name and put a lot of heat on you, did they?”      Id.

          The prosecutor informed the court that Appellant was

“one of the very few defendants who have cooperated” in the

investigation of drug trafficking in Henderson.          Supp. J.A. 6.

Information provided by Appellant had already been used against

three federal defendants, she said, and was likely to be used

against others in the future.     The prosecutor further told the

court that in light of Appellant’s “vast assistance,” and the

general “lack of cooperation on the parts of others,” id. at 7,




     3
       Citations to the “Supp. J.A.” refer to the contents of the
Supplemental Joint Appendix filed by the parties in this appeal.



                                  6
the Government was recommending a sentence of 66 months -- well

below the Sentencing Guidelines range.

             The   court   then     proceeded    to       direct    a     series     of

questions at a Henderson Police Department lieutenant.                          In the

course of this inquiry, the court remarked that gun violence is

a   significant    problem   in     Henderson    and      asked    the       lieutenant

about the habits of Money Mob Gang members, including whether

they   operate     crack   houses    and     sleep   in    their        cars.      Upon

concluding     this   line   of     questioning,       the      court     turned    to

Appellant:

           THE COURT: What kind of gun do you usually
                      shoot with?    It’s not a trick
                      question. I mean, you carried a
                      gun all your life, so what kind
                      of gun do you use? Do you carry
                      a great big .45 or carry a .32 or
                      .22? Just tell me, I’m curious.
                      You are a gun guy, right?

           APPELLANT:      Not no more, sir. I wasn’t since
                           my first incarceration.

           THE COURT:      Why is it so hard               to     get    a
                           question answered?

           APPELLANT:      Before my incarceration I carried
                           a .380.

Supp. J.A. 13-14.          The court then sentenced Appellant to 84

months of imprisonment, plus ten years of supervised release.

                                       II.

           Appellant argues on appeal that his lawyer’s silence

during    the      sentencing       hearing      presumptively            prejudiced

                                        7
Appellant.    He asks us to vacate and remand for resentencing or,

alternatively, for a hearing on the issue of ineffectiveness.

Because the district court made no findings on this issue, our

review must be de novo.       See United States v. Smith, 640 F.3d

580, 596 (4th Cir. 2011).

                                  III.

                                   A.

          Our rules of procedure endeavor to “‘induce litigants

to present their contentions to the right tribunal at the right

time.’”      Massaro v. United States, 538 U.S. 500, 504 (2003)

(quoting Guinan v. United States, 6 F.3d 468, 474 (7th Cir.

1993) (Easterbrook, J., concurring)).         For criminal defendants

who wish to challenge their conviction or sentence on grounds of

ineffective    assistance   of   counsel,   our   rules   present   three

options: (1) a motion for a new trial, 4 (2) a direct appeal, or

(3) a collateral challenge pursuant to 28 U.S.C. § 2255.             See

United States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998).


     4
       Rule 33 of the Federal Rules of Criminal Procedure permits
a district court to “vacate any judgment and grant a new trial
if the interest of justice so requires.”       Fed. R. Crim. P.
33(a). We have stated that an ineffective assistance claim “may
be brought as a motion for new trial based on ‘other grounds,’”
as provided in Rule 33(b)(2).    United States v. Smith, 62 F.3d
641, 650 (4th Cir. 1995) (quoting Fed. R. Crim. P. 33).      Such
motions, however, “must be filed within 14 days after the
verdict or finding of guilty.”    Fed. R. Crim. P. 33(b)(2).   No
such motion was filed here.



                                    8
Appellant has chosen the second option, despite this court’s

repeated warnings that we consider ineffective assistance claims

on direct appeal only under limited circumstances.                           See, e.g.,

United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995); Sneed

v. Smith, 670 F.2d 1348, 1354-55 (4th Cir. 1982) (per curiam);

United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970)

(per curiam).

             The Supreme Court has explained why it is generally

preferable to bring an ineffective assistance claim via a § 2255

motion, rather than on direct appeal.                        In Massaro v. United

States, the Court reasoned that a district court will ordinarily

be “the forum best suited to developing the facts necessary to

determining     the    adequacy    of     representation           during     an   entire

trial.”      538 U.S. at 505.       A district court, it noted, may take

testimony from witnesses -- including, perhaps, the attorney who

allegedly     rendered    deficient          performance.            See    id.         This

opportunity     is    unavailable       on       direct     appeal.         Rather,      the

appellate court must rely solely on trial records that are “not

developed precisely for the object of litigating or preserving

[an    ineffective      assistance]          claim        and     thus     [are]      often

incomplete or inadequate” for the purpose at hand.                          Id. at 504-

05.    The record may show what defense counsel did or did not

say,   but    the    reviewing    court      can     only       speculate    as    to    why

counsel did or did not say it.

                                             9
            For these reasons, we have consistently held that a

defendant    “may    raise    an   ineffective         assistance     claim   in   the

first instance on direct appeal only where the ineffectiveness

conclusively appears from the record.                    Otherwise, ineffective

assistance claims should be raised in the district court in a

collateral proceeding under 28 U.S.C. § 2255.”                   United States v.

Russell,    221     F.3d    615,   619    n.5     (4th    Cir.    2000)   (citation

omitted) (internal quotation marks omitted).

            With this in mind, we proceed to consider Appellant's

Sixth Amendment claim.

                                          B.

            Appellant       argues   that        the   trial     record   “confirms

conclusively” that defense counsel’s silence at the sentencing

hearing     “fell     below    the       Sixth     Amendment’s        threshold    of

performance.”       Appellant’s Br. 6.           In United States v. Brown, we

indicated     that     an     ineffectiveness          claim     is    conclusively

established when the trial record “compel[s] the conclusion that

[counsel] was constitutionally ineffective.”                   757 F.3d 183, 191-

93 (4th Cir. 2014).           Our review of the record in this case

compels no such conclusion.




                                          10
              The   Sixth    Amendment      guarantees         “[m]ore    than   a   warm

body” at the defense table. 5               United States v. Smith, 640 F.3d

580, 589 (4th Cir. 2011) (internal quotation marks omitted).

Rather,   a    defendant      is    entitled       to   a     “reasonably     competent

attorney,” United States v. Cronic, 466 U.S. 648, 655 (1984)

(internal      quotation      marks     omitted),            who   “plays    the     role

necessary     to    ensure   that     the    trial      is    fair,”     Strickland   v.

Washington, 466 U.S. 668, 685 (1984).                    Thus, the Supreme Court

has said, “[t]he right to the effective assistance of counsel

is . . . the right of the accused to require the prosecution’s

case to survive the crucible of meaningful adversarial testing.”

Cronic, 466 U.S. at 656.

              Most of the time, a Sixth Amendment ineffectiveness

claim will be analyzed under the two-part test set forth in

Strickland v. Washington, 466 U.S. 668 (1984).                         See Harding v.

Lewis, 834 F.2d 853, 859 (9th Cir. 1987).                      Under the Strickland

test, a defendant must show, first, that counsel’s performance

was   deficient,      and,    second,       that   the       “deficient     performance

prejudiced the defense.”            Strickland, 466 U.S. at 687.                 We have

no occasion to apply the Strickland test here because Appellant


      5
       The     Sixth Amendment states in pertinent part: “In all
criminal       prosecutions,  the    accused   shall   enjoy   the
right . . .    to have the Assistance of Counsel for his defence.”
U.S. Const.    amend. VI.



                                            11
has made no showing of prejudice.                     Indeed, Appellant conceded at

oral argument that Strickland does not govern his appeal.

              Rather, Appellant asserts that this is one of those

rare cases in which we simply presume that counsel’s performance

prejudiced the defense.                 See James v. Harrison, 389 F.3d 450,

455 (4th Cir. 2004) (explaining that a presumption of prejudice

arises under “certain circumstances” in which “prejudice ‘is so

likely that case-by-case inquiry . . . is not worth the cost’”

(alteration in original) (quoting Strickland, 466 U.S. at 692));

see also Hollenback v. United States, 987 F.2d 1272, 1275 (7th

Cir.    1993)        (outlining         “an      exception         to     the     Strickland

standard . . . for certain circumstances that are so egregiously

prejudicial          that       ineffective           assistance        of      counsel    is

presumed”).          In       Cronic,   the     Supreme       Court     identified     three

“circumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified.”            466 U.S. at 658.              Those circumstances are: (1)

“when the defendant is completely denied counsel ‘at a critical

stage of his trial’”; (2) when “there has been a constructive

denial of counsel”; and (3) “‘when although counsel is available

to   assist    the       accused    during      trial,       the   likelihood      that   any

lawyer,   even       a    fully    competent          one,   could      provide    effective

assistance      is       so    small    that    a     presumption       of   prejudice    is

appropriate      without         inquiry       into    the    actual     conduct     of   the

                                               12
trial.’”       Glover v. Miro, 262 F.3d 268, 275 (4th Cir. 2001)

(quoting Cronic, 466 U.S. at 659-60).                                “A finding of per-se

prejudice under any of these three prongs is an extremely high

showing      for     a    criminal       defendant        to    make.”           Id.     (internal

quotation marks omitted).

              Appellant          places      this      case    in    the       second    category,

arguing      that    his        lawyer’s     silence      at    the       sentencing       hearing

amounted to a constructive denial of counsel.                                    A constructive

denial      exists       when    “a    lawyer      ‘entirely         fails      to    subject    the

prosecution’s            case    to    meaningful         adversarial           testing,’       thus

making ‘the adversary process itself presumptively unreliable.’”

Glover, 262 F.3d at 275 (quoting Cronic, 466 U.S. at 659).                                        It

is    not   enough        to    allege     that     counsel         was    effective      at    some

points of a sentencing proceeding but ineffective at others;

rather, “the         attorney’s          failure       must    be     complete.”          Bell    v.

Cone, 535 U.S. 685, 696-97 (2002).

              Appellant contends that, in this case, “there was no

one    speaking          for    the    defendant         at    all”       at    the     sentencing

hearing.      Reply Br. 9.             Not so.         Appellant himself, with counsel

at    his     side,        delivered         a     heartfelt         allocutory         statement

expressing      remorse          for   his       criminal      conduct         and    asserting    a




                                                  13
desire to change his ways. 6           More importantly, the prosecution

commended    Appellant    for    his     “vast     assistance”      in   ongoing

criminal investigations and urged the court to issue a sentence

well below the Sentencing Guidelines range.                   The prosecution

made these statements without presenting any evidence against

Appellant at the sentencing hearing.               Under the circumstances,

we cannot say a defense lawyer would be unwise to sit back and

let the Government do the talking.          Cf. Warner v. Ford, 752 F.2d

622, 625 (11th Cir. 1985) (suggesting that, in an adversarial

proceeding, “[s]ilence can constitute . . . strategy.”).

            The   Government’s    posture    at     Appellant’s      sentencing

hearing   distinguishes    this    case     from    several    of    the   cases

Appellant cites in support of his position.             In those cases, the

Government presented evidence that defense counsel neglected to




     6
       To be sure, an allocutory statement does not absolve a
defense attorney of his responsibility to effectively represent
his client.   This case, however, does not require us to decide
whether defense counsel fell short of his obligations under the
Sixth Amendment, and we do not so do. The question before us is
simply whether the record on direct appeal conclusively
establishes a constructive denial of counsel under Cronic.    In
this context, we find Appellant’s allocutory statement worthy of
note. Without a fully developed record, there is no way to know
whether it was a strategic decision for Appellant to speak in
lieu of counsel, nor whether defense counsel played some role in
helping Appellant craft his statement.



                                       14
challenge. 7      See Miller v. Martin, 481 F.3d 468, 473 (7th Cir.

2007) (per curiam) (finding a constructive denial of counsel at

a sentencing hearing in which the defense lawyer, by his own

admission,       “did    not   offer    a    shred   of     mitigating      evidence,”

object to errors in the PSR, or “even lobby for a sentence lower

than the one urged by the State”); Patrasso v. Nelson, 121 F.3d

297, 303-05 (7th Cir. 1997) (holding that defense counsel was

constitutionally          ineffective       for    failing      to     rebut      adverse

evidence at the sentencing hearing); Harding v. Davis, 878 F.2d

1341, 1343 (11th Cir. 1989) (presuming prejudice under Cronic

where defense counsel was silent throughout client’s criminal

trial).       In Patrasso v. Nelson, the Seventh Circuit condemned as

“especially grievous” defense counsel’s failure to even attempt

to contradict the prosecution’s case at sentencing, given that

“the facts and circumstances presented [by the prosecution] at

trial and relied upon heavily at sentencing were one-sided and

very       possibly   inaccurate.”          121   F.3d    at   304-05.         Here,    by

contrast, there was no case for the defense to contest.

               Instead,    Appellant’s       gripe   with      defense    counsel,     it

would seem, is not that he failed to challenge the prosecutor,

but    rather     that    he   failed       to    challenge      the     court.        See

       7
       We note as well that the Sixth Amendment ineffectiveness
claims in these cases were presented in habeas petitions, rather
than on direct appeal.



                                            15
Appellant’s        Br.    13     (asserting          that      “the        district    judge’s

attitude      towards     the    defendant          was   troubling,”         and     that    the

judge’s      “brusqueness       should     have       set      off    an    amber     light       to

defense counsel that intercession was necessary”).                                  This is a

very       different     sort   of     complaint,         as    it    raises      potentially

complex questions about the interchange between counsel and the

bench.        No   doubt,      there    will    be    times      when       the   tenor      of   a

court’s colloquy might well persuade counsel that silence is his

best option. 8

               This is not an instance of a lawyer sleeping through

trial.       See, e.g., Burdine v. Johnson, 262 F.3d 336, 341 (5th

Cir.       2001)   (en     banc)       (holding       that      “a     defendant’s        Sixth

Amendment right to counsel is violated when that defendant’s

counsel       is   repeatedly        unconscious          through      not     insubstantial

portions of the defendant’s capital murder trial”); Tippins v.

       8
       Appellant identifies four matters that, in his view,
defense counsel should have brought to the court’s attention --
specifically, Appellant’s “poly-substance abuse,” his parents’
gainful employment, his “stable relationship with his infant son
and the baby’s mother,” and his efforts at rehabilitation.
Appellant’s Reply Br. 13 (internal quotation marks omitted).
Counsel might also have noted that Appellant was making
voluntary child support payments at the time of his arrest. In
fact, though, Appellant’s allocutory statement referred to both
his love for his son and his efforts to turn his life around.
Interrupting the court’s colloquy to raise these points again
would have been redundant and quite possibly unwise. Moreover,
each of these points was addressed in the PSR, and it is not at
all clear what the defense stood to gain from mentioning them
again.



                                               16
Walker,       77    F.3d    682,    687     (2d    Cir.       1996)     (concluding       that    a

criminal        defendant         “suffered        prejudice,          by     presumption        or

otherwise, if his counsel was repeatedly unconscious at trial

for    periods       of    time     in    which        defendant’s      interests        were    at

stake”); Javor v. United States, 724 F.2d 831, 833 (9th Cir.

1984)    (“[W]hen          an    attorney        for    a    criminal        defendant     sleeps

through    a       substantial       portion       of    the    trial,       such    conduct     is

inherently prejudicial and thus no separate showing of prejudice

is necessary.”).             Nor, for that matter, does this case resemble

other     out-of-circuit            cases        that       Appellant       commends     to     our

attention.          In one of those cases, Martin v. Rose, an attorney

who mistakenly believed that mounting a defense at his client’s

sex offense trial would waive his pretrial motions declared in

open court that he would not participate in the trial.                                   See 744

F.2d    1245,       1247-48       (6th     Cir.        1984).        Such     “total     lack    of

participation,”            the     Sixth    Circuit          held,     was    “constitutional

error even without any showing of prejudice.”                            Id. at 1250-51.

               A    similarly       ill-conceived            approach        was    at   work    in

Miller    v.       Martin.        There,     a    defense       attorney       instructed       his

client     to       keep        silent     throughout          the     sentencing        hearing,

apparently because he expected the appellate court would agree

to order a new trial.               481 F.3d at 470.               The lawyer decided that

he,    too,     would      remain    mute,       except       to     inform    the   sentencing

court that his client did not recognize the court’s authority.

                                                  17
Id.     The    Seventh      Circuit     held      that       counsel’s      “advocacy     at

sentencing was so non-existent as to fall within even [Cronic’s]

very narrow exception.”         Id. at 473.

              The case before us is different.                  Counsel in this case

neither     disclaimed       his    responsibilities                nor     declared     his

resistance to the court’s jurisdiction.                         He simply kept mum,

permitting     the    prosecution       to    advocate        for    a    below-guideline

sentence.      Based solely on our review of the record before us,

we cannot say that this decision was so indicative of prejudice

that a case-specific inquiry would not be worthwhile.

                                         IV.

              As   Appellant   concedes,          it   is     well       settled    in   this

circuit that “a claim of ineffective assistance should be raised

in a 28 U.S.C. § 2255 motion in the district court.”                                 United

States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (internal

quotation marks omitted).             Nevertheless, Appellant argues that,

at the very least, we ought to remand his case to the district

court   with       instructions    to    conduct         a    full       hearing    on   his

ineffective assistance claim.                 Appellant has not persuaded us

that remand would be proper in this case.

              There    is    widespread           agreement         among     our    sister

circuits      that    post-conviction         proceedings           are    generally      the

proper avenue for ineffective assistance claims.                              See, e.g.,

United States v. Ferguson, 669 F.3d 756, 762 (6th Cir. 2012);

                                             18
United   States       v.   Patterson,       595    F.3d      1324,       1328    (11th     Cir.

2010); United States v. Yauri, 559 F.3d 130, 133 (2d Cir. 2009);

United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006); United

States v. Medina, 427 F.3d 88, 91 (1st Cir. 2005); United States

v.   Gordon,    346    F.3d     135,   136    (5th      Cir.    2003)         (per   curiam);

United States v. Givan, 320 F.3d 452, 464 (3d Cir. 2003); cf.

United States v. Flores, 739 F.3d 337, 341-42 (7th Cir. 2014)

(advising      criminal     defendants        that     § 2255       “affords         the   only

realistic      chance      of    success”         on    a     claim       of     ineffective

assistance).      But see United States v. Todd, 287 F.3d 1160, 1164

(D.C. Cir. 2002) (providing that “where, as here, an ineffective

assistance claim cannot be resolved on the current record, this

circuit remands”).         Two of those circuits, the Second and Third,

have   found    reason     to   remand      for    proceedings           in    the   district

court, but in limited circumstances.                        While the Second Circuit

has indicated that it ordinarily would not remand an ineffective

assistance     claim,      it   made   an    exception         in    a    case    where     the

Government consented to a remand on a separate ineffectiveness

claim.   See Yauri, 559 F.3d at 133.                   Similarly, in Government of

the Virgin Islands v. Vanterpool, the Third Circuit reaffirmed

its general practice of eschewing ineffective assistance claims

on direct appeal but remanded because the appellant would have

been ineligible for collateral relief.                      See 767 F.3d 157, 163-64

(3d Cir. 2014).

                                             19
           Neither      of    these    circumstances       is       presented        here.

Instead, Appellant argues that remand is appropriate because his

claim of ineffectiveness is strong, and because relegation to a

§ 2255    proceeding     “would       be     inefficient       in    the    extreme.”

Appellant’s Br. 19.          Our court, however, is not in the habit of

deciding which claims, if any, are so strong that the efficiency

of remand would be preferable to collateral review.                        Rather, we

have clearly and consistently stated that a § 2255 motion is the

“proper   avenue”    for     claims    ill      suited   for    review     on    direct

appeal.    United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th

Cir. 2010).      Appellant has given us no reason to deviate from

this practice.      Appellant may pursue his ineffective assistance

claim by filing a timely motion for habeas relief under § 2255,

if he so desires.

                                           V.

           For    the      foregoing       reasons,      the    judgment        of    the

district court is

                                                                            AFFIRMED.




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