                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4517


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

SHANITA MCKNIGHT,

                Defendant    - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:07-cr-00787-TLW-1)


Submitted:   June 22, 2010                    Decided:   July 6, 2010


Before SHEDD and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas M. Dawson, Leavenworth, Kansas, Lyle J. Yurko, YURKO &
ASSOCIATES, Charlotte, North Carolina, for Appellant.   Kevin F.
McDonald, Acting United States Attorney, Jeffrey Mikell Johnson,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Shanita McKnight, a former Lake City, South Carolina

police    officer,    was     charged        in    a   two-count      indictment     with

conspiracy to possess with intent to distribute and conspiracy

to   distribute     fifty   grams       or    more     of   cocaine     base   and   five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846

(2006),    and    extortion    by   a    public        employee,     in   violation   of

18 U.S.C. § 1951 (2006).            Following a jury trial, McKnight was

found guilty of both charges and sentenced to 240 months of

imprisonment on both counts, to run concurrently.                         McKnight now

appeals, arguing that her trial counsel was ineffective.                              For

the reasons that follow, we affirm.

            On appeal, McKnight first argues that her counsel was

ineffective because he represented her despite a conflict of

interest,    “which    adversely        affected        his   performance.”          When

McKnight    was    arrested,     she         was   questioned      by     investigating

officers    and    agents     while      her       attorney    was      present.      The

Government intended to offer the testimony of those officers,

including that of Johnnie Bartel, a detective with the South

Carolina Law Enforcement Division (“SLED”).                    However, McKnight’s

trial counsel believed that the testimony Bartel planned to give

would be “substantially different” from what was actually said

during McKnight’s interview.                 As a result, McKnight now claims

that her trial counsel was a material witness who should have

                                              2
withdrawn     from     representation,               and    his     failure       to    do    so

constituted “an actual conflict of interest” that impacted his

performance as McKnight’s trial counsel.                           McKnight asserts that

because Bartel’s testimony was among the “most critical evidence

the jury heard,” trial counsel should have withdrawn so that “he

could have testified to exactly what he heard in the interview,

perhaps critically wounding the Government’s case.”                               His failure

to do so, according to McKnight, meant that counsel could not be

a “key witness” for her, and “[t]here is no doubt that his

conflict affected his performance.”

            “A claim of ineffective assistance of counsel should

be raised by a habeas corpus motion under 28 U.S.C. § 2255 in

the   district       court     and     not          on    direct     appeal,      unless      it

conclusively appears from the record that defense counsel did

not   provide     effective          representation.”                   United    States     v.

Richardson,      195    F.3d     192,        198         (4th   Cir.      1999)     (internal

quotation     marks     and    alterations               omitted).         To     demonstrate

ineffective      assistance,          a     defendant           must      show     that      his

“counsel's representation fell below an objective standard of

reasonableness,”        and   that        the   error       was    “prejudicial        to    the

defense” such that “there is a reasonable probability that, but

for   counsel's        unprofessional               errors,       the     result       of    the

proceeding      would     have        been          different.”            Strickland         v.

Washington, 466 U.S. 668, 688, 692, 694 (1984).

                                                3
             When     a     defendant        raises     a    claim       of    ineffective

assistance        based     on    a        conflict     of    interest,            she        must

“demonstrate        that    an    actual      conflict       of     interest        adversely

affected     [her]     lawyer's       performance.”               Cuyler      v.    Sullivan,

446 U.S. 335, 348 (1980).              If this showing is made, “[p]rejudice

is presumed.”        Strickland, 466 U.S. at 692 (citing Cuyler, 466

U.S. at 350, 348).           In other words, “a defendant who shows that

a conflict of interest actually affected the adequacy of [her]

representation need not demonstrate prejudice in order to obtain

relief.”     Cuyler, 446 U.S. at 349-50.

             The record before us does not conclusively establish

that there was an actual conflict of interest that affected the

adequacy     of    trial    counsel’s        representation         of     McKnight.            As

McKnight alleged, counsel initially asserted that Bartel would

testify     contradictorily           to     what     counsel       recalled            McKnight

stating     during    her    interview,        and    that    should       Bartel        do    so,

counsel would have to ask the court to convene a perjury case

and would have to make a record of the testimony.                              However, at

the conclusion of Bartel’s testimony, counsel expressly stated

that “Agent Bartel’s testimony did not include the objectionable

information that I raised with the court.”

             Moreover,       in   her       brief,     McKnight       fails        to    allege

either that Bartel’s testimony was inconsistent with what she

said   in    the     interview        or     that     any    of    Bartel’s         testimony

                                              4
describing her statements was incorrect or inaccurate.                                 McKnight

does    note    that    trial      counsel      asked      Bartel       if    he    recalled    a

statement       made    by    FBI     agent          Vincent      Flamini          during    that

interview      that    he    had   warned       bar      owners    of    police       activity,

which Bartel denied, as well as asking Bartel about McKnight’s

statement that she was not permitted to make drug arrests alone

as a female officer, which was not recorded in his interview

summary.        However, although McKnight suggests that her trial

counsel’s       recollection          conflicted          with      Bartel’s          regarding

Flamini’s alleged statement, this does not appear conclusively

in     the   record.         Similarly,             to   the    extent        that     McKnight

challenges Bartel’s recollection that she stated she had not

made any drug arrests, the record again does not demonstrate

that    counsel’s      memory      differed         on   this     point,      but    only    that

counsel sought to challenge Bartel’s credibility by questioning

the absence of that alleged statement from his written report.

Accordingly,          because       the      record         does        not        conclusively

demonstrate      that       counsel    was      ineffective,            we    conclude       that

McKnight’s claim is not properly before this court on direct

appeal.

               In her second claim, McKnight argues that counsel was

ineffective      at     sentencing        for       failing      to:     (1)       contest   the

quantity of drugs for which McKnight was held accountable; (2)

assert that “the scope of [McKnight’s] agreement and reasonable

                                                5
forseeability prohibited [McKnight] from being accountable for

the   quantity     assessed        against       [her]    in    paragraph          66    of   the

presentence report (119 kilograms of cocaine)”; and (3) argue

for a one to one ratio for crack and powder cocaine.                                    McKnight

argues     that     counsel         should       have         made     the        “scope       and

foreseeability          argument”    in     § 1B1.3       of     the       U.S.    Sentencing

Guidelines      Manual      (“USSG”)       (2008),       claiming          that    “it       is    a

reasonable      probability         that     the     scope           and     foreseeability

argument would have prevailed reducing [McKnight’s] base offense

level.”     She states that she never distributed drugs herself,

and that under the application notes to USSG § 1B1.3, simply

knowing    that    those     she    was    giving    information             to    sold      large

amounts    of      drugs     does      not        make        those     drug       quantities

attributable       to    her.       McKnight       also        argues       that    the       drug

activities of Lorenzo Jones and Keith Rose, two co-conspirators

who testified against her and whose testimony provided the basis

for the quantity of drugs attributable to her, “would have moved

forward    with    or     without    the     minimal      information             provided        by

McKnight and the arrest of the two would have and did occur

anyway.”          McKnight      asserts      that        if     she     should          be    held

accountable for a quantity of drugs “it should be a far lesser

amount,” though she does not specify what amount.

            Under USSG § 1B1.3(a)(1)(B), in a “jointly undertaken

criminal activity,” McKnight is responsible for “all reasonably

                                             6
foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.”                     Here, the testimony of

both    Jones    and    Rose,       known   by   McKnight    to    be    drug    dealers,

established      that    McKnight       provided        information      to    them    that

allowed    them     both       to    distribute     large    quantities         of    crack

cocaine in Lake City.               Specifically, Jones testified that during

the relevant time period, for two years between 2003 and 2005,

he paid McKnight anywhere from two to four hundred dollars in

exchange for information that enabled him to sell approximately

thirty-six ounces, equal to one kilogram, of crack cocaine every

week.     Similarly, Rose testified that he paid McKnight two to

three hundred dollars a week in exchange for information about

police    activity       and     impending       drug    busts    in    Lake    City    at

locations       where   he     sold    drugs,     and    that     he    was   purchasing

approximately four and a half to five ounces of crack cocaine

every week during the period he was paying for information from

McKnight, between March 2003 and August 2005.

            There is nothing in the record before us to suggest

that the drug sales and distribution by Jones and Rose could

have been unforeseeable to McKnight.                     Moreover, both Jones and

Rose    testified       to     the    specific     amounts      they    were    able    to

purchase and re-sell each week during the period of time in

which McKnight was providing this information to them.                                This

amount, 119 kilograms of crack cocaine, was reflected correctly

                                             7
in the PSR and her base offense level was calculated pursuant to

that amount.           Thus, there is nothing on the face of the record

that     suggests       that      counsel       was    ineffective       for     failing     to

challenge the drug quantity established in the PSR or that the

quantity was not foreseeable to McKnight.

               Additionally,            although      McKnight     argues      that    counsel

did    not    make     a   “foreseeability”           argument,        counsel    challenged

McKnight’s       role      in     the    offense,      to    the   extent      that    it    was

limited; that she did not initiate the conspiracy, sell drugs,

or receive money for drug sales; and that she should be entitled

to a downward departure.                  The court took careful consideration

of     the     issue       and,     noting      that        McKnight     was     nonetheless

responsible as a co-conspirator for the full amount of drugs

distributed by those in the conspiracy, sentenced McKnight to a

below-Guidelines sentence because of her otherwise minimal role

in the conspiracy.                Again, nothing in the record conclusively

demonstrates         that       counsel’s       actions      amounted     to     ineffective

assistance; counsel argued for a reduction based on the facts of

McKnight’s       participation            in    the    conspiracy,        and    the       court

accepted counsel’s argument in part and departed downward from

the established Guidelines.

               Finally,         although       McKnight      asserts     on     appeal      that

counsel should have argued for a one-to-one ratio for crack and

powder       cocaine,      she    provides      no    argument     in    support      of    this

                                                 8
contention, and states only that “had [trial counsel] objected,

it is probably [sic] that the trial court would have reduced the

100     to   1   ratio    and    further   lowered     [McKnight’s]     20-year

sentence.”       Nothing in the record, however, suggests that the

court    would     have   further    reduced      McKnight’s    sentence,    and

McKnight provides no facts in support of this claim.                  Thus, any

conclusion by this court regarding counsel’s failure to raise

this    argument    would   be    premised   on    surmise     or   speculation.

Accordingly, we conclude that McKnight’s claims of ineffective

assistance of counsel at sentencing also are not properly before

this court on direct appeal.

             For    the   foregoing    reasons,      we   affirm      McKnight’s

conviction and sentence.          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 in the

decisional process.

                                                                        AFFIRMED




                                       9
