UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 99-4661
BRUCE ELLIOTT LITTLE,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
      for the Western District of North Carolina, at Charlotte.
              Graham C. Mullen, Chief District Judge.
                         (CR-97-142-MU)

                       Argued: April 4, 2001

                      Decided: July 20, 2001

   Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.



Vacated and remanded by unpublished per curiam opinion. Judge
Williams wrote a dissenting opinion.


                            COUNSEL

ARGUED: Douglas Marshall Jarrell, ROBINSON, BRADSHAW &
HINSON, P.A., Charlotte, North Carolina, for Appellant. Kenneth
Davis Bell, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Mark T. Cal-
loway, United States Attorney, Brian Lee Whisler, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
2                      UNITED STATES v. LITTLE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   Ten years ago we held that when a defendant in his plea agreement
explicitly waives the right to appeal his sentence, there is an implicit
waiver by the government of its right to appeal. See United States v.
Guevara, 

, 1299-1300 (4th Cir. 1991). This principle
has prompted a related question today. When the government disre-
gards Guevara and takes an unauthorized (but successful) appeal
from a sentence, does the defendant’s lawyer render ineffective assis-
tance when he fails to seek a dismissal of the appeal? We hold that
the lawyer’s inaction renders his representation ineffective, thereby
violating the defendant’s Sixth Amendment right to counsel.

                                   I.

   In June 1997 Bruce Little was indicted on two counts for bank rob-
bery and bank larceny in violation of 18 U.S.C. § 2113(a) and (b).
Thereafter, Little and the government entered into a plea agreement
under which Little pled guilty to bank robbery and waived his "right
to contest . . . [his] sentence in any direct appeal or other post-
conviction action." Before sentencing, Little filed an objection to his
presentence report classification as a career offender under § 4B1.1 of
the sentencing guidelines. Little argued that the probation officer had
improperly used his North Carolina conviction for assault on a female
as a predicate to classify him as a career offender because that crime
was not a crime of violence. The district court agreed with Little on
the grounds that (1) none of the underlying facts about the crime were
available and (2) the "court’s experience [with] the [state] courts in
North Carolina" revealed that a defendant could easily be convicted
of assault on a female without committing a battery. Without the
career offender enhancement Little’s sentencing range was 70-87
months, and the court imposed a prison term of 87 months. If the
enhancement had been employed, Little’s sentencing range would
have been considerably higher, 151-188 months.
                        UNITED STATES v. LITTLE                        3
   The government appealed Little’s sentence, arguing that the district
court erred when it refused to treat Little’s assault-on-a-female con-
viction as a crime of violence that, added to another prior crime, made
him a career offender. In his response to the government’s appeal
brief, Little’s lawyer argued only the merits of the career offender
issue. The lawyer completely omitted (or missed) his best argument,
that the government had implicitly waived its right to appeal. This
court held that Little’s conviction for assault on a female was a crime
of violence under the guidelines. See United States v. Little, No. 98-
4391, 

, at *5 (4th Cir. Mar. 23, 1999) (recognizing
that "Courts in this Circuit are . . . bound to consider only the ele-
ments of the convicted offense in deciding whether the defendant
committed a crime of violence, and not the defendant’s conduct.").
We vacated Little’s sentence and remanded for resentencing. On
remand the district court used Little’s assault-on-a-female conviction
as a predicate to classify him as a career offender. The court then
resentenced Little to 151 months in prison, a sentence that was more
than five years longer than the original one. Little appeals his new
sentence.

                                   II.

   Little argues that his lawyer in the first appeal provided ineffective
assistance by failing to point out that the government was barred from
appealing his sentence. His lawyer’s failure to make this argument,
Little says, caused him to be resentenced to a prison term that was 64
months longer than his original term.

   A defendant in a criminal case has a Sixth Amendment right to the
effective assistance of counsel on direct appeal. See Evitts v. Lucey,

, 346 (1985); Bell v. Jarvis, 

, 164 (4th Cir.
2000). To prevail on an ineffective assistance of counsel claim, a
defendant must show (1) that his "counsel’s representation fell below
an objective standard of reasonableness" and (2) "that there is a rea-
sonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different." Strickland v.
Washington, 

, 688, 694 (1984). The first Strickland
requirement is commonly called the "performance" prong and the sec-
ond the "prejudice" prong.
4                       UNITED STATES v. LITTLE
   Ordinarily, an ineffective assistance claim should be raised by
motion under 28 U.S.C. § 2255 in district court. We will, however,
consider such a claim on direct appeal when it "‘conclusively
appears’ from the record that defense counsel did not provide effec-
tive representation." United States v. Gastiaburo, 

, 590
(4th Cir. 1994). The record here is sufficiently developed, and Little’s
ineffective assistance claim meets the test for consideration on direct
appeal.

   Under the plea agreement Little waived his right to appeal the sen-
tence imposed by the district court. When a defendant explicitly
waives his right to appeal in a plea agreement, the government, in
turn, implicitly waives its right to appeal. See United States v. Gue-
vara, 

, 1299-1300 (4th Cir. 1991) (holding that a plea
agreement "provision against appeals [by the defendant] must also be
enforced against the government, which must be held to have implic-
itly cast its lot with the district court, as the defendant explicitly
did.").

   Little argues that his lawyer in the previous appeal was ineffective
because he failed to seek a dismissal of the appeal on the ground that
the government had, according to Guevara, implicitly waived its right
to appeal his sentence. The government does not challenge Little’s
contention that his lawyer’s omission amounted to deficient perfor-
mance under Strickland’s first prong. However, the government, rely-
ing on Lockhart v. Fretwell, 

(1993), argues that Little
cannot satisfy Strickland’s prejudice prong. In Lockhart the petitioner,
Fretwell, had been convicted of felony murder (specifically, murder
during a robbery) and sentenced to death. During the sentencing pro-
ceeding Fretwell’s lawyer should have objected to the use of pecuni-
ary gain as an aggravating factor on the basis of the Eighth Circuit’s
decision in Collins v. Lockhart, 

(8th Cir. 1985) (holding
that a death sentence is unconstitutional if it is based on an aggravat-
ing factor that duplicates an element of the underlying felony). How-
ever, by the time Fretwell asserted his ineffective assistance claim, the
Eighth Circuit had overruled its decision in Collins. Thus, the objec-
tion that Fretwell’s lawyer should have made no longer had legal
merit. As a result, the Supreme Court held that Fretwell could not sat-
isfy Strickland’s prejudice requirement. To allow him to prevail, the
                       UNITED STATES v. LITTLE                        5
Court said, "would grant [Fretwell] a windfall to which the law does
not entitle him." 

.

   The government argues that we would be granting Little a compa-
rable windfall if he prevailed in this appeal. He would achieve the
shorter sentence, even though the district court misapplied the sen-
tencing guidelines. We disagree that this result would amount to a
windfall within the meaning of Lockhart. In Williams v. Taylor, 

, 392 (2000), the Supreme Court clarified the scope of Lock-
hart. The Court held in Williams that, notwithstanding Lockhart,
when a lawyer’s performance deprives the defendant of "a substantive
or procedural right to which the law entitles him," Strickland’s preju-
dice component is satisfied. 

. In other
words, the defendant loses more than the opportunity for a windfall
when he is deprived of a substantive or procedural right. In the prior
appeal in this case, the slack performance by Little’s lawyer deprived
Little of a substantive right. Little’s lawyer should have argued that
the government breached the plea agreement by appealing the sen-
tence. "If the government breaches express or implied terms of a plea
agreement, a violation of due process occurs." United States v. Mar-
tin, 

, 217 (4th Cir. 1994). Little was deprived of due pro-
cess because the government prosecuted an appeal that it had no right
to file. Because Little’s lawyer did nothing to prevent this due process
violation, Little has satisfied Strickland’s prejudice requirement. Lit-
tle’s Sixth Amendment right to counsel was therefore violated, and he
is entitled to relief.

                                  III.

   The dissent would affirm Little’s sentence and force him to assert
his ineffective assistance claim in a collateral proceeding. The dis-
sent’s theory is based on an argument that the government waived and
that does not, in any event, prevent us from granting immediate relief
to Little.

  At oral argument the government’s lawyer acknowledged, "If the
court doesn’t buy my [lack of prejudice] argument[ ], then I don’t
have one." Nonetheless, the dissent believes that the government has
overlooked an argument that could explain why Little’s lawyer did
not provide ineffective representation when he failed to seek a dis-
6                      UNITED STATES v. LITTLE
missal of the government’s appeal on the ground that it had implicitly
waived its right to appeal. According to the dissent, the plea agree-
ment prohibited Little from challenging at sentencing the probation
officer’s recommendation that he qualified as a career offender. The
dissent reasons that because Little objected at sentencing to the proba-
tion officer’s recommendation, it appears that Little breached the plea
agreement. If Little breached the plea agreement, the government
could appeal, despite its implicit waiver of appeal in the plea agree-
ment. See United States v. Bowe, No. 00-4269, ___ F.3d ___, slip op.
at 10 (4th Cir. July 13, 2001) (holding that the government may
appeal when the defendant breaches the plea agreement). A breach by
Little, according to the dissent, would mean that his lawyer did not
provide deficient representation because it would have been futile to
raise the implicit waiver of appeal argument. We disagree with the
dissent’s approach because, as we will explain, it rests upon a strained
reading of the plea agreement.

   The dissent contends that § 4(c) of the plea agreement appears to
have barred Little from objecting to the career offender enhancement
at sentencing. Section 4(c) states:

    Notwithstanding any recommendations in this Agreement as
    to the offense level, if the Probation Office determines from
    the defendant’s criminal history that U.S.S.G. § 4B1.1
    (Career Offender) or § 4B1.4 (Armed Career Criminal) . . .
    applies, then that provision will be used in determining the
    sentence.

According to the dissent, the phrase "will be used" means that the
defendant agrees not to challenge the probation officer’s recommen-
dation. However, when § 4(c) is read in context, it becomes obvious
that it serves a different purpose. Section 4 of the plea agreement
explains in detail how the defendant’s sentence will be calculated
under the guidelines. For example, § 4(b) explains that the "Probation
Office will compute the defendant’s Criminal History Category." Sec-
tion 4(c) deals with a discrete issue in the calculation of the defen-
dant’s sentence. In a plea agreement the parties may agree to
recommend a particular offense level. See, e.g., United States v.
Mikalajunas, 

, 492 (4th Cir. 1999); United States v.
Thorne, 

, 132 (4th Cir. 1998). Section 4(c) is boilerplate
                        UNITED STATES v. LITTLE                         7
language clarifying that if the career offender or armed career crimi-
nal provision applies, that provision will supply the offense level in
lieu of the level recommended by the parties. Therefore, if the career
offender provision applies, it "will be used" in calculating the defen-
dant’s sentence, "[n]othwithstanding any recommendations in [the
plea] Agreement as to the offense level." This is quite different from
saying that the defendant cannot object at sentencing to the applica-
tion of the career offender section. In short, § 4(c) only serves to clar-
ify that the offense level recommended by the parties will not trump
the offense level supplied by the career offender section.

   Another part of the plea agreement also undercuts the dissent’s
interpretation. Part IV of the agreement, titled "Waivers," lists (in six
separate paragraphs) the various rights that the defendant waives by
reason of the agreement. Part IV contains no waiver of the defen-
dant’s right to object at sentencing to the application of the career
offender provision. If the defendant had waived the right to object to
career offender status, it would be reasonable to expect that such a
waiver would be included in part IV.

   Even if the dissent’s reading of § 4(c) is given every edge, it at
most creates an ambiguity about whether the defendant could object
to the career offender designation. In that case, the dissent’s interpre-
tation would still have to be rejected because any ambiguity in the
plea agreement must be construed against the government. See United
States v. Harvey, 

, 300-01 (4th Cir. 1986). Therefore,
§ 4(c) did not prohibit Little from objecting to the career criminal
enhancement at sentencing. Accordingly, he did not breach the plea
agreement, and his lawyer failed to raise a clear, winning argument
on appeal.

   The discussion about what § 4(c) means is academic, however,
because the government has waived any argument that Little breached
the plea agreement. In United States v. Fant, 

, 562 (4th
Cir. 1992), we held that if a party does not object to a breach of the
plea agreement, it must show that the breach constituted plain error.
If the government’s interpretation of the plea agreement mirrored the
dissent’s interpretation, the government should have objected when
Little challenged his career offender status at sentencing. Specifically,
the government should have asked the court to ignore Little’s objec-
8                         UNITED STATES v. LITTLE
tion. While the government argued the merits of the career offender
issue at sentencing, it never claimed that Little could not object. As
a result, the government must show that any breach by Little consti-
tuted plain error. Because it is far from "obvious" that Little breached
the plea agreement, the government cannot show plain error. 

error’ is shown when the error committed is so obvious
and substantial that failure to notice and correct it would affect the
fairness, integrity or public reputation of judicial proceedings.")
(internal quotation marks ommitted).* Little’s lawyer thus had a clear
field for arguing on appeal that the government had waived its right
to seek appellate review of Little’s sentence.

   Finally, the dissent suggests that the record is not sufficiently
developed to decide the ineffective assistance question on direct
appeal. See United States v. Gastiaburo, 

, 590 (4th Cir.
1994) (holding that ineffective assistance claims are only appropriate
on direct appeal when it "‘conclusively appears’ from the record that
defense counsel did not provide effective representation"). Specifi-
cally, the dissent suggests that a hearing is required so that Little’s
lawyer may testify as to why he did not raise the implicit waiver of
appeal issue. However, Little’s lawyer’s subjective beliefs in this case
are irrelevant. The implicit waiver of appeal defense was a clear win-
ner. Whether the lawyer missed the issue or consciously decided not
to raise it, his representation clearly "fell below an objective standard
of reasonableness." 

. Little’s Sixth Amend-
ment right to counsel was therefore violated during the first appeal,
when the government challenged Little’s original sentence.

  *The dissent focuses on whether the district court’s treatment of the
career offender issue constituted plain error. However, the dissent
glosses over the fact that the government must meet the plain error stan-
dard in showing that Little breached the plea agreement. See United
States v. McQueen, 

, 66 (4th Cir. 1997) ("When reviewing
a breached plea agreement for plain error . . . we must establish whether
the breach was ‘so obvious and substantial that failure to notice and cor-
rect it affect[ed] the fairness, integrity or public reputation of the judicial
proceedings.’") (emphasis added) (quoting Fant, 974 F.2d F.2d at 565).
                        UNITED STATES v. LITTLE                        9
                                  IV.

   For the foregoing reasons, we vacate Little’s most recent sentence
and remand with the instruction that the district court reimpose the
original sentence.

                                        VACATED AND REMANDED

WILLIAMS, Circuit Judge, dissenting:

   Little appeals the legally correct sentence, as determined by this
Court, imposed pursuant to his plea agreement. Without having had
the benefit of an evidentiary hearing, the majority concludes that Lit-
tle’s counsel acted in an unconstitutionally unreasonable manner by
failing to seek a dismissal of the Government’s appeal based upon the
implied reciprocal appellate waiver provision in the plea agreement.
This conclusion allows Little to successfully maneuver an end run
around the proper application of the United States Sentencing Guide-
lines. Because I am convinced that the record does not support such
a holding, I respectfully dissent.

                                   I.

                                   A.

   "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, 

, 198 (4th Cir. 1999), cert.
denied, 

(emphasis added) (internal quotation marks
omitted and alteration in original). Here, the record is completely
devoid of any testimony on the part of Little’s counsel detailing
whether he considered seeking a dismissal of the Government’s
appeal pursuant to United States v. Guevara, 

(4th Cir.
1991), and if so, the reasons for his failure to assert such a defense.1
  1
  The majority fails to address whether Little’s counsel’s performance
was constitutionally deficient, stating that the Government did not chal-
10                      UNITED STATES v. LITTLE
Moreover, as discussed further below, counsel’s performance was not
patently unreasonable and could have been founded upon reasonable
strategic decisions. Thus, the record is inadequately developed on the
issue of whether counsel’s performance fell below an objective stan-
dard of reasonableness, rendering the ineffective assistance claim
proper, if at all, only on collateral review.

                                   B.

   To constitute ineffective assistance of counsel, a defendant must
show both that counsel’s representation fell below an objective stan-
dard of reasonableness and that there is a reasonable probability that
counsel’s unprofessional errors prejudiced him. Strickland v. Wash-
ington, 

, 694 (1984). "[S]trategic choices made after
thorough investigation of the law and facts relevant to plausible
options are virtually unchallengeable" in an ineffective assistance of
counsel claim. 

Bell v. Evatt, 

, 429 (4th
Cir. 1995). Here, the record reflects that Little’s counsel had at least
two objectively reasonable bases to forgo seeking a dismissal of the
Government’s appeal pursuant to Guevara: (1) the implied reciprocal
waiver argument was not clearly meritorious but, instead, likely
would have failed; and (2) raising this argument could have placed
the plea agreement in jeopardy while leaving the guilty plea intact.2

lenge the point. Even assuming, however, that the Government conceded
that Little’s counsel’s performance was constitutionally deficient, I
believe that it is improper to rely upon the Government’s concession to
conclude that Little’s counsel rendered unconstitutionally deficient legal
assistance, given that the ineffective assistance claim focuses on the
rationales underlying the conduct of defense counsel, to which the Gov-
ernment cannot speak. Instead, we should allow this ineffective assis-
tance of counsel claim to be developed through habeas corpus review,
during which an evidentiary hearing may be conducted wherein counsel
may have the opportunity to provide insight into his actions and strate-
gies.
   2
     Pursuant to the plea agreement, the Government agreed to dismiss
Count Two of the indictment in exchange for Little’s guilty plea as to
Count One. As will be discussed further below, the plea agreement also
provided that, if Little breached the agreement, his guilty plea with
respect to Count One would remain intact, but the remainder of the plea
agreement would become null and void. Thus, a finding of breach would
allow the Government to reinstate charges against Little with respect to
Count Two.
                        UNITED STATES v. LITTLE                       11
                                   1.

   As to the first basis, this Court has crafted several exceptions to
Guevara and to appellate waiver provisions generally. For example,
in United States v. Bowe, No. 00-4269, ___ F.3d ___ (4th Cir. July
13, 2001), we held that a party’s "waiver of the right to seek appellate
review is not enforceable where the opposing party breaches a plea
agreement." 

upon this principle, had Little breached
the plea agreement, Guevara would not have barred the Government
from seeking appellate review. 

the implied
appellate waiver is reciprocal, release of the waiver through breach of
the plea agreement also operates reciprocally).

   The record provides ample cause to believe that Little breached the
plea agreement during sentencing by objecting to the probation offi-
cer’s recommendation that Little receive career offender treatment
based upon Little’s prior criminal history. Section 4(c) of the plea
agreement contains the following stipulation concerning sentencing:

    Notwithstanding any recommendations in this Agreement as
    to the offense level, if the Probation Office determines from
    the defendant’s criminal history that U.S.S.G. § 4B1.1
    (Career Offender) or § 4B1.4 (Armed Career Criminal) . . .
    applies, then that provision will be used in determining the
    sentence.

(J.A. at 10.) The probation officer correctly determined that Little’s
criminal history rendered U.S.S.G. § 4B1.1’s career offender provi-
sion applicable. Despite § 4(c) in the plea agreement, which allowed
the probation officer conclusively to make this determination and to
have it govern the guideline computation, Little objected to the appli-
cability of § 4B1.1. See United States v. Little, No. 98-4391, 

, at **1, 4-5 (4th Cir. Mar. 23, 1999) (unpublished) (overrul-
ing the district court’s acceptance of Little’s objection to the applica-
bility of § 4B1.1 and holding that the probation office had correctly
determined that § 4B1.1 applied to Little’s prior convictions). The
district court sustained Little’s objection and concluded that § 4B1.1
was inapplicable. See 

Government appealed, arguing
that the district court had improperly construed § 4B1.1. Insofar as the
plea agreement itself requires that the sentence be imposed in confor-
12                      UNITED STATES v. LITTLE
mity with the sentencing guidelines,3 and § 4(c) of the plea agreement
simply renders § 4B1.1 applicable upon the probation officer’s deter-
mination that such treatment is warranted, our prior determination that
Little’s sentence was imposed in violation of the guidelines implies
a high probability of success for any argument that Little’s objection
to career offender treatment also violated the plea agreement. 

that Little’s sentence was not imposed in accordance with
the guidelines). Thus, in light of Little’s apparent breach of the plea
agreement, any argument raised pursuant to Guevara by Little’s coun-
sel likely would not have prevailed. Because the argument was not a
"dead-bang winner," United States v. Cook, 

, 395 (10th
Cir. 1995), but a probable loser, the failure to make it cannot conclu-
sively demonstrate ineffective assistance of counsel.4 Smith v.
Robbins, 

, 287-88 (2000) (noting that counsel need not
raise issues that lack merit); Jones v. Barnes, 

, 751
(1983) (same).

                                    2.

   As to the second basis, the likelihood that Little would have been
found to have breached the plea agreement provided a substantial dis-
incentive to raising the Guevara argument because it placed the bene-
fits of the agreement at risk. The plea agreement provides, "[i]n the
event that the defendant fails to comply strictly with this Plea Agree-
ment, he understands and agrees that the Plea Agreement will become
null and void, except that the defendant’s plea of guilty, and the
  3
    The plea agreement provides, "any sentence imposed will be in con-
formity with the United States Sentencing Guidelines." (J.A. at 9.)
  4
    The majority acknowledges that § 4(c) creates a binding agreement
that the career offender section, once determined applicable by the pro-
bation officer, "will supply the offense level in lieu of the level recom-
mended by the parties." Maj. op. at 7. Nevertheless, the majority
concludes that Little was entitled to object to career offender treatment.
Because the parties explicitly had reached this agreement with respect to
the offense level to be used in calculating Little’s sentence, I disagree
that Little was entitled to object to the use of the agreed-upon offense
level. I further disagree with the majority’s intimation that, to render a
binding obligation under the plea agreement operative, it must be
restated in a separate "Waivers" section.
                        UNITED STATES v. LITTLE                        13
resulting guilty verdict will stand." (J.A. at 12.) The concluding para-
graph of the plea agreement reiterates the effect of a finding that Little
breached the plea agreement by stating, "[t]he defendant understands
that if he violates this agreement . . . the United States may void this
agreement, and that the defendant’s plea of guilty and the resulting
guilty verdict will stand." (J.A. at 14.) Thus, raising the Guevara
argument necessarily may have prompted the Government to argue
that Little breached the plea agreement, which in turn may have led
to a finding to this effect, leaving Little bound by his guilty plea with
respect to Count One while subjecting him to reinstatement of Count
Two.

                                   C.

   The majority concludes that whether Little breached the plea agree-
ment is "academic" because, it asserts, the Government waived any
argument that Little breached the plea agreement, relying upon United
States v. Fant, 

, 562 (4th Cir. 1992). Maj. op. at 7. How-
ever, in Fant, we clarified that the plain error analysis in the context
of failure to raise a breach of the plea agreement argument focuses on
whether the district court committed "plain error in the sentencing
determination." 

Little, we determined that
the district court’s sentencing determination was erroneous, see Little,

, at **1, 4-5, and the error was plain. The error also
affected the Government’s substantial rights under the plea agree-
ment, in that it was "so obvious and substantial that failure to notice
and correct it would affect the fairness, integrity or public reputation
of judicial proceedings." 

(holding that the dis-
trict court plainly erred in allowing the Government to seek an
enhanced sentencing level contrary to that provided within the plea
agreement); see also United States v. Perkins, 

, 517 (4th
Cir. 1997) ("[T]he district court’s plain error allowed Perkins to
receive an unwarranted 52 month reduction, thereby affecting the sub-
stantial rights of the government and the people of the United States
that this defendant be sentenced correctly" and "[t]he bestowing of a
wind-fall sentence reduction . . . also seriously affects the fairness,
integrity, and public reputation of judicial proceedings." (internal
quotation marks omitted)). Thus, I disagree that the Government’s
failure to argue Little’s breach of the plea agreement would have
barred the Government from successfully advancing such an argu-
14                       UNITED STATES v. LITTLE
ment on appeal, and Fant, upon which the majority principally relies
for this point, substantially undermines this conclusion.5 Moreover, it
is not necessary to establish definitively that the Government would
have prevailed on a breach of plea agreement argument to determine
that counsel did not conclusively render unconstitutionally deficient
legal assistance. Rather, I undertake only to demonstrate that it is not
certain that the Government was barred from appealing; thus, the
argument was not, as the majority asserts, "a clear, winning argument
on appeal." Maj. op. at 7.

                                    D.

   Without further evidentiary development, including the testimony
of Little’s counsel, it is impossible to conclude that an argument for
dismissal premised upon Guevara would have been successful, and it
is clear that such a motion had serious drawbacks. Had counsel
decided against arguing for dismissal of the Government’s appeal for
the reasons discussed above or for other strategic reasons, I do not
believe it would be appropriate to conclude that counsel’s perfor-
mance fell below an objective level of reasonableness. Accordingly,
I disagree that the record is conclusive as to whether Little’s counsel
should be deemed to have rendered unconstitutionally deficient legal
assistance. As we have held repeatedly, "[t]ypically the competency
of counsel is best left for collateral review because . . . the record is
usually inadequately developed. The record often reveals only ambig-
uous symptoms of a more complex set of relationships which cannot
be adequately addressed on direct appeal." United States v. Tatum,

, 379 (4th Cir. 1991); see also United States v. White,

, 539 n.1 (4th Cir. 2001) (noting that this Court does not
review ineffective assistance claims on direct appeal when the record
  5
    I note also that the Government may have been entitled to raise Lit-
tle’s breach of the plea agreement as a gateway claim, which arguably
need not be preserved to enable our review of the issue. See United
States v. Gonzales, 

, 989 (9th Cir. 1993) ("Gonzalez’s failure
to raise the breach [of the plea agreement] in district court would prevent
him from arguing here that he is entitled to a remedy for the breach . . . .
Gonzalez’s inaction, however, has no bearing on whether the govern-
ment did in fact breach the agreement for purposes of determining
whether Gonzalez may bring this appeal at all.").
                        UNITED STATES v. LITTLE                       15
does not conclusively establish the ineffectiveness of counsel); United
States v. Hoyle, 

, 418 (4th Cir. 1994) (holding that an
ineffective assistance claim was not viable on direct appeal when
premised upon an allegedly faulty performance with respect to a plea
agreement because the record was not fully developed).

                                   II.

   In conclusion, I would affirm Little’s new sentence because the
record does not conclusively demonstrate that Little’s counsel was
ineffective, and the record does conclusively demonstrate that, upon
resentencing, Little received the legally correct sentence under the
guidelines and the plea agreement. Thus, Little’s ineffective assis-
tance of counsel claim should be brought, if at all, in a collateral pro-
ceeding pursuant to 28 U.S.C.A. § 2255 (West 1994 & Supp. 2000).