In this case, the Defendant wished to abrogate his previously entered plea. One of the arguments made in support of his position was that the Defendant received ineffective assistance of counsel based on counsel’s failure to file a motion to suppress, anticipating Carpenter v. United States. At the time, the prevailing Circuit precedent was United States v. Graham, 824 F.3d 421, 425 (4th Cir. 2016) (en banc), abrogated by Carpenter v. United States, 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018).
The Defendant argued a motion to suppress should nonetheless have been filed based on a Circuit split on the issue as well as the fact that by that time, the United States Supreme Court granted certiorari in Carpenter. The Court rejected this contention (without noting that at the time, there was no Circuit split), stating that the record does not conclusively show that counsel was ineffective for not doing so, citing United States v. McNamara, 74 F.3d 514, 516 (4th Cir. 1996).
The case is United States v. Mero, 755 Fed. Appx. 336, 2019 U.S. App. LEXIS 6851, 2019 WL 1076289, 4th Cir. (March 7, 2019).