guilty to the conspiracy count and the Government subsequently dismissed the count before discovery was completed. Presumption of prosecutorial vindictiveness is not warranted in this case where there was no actual evidence of vindictiveness and absent such a presumption of •vindictiveness no due process violation can be established. United States v. Goodwin, 457 U.S. 368, 380-84, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). The court therefore did not err in denying this objection at the first sentencing hearing and Foreman would be unable to demonstrate prejudice from the record before the court on an ineffective assistance claim. Finally, Foreman alleged that he did not have a predicate conviction under § 851 after this court decided United States v. Simmons, 649 F.3d 237 (4th Cir.2011) (<HOLDING>) and counsel was ineffective for failing to
holding that additional consideration is a factor in determining whether there is an implied contract of employment recognizing the validity of aggravating factors such as escape from confinement and prior felony conviction holding that consideration of hypothetical aggravating factors and criminal history is inappropriate when determining whether prior offense constitutes felony holding that in determining whether a prior conviction is a violent felony a court generally must look only to the fact of conviction and the statutory definition of the prior offense holding a court may consider a defendants criminal history even if that history is included in the defendants criminal history category