US v. David Lewis, No. 12-4459 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4459 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LEWIS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Senior District Judge. (5:11-cr-00229-F-8) Submitted: March 26, 2013 Decided: April 3, 2013 Before MOTZ, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Mark A. Jones, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Lewis was convicted after a jury trial of one count of conspiracy to manufacture, distribute, dispense, and possess with intent methamphetamine, to in distribute violation 500 of 21 grams U.S.C. or more § 846 of (2006) (count one), one count of aiding and abetting the possession of pseudoephedrine with intent to manufacture methamphetamine, in violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(c)(1) (West 2006 & Supp. 2012) (count two), and two counts of aiding and abetting the possession of equipment, chemicals, products, and material violation with of (West 2006 The district & intent to 18 U.S.C. § 2 Supp. court 2012) sentenced manufacture and 21 (counts Lewis methamphetamine, U.S.C.A. three to § 843(a)(6) and concurrent in twelve). terms of 327 months imprisonment on count one, 240 months imprisonment on count two, and 120 months imprisonment on each of counts three and twelve, for a total prison term of 327 months. counsel 386 U.S. has 738 filed a brief (1967), pursuant stating that to Anders there are Lewis v. California, no meritorious issues for appeal, but questioning whether the district court plainly erred in instructing the jury with respect to count one and whether trial counsel rendered ineffective Lewis has filed a pro se supplemental brief. 2 assistance. We affirm. Counsel argues first that the district court s instructions to the jury regarding count one contravened United States v. Collins, 415 F.3d 304 (4th Cir. 2005), because the jury was whether not 500 foreseeable district instructed grams to or Lewis. court s that more it of issue for plain error only. 557, 569 (4th Cir. 2009). required methamphetamine Because instructions was Lewis on did this not basis, to was determine reasonably object we to review the this United States v. Jeffers, 570 F.3d To obtain relief under plain error review, Lewis must establish that an error occurred, was plain, and affected his substantial rights. Id. Even if he makes such a showing, however, this court can decline to correct the error unless it seriously affected the fairness, integrity, or public reputation of judicial proceedings. marks omitted). Id. (internal quotation If the evidence overwhelmingly establishe[s] that the defendant was personally responsible for the threshold quantity of drugs, and if his assertions at trial primarily focused on whether he committed the offenses and not on the drug quantities reasonably foreseeable to him, we may decline to recognize a plain Collins error. United States v. Foster, 507 F.3d 233, 252 (4th Cir. 2007). Our review of the record leads us to conclude that, although a plain Collins error occurred at Lewis trial because the jury was not instructed to 3 determine the quantity of methamphetamine nevertheless reasonably satisfied foreseeable that Lewis Lewis, * to conviction are count on we one should be upheld because the Collins error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. that 500 The evidence adduced at trial easily established grams or to Lewis. foreseeable more of methamphetamine Additionally, reasonably trial Lewis was assertions focused primarily on the issue of his guilt, rather than on drug quantity. Accordingly, we decline to recognize plain error in this regard. Next, counsel argues that the district court also plainly erred in instructing the jury on count one because it did not instruct the jury that it needed to unanimously agree Lewis conspired to violate at least one of the three objects of the conspiracy We conclude after charged in the review that the superseding record does indictment. not support counsel s assertion, and we therefore discern no plain error. Counsel also argues that Lewis trial counsel rendered ineffective assistance prior to sentencing. After review of the record, we find these claims * trial, at trial, and at Lewis rights were substantially affected by the Collins error because he was sentenced to 327 months imprisonment on count one, eighty-seven months greater than the maximum of 240 months imprisonment he could have received under 21 U.S.C.A. § 841(b)(1)(C). 4 inappropriate for resolution on direct appeal. Because ineffectiveness of counsel is not conclusively established by the record, Lewis must assert such claims, if at all, in a motion pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Finally, in accordance with Anders, we have reviewed Lewis pro se supplemental brief and the remainder of the record and have found no meritorious issues for review. we affirm the district court s judgment. Accordingly, This court requires that counsel inform Lewis, in writing, of the right to petition the Supreme Court of the United States for further review. If Lewis requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Lewis. We dispense with oral argument because the facts and legal before contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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