UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4112
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRISON LEWIS, III,
Defendant - Appellant.
No. 04-6660
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HARRISON LEWIS, III,
Defendant - Appellant.
Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
01-484-CCB)
Submitted: February 24, 2006 Decided: March 15, 2006
Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Randolph O. Gregory, Sr., LAW OFFICE OF RANDOLPH O. GREGORY, SR.,
Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United
States Attorney, Bonnie S. Greenberg, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated appeals, Harrison Lewis, III
appeals his sentence of 150 months in prison and three years of
supervised release, following his guilty plea to one count of bank
robbery in violation of 18 U.S.C. § 2113(a), (f) (2000) (No. 03-
4112), and the district court’s order denying his pro se post-
judgment motion to add a witness statement to the court record (No.
04-6660). Lewis’s attorney filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and a supplemental brief asserting
there were no meritorious grounds for appeal but raising the issues
of whether Lewis was denied his Sixth Amendment right to counsel
because his attorney did not attend his presentence interview and
whether the district court abused its discretion at sentencing by
not departing downward and by departing upward three offense levels
for uncounted bank robberies. Lewis has filed pro se supplemental
briefs raising additional issues and challenging his sentence under
United States v. Booker, 543 U.S. 220 (2005). We affirm.
In his pro se supplemental brief, Lewis asserts his
guilty plea is invalid because the district court failed to sua
sponte hold a hearing to determine his competency. However, in any
criminal case, “a competency determination is necessary only when
a court has reason to doubt the defendant’s competence.”
Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993). We have reviewed
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the record and conclude there was no reason for the district court
to doubt Lewis’s competency and this issue is without merit.
We next consider Lewis’s claims that he received
ineffective assistance of counsel. We will consider such claims on
direct appeal only when it conclusively appears from the record
that counsel failed to provide effective representation. See
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).
Even if Lewis’s attorney did not attend his presentence interview,
this could not constitute ineffective assistance because there is
no Sixth Amendment right to counsel at the interview. See United
States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991). Moreover, it
does not conclusively appear from the record on appeal that Lewis
received ineffective assistance of counsel.
Lewis’s knowing and voluntary guilty plea precludes his
pro se claims that he is actually innocent and that the district
court denied him due process by failing to address pretrial motions
challenging the Government’s evidence. See United States v.
Willis, 992 F.2d 489, 490 (4th Cir. 1993) (holding guilty plea
constitutes a waiver of all nonjurisdictional defects). We also
reject Lewis’s claim that his indictment was defective because it
was “missing the essential element of jurisdiction.” Lewis’s
indictment alleged as required that the bank in question was
insured by the FDIC on the date of the robbery. See Pigford v.
United States, 518 F.2d 831, 833 (4th Cir. 1975). Finally, the
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district court did not abuse its discretion in denying Lewis’s
post-judgment motion to add a witness statement to the court
record.
We next consider Lewis’s challenges to his sentence.
Lewis stipulated in his plea agreement that he committed eighteen
additional bank robberies and that he threatened death in three of
them. Accordingly, the parties agreed the applicable offense level
under U.S. Sentencing Guidelines Manual (“USSG”) §§ 2B3.1, 3D1.4
(2002) was twenty-nine, which included enhancements for taking
property of a financial institution, making a death threat, and
committing more than five additional bank robberies. The
Government agreed to recommend a three-level reduction for
acceptance of responsibility. However, the Government notified
Lewis that it would seek an upward departure based on thirteen
“uncounted” bank robberies.
The sentencing court determined Lewis’s offense level
after reduction for acceptance of responsibility was twenty-six.
With Lewis’s criminal history category of IV, this would result in
a sentencing range of 92 to 115 months. The Government requested
an upward departure to a range of 151 to 188 months to account for
the thirteen additional robberies, based either on an increase in
offense level under USSG § 3D1.4 or the inadequacy of Lewis’s
criminal history score. Defense counsel agreed such a departure
was within the court’s discretion but objected to the extent of the
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Government’s request. Lewis further requested a downward departure
under USSG § 5K2.0 for providing information to a social services
agency regarding a fellow prisoner.
The district court denied the downward departure as not
appropriate, because the information Lewis provided was not
critical and did not rise to the level of an exceptional
circumstance warranting departure. In contrast, the court found it
was “an unusual circumstance” that thirteen additional bank
robberies Lewis committed were not accounted for under the
guidelines. Accordingly, the court granted an upward departure
under USSG § 3D1.4, but only to the extent of a three offense level
increase, resulting in a range of 121 to 151 months. While
recognizing that a departure is encouraged “in the unusual case
where the additional offenses resulted in a total of significantly
more than 5 Units,” USSG § 3D1.4 comment. (backg’d) (2001), the
court was mindful of cases applying a “declining marginal
punishment” for additional uncounted robberies. See, e.g., United
States v. MacLeod, 80 F.3d 860, 868 (3d Cir. 1996). The court
concluded that a three level increase in offense level resulted in
a “reasonable incremental” increase in punishment for the
additional uncounted bank robberies.
The district court concluded an upward departure was also
appropriate under USSG § 4A1.3(e), which refers to prior uncharged
similar adult offenses, because Lewis’s criminal history category
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of IV significantly under-represented the seriousness of his
criminal conduct. Based on the substantial number of additional
bank robberies, if the court were only looking at a criminal
history category increase, the court found category VI would be
appropriate. The resulting sentencing range would have been 120 to
150 months, which the court noted was very similar to the range it
reached under USSG § 3D1.4.
The court sentenced Lewis at the high end of his
guideline range because of the seriousness of his offenses and
because he endangered other innocent people. Moreover, regardless
of whether substance abuse or mental health treatment would be
helpful, the court found the high end of the guideline range was
appropriate to protect the community and to deter Lewis from
further criminal conduct.
In his pro se supplemental brief, Lewis contends the
district court erred under Booker by sentencing him under a
mandatory guideline regime and by increasing his sentence based on
facts found by the judge rather than by the jury. However, because
Lewis stipulated to all the facts underlying his sentence, there
was no Sixth Amendment violation. See Booker, 543 U.S. at ___, 125
S. Ct. at 756 (“Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by
the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
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doubt.”). While the district court erred by treating the
guidelines as mandatory,* Lewis failed to demonstrate his
substantial rights were affected because there is no nonspeculative
basis to conclude the court would have sentenced him to a lower
term of imprisonment if the guidelines were advisory. See United
States v. White, 405 F.3d 208, 211 (4th Cir.), cert. denied, 126 S.
Ct. 668 (2005). We have considered the remaining issues raised in
the pro se supplemental briefs and find them meritless.
Lewis further contends the district court abused its
discretion in declining to depart downward based on information he
gave to social services and departing upward based on the thirteen
uncounted bank robberies. We conclude the district court did not
abuse its discretion in departing upward three offense levels to
account for thirteen uncounted bank robberies, and in declining the
request for a downward departure.
After Booker, “the discretion of a sentencing court is no
longer bound by the range prescribed by the guidelines.” United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Nevertheless,
courts must still consult the guidelines and take them into
consideration in conjunction with the factors set forth in 18
U.S.C.A. § 3553(a) (West Supp. 2005). Booker, 543 U.S. at ___, 125
*
Although it is now apparent in light of Booker that the
district court erred by treating the guidelines as mandatory, we
note that the court faithfully followed the law in effect at the
time Lewis was sentenced.
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S. Ct. at 767. “If the court imposes a sentence outside the
guideline range, it should explain its reasons for doing so. . . .
[W]e will affirm the sentence imposed as long as it is within the
statutorily prescribed range and is reasonable.” Hughes, 401 F.3d
at 546-47 (citations omitted). The court explained its reasons for
imposing a sentence outside Lewis’s original guideline range.
Because the sentence imposed is within Lewis’s prescribed statutory
range and is reasonable, we find no abuse of discretion.
In accordance with Anders, we have reviewed the entire
record in this case and found no meritorious issues for appeal. We
therefore affirm Lewis’s conviction and sentence in No. 03-4112.
We also affirm the district court’s order denying Lewis’s post-
judgment motion to add a witness statement to the court record in
No. 04-6660. We deny all of Lewis’s various pro se motions in both
appeals. We also deny the Government’s request that we strike the
supplemental brief of Lewis’s counsel. This court requires that
counsel inform his client, in writing, of his right to petition
the Supreme Court of the United States for further review. If the
client 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 the client.
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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 the decisional process.
AFFIRMED
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United States v. Lewis
Combined Opinion