United States v. Simmons

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4828

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL WARREN SIMMONS,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-01190-PMD)

Submitted: February 13, 2008 Decided: March 18, 2008

Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
Alston Calhoun Badger, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael Warren Simmons appeals his jury convictions and

sentence for possession with the intent to distribute cocaine base

in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C),

and 841(b)(1)(D) (2000); use of a firearm during a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A)(I) (2000); and felon

in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),

924(a)(2) and 924(e)(1) (2000). Simmons’ attorney has filed a

brief in accordance with Anders v. California, 386 U.S. 738 (1967),

certifying there are no meritorious issues for appeal. Simmons

filed a pro se supplemental brief asserting issues concerning the

search warrant, chain of custody, jury voir dire, jury

instructions, prosecutorial misconduct, judicial misconduct, and

ineffective assistance of counsel. Finding no reversible error, we

affirm.

After observing informant Larry Wilson’s controlled

purchase of marijuana from Simmons, police officers obtained and

executed a search warrant on Simmons’ home. Simmons, having been

advised of his Miranda rights, directed the officers to his kitchen

and bedroom closet, where they found marijuana, cocaine, drug

paraphernalia, and a pistol. Simmons admitted the items were his.

Simmons claims that the district court erred in refusing

to compel Wilson’s appearance at trial. We find no error. The

district court denied Simmons’ request for a subpoena only because

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the court had no information of where Wilson could be found.

Simmons does not suggest, given the district court’s lack of

knowledge of Wilson’s whereabouts, what the court could have done

differently, and Simmons never requested a continuance, nor does he

argue now that the district court should have granted one.

Simmons next claims the court erred when it designated

him an armed career criminal. A defendant convicted of violating

§ 924(g) qualifies as an armed career criminal under 18 U.S.C.

§ 924(e) if he has three prior convictions for a violent felony.

The definition of “violent felony” includes any felony that is

burglary. 18 U.S.C. § 924(e)(2)(B) (2000). Between 2001 and 2003,

Simmons was convicted of three separate burglaries in South

Carolina. While Simmons attempts to distinguish one of his prior

convictions because it involved the burglary of a residence under

construction, the Supreme Court has held that “a person has been

convicted of burglary for purposes of a § 924(e) enhancement if he

is convicted of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or unprivileged entry

into, or remaining in, a building or structure, with intent to

commit a crime.” Taylor v. United States, 495 U.S. 575, 599

(1990). The district court therefore did not err in classifying

Simmons as an armed career criminal.

In his pro se brief, Simmons asserts multiple claims,

none of which were raised before the trial court. Issues raised

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for the first time on appeal are reviewed for plain error. See

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To

establish plain error, Simmons must show error occurred, that it

was plain, and that it affected his substantial rights. Id.

Simmons initially claims there was no search warrant at

the time of the search and that the police officers created a false

document at a later date. Police officer Todd Hurteau testified

that officers immediately took the surveillance evidence from the

controlled buy to a magistrate judge, who reviewed the evidence and

then approved the search warrant. There is no evidence that the

officers did not have a search warrant, nor is there any evidence

that the officers falsified the search warrant. Thus, Simmons

failed to establish plain error in this respect.

Simmons next claims that the evidence at his trial was

tainted because numerous people had handled the evidence and that

it could have come from anywhere. The officers who seized the

evidence testified that the exhibits admitted were the items found

at Simmons’ residence. Simmons’ unsupported speculation does not

demonstrate error, let alone plain error. The evidence was

properly submitted and there is no plain error in the chain of

custody.

Third, Simmons claims the court misdescribed the elements

and evidence to the jury in the jury instructions. The district

court’s instructions will be upheld “provided the instructions,

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taken as a whole, adequately state the controlling law.” Teague v.

Bakker, 35 F.3d 978, 985 (4th Cir. 1994). As evidenced by the

final verdict form, the jury knew the exact elements of the crimes.

Simmons also claims that the jury instructions did not properly

inform the jury about informant Wilson and his criminal history,

but jury instructions are intended to state the law and not the

evidence. Thus, there is no plain error in the court’s jury

instructions.

Fourth, Simmons asserts the evidence was insufficient to

convict him of the firearm charges. Simmons told police officers

there was a gun in the bedroom, and after the officers found it in

a heating duct, he admitted it was his. He now argues the gun

could have been in the bedroom duct for years, but provides no

support for his argument. Viewing the evidence in the light most

favorable to the Government, it is sufficient to prove Simmons

possessed the gun. See United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).

Fifth, Simmons claims that the government attorney made

improper statements during opening and closing arguments. To

prevail on a claim of prosecutorial misconduct, a defendant must

show the Government’s remarks and conduct were improper and they

affected his substantial rights so as to deprive him of a fair

trial. United States v. Golding, 168 F.3d 700, 702 (4th Cir.

1999). However, the improper statements Simmons refers to are

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simply the government attorney’s summary of the evidence that the

Government intended to prove. Simmons has failed to prove that the

statements were improper or deprived him of a fair trial.

Sixth, Simmons claims the district court erred by not

asking the jury to determine if any juror knew police officer

Mackey. During the trial, the Government alerted the court that

one of the jurors had been seen embracing Mackey in the court

hallway. The district judge informed the attorneys that because it

was unclear which juror was involved the entire jury would have to

be questioned. As a result, Simmons’ counsel abandoned the issue.

Therefore, the district court committed no error in this regard.

Seventh, Simmons claims the district court erred during

voir dire by not asking potential jurors if they either knew Mackey

or other law enforcement officers or had been exposed to pretrial

publicity. “The district court enjoys broad discretion in deciding

the questions to ask venire members during voir dire,” and “it is

a rare case in which a reviewing court will find error in the trial

court’s conduct of voir dire.” Sasaki v. Class, 92 F.3d 232,

238-39 (4th Cir. 1996). After reviewing the record, we find no

error in the trial court’s conduct of voir dire.

Eighth, Simmons claims that he did not receive a fair

trial because the district judge should have disqualified himself.

Simmons claims the district judge was not impartial, but only

points to instances where the district court ruled against his

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motions. Without any evidence of any bias or prejudice, Simmons

cannot establish any judicial misconduct.

Simmons finally claims his counsel was ineffective due to

a conflict of interest because counsel helped the police. Claims

of ineffective assistance of counsel are not cognizable on direct

appeal unless the record conclusively establishes ineffective

assistance. United States v. Richardson, 195 F.3d 192, 198 (4th

Cir. 1999). Our review of the record reveals that Simmons has

failed to meet the high burden necessary to raise ineffective

assistance of counsel on direct appeal.

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

the judgment of the district court. We deny counsel’s motion to

withdraw. 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 at that time move in this court for

leave to withdraw from representation. Counsel’s motion must state

that a copy thereof was served on the client. We dispense with

oral argument because the facts and legal contentions are

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adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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