F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 18 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-7037
HERBERT LEWIS, JR., (D.C. No. 02-CR-71-P)
(E.D. Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, McKAY, and HARTZ, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
Defendant Herbert Lewis, Jr., appeals his convictions for two counts of possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii),
and the 240-month concurrent sentences imposed. We exercise jurisdiction pursuant to
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
28 U.S.C. § 1291 and affirm.
Count One arose out of a traffic stop that occurred on February 9, 2002, in Bryan
County, Oklahoma, while Lewis and a companion (Sherman Brown) were transporting a
large quantity of cocaine base to Tulsa. Count Two arose out of Lewis’ subsequent arrest
on April 17, 2002, in Okmulgee County, Oklahoma, for possession of a separate quantity
of cocaine base. In finding Lewis guilty on both counts, the jury specifically found with
respect to Count One that Lewis was in possession of more than 50 grams of a mixture or
substance containing cocaine base.
Counsel for Lewis has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and has moved to withdraw. In response, Lewis has filed a pro se brief
identifying additional issues for appeal. Anders holds that “if counsel finds his case to be
wholly frivolous, after a conscientious examination of it, he should so advise the court
and request permission to withdraw.” Id. at 744. Upon receiving an Anders brief and the
defendant’s response thereto, we are required to conduct “a full examination of all the
proceedings” in order “to decide whether the case is wholly frivolous.” Id.
The Anders brief filed by Lewis’ counsel identifies three potential appellate issues:
(1) whether the district court erred in denying Lewis’ motion to suppress evidence
obtained during the February 9, 2002, traffic stop; (2) whether the evidence presented at
trial was sufficient to support Lewis’ convictions; and (3) whether Lewis’ trial counsel
was ineffective for failing to present the testimony of Sherman Brown, who allegedly
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would have testified that Lewis knew nothing about the cocaine base seized during the
traffic stop. After a thorough review of the record, we agree that these issues are without
merit.
The record amply supports the district court’s conclusion that the seizure of drugs
during the traffic stop was constitutionally valid. More specifically, the record supports
the court’s conclusions that (1) Lewis and Brown were stopped lawfully for a traffic
violation; (2) because Brown did not have a driver’s license, the trooper executing the
stop was justified in questioning Lewis to determine if he had a valid driver’s license; (3)
Lewis lawfully was detained while the trooper verified the validity of his driver’s license;
and (4) Lewis voluntarily abandoned the cocaine base by throwing it out the window of
the vehicle. As for the sufficiency of the evidence issue, a review of the record indicates
the evidence presented by the government overwhelmingly demonstrated Lewis’
dominion and control over the separate quantities of cocaine base seized on February 9,
and April 17, 2002.
Although we typically decline to entertain ineffective assistance claims on direct
appeal, we will address this claim in this case because the claim identified was rejected on
the merits by the district court, does not merit further factual inquiry, and indeed is
patently frivolous. See United States v. Montoan-Herrera, 351 F.3d 462, 465 (10th Cir.
2003). Lewis’ allegations that Brown would testify that he knew nothing about the
cocaine base seized during the traffic stop are contrary to Brown’s post-arrest statements
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to law enforcement authorities and are belied by Lewis’ post-arrest statements in which
he admitted knowledge of and involvement with the cocaine base, as well as a videotape
of the traffic stop that showed Lewis throwing the cocaine base out the window of the
vehicle. The decision by Lewis’ trial counsel not to subpoena Brown to testify at trial
was objectively reasonable and, in any event, did not prejudice Lewis.
Lewis identifies three additional issues. First, he contends the special
interrogatory submitted by the trial court to the jury, asking it to determine whether
“Count One involved in excess of fifty (50) grams or more of a mixture or substance
containing cocaine base,” ROA, Doc. 33, effectively amended the indictment. Lewis
asserts Count One merely alleged the existence of “a detectable amount of cocaine base,”
Pro Se Response Br. at 4, whereas the special interrogatory referred to a much larger
quantity. Lewis interprets the reference to “detectable amount” to mean that “[n]o
specific amount of cocaine base was ever alleged and/or stated in the indictment.” Id.
Lewis reads the phrase “detectable amount” in isolation. Viewed in its entirety, Count
One alleged that Lewis possessed with intent to distribute “227.6 grams or more of a
mixture or substance containing a detectable amount of cocaine base.” ROA, Doc. 1.
Because Count One alleged possession of a specific amount of cocaine, far in excess of
50 grams, there is no merit to the assertion that the special interrogatory amended the
indictment.
Second, Lewis contends there was insufficient evidence to support the jury’s
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finding that Count One involved more than 50 grams of cocaine base. Lewis notes the
lab report pertaining to the drugs seized on February 9, 2002, referred to “cocaine” rather
than “cocaine base.” Although Lewis acknowledges that Drew Fout, the drug analyst
who tested the drug, confirmed at trial that the drugs contained cocaine base, he
complains that Fout failed to specifically “[attest] to the actual amount of cocaine base.”
Pro Se Response Br. at 6. Fout testified at trial that his laboratory tests differentiated
between cocaine and cocaine base and that the drugs tested positive for cocaine base.
Based upon this testimony, the jury reasonably could have found the entire quantity of
drugs seized on February 9, 2002, contained cocaine base.
Third, and relatedly, Lewis contends the district court erred in calculating his base
offense level under U.S.S.G. § 2D1.1 because the court treated all of the drugs at issue as
containing cocaine base. We reject this contention for the reasons previously stated.
AFFIRMED. Counsel’s motion to withdraw is GRANTED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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