UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ISAAC LAMONT WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00111-TDS-1)
Submitted: February 16, 2012 Decided: March 1, 2012
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Brodie
Erwin, Third Year Law Student, Winston-Salem, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Isaac Lamont Williams was
convicted of one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006)
and sentenced as an armed career criminal. On appeal, Williams
claims the following: (1) the district court plainly erred by
admitting testimony from a crime scene technician and an FBI
agent; (2) the court erred by not giving Williams access to
grand jury testimony; (3) his right to due process was violated
because an exculpatory witness was deported; (4) the evidence
was not sufficient to support the conviction; (5) the court
erred by relying on a prior conviction to support his armed
career criminal status; and (5) counsel was ineffective.
Finding no error, we affirm.
Williams was arrested after a high speed car chase and
foot pursuit. Police also seized a shotgun that was thrown from
the vehicle. At trial, it was stipulated that Williams had a
predicate felony conviction.
Williams claims the district court plainly erred
because it allowed the crime scene technician to testify about
retrieving palm prints from the vehicle without qualifying her
as an expert. Similarly, he claims the court plainly erred by
permitting an FBI agent to testify about whether he believed the
shotgun was operable.
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This court reviews a district court’s evidentiary
decisions for abuse of discretion. United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010). Evidentiary rulings are
subject to harmless error review, and, in order to find a
district court’s error harmless, this court “need only be able
to say with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” Id.
(internal quotation marks omitted); see also United States v.
Forrest, 429 F.3d 73, 81 (4th Cir. 2005).
Because Williams did not object to the testimony
offered by either witness, review is for plain error. See
United States v. Wilson, 484 F.3d 267, 277-78 (4th Cir. 2007).
Under this standard, there must be an error that is plain that
affects the defendant’s substantial rights. Id. at 278. Even
if Williams makes this showing, the error will be noticed only
if it seriously affects the fairness, integrity or public
reputation of the judicial proceedings. United States v.
Hughes, 401 F.3d 540, 555 (4th Cir. 2005).
Federal Rule of Evidence 701 permits opinion testimony
by a lay witness if it is rationally based upon the witness’
perception, helpful to provide a clearer understanding of the
testimony or to determining a fact in issue and is not based
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upon scientific, technical or other specialized knowledge within
the scope of Federal Rule of Evidence 702.
Under Rule 702, expert testimony is admissible if it
will assist the trier of fact and is (1) “based on sufficient
facts or data,” (2) “the product of reliable principles and
methods,” and (3) “the expert has reliably applied the
principles and methods to the facts of the case.” Fed. R. Evid.
702.
We have reviewed the challenged testimony and conclude
there was no error, much less plain error. Both witnesses were
clearly testifying from their perception and offering opinions
based on their perception. *
Williams also claims the district court erred in
denying him access to grand jury testimony based on his
assertion that a witness did not testify before the grand jury
consistently with the police reports. We conclude this claim is
without merit. Unlike the situation in United States v.
Feurtado, 191 F.3d 420, 423-24 (4th Cir. 1999), Williams failed
to provide any substantive evidence showing that the witness
gave false or misleading testimony that led to the indictment.
*
Even if there was error, Williams fails to show his
substantial rights were violated because he fails to show that
the witnesses would not have qualified as experts had counsel
objected.
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Williams also claims his right to due process was
violated because an exculpatory witness was deported prior to
trial. This claim is reviewed for plain error because Williams
initially raised this claim some ten months after the trial.
The Sixth Amendment right of a defendant in a criminal
proceeding to compulsory process for witnesses is “so
fundamental and essential to a fair trial[.]” Washington v.
Texas, 388 U.S. 14, 17-18 (1967). The right to compulsory
process is not absolute, and is available only if the defendant
can show that the evidence is relevant, material and vital.
United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 873-74
(1982). Evidence is “material” only if there is a “reasonable
likelihood that the testimony could have affected the judgment
of the trier of fact.” Id. at 874.
We conclude there was no plain error because Williams
cannot show his substantial rights were violated. Williams’
claim that the witness would have offered exculpatory testimony
is speculative at best. Furthermore, as will be discussed, the
evidence against Williams was overwhelming.
Williams claims the evidence was insufficient. A
defendant challenging the sufficiency of the evidence bears “a
heavy burden.” United States v. Beidler, 110 F.3d 1064, 1067
(4th Cir. 1997) (internal quotation marks omitted). In
determining whether the evidence in the record is sufficient,
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this court views the evidence in the light most favorable to the
Government. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc). This court reviews both direct and
circumstantial evidence and permits the “government the benefit
of all reasonable inferences from the facts proven to those
sought to be established.” United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982). This court does not review the
credibility of witnesses and assumes the factfinder resolved all
contradictions in the testimony in favor of the Government.
United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).
To support a conviction for felon in possession of a
firearm under 18 U.S.C. § 922(g)(1), the Government must prove
the following elements: (1) the defendant previously had been
convicted of a felony; (2) the defendant knowingly possessed a
firearm; and (3) the possession was in or affecting commerce,
because the firearm had travelled in interstate or foreign
commerce at some point during its existence. United States v.
Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc).
The evidence against Williams and in support of the
conviction was overwhelming. Williams was identified as the
person leaving the vehicle after engaging in a high speed car
chase. The shotgun was retrieved after it was seen being thrown
from the vehicle. It was determined that the shotgun was
operable and that it had moved in interstate commerce. In
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addition, it was stipulated that Williams had a prior felony
conviction. As additional support, we note there was
fingerprint evidence, video tape recordings and photographs and
evidence of statements Williams made after his arrest. We
conclude there was substantial evidence supporting the
conviction.
Williams claims that his 1990 conviction for attempt
to sell cocaine should not have been considered a serious drug
offense for purposes of his armed career criminal status
(“ACCA”) because it does not involve the manufacturing,
distributing or possession of a controlled substance. This
court reviews a district court’s determination of whether a
prior conviction qualifies as a predicate conviction for
purposes of the ACCA de novo. United States v. Brandon, 247
F.3d 186, 188 (4th Cir. 2001). Under the ACCA, if a defendant
is convicted of violating § 922(g) and has sustained three prior
convictions for violent felonies or serious drug offenses
committed on occasions different from one another, the defendant
is subject to a statutory mandatory minimum of fifteen years
imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines a
serious drug offense as “an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance . . . for
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which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C.A. § 924(e)(2)(A)(ii).
As noted in Brandon, the word “involve” should be
“read expansively.” Brandon, 247 F.3d at 190. Clearly, an
attempt to distribute, manufacture or possess cocaine would
involve conduct defined as a serious drug offense. In United
States v. Winbush, 407 F.3d 703, 706-08 (5th Cir. 2005), the
appellant claimed that his attempt offense was not a serious
drug offense because it was not a completed offense. The court
rejected his claim, finding that the use of the word “involve”
did not serve to narrow the types of convictions that could be
considered for ACCA purposes. We agree and cite as additional
support for the conclusion United States v. Alexander, 331 F.3d
116, 130-31 (D.C. Cir. 2003), and United States v. King, 325
F.3d 110, 113-14 (2d Cir. 2003).
Finally, Williams claims his trial counsel was
ineffective. Ineffective assistance of counsel claims are not
generally cognizable on direct appeal, however, unless
ineffective assistance “conclusively appears” on the record, see
United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006),
and such a claim should generally be raised by a habeas corpus
motion under 28 U.S.C.A. § 2255 (West Supp. 2011). See United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We
have reviewed the record and took note of the issues raised by
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Williams and conclude that the record does not conclusively show
that counsel was ineffective.
Accordingly, we affirm the conviction and sentence.
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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