UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL GREENE, a/k/a Mike,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00039-FDW-DCK-5)
Submitted: September 25, 2012 Decided: March 7, 2013
Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
James B. Craven III, Durham, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Michael Greene was convicted of
one count of conspiracy to distribute and possess with intent to
distribute 50 grams or more of crack cocaine and less than 500
grams of cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846,
851 (West 1999 & Supp. 2012), and one count of conspiracy to
commit robbery affecting interstate commerce, in violation of 18
U.S.C. § 1951 (2006). He was sentenced to life imprisonment.
Counsel filed a brief under Anders v. California, 386 U.S. 738
(1967), asserting there are no meritorious issues for review but
raising for the Court’s consideration: (1) the sufficiency of
the evidence and (2) the ineffectiveness of counsel. Counsel
subsequently filed a supplemental brief asserting that Greene’s
sentence was in error based on the rule announced in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The
Government filed a brief addressing the Simmons issue and Greene
filed a pro se supplemental brief raising several issues. While
we affirm the convictions, we find that Greene’s life sentence
violates the rule announced in Dorsey v. United States, 132 S.
Ct. 2321 (2012), and vacate the sentence and remand for
resentencing. 1
1
Dorsey was issued after Greene was sentenced but during
the pendency of this appeal.
2
A jury’s verdict “must be sustained if there is
substantial evidence, taking the view most favorable to the
Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942); see United States v. Perkins, 470 F.3d 150, 160
(4th Cir. 2006). Substantial evidence is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005) (internal quotation marks omitted). The court
considers both circumstantial and direct evidence, drawing all
reasonable inferences from such evidence in the Government’s
favor. United States v. Harvey, 532 F.3d 326, 333 (4th Cir.
2008). In evaluating sufficiency of the evidence, this court
does not reweigh the evidence or reassess the factfinder’s
determination of witness credibility, United States v. Brooks,
524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a conviction
on insufficiency grounds only when the prosecution’s failure is
clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir.
2006) (en banc) (internal quotation marks omitted).
We conclude that there was substantial evidence to
support both convictions. The evidence in support of the
convictions came from law enforcement and several of Greene’s
co-conspirators. In addition, there was evidence of wiretaps,
weapons seizures, DNA and drug analysis that offered clear
3
support for the guilty verdicts. There was more than sufficient
evidence showing that Greene voluntarily agreed to engage in a
conspiracy to distribute drugs and to commit a robbery.
Accordingly, we affirm the convictions.
When Greene was sentenced it was believed that he
faced a statutory maximum sentence of life imprisonment. After
sentencing, the Supreme Court issued Dorsey, which held that the
more lenient penalties of the Fair Sentencing Act (“FSA”)
applied to pre-FSA offenders who were sentenced after the Act’s
effective date. Dorsey, 132 S. Ct. at 2331. Because Greene was
sentenced after the Act’s effective date for conduct that
occurred prior to enactment, the Act applies to him. Greene was
found guilty of conspiracy to distribute at least 50 grams of
crack cocaine and 500 grams of cocaine. Under the amended
version of 21 U.S.C.A. § 841(b)(1)(A), Greene’s statutory
maximum sentence is forty years’ imprisonment. We conclude,
therefore, that Greene’s sentence must be vacated and remanded
to the district court for resentencing. We note, however, that
we find no error in the Guidelines’ calculations and the court’s
findings regarding Greene’s total offense level and criminal
history category. 2
2
Because we are remanding for resentencing under the rule
announced in Dorsey, the Simmons issue raised by counsel in his
first supplemental brief is rendered moot.
4
We have reviewed the issues raised in Greene’s pro se
supplemental brief and find them without merit. Greene’s
ineffective assistance of counsel claim is not cognizable on
direct appeal. Such claims are not reviewable on direct appeal
unless the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Rather, to allow for adequate development of the
record, claims of ineffective assistance generally should be
brought in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion.
United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).
Accordingly, we affirm the convictions and vacate the
sentence and remand for resentencing in accordance with the rule
announced in Dorsey. In accordance with Anders, we have
reviewed the record for other meritorious issues and have found
none. Greene has filed a motion to replace counsel and assign a
new appointed counsel and his counsel has filed a motion to
withdraw, both of which we deny. 3 We dispense with oral argument
because the facts and legal contentions are adequately presented
3
We acknowledge that Greene’s counsel has filed a second
supplemental brief concerning newly discovered evidence. We
take no position on this issue, recognizing that Greene has
filed a motion for a new trial in the district court concerning
this same evidence. It is appropriate for the district court to
address the issues raised in the motion in the first instance.
5
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
6