UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4459
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00229-F-8)
Submitted: March 26, 2013 Decided: April 3, 2013
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, P.A., Winston-Salem, North
Carolina, for Appellant. Jennifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lewis was convicted after a jury trial of one
count of conspiracy to manufacture, distribute, dispense, and
possess with intent to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. § 846 (2006)
(count one), one count of aiding and abetting the possession of
pseudoephedrine with intent to manufacture methamphetamine, in
violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(c)(1)
(West 2006 & Supp. 2012) (count two), and two counts of aiding
and abetting the possession of equipment, chemicals, products,
and material with intent to manufacture methamphetamine, in
violation of 18 U.S.C. § 2 and 21 U.S.C.A. § 843(a)(6)
(West 2006 & Supp. 2012) (counts three and twelve).
The district court sentenced Lewis to concurrent terms of
327 months’ imprisonment on count one, 240 months’ imprisonment
on count two, and 120 months’ imprisonment on each of counts
three and twelve, for a total prison term of 327 months. Lewis’
counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that there are no meritorious
issues for appeal, but questioning whether the district court
plainly erred in instructing the jury with respect to count one
and whether trial counsel rendered ineffective assistance.
Lewis has filed a pro se supplemental brief. We affirm.
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Counsel argues first that the district court’s
instructions to the jury regarding count one contravened United
States v. Collins, 415 F.3d 304 (4th Cir. 2005), because the
jury was not instructed that it was required to determine
whether 500 grams or more of methamphetamine was reasonably
foreseeable to Lewis. Because Lewis did not object to the
district court’s instructions on this basis, we review this
issue for plain error only. United States v. Jeffers, 570 F.3d
557, 569 (4th Cir. 2009). To obtain relief under plain error
review, Lewis must establish that an error occurred, was plain,
and affected his substantial rights. Id. Even if he makes such
a showing, however, this court “can decline to correct the error
unless it seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation
marks omitted). If the evidence “overwhelmingly establishe[s]”
that the defendant was personally responsible for the threshold
quantity of drugs, and if his assertions at trial “primarily
focused on whether he committed the offenses and not on the drug
quantities reasonably foreseeable to him,” we may decline to
recognize a plain Collins error. United States v. Foster,
507 F.3d 233, 252 (4th Cir. 2007).
Our review of the record leads us to conclude that,
although a plain Collins error occurred at Lewis’ trial because
the jury was not instructed to determine the quantity of
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methamphetamine reasonably foreseeable to Lewis, * we are
nevertheless satisfied that Lewis’ conviction on count one
should be upheld because the Collins error did not seriously
affect the fairness, integrity, or public reputation of judicial
proceedings. The evidence adduced at trial easily established
that 500 grams or more of methamphetamine was reasonably
foreseeable to Lewis. Additionally, Lewis’ trial assertions
focused primarily on the issue of his guilt, rather than on drug
quantity. Accordingly, we decline to recognize plain error in
this regard.
Next, counsel argues that the district court also
plainly erred in instructing the jury on count one because it
did not instruct the jury that it needed to “unanimously agree”
Lewis conspired to violate at least one of the three objects of
the conspiracy charged in the superseding indictment.
We conclude after review that the record does not support
counsel’s assertion, and we therefore discern no plain error.
Counsel also argues that Lewis’ trial counsel rendered
ineffective assistance prior to trial, at trial, and at
sentencing. After review of the record, we find these claims
*
Lewis’ rights were substantially affected by the Collins
error because he was sentenced to 327 months’ imprisonment on
count one, eighty-seven months greater than the maximum of 240
months’ imprisonment he could have received under 21 U.S.C.A.
§ 841(b)(1)(C).
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inappropriate for resolution on direct appeal. Because
ineffectiveness of counsel is not conclusively established by
the record, Lewis must assert such claims, if at all, in a
motion pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012).
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Finally, in accordance with Anders, we have reviewed
Lewis’ pro se supplemental brief and the remainder of the record
and have found no meritorious issues for review. Accordingly,
we affirm the district court’s judgment. This court requires
that counsel inform Lewis, in writing, of the right to petition
the Supreme Court of the United States for further review.
If Lewis 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
Lewis.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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