United States v. Carter

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 27, 2004
• Docket: 02-2165
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Carter No. 02-2165 ELECTRONIC CITATION: 2004 FED App. 0033P (6th Cir.) File Name: 04a0033p.06 Appellant. Andrew B. Birge, UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X SILER, Circuit Judge. Jermaine Cortez Carter appeals his conviction and sentence under 18 U.S.C. § 922(g)(1)(felon in Plaintiff-Appellee, - possession of a firearm) on the basis of: (1) insufficiency of - - No. 02-2165 the evidence; (2) ineffective assistance of counsel for failing v. - to move the court for acquittal based upon the insufficiency > of the evidence; (3) the addition of a four-level enhancement , to his sentencing guideline range for possessing the firearm in JERMAINE CORTEZ CARTER , - Defendant-Appellant. - connection with another felony offense under USSG § 2K2.1(b)(5); and (4) denial of his right of allocution at N sentencing. For the reasons that follow, we AFFIRM. Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. BACKGROUND No. 02-00067—Robert Holmes Bell, Chief District Judge. In 2002, two detectives in Grand Rapids were on Argued: December 3, 2003 surveillance duty in an area known to be used by drug traffickers. They saw a four-door Cadillac pull up to the curb Decided and Filed: January 27, 2004 and watched Carter and another individual run up to the vehicle. Carter looked around and conversed with the driver Before: SILER, DAUGHTREY, and GIBBONS, Circuit while the other individual interacted with the passenger. The Judges. two men entered the rear of the vehicle and drove off, with Carter sitting behind the driver. The detectives followed the _________________ vehicle until the Cadillac pulled into a driveway. One detective saw a great deal of commotion in the back seat of COUNSEL the vehicle when the detectives’ van pulled in behind the Cadillac. The detectives observed the rear passenger-side ARGUED: Paul L. Nelson, FEDERAL PUBLIC individual immediately place his hands on the headrest of the DEFENDERS OFFICE, Grand Rapids, Michigan, for seat in front of him. Carter, the other back-seat passenger, Appellant. Hagen W. Frank, UNITED STATES was observed leaning forward with his right shoulder, looking ATTORNEY, Grand Rapids, Michigan, for Appellee. back at the officers while digging underneath the driver’s ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC seat. DEFENDERS OFFICE, Grand Rapids, Michigan, for

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When the front passenger exited, several bags of marijuana THE COURT: Well, Mr. Carter, what is the most fell from the shoulder area of his seat. This was directly in accurate predictor of the future, the past or what you tell the area where the rear passenger-seat occupant had placed his me about the future?1 hands. As one detective approached the vehicle from the rear DEFENDANT CARTER: If you give me a chance, on the driver’s side, he noticed a .25 caliber pistol underneath Your Honor, I’m– the driver’s seat toward the back. THE COURT: I’m asking you a question. If you could just answer it. Carter was indicted as a felon in possession of a firearm. DEFENDANT CARTER: Excuse me? At trial, Sylvester Evans, the front passenger and owner of the THE COURT: What’s the most accurate predictor of the vehicle, testified that he and the driver, Adowa Reed, were future, the past or your promises for the future? out to obtain some marijuana. They picked up Carter and DEFENDANT CARTER: My promises for the future. drove to a house. When a van pulled in behind them in the THE COURT: Oh, okay. Continue. driveway, there was a lot of commotion in the back seat. DEFENDANT CARTER: Okay. This is my first and During this commotion Evans saw something in Carter’s hand only chance to address the Court. Accordingly, I will that resembled the pistol shown to him in court. Evans speak briefly about the trial proceedings, the lack of testified that neither he nor Reed had brought the pistol into evidence presented to the jury by the U.S. attorneys– the vehicle. Carter was convicted for possessing the pistol as THE COURT: Sir, you were convicted. I don’t want to a felon. No motion for judgment of acquittal under Fed. R. hear any more about that. Crim. P. 29 was made. DEFENDANT CARTER: Okay. Okay, thank you. THE COURT: Continue. Carter’s presentence report (PSR) added a four-level DEFENDANT CARTER: I’ll just speak about my enhancement under USSG § 2K2.1(b)(5) for possessing the future. pistol in connection with another felony offense, the THE COURT: Please do. possession of marijuana with intent to distribute. Carter’s companion, Mark Matthews, was convicted of this offense in Carter went on to outline his future plans. Carter did not state court. Carter did not raise any objection to the PSR or object to any of the district court’s actions during sentencing. the guideline range computation when specifically asked by the district court. ANALYSIS At sentencing, the court interrupted Carter twice during his A. Sufficiency of the evidence final remarks. After being asked personally by the court if he had anything to say before sentencing, Carter began with a A review of the sufficiency of the evidence to convict, in few opening remarks and then continued into the following the absence of a Fed. R. Crim. P. 29 motion, is limited to exchange: DEFENDANT CARTER: ...my purpose in speaking at 1 This first interruption sho uld be seen in the context of Carter’s this time is so the Court may reflect on me as a person criminal history. Between the ages of 17 and 25, Carter had amassed 18 and not so much my prior history. This is my-- convictions, 5 othe r arrests and thre e separate p ending charges in state court, two allegedly committed while Carter aw aited trial before the district co urt. Th is had b een o utlined b y the PS R before the court. No. 02-2165 United States v. Carter 5 6 United States v. Carter No. 02-2165

determining whether there was a manifest miscarriage of failing to make a motion with no chance of success could not justice. United States v. Carnes, 309 F.3d 950, 956 (6th Cir. possibly prejudice the outcome.2 2002). In his brief, Carter does not argue that there was no evidence to support his conviction. He further concedes that There was no reasonable probability that a motion for he cannot prevail upon this claim since this court can only acquittal would succeed. Carter stipulated to all elements of reverse if the record is devoid of evidence pointing to guilt. the crime, except for possession of the pistol. However, there Id. Carter’s sole argument for reviewing the conviction is that was ample evidence that Carter possessed the pistol. Evans his counsel was constitutionally ineffective for failing to testified that neither he nor his companion brought the pistol make a motion for acquittal based on the insufficiency of the into the vehicle. Evans saw “something” that resembled the government’s case. As the resolution of the ineffectiveness pistol in Carter’s hand when a commotion started in the rear claim disposes of the sufficiency claim, we turn to it to seat upon the approach of the officers. A detective saw Carter address both issues. reach under the seat while looking back over his shoulder at the detective when he approached the vehicle. Both B. Ineffective assistance of counsel detectives observed Matthews, who was sitting in the rear passenger seat, immediately put his hands on the headrest in Ineffective assistance of counsel claims are mixed questions front of him, circumstantially removing himself from being of law and fact that are reviewed de novo. United States v. the source of the pistol’s placement under the driver’s seat at Fortson, 194 F.3d 730, 736 (6th Cir. 1999). Generally, this that time. court does not review ineffective assistance of counsel claims for the first time on appeal, instead requiring a record be Given this evidence, a Rule 29 motion would have had no developed pursuant to a motion under 28 U.S.C. § 2255. Id. chance of success, since “[i]t is well established that a trial An exception exists when a record is adequate enough to judge confronted with a Rule 29 motion must consider all of address the merits. Id. As the sole claim for ineffectiveness the evidence in a light most favorable to the government.” is that Carter’s counsel did not recognize the insufficiency of United States v. Head, 927 F.2d 1361, 1365 (6th Cir. 1991). the evidence, which is entirely encompassed within the “The government must be given the benefit of all inferences record, the issue is adequately developed. which can reasonably be drawn from the evidence, even if the evidence is circumstantial. It is not necessary that the Carter’s ineffectiveness claim must establish that: (1) his evidence exclude every reasonable hypothesis except that of lawyer’s performance was deficient compared to an objective guilt.” Id. standard of reasonable performance, and (2) there is a reasonable probability that this deficiency prejudiced the Carter’s attacks on the evidence in his brief are not directly outcome. United States v. Davis, 306 F.3d 398, 422 (6th Cir. aimed at any evidentiary deficiency, but at the credibility of 2002). Failing to make a motion for a judgment of acquittal the witnesses. “It is well settled in this Circuit that attacks on that had no chance of success fails both prongs. First, counsel witness credibility are simply challenges to the quality of the cannot be said to be deficient for failing to take frivolous action, particularly since a frivolous effort takes attention 2 away from non-frivolous issues. Second, it is evident that “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland v. Washington, 466 U.S. 668, 691-92 (19 84). No. 02-2165 United States v. Carter 7 8 United States v. Carter No. 02-2165

government’s evidence and not to the sufficiency of the factual allegations in a presentence report to which the evidence.” United States v. Farley, 2 F.3d 645, 652 (6th Cir. defendant does not object.” United States v. Levy, 250 F.3d 1993) (emphasis in original). “It is equally clear that issues 1015, 1018 (6th Cir. 2001); see also United States v. Garcia- of witness credibility are for the jury.” Id. As a Rule 29 Meza, 315 F.3d 683, 686 (6th Cir. 2003)(no plain error where motion did not have a reasonable likelihood of success, it the district court accepts a PSR to which no objection was cannot be said that Carter’s trial counsel was ineffective on lodged). The court found, without objection, that Carter either prong of Davis. Additionally, since the record is not possessed the firearm in conjunction with a felony drug devoid of evidence of his guilt, Carter’s sufficiency challenge offense. There was no plain error in this finding. must fail. See Carnes, 309 F.3d at 956. D. Denial of allocution C. Improper application of sentencing guidelines As Carter did not lodge an objection during sentencing, this Sentencing issues presented for the first time on appeal are court reviews his allocution claim only for plain error. reviewed only for plain error. United States v. King, 341 Garcia-Meza, 315 F.3d at 685-86.3 F.3d 503, 505 (6th Cir. 2003). Carter contends the district court erred by applying a four-level increase for possessing Fed. R. Crim. P. 32(c)(3)(C) requires the court to “address the firearm in connection with another felony offense. To the defendant personally and determine whether the defendant establish plain error, Carter must first show that an error wishes to make a statement and to present any information in occurred. Id. mitigation of the sentence.” Carter claims when the court stated it did not want to hear about the lack of evidence used The district court is required to add four points to the to convict him, he was denied allocution. Denial of allocution offense level if the pistol was possessed in connection with is reversible error. United States v. Riascos-Suarez, 73 F.3d another felony offense. USSG § 2K2.1(b)(5). “So long as the 616, 627 (6th Cir. 1996). A denial generally occurs when a government proves by a preponderance of the evidence that defendant is not, personally and unambiguously, invited to the firearm served some purpose with respect to the felonious address the court before sentencing, Green v. United States, conduct, section 2K2.1(b)(5)’s ‘in connection with’ 365 U.S. 301, 305 (1961), or when a court refuses to listen to requirement is satisfied.” United States v. Spurgeon, 117 F.3d 641, 644 (6th Cir. 1997)(quoting United States v. Wyatt, 102 F.3d 241, 247 (7th Cir. 1996)). “A firearm is used or 3 United States v. Wo lfe, 71 F.3d 611 , 614 (6th C ir. 199 5), set forth possessed ‘in connection with’ an offense if the weapon a de no vo standard of review for denial of allocutio n allegations. facilitated or potentially facilitated the felonious conduct, or However, in a case like Carter’s, where the allegation is not that there was emboldened the defendant during the felonious conduct.” a complete denial but only an inappro priate limitation, the defense should United States v. Sanders, 162 F.3d 396, 404 (6th Cir. 1998). indicate some type of discontent. In Carter’s case, the allocution ended with “[t]hank you for giving me this op portunity to be heard before the The PSR detailed Carter’s involvement during his Court, Yo ur Hono r. TH E COU RT : Tha nk you.” Ne ither Carter no r his counsel voiced any discontent that he was not able to persona lly address possession offense with a drug transaction for which his the court in a specific manner desired. See also United States v. Li, 115 companion, Matthews, was convicted. Carter did not lodge F.3d 125, 132 (2d Cir. 1997) (contemporaneous objection to an an objection to the PSR; indeed, his counsel specifically inapp ropriate limitation of allocution found in the defendant’s attemp t to accepted it. “The district court is allowed to accept as true all make herself heard b y a court despite lacking a formal objection from counsel). No. 02-2165 United States v. Carter 9 10 United States v. Carter No. 02-2165

the defendant’s statement. Li, 115 F.3d 125, 133 (2d Cir. during allocution evidenced a substantive colloquy bearing 1997) (“Rule demands that each defendant be allowed a upon the sentence. See Riascos-Suarez, 73 F.3d at 627. The meaningful right to express relevant mitigating information court demonstrated attentiveness to Carter’s allocution by before an attentive and receptive district judge”). informing him, after imposing sentence, which comments were ineffective and why, along with the court’s approval of Allocution is the right to present a defendant’s plea in Carter’s future plans. Therefore, as Carter was personally mitigation, see Green, 365 U.S. at 304, and is not unlimited. invited to address the court and then engaged in a substantive Li,115 F.3d at 133 (“[A] defendant’s right to allocution is not colloquy with the trial judge bearing upon his sentence, the unlimited in terms of either time or content.”); United States requirements of Fed. R. Crim. P. 32(c)(3)(C) were fulfilled. v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993)(“[T]he judge Since the court permitted Carter to discuss any relevant does not have to let the defendant re-argue the case at matters desired in relation to his sentencing during this sentencing.”); United States v. Kellogg, 955 F.2d 1244, 1250 colloquy, Carter was not denied his right of allocution. (9th Cir. 1992) (“Although the defendant has a right of allocution at sentencing, that right is not unlimited.”). AFFIRMED. Defendants may address the amount or quality of evidence adduced at trial to explain their role in an offense or the severity of their conduct, see Li, 115 F.3d at 131-35, but not merely to continue to deny guilt. See Muniz,1 F.3d at 1024- 25. Addressing the evidence to show a mitigating role is particularly apt if a plea was not entered explaining a defendant’s conduct and/or mental state, or if the defendant did not testify during trial. However, as the sole contested fact in Carter’s trial was whether he possessed the firearm, this is not such a case. The court merely informed Carter it did not wish to hear an irrelevant sentencing argument which had already been properly made before the court during Carter’s closing argument.4 The court’s ongoing interaction with Carter

4 Carter argues that he was compe nsating fo r his counsel’s failure to address the sufficiency of the evidence at closing. T his ignores the fact that his counsel gave a thoughtful and detailed closing argument addressing the weakness o f the case against Carter. W hile not persuasive to the jury, it calls into question Carter’s post hoc need to address the subje ct. At oral argum ent, Carte r raised the issue of residual doubt as a times that any legitimacy has be en given to the notion that defendants proper mitigating subject to address in his allocution. Leaving aside the have the right to argue their innocence during sentencing, even for capital fact Carter did not raise this to the trial court, there have been only a few defendants. See Franklin v. Lynaugh, 487 U.S. 164 , 173 -74 (1 988 ).