United States v. Lewis

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-4112

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

HARRISON LEWIS, III,

Defendant - Appellant.

No. 04-6660

Appeals from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR- 01-484-CCB)

Submitted: February 24, 2006 Decided: March 15, 2006

Before WILLIAMS, MOTZ, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion.

Randolph O. Gregory, Sr., LAW OFFICE OF RANDOLPH O. GREGORY, SR., Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Bonnie S. Greenberg, Assistant United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

- 2 - PER CURIAM:

In these consolidated appeals, Harrison Lewis, III

appeals his sentence of 150 months in prison and three years of

supervised release, following his guilty plea to one count of bank

robbery in violation of 18 U.S.C. § 2113(a), (f) (2000) (No. 03-

4112), and the district court’s order denying his pro se post-

judgment motion to add a witness statement to the court record (No.

04-6660). Lewis’s attorney filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and a supplemental brief asserting

there were no meritorious grounds for appeal but raising the issues

of whether Lewis was denied his Sixth Amendment right to counsel

because his attorney did not attend his presentence interview and

whether the district court abused its discretion at sentencing by

not departing downward and by departing upward three offense levels

for uncounted bank robberies. Lewis has filed pro se supplemental

briefs raising additional issues and challenging his sentence under

United States v. Booker, 543 U.S. 220 (2005). We affirm.

In his pro se supplemental brief, Lewis asserts his

guilty plea is invalid because the district court failed to sua

sponte hold a hearing to determine his competency. However, in any

criminal case, “a competency determination is necessary only when

a court has reason to doubt the defendant’s competence.”

Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993). We have reviewed

- 3 - the record and conclude there was no reason for the district court

to doubt Lewis’s competency and this issue is without merit.

We next consider Lewis’s claims that he received

ineffective assistance of counsel. We will consider such claims on

direct appeal only when it conclusively appears from the record

that counsel failed to provide effective representation. See

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).

Even if Lewis’s attorney did not attend his presentence interview,

this could not constitute ineffective assistance because there is

no Sixth Amendment right to counsel at the interview. See United

States v. Hicks, 948 F.2d 877, 885 (4th Cir. 1991). Moreover, it

does not conclusively appear from the record on appeal that Lewis

received ineffective assistance of counsel.

Lewis’s knowing and voluntary guilty plea precludes his

pro se claims that he is actually innocent and that the district

court denied him due process by failing to address pretrial motions

challenging the Government’s evidence. See United States v.

Willis, 992 F.2d 489, 490 (4th Cir. 1993) (holding guilty plea

constitutes a waiver of all nonjurisdictional defects). We also

reject Lewis’s claim that his indictment was defective because it

was “missing the essential element of jurisdiction.” Lewis’s

indictment alleged as required that the bank in question was

insured by the FDIC on the date of the robbery. See Pigford v.

United States, 518 F.2d 831, 833 (4th Cir. 1975). Finally, the

- 4 - district court did not abuse its discretion in denying Lewis’s

post-judgment motion to add a witness statement to the court

record.

We next consider Lewis’s challenges to his sentence.

Lewis stipulated in his plea agreement that he committed eighteen

additional bank robberies and that he threatened death in three of

them. Accordingly, the parties agreed the applicable offense level

under U.S. Sentencing Guidelines Manual (“USSG”) §§ 2B3.1, 3D1.4

(2002) was twenty-nine, which included enhancements for taking

property of a financial institution, making a death threat, and

committing more than five additional bank robberies. The

Government agreed to recommend a three-level reduction for

acceptance of responsibility. However, the Government notified

Lewis that it would seek an upward departure based on thirteen

“uncounted” bank robberies.

The sentencing court determined Lewis’s offense level

after reduction for acceptance of responsibility was twenty-six.

With Lewis’s criminal history category of IV, this would result in

a sentencing range of 92 to 115 months. The Government requested

an upward departure to a range of 151 to 188 months to account for

the thirteen additional robberies, based either on an increase in

offense level under USSG § 3D1.4 or the inadequacy of Lewis’s

criminal history score. Defense counsel agreed such a departure

was within the court’s discretion but objected to the extent of the

- 5 - Government’s request. Lewis further requested a downward departure

under USSG § 5K2.0 for providing information to a social services

agency regarding a fellow prisoner.

The district court denied the downward departure as not

appropriate, because the information Lewis provided was not

critical and did not rise to the level of an exceptional

circumstance warranting departure. In contrast, the court found it

was “an unusual circumstance” that thirteen additional bank

robberies Lewis committed were not accounted for under the

guidelines. Accordingly, the court granted an upward departure

under USSG § 3D1.4, but only to the extent of a three offense level

increase, resulting in a range of 121 to 151 months. While

recognizing that a departure is encouraged “in the unusual case

where the additional offenses resulted in a total of significantly

more than 5 Units,” USSG § 3D1.4 comment. (backg’d) (2001), the

court was mindful of cases applying a “declining marginal

punishment” for additional uncounted robberies. See, e.g., United

States v. MacLeod, 80 F.3d 860, 868 (3d Cir. 1996). The court

concluded that a three level increase in offense level resulted in

a “reasonable incremental” increase in punishment for the

additional uncounted bank robberies.

The district court concluded an upward departure was also

appropriate under USSG § 4A1.3(e), which refers to prior uncharged

similar adult offenses, because Lewis’s criminal history category

- 6 - of IV significantly under-represented the seriousness of his

criminal conduct. Based on the substantial number of additional

bank robberies, if the court were only looking at a criminal

history category increase, the court found category VI would be

appropriate. The resulting sentencing range would have been 120 to

150 months, which the court noted was very similar to the range it

reached under USSG § 3D1.4.

The court sentenced Lewis at the high end of his

guideline range because of the seriousness of his offenses and

because he endangered other innocent people. Moreover, regardless

of whether substance abuse or mental health treatment would be

helpful, the court found the high end of the guideline range was

appropriate to protect the community and to deter Lewis from

further criminal conduct.

In his pro se supplemental brief, Lewis contends the

district court erred under Booker by sentencing him under a

mandatory guideline regime and by increasing his sentence based on

facts found by the judge rather than by the jury. However, because

Lewis stipulated to all the facts underlying his sentence, there

was no Sixth Amendment violation. See Booker, 543 U.S. at ___, 125

S. Ct. at 756 (“Any fact (other than a prior conviction) which is

necessary to support a sentence exceeding the maximum authorized by

the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable

- 7 - doubt.”). While the district court erred by treating the

guidelines as mandatory,* Lewis failed to demonstrate his

substantial rights were affected because there is no nonspeculative

basis to conclude the court would have sentenced him to a lower

term of imprisonment if the guidelines were advisory. See United

States v. White, 405 F.3d 208, 211 (4th Cir.), cert. denied, 126 S.

Ct. 668 (2005). We have considered the remaining issues raised in

the pro se supplemental briefs and find them meritless.

Lewis further contends the district court abused its

discretion in declining to depart downward based on information he

gave to social services and departing upward based on the thirteen

uncounted bank robberies. We conclude the district court did not

abuse its discretion in departing upward three offense levels to

account for thirteen uncounted bank robberies, and in declining the

request for a downward departure.

After Booker, “the discretion of a sentencing court is no

longer bound by the range prescribed by the guidelines.” United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Nevertheless,

courts must still consult the guidelines and take them into

consideration in conjunction with the factors set forth in 18

U.S.C.A. § 3553(a) (West Supp. 2005). Booker, 543 U.S. at ___, 125

* Although it is now apparent in light of Booker that the district court erred by treating the guidelines as mandatory, we note that the court faithfully followed the law in effect at the time Lewis was sentenced.

- 8 - S. Ct. at 767. “If the court imposes a sentence outside the

guideline range, it should explain its reasons for doing so. . . .

[W]e will affirm the sentence imposed as long as it is within the

statutorily prescribed range and is reasonable.” Hughes, 401 F.3d

at 546-47 (citations omitted). The court explained its reasons for

imposing a sentence outside Lewis’s original guideline range.

Because the sentence imposed is within Lewis’s prescribed statutory

range and is reasonable, we find no abuse of discretion.

In accordance with Anders, we have reviewed the entire

record in this case and found no meritorious issues for appeal. We

therefore affirm Lewis’s conviction and sentence in No. 03-4112.

We also affirm the district court’s order denying Lewis’s post-

judgment motion to add a witness statement to the court record in

No. 04-6660. We deny all of Lewis’s various pro se motions in both

appeals. We also deny the Government’s request that we strike the

supplemental brief of Lewis’s counsel. This court requires that

counsel inform his client, in writing, of his right to petition

the Supreme Court of the United States for further review. If the

client 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 the client.

- 9 - 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

- 10 -