United States v. Daniels , 308 F. App'x 658 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4063
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
V.
JIMMIE CRAIG DANIELS,
Defendant - Appellant,
Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:07-cr-00341-RBH-1)
Submitted: January 7, 2009 Decided: January 21, 2009
Before MOTZ, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua S. Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, South
Carolina, for Appellant. William E. Day, II, Assistant United
States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmie Craig Daniels appeals his conviction and 108-
month sentence for possession of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B) (2006). Counsel for Daniels filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
in which he asserts there are no meritorious issues for appeal,
but asks this court to review whether the district court erred
in denying Daniels’ motion to suppress and imposing a two-level
offense level enhancement for obstruction of justice. Daniels
filed a pro se supplemental brief in which he makes a multitude
of allegations of ineffective assistance of counsel and other
claims relating to his trial. Finding no error, we affirm.
This court reviews the district court’s factual
findings underlying the denial of a motion to suppress for clear
error and reviews its legal rulings de novo. United States v.
Johnson, 400 F.3d 187, 193 (4th Cir. 2005). The court construes
the evidence in the light most favorable to the Government, the
prevailing party below. United States v. Seidman, 156 F.3d 542,
547 (4th Cir. 1998). In his motion to suppress, Daniels
contended that he made statements to police without being
provided with the required warnings pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966). Based on the testimony by state
and federal officers that Daniels was provided with the Miranda
warnings before any questioning occurred, the district court
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found that Daniels’ account was not credible and that his
statements should not be suppressed. Because the district
court’s ruling was ultimately based on credibility
determinations that are not subject to appellate review, see
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989), we
find the district court did not err in denying Daniels’ motion
to suppress.
Daniels next asks the court to review whether the
district court erred in imposing a two-level offense level
enhancement for obstruction of justice, pursuant to U.S.
Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2006). When
reviewing the district court’s application of the Sentencing
Guidelines, this court reviews findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir. 2006). The commentary to § 3C1.1 indicates
that the definition of obstruction of justice includes
“committing, suborning, or attempting to suborn perjury.” USSG
§ 3C1.1, comment. (n.4(b)). This enhancement applies
“regardless of whether the perjurious testimony is given during
trial or during a pre-trial proceeding.” United States v.
Jones, 308 F.3d 425, 428 (4th Cir. 2002). “For a sentencing
court to apply the obstruction of justice enhancement based upon
perjury, it must find, by a preponderance of the evidence, that
the defendant when testifying under oath: (1) gave false
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testimony; (2) concerning a material matter; (3) with willful
intent to deceive (rather than as a result of confusion,
mistake, or faulty memory).” Id. at 428 n.2.
Based on Daniels’ testimony at the suppression hearing
and at trial, the district court had sufficient grounds to find
that Daniels gave false testimony regarding a material matter
with intent to deceive. The district court noted that Daniels
had falsely testified, at both the suppression hearing and at
trial, that he was not provided with any Miranda warnings by the
officers. The district court also identified Daniels’ trial
testimony as perjurious, as Daniels falsely stated that he never
intentionally looked for child pornography, that he put the
pornographic images on various storage media in an effort to
remove them from his computer, and that he created a list of
pornographic sites as part of an effort to block them.
Accordingly, we find the district court did not err in imposing
a two-level offense level enhancement for obstruction of
justice.
In addition to his Anders brief, Daniels has filed a
pro se supplemental brief in which he raises nearly two dozen
claims of error. A number of the claims are allegations of
ineffective assistance by trial counsel, as Daniels asserts that
trial counsel did not provide him with access to discovery and
trial materials, failed to move to suppress the evidence seized
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pursuant to the search warrant, and did not request a computer
expert for the defense. However, these claims should be raised
in a 28 U.S.C. § 2255 (2000) motion rather than on direct appeal
unless the record conclusively demonstrates ineffective
assistance. See United States v. King, 119 F.3d 290, 295 (4th
Cir. 1997). Such claims cannot be fairly adjudicated on direct
appeal when the appellant has not raised the issue before the
district court and there is no statement from counsel on the
record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th
Cir. 1991). Because the existing record fails to conclusively
support any of Daniels’ allegations of ineffective assistance,
these claims must be raised as part of a § 2255 motion rather
than on direct appeal.
Another group of Daniels’ claims allege there was
insufficient evidence to support his conviction. * A defendant
challenging the sufficiency of the evidence “bears a heavy
burden.” United States v. Beidler, 110 F.3d 1064, 1067 (4th
Cir. 1997). “The verdict of a jury must be sustained if there
is substantial evidence, taking the view most favorable to the
*
Daniels contends that he could not have purchased child
pornography with a “dead credit card” and that he did not know
“how or why this stuff was sent to my computer.” Daniels also
asserts that he was not the only person with access to the
computer and that the child pornography found on his computer
might have been due to “online file sharing.”
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Government, to support it.” Glasser v. United States, 315 U.S.
60, 80 (1942). In evaluating the sufficiency of the evidence,
this court does not review the credibility of the witnesses and
assumes that the jury resolved all contradictions in the
testimony in favor of the government. United States v. Romer,
148 F.3d 359, 364 (4th Cir. 1998). The 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).
In his pro se brief, Daniels merely repeats
allegations he made at trial that were rejected by the jury and
were the basis for the district court’s determination that he
committed perjury. Not only was Daniels’ testimony contradicted
by the Government’s evidence, but the jury’s determination that
Daniels’ testimony was not credible is not subject to appellate
review. See Romer, 148 F.3d at 364. Based on the testimony and
evidence put forth by the Government in support of the charge,
we find there was sufficient evidence to support Daniels’
conviction for possession of child pornography.
As for the other numerous claims raised by Daniels in
his pro se brief, we have accorded them careful consideration
and find them lacking in merit.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. 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 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. 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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