United States v. Hodges ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4127
ERNEST J. HODGES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-99-58)
Submitted: November 30, 2000
Decided: December 22, 2000
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Eliza-
bethtown, North Carolina, for Appellant. Kenneth F. Whitted,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HODGES
OPINION
PER CURIAM:
Ernest Hodges appeals his criminal conviction and 292-month sen-
tence imposed after a jury found him guilty of conspiracy to possess
with intent to distribute cocaine and at least fifty grams of cocaine
base. Hodges’ attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), concluding that there are no merito-
rious issues for appeal. Nonetheless, in his brief, counsel addressed
the possibility that the evidence of conspiracy was insufficient; that
the district court erred in allowing testimony from cooperating wit-
nesses; that the district court erred in declining to depart downward
at sentencing; that trial counsel rendered ineffective assistance; that
the jury issued a general verdict failing to specify the object of the
conspiracy; that Hodges was not personally served with a copy of the
superseding indictment; and that the district court erred in determin-
ing drug quantities at sentencing.
Hodges has filed a pro se brief to supplement his counsel’s Anders
brief. In his brief, Hodges raises two arguments similar to those raised
by counsel in that he contends the district court erred in determining
the quantity of drugs attributable to him and that the jury’s general
verdict was inadequate to establish the object of the conspiracy.
Hodges also argues that his sentence violates the Supreme Court’s
holding in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), because
the quantity of drugs should have been submitted to the jury. Because
we find all the assignments of error to be without merit and can dis-
cern no other reversible error in the record on appeal, we affirm
Hodges’ conviction and sentence.
When assessing the sufficiency of the evidence of a criminal con-
viction on direct review, "[t]he verdict of [the] jury 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). We find substantial evidence in the record from which a rea-
sonable jury could have determined that a drug conspiracy existed of
which Hodges was a participant. See United States v. Collazo, 732
F.2d 1200, 1205 (4th Cir. 1984).
UNITED STATES v. HODGES 3
Counsel’s argument that the Government violated 18 U.S.C.
§ 201(c)(2) (1994) because several of the Government’s witnesses
were given leniency has been rejected by this Court. See United States
v. Richardson, 195 F.3d 192, 196-97 (4th Cir. 1999), cert. denied, 120
S. Ct. 837 (2000).
This Court does not review a district court’s refusal to depart
unless the decision is based on a mistaken perception of lack of
authority. United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.
1990). There is nothing in the record to suggest that the district court
believed it lacked the authority to depart, and therefore we will not
review this claim.
A claim of ineffective assistance of counsel should be raised in a
motion filed pursuant to 28 U.S.C.A. § 2255 (West Supp. 2000),
rather than on direct appeal, unless the record conclusively demon-
strates ineffectiveness. See United States v. Williams, 977 F.2d 866,
871 (4th Cir. 1992). None of Hodges’ assertions of error are conclu-
sively established on the face of the record, and therefore, they should
be pursued in a § 2255 motion.
Counsel’s claim that Hodges was not served with the superseding
indictment lacks a factual basis in the record. Moreover, Hodges’
failed to raise an objection in the district court, and has alleged no
prejudice.
Hodges and his counsel contest the jury’s general verdict on the
grounds that it did not specify whether the jury found Hodges guilty
of a drug offense involving cocaine, cocaine base, or both. Because
Hodges failed to object at trial, this claim is reviewed for plain error.
See United States v. Olano, 507 U.S. 725, 731-32 (1993). The indict-
ment did not name the drugs in the alternative, and the district court
did not instruct the jury to find Hodges guilty if they found a conspir-
acy involving either cocaine or cocaine base. Because the jury did not
have the option of finding Hodges guilty of one drug, but not the
other, the district court did not plainly err. Cf. United States v.
Rhynes, 196 F.3d 207 (4th Cir. 1999) (special verdict required when
drugs were charged in the alternative).
Hodges and counsel claim the district court erred in its determina-
tion of the quantity of drugs attributable to Hodges. Because counsel
4 UNITED STATES v. HODGES
withdrew the objection to drug quantity at sentencing, Hodges waived
this claim unless there is plain error. See Olano, 507 U.S. at 732;
United States v. Grubb, 11 F.3d 426, 440-41 (4th Cir. 1993). We find
no error which seriously affects the fairness or integrity of Hodges’
sentence.
Finally, the Supreme Court, in Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), held as a principle of constitutional law that, except for
"the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury and proved beyond a reasonable doubt." Id. at 2362-63. In
this case, the indictment alleged "cocaine and at least fifty grams of
cocaine base," and the district court instructed the jury that the charge
alleged cocaine and at least fifty grams of cocaine base. Because the
drug quantity was alleged in the indictment and submitted to the jury,
there is no violation of Apprendi.
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and concluded that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes that such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
Hodges’ conviction and sentence are affirmed. 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