United States v. Hatfield , 294 F. App'x 796 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4689
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LYNN HATFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-02-219)
Submitted: September 12, 2008 Decided: September 26, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.
Robert E. Barrat, Martinsburg, West Virginia, for Appellant.
Joshua Clarke Hanks, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lynn Hatfield was convicted by a jury of two counts
of possession of a firearm by a felon (Counts One & Eleven), eight
counts of distribution of oxycodone and hydrocodone (Counts Four
through Ten & Twelve), and one count of using and carrying a
firearm during and in relation to a drug trafficking crime (Count
Thirteen), in violation of 18 U.S.C. §§ 922(g)(1); 924(c)(1)(A); 21
U.S.C. § 841(a)(1) (2000). Hatfield was sentenced to a total of
138 months’ imprisonment. On appeal, counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
there are no meritorious grounds for appeal, but raising various
issues for review. In a pro se supplemental brief, Hatfield joined
in those issues raised by counsel and raised additional grounds for
review. The Government elected not to file a responding brief.
Hatfield first contends that his counsel provided
ineffective assistance. An ineffective assistance of counsel claim
is generally not cognizable on direct appeal, but should instead be
asserted in a post-conviction motion under 28 U.S.C. § 2255 (2000).
See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).
However, we have recognized an exception to the general rule when
“it ‘conclusively appears’ from the record that defense counsel did
not provide effective representation.” Id. (quoting United States
v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the
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record does not conclusively establish that counsel was
ineffective, Hatfield’s claim is not cognizable on direct appeal.
Next, Hatfield contends that the district court erred by
refusing his motion for the appointment of an expert to review
audio recordings admitted by the Government, which he believed had
been edited or otherwise tampered with. “Indigent defendants are
entitled by law to money for investigative and expert services that
are ‘necessary for adequate representation.’” United States v.
Hartsell, 127 F.3d 343, 349 (4th Cir. 1997) (quoting 18 U.S.C.
§ 3006A(e)(1) (2000)). We review a district court’s decision
regarding the necessity of expert services for abuse of discretion.
Id. “To show reversible error in a district court’s refusal to
appoint an expert, a defendant must demonstrate that the court’s
refusal was prejudicial to his defense.” United States v. Perrera,
842 F.2d 73, 77 (4th Cir. 1988) (per curiam). As Hatfield failed
to offer any evidence in support of his motion for the appointment
of an expert, or alternatively establish that his case was
prejudiced in any manner by the denial, we conclude that the
district court did not abuse its discretion in denying the motion.
Hatfield further contends that the search of his person
and trailer were improper and the evidence obtained pursuant
thereto should have been suppressed. We previously held in the
Government’s appeal from the district court’s suppression of
evidence that an unannounced entry by deputy sheriffs into
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Hatfield’s residence was reasonable and did not violate the Fourth
Amendment. See United States v. Hatfield, 365 F.3d 332, 338-41
(4th Cir. 2004). That holding is now the law of the case, and,
since Hatfield has not alleged any of the exceptions to the law of
the case doctrine, he may not relitigate that issue in this appeal.
See United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999).
Finally, Hatfield contends that the evidence was
insufficient to support a conviction for using and carrying a
firearm during and in relation to a drug trafficking crime (Count
Thirteen) under 18 U.S.C. § 924(c)(1)(A). To determine if there
was sufficient evidence to support a conviction, we consider
whether, taking the evidence in the light most favorable to the
government, substantial evidence supports the jury’s verdict.
Glasser v. United States, 315 U.S. 60, 80 (1942). We review both
direct and circumstantial evidence, and permit 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).
Hatfield argues that even if he “allegedly accepted the
gun” in payment for a controlled substance, he did not “use” it as
contemplated by the ordinary meaning of the word in § 924(c)(1)(A).
The facts of this case are very similar to those in Watson v.
United States, 128 S. Ct. 579, 582, 586 (2007), wherein the Supreme
Court reversed a defendant’s conviction for use of a firearm in
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furtherance of a drug trafficking offense, which was predicated on
the defendant’s receipt of the firearm in exchange for drugs. As
in Watson, the basis for the § 924(c)(1)(A) charge here was
Hatfield’s receipt of the firearm in trade for a controlled
substance. Therefore, even construing the facts in the light most
favorable to the Government, we conclude there was insufficient
evidence to support the jury’s verdict.
In accordance with Anders, we have reviewed the entire
record in this case. While we affirm Hatfield’s convictions on
Count One and Counts Four through Twelve, we reverse Hatfield’s
conviction on Count Thirteen based on the Supreme Court’s holding
in Watson. We remand to the district court for further
proceedings. Additionally, we grant Hatfield’s motion to withdraw
his motion to dismiss the federal indictment and deny his remaining
motions. We also deny Appellee’s motion to dismiss, but grant the
motion as to the request for remand.
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 in the decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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