United States v. Roger Franklin , 664 F. App'x 345 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4143
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROGER DALE FRANKLIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:14-cr-00081-RLV-DCK-1)
Submitted: November 22, 2016 Decided: November 29, 2016
Before DIAZ and THACKER, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Samuel Bayness Winthrop, WINTHROP & WINTHROP, Statesville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Roger Dale Franklin of conspiracy to
distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846
(2012); possession with intent to distribute methamphetamine,
and aiding and abetting, in violation of 18 U.S.C. § 2 (2012)
and 21 U.S.C. § 841(b)(1)(C) (2012); possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012);
and possession of a firearm in furtherance of a drug trafficking
crime and aiding an abetting, in violation of 18 U.S.C. §§ 2,
924(c) (2012). The district court sentenced Franklin to 480
months in prison.
Appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), conceding there are no grounds
for appeal, but asserting that: (1) the district court should
have suppressed evidence seized during the traffic stop that
gave rise to three counts of conviction or, in the alternative,
that the three convictions should be vacated because defense
counsel was ineffective for failing to file a motion to suppress
the evidence seized; and (2) the district court should have
dismissed the firearms counts based on insufficient evidence.
Franklin filed a pro se supplemental brief in which he asserts
that trial counsel was ineffective, and also suggests that his
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criminal history score was incorrectly calculated. * Finding no
error, we affirm.
First, we find no reversible error in the district court’s
admission of evidence seized during law enforcement’s August 19,
2013, search of the vehicle in which Franklin was a passenger.
Whereas Federal Rule of Criminal Procedure 51 governs the
preservation of most claimed errors in criminal cases, Federal
Rule of Evidence 103(a) governs objections to the admission or
suppression of evidence. Rule 103(a) expressly requires that,
to preserve a claim of error as to the admission of evidence,
the party must “timely object[]” and “state[] the specific
ground, unless it was apparent from the context[.]” Fed. R.
Evid. 103(a)(1). Because Franklin did not move to suppress the
evidence that gave rise to the charges against him, we review
Franklin’s challenge to the admission of the seized evidence
only for plain error. Fed. R. Crim. P. 52(b); Henderson v.
United States, 133 S. Ct. 1121, 1126-27 (2013).
*We have considered Franklin’s pro se arguments and find
them to be without merit. Although Franklin points to several
ways in which he asserts counsel’s performance was
constitutionally deficient, ineffective assistance does not
conclusively appear on this record. Thus, Franklin’s arguments
are more appropriately raised, if at all, in a 28 U.S.C. § 2255(2012) motion. See United States v. Baldovinos, 434 F.3d 233,
239 & n.4 (4th Cir. 2006). We express no opinion as to the
merits of Franklin’s ineffective assistance of counsel claims.
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To establish plain error, Franklin bears the burden of
demonstrating that: (1) the district court committed an error;
(2) the error was plain; and (3) the error affected his
substantial rights. Henderson, 133 S. Ct. at 1126. If these
three elements are met, we may exercise our discretion to notice
the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(internal quotation marks omitted). We have reviewed the record
and considered counsel’s arguments and discern no plain error
arising from the admission of the seized evidence. Cf. Michigan
v. Long, 463 U.S. 1032, 1049 (1983) (holding that “the search of
the passenger compartment of an automobile . . . is permissible
if the police officer possesses a reasonable belief based on
specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant the
officers in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons” (internal
quotation marks omitted)); Pennsylvania v. Mimms, 434 U.S. 106,
112 (1977) (recognizing that where an officer concludes that a
suspect is armed, the suspect “pose[s] a serious and present
danger to the safety of the officer”).
We also find no error in the district court’s decision to
deny Franklin’s motion to dismiss the firearms charges against
him. See United States v. Cloud, 680 F.3d 396, 403 (4th Cir.
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2012) (recognizing that the denial of a Fed. R. Crim. P. 29
motion is reviewed de novo). This court must uphold a jury’s
verdict “if there is substantial evidence in the record to
support it.” United States v. Bailey, 819 F.3d 92, 95 (4th Cir.
2016) (internal quotation marks omitted). “In determining
whether the evidence in the record is substantial, we view the
evidence in the light most favorable to the [G]overnment and
inquire whether there is evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. (internal quotation marks omitted).
In resolving issues of substantial evidence, this court
does not reweigh the evidence or reassess the factfinder’s
determination of witness credibility, and it must assume that
the jury resolved all contradictions in testimony in favor of
the Government. See United States v. Roe, 606 F.3d 180, 186
(4th Cir. 2010). Thus, a defendant challenging the sufficiency
of the evidence faces a heavy burden. See United States v.
Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). We have reviewed
the record in its entirety and considered counsel’s arguments
and conclude that the Government produced sufficient evidence to
support Franklin’s firearms convictions.
In accordance with Anders, we have reviewed the record in
this case and found no meritorious issues for appeal. We
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therefore affirm the district court’s judgment. This court
requires that counsel inform Franklin, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Franklin 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 Franklin. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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