United States v. Vance ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4961
ZELDRIC S. VANCE,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4973
DARRELL MORRIS,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-01-281)
Submitted: October 9, 2002
Decided: October 24, 2002
Before WIDENER and WILKINS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 UNITED STATES v. VANCE
COUNSEL
Andrew R. MacKenzie, Greenville, South Carolina; Benjamin T.
Stepp, Assistant Federal Public Defender, Greenville, South Carolina,
for Appellants. Elizabeth Jean Howard, OFFICE OF THE UNITED
STATES ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Zeldric S. Vance and Darrell Morris appeal from their convictions
and sentences imposed for committing a bank robbery. Vance and
Morris’s attorneys have filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating there are no meritorious
issues for appeal but raising several potential issues. Vance has filed
a pro se supplemental brief in which he contends that a photographic
array used to identify him by a witness was impermissibly suggestive
and that his trial counsel rendered ineffective assistance. Finding no
error, we affirm the judgments.
Morris first argues that the court erred in denying his motion to
suppress items found in his car after his arrest during an inventory
before the vehicle was impounded. We review a district court’s fac-
tual findings underlying its denial of a motion to suppress for clear
error, while reviewing its legal conclusions de novo. United States v.
Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In addition, in reviewing
the denial of a motion to suppress, we review the evidence in the light
most favorable to the government. United States v. Seidman, 156 F.3d
542, 547 (4th Cir. 1998). Under these standards, we conclude the dis-
trict court properly denied Morris’s motion to suppress the evidence
for the reasons stated from the bench on July 6, 2001.
UNITED STATES v. VANCE 3
Morris also maintains that the district court erred in denying his
motion for a severance. We review a district court’s decision on a
severance motion for an abuse of discretion. United States v. Ford, 88
F.3d 1350, 1361 (4th Cir. 1996). If a defendant will be prejudiced by
a joint trial, a district court has the discretion to order separate trials.
Fed. R. Crim. P. 14. The moving party must establish that there would
be resulting prejudice from the joint trial and not merely that he
would stand a better chance of acquittal if he were tried separately
from co-defendants. United States v. Reavis, 48 F.3d 763, 767 (4th
Cir. 1995). We conclude that Morris failed to establish the requisite
prejudice to require separate trials.
Both Morris and Vance argue that the district court erred in deny-
ing their Fed. R. Crim. P. 29 motions for judgment of acquittal. This
court must affirm the district court’s Rule 29 order if there is substan-
tial evidence, viewed in the light most favorable to the government,
supporting a jury finding that the defendant is guilty beyond a reason-
able doubt. United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.
1982). After reviewing the record, we find no error in the district
court’s denial of the Rule 29 motions.
Vance further claims that the district court erred in applying the
two-level enhancement for a threat of death involved in the offense,
pursuant to U.S. Sentencing Guidelines Manual § 2B3.1(b)(2)(F)
(2001). This court reviews de novo the legal interpretation of the
Guidelines as they pertain to a set of facts. United States v. Franks,
183 F.3d 335, 337 (4th Cir. 1999). A threat of death may be an oral
or written statement, act, gesture, or a combination thereof. USSG
§ 2B3.1(b)(2)(F) n.6. The sentencing court should apply the enhance-
ment when the conduct was intended to "instill in a reasonable per-
son, who is a victim of the offense, a fear of death." Id. We conclude
that the district court did not err in applying the enhancement because
presenting a note such as Vance’s during the course of a robbery
would place a reasonable person in that situation in fear of death.
We have reviewed the arguments made in Vance’s pro se supple-
mental brief. As to Vance’s contention that the district court should
have suppressed the photographic identification made by witness Kira
Ramey, we find no plain error. See United States v. Olano, 507 U.S.
725, 731-32 (1993). Vance also claims that he received ineffective
4 UNITED STATES v. VANCE
assistance of trial counsel because counsel failed to subpoena and
present fingerprint analysis, failed to call as a witness the FBI height
expert who estimated the robber’s height based upon photographs,
failed to move to suppress Ramey’s photographic identification, and
failed to subpoena other witnesses who were unable to identify the
robber in the photo array. Claims of ineffective assistance of counsel
are generally not cognizable on direct appeal. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). To allow for adequate develop-
ment of the record, claims of ineffective assistance of counsel must
ordinarily be pursued in a motion filed pursuant to 28 U.S.C. § 2255(2000). United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). An
exception to this general rule applies when the record conclusively
establishes ineffective assistance of counsel. King, 119 F.3d at 295.
We conclude, after reviewing the record, that it does not conclusively
establish ineffective assistance of counsel. See id.We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
We therefore affirm Vance and Morris’s convictions and sentences.
This court requires that counsel inform their clients, in writing, of
their right to petition the Supreme Court of the United States for fur-
ther 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. Coun-
sel’s motion must state that a copy thereof was served on the client.
Finally, 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