United States v. Simmons , 270 F. App'x 257 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4828
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL WARREN SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, District
Judge. (2:05-cr-01190-PMD)
Submitted: February 13, 2008 Decided: March 18, 2008
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, Greenville, South Carolina, for Appellant.
Alston Calhoun Badger, Jr., Assistant United States Attorney,
Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Warren Simmons appeals his jury convictions and
sentence for possession with the intent to distribute cocaine base
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C),
and 841(b)(1)(D) (2000); use of a firearm during a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(I) (2000); and felon
in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) and 924(e)(1) (2000). Simmons’ attorney has filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967),
certifying there are no meritorious issues for appeal. Simmons
filed a pro se supplemental brief asserting issues concerning the
search warrant, chain of custody, jury voir dire, jury
instructions, prosecutorial misconduct, judicial misconduct, and
ineffective assistance of counsel. Finding no reversible error, we
affirm.
After observing informant Larry Wilson’s controlled
purchase of marijuana from Simmons, police officers obtained and
executed a search warrant on Simmons’ home. Simmons, having been
advised of his Miranda rights, directed the officers to his kitchen
and bedroom closet, where they found marijuana, cocaine, drug
paraphernalia, and a pistol. Simmons admitted the items were his.
Simmons claims that the district court erred in refusing
to compel Wilson’s appearance at trial. We find no error. The
district court denied Simmons’ request for a subpoena only because
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the court had no information of where Wilson could be found.
Simmons does not suggest, given the district court’s lack of
knowledge of Wilson’s whereabouts, what the court could have done
differently, and Simmons never requested a continuance, nor does he
argue now that the district court should have granted one.
Simmons next claims the court erred when it designated
him an armed career criminal. A defendant convicted of violating
§ 924(g) qualifies as an armed career criminal under 18 U.S.C.
§ 924(e) if he has three prior convictions for a violent felony.
The definition of “violent felony” includes any felony that is
burglary. 18 U.S.C. § 924(e)(2)(B) (2000). Between 2001 and 2003,
Simmons was convicted of three separate burglaries in South
Carolina. While Simmons attempts to distinguish one of his prior
convictions because it involved the burglary of a residence under
construction, the Supreme Court has held that “a person has been
convicted of burglary for purposes of a § 924(e) enhancement if he
is convicted of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.” Taylor v. United States, 495 U.S. 575, 599
(1990). The district court therefore did not err in classifying
Simmons as an armed career criminal.
In his pro se brief, Simmons asserts multiple claims,
none of which were raised before the trial court. Issues raised
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for the first time on appeal are reviewed for plain error. See
United States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To
establish plain error, Simmons must show error occurred, that it
was plain, and that it affected his substantial rights. Id.Simmons initially claims there was no search warrant at
the time of the search and that the police officers created a false
document at a later date. Police officer Todd Hurteau testified
that officers immediately took the surveillance evidence from the
controlled buy to a magistrate judge, who reviewed the evidence and
then approved the search warrant. There is no evidence that the
officers did not have a search warrant, nor is there any evidence
that the officers falsified the search warrant. Thus, Simmons
failed to establish plain error in this respect.
Simmons next claims that the evidence at his trial was
tainted because numerous people had handled the evidence and that
it could have come from anywhere. The officers who seized the
evidence testified that the exhibits admitted were the items found
at Simmons’ residence. Simmons’ unsupported speculation does not
demonstrate error, let alone plain error. The evidence was
properly submitted and there is no plain error in the chain of
custody.
Third, Simmons claims the court misdescribed the elements
and evidence to the jury in the jury instructions. The district
court’s instructions will be upheld “provided the instructions,
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taken as a whole, adequately state the controlling law.” Teague v.
Bakker, 35 F.3d 978, 985 (4th Cir. 1994). As evidenced by the
final verdict form, the jury knew the exact elements of the crimes.
Simmons also claims that the jury instructions did not properly
inform the jury about informant Wilson and his criminal history,
but jury instructions are intended to state the law and not the
evidence. Thus, there is no plain error in the court’s jury
instructions.
Fourth, Simmons asserts the evidence was insufficient to
convict him of the firearm charges. Simmons told police officers
there was a gun in the bedroom, and after the officers found it in
a heating duct, he admitted it was his. He now argues the gun
could have been in the bedroom duct for years, but provides no
support for his argument. Viewing the evidence in the light most
favorable to the Government, it is sufficient to prove Simmons
possessed the gun. See United States v. Smith, 451 F.3d 209, 216
(4th Cir. 2006).
Fifth, Simmons claims that the government attorney made
improper statements during opening and closing arguments. To
prevail on a claim of prosecutorial misconduct, a defendant must
show the Government’s remarks and conduct were improper and they
affected his substantial rights so as to deprive him of a fair
trial. United States v. Golding, 168 F.3d 700, 702 (4th Cir.
1999). However, the improper statements Simmons refers to are
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simply the government attorney’s summary of the evidence that the
Government intended to prove. Simmons has failed to prove that the
statements were improper or deprived him of a fair trial.
Sixth, Simmons claims the district court erred by not
asking the jury to determine if any juror knew police officer
Mackey. During the trial, the Government alerted the court that
one of the jurors had been seen embracing Mackey in the court
hallway. The district judge informed the attorneys that because it
was unclear which juror was involved the entire jury would have to
be questioned. As a result, Simmons’ counsel abandoned the issue.
Therefore, the district court committed no error in this regard.
Seventh, Simmons claims the district court erred during
voir dire by not asking potential jurors if they either knew Mackey
or other law enforcement officers or had been exposed to pretrial
publicity. “The district court enjoys broad discretion in deciding
the questions to ask venire members during voir dire,” and “it is
a rare case in which a reviewing court will find error in the trial
court’s conduct of voir dire.” Sasaki v. Class, 92 F.3d 232,
238-39 (4th Cir. 1996). After reviewing the record, we find no
error in the trial court’s conduct of voir dire.
Eighth, Simmons claims that he did not receive a fair
trial because the district judge should have disqualified himself.
Simmons claims the district judge was not impartial, but only
points to instances where the district court ruled against his
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motions. Without any evidence of any bias or prejudice, Simmons
cannot establish any judicial misconduct.
Simmons finally claims his counsel was ineffective due to
a conflict of interest because counsel helped the police. Claims
of ineffective assistance of counsel are not cognizable on direct
appeal unless the record conclusively establishes ineffective
assistance. United States v. Richardson, 195 F.3d 192, 198 (4th
Cir. 1999). Our review of the record reveals that Simmons has
failed to meet the high burden necessary to raise ineffective
assistance of counsel on direct appeal.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
the judgment of the district court. We deny counsel’s motion to
withdraw. 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 that such a petition would be
frivolous, then counsel may at that time 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
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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