United States v. Jackson , 423 F. App'x 329 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4736
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEWIS CARNELL JACKSON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:07-cr-00110-FL-1)
Submitted: March 24, 2011 Decided: April 12, 2011
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a two-day trial, a jury found Lewis Carnell
Jackson guilty of one count of conspiracy to distribute and
possess with the intent to distribute marijuana, in violation of
21 U.S.C. § 846 (2006), one count of aiding and abetting the
possession with the intent to distribute marijuana, in violation
of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(a)(1) (West 2006 &
Supp. 2010), one count of using, carrying, and possessing a
firearm in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c)(1)(A) (2006), and one count of possession
of a firearm and ammunition by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924 (2006). The district court
sentenced Jackson to 360 months’ imprisonment.
Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but asking this court to review
whether: the district court erred in denying Jackson’s motion to
suppress post-arrest statements to law enforcement officials;
the court erred in arraigning Jackson on the superseding
indictment; trial counsel rendered ineffective assistance by
failing to call certain persons to testify on behalf of the
defense; Jackson was prejudiced when several jurors observed him
in jail attire and shackles; and the 360-month prison sentence
violates the Double Jeopardy Clause of the Fifth Amendment.
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Jackson has filed a pro se supplemental brief raising several
issues. We affirm.
We review the factual findings underlying the denial
of a motion to suppress for clear error, United States v.
Richardson, 607 F.3d 357, 369 (4th Cir.), cert. denied, 131
S. Ct. 427 (2010), which exists where we are “left with the
definite and firm conviction that a mistake has been committed,”
United States v. Harvey, 532 F.3d 326, 337 (4th Cir. 2008)
(internal quotation marks omitted). When a defendant’s
suppression motion has been denied, we construe the evidence in
the light most favorable to the government. United States v.
Farrior, 535 F.3d 210, 217 (4th Cir. 2008). We also defer to
the district court’s credibility determinations. See United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008). With
these standards in mind, and having reviewed the transcript of
the suppression hearing, we conclude that the district court did
not err in denying Jackson’s motion to suppress.
Counsel also questions whether the district court
erred in arraigning Jackson on the superseding indictment.
Because Jackson raised no challenge to his arraignment in the
district court, our review is for plain error. See Fed. R.
Crim. P. 52(b); United States v. Vonn, 535 U.S. 55, 59 (2002).
Under Fed. R. Crim. P. 10(a), an arraignment must be conducted
in open court and must consist of: ensuring the defendant has a
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copy of the indictment or information; reading the indictment or
information to the defendant; and asking the defendant to enter
a plea to the indictment or information. After review of the
transcript of the arraignment, we conclude that the district
court substantially complied with the requirements of Rule 10(a)
in arraigning Jackson and that the court’s omission did not
violate Jackson’s substantial rights. Accordingly, we discern
no plain error in the district court’s arraignment procedures.
Next, counsel questions whether trial counsel rendered
ineffective assistance by failing to call two of Jackson’s
co-conspirators to testify on his behalf at trial. Claims of
ineffective assistance of counsel generally are not cognizable
on direct appeal. United States v. King, 119 F.3d 290, 295
(4th Cir. 1997). Rather, to allow for adequate development of
the record, a defendant must bring his claims in a 28 U.S.C.A.
§ 2255 (West Supp. 2010) motion. Id. An exception exists,
however, where the record conclusively establishes ineffective
assistance. United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006). After review of the record, we find no
conclusive evidence that trial counsel rendered ineffective
assistance, and we accordingly decline to consider this claim on
direct appeal.
Counsel questions whether Jackson was prejudiced when
three or four members of the jury observed him in his jail
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jumpsuit and shackles when he was being transported to the
courthouse on the second day of trial. We conclude that the
jurors’ brief and inadvertent observation of Jackson in this
condition does not amount to prejudice requiring reversal of his
convictions. See United States v. Lattner, 385 F.3d 947, 959-60
(6th Cir. 2004); United States v. Halliburton, 870 F.2d 557,
560-61 (9th Cir. 1989).
Counsel also questions whether Jackson’s 360-month
prison sentence violates the Double Jeopardy Clause of the Fifth
Amendment because his prior convictions were used in the
calculation of his offense level and criminal history category
under the U.S. Sentencing Guidelines Manual (2006). This claim
is meritless. See United States v. Watts, 519 U.S. 148, 155
(1997) (per curiam); Witte v. United States, 515 U.S. 389, 400
(1995).
Finally, we have reviewed the remainder of the record
in accordance with Anders and the claims raised in Jackson’s pro
se supplemental brief and conclude that no meritorious issues
remain for appeal. We therefore affirm the district court’s
judgment and deny Jackson’s motions to relieve counsel.
This court requires that counsel inform Jackson, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Jackson requests that a
petition be filed, but counsel believes that such a petition
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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 Jackson. 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
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