United States v. Kenneth Pegram

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5142
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KENNETH LANE PEGRAM,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00100-JAB-1)
Submitted: August 30, 2012 Decided: September 14, 2012
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Lane Pegram was charged in a superseding
indictment with possession of firearms by a convicted felon, 18
U.S.C. § 922(g)(1) (2006) (Count One); possession of ammunition
by a convicted felon, 18 U.S.C. § 922(g)(1) (Count Two);
possession with intent to distribute 55.87 grams of marijuana,
21 U.S.C. § 841(a)(1), (b)(1) (2006) (Count Three); and failure
to appear, 18 U.S.C. § 3146(a)(1) (2006) (Count Four). He pled
guilty to Count Four, and a jury convicted him of the remaining
three offenses. The district court subsequently dismissed Count
Two. Pegram was sentenced to 120 months’ imprisonment on Count
One, sixty months’ imprisonment, concurrent, on Count Three, and
twelve months’ imprisonment, concurrent, on Count Four.
Pegram now appeals. His attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether trial counsel was ineffective, whether there
was prosecutorial misconduct, and whether there was judicial
bias at sentencing. Pegram has filed a pro se brief, as
supplemented, raising numerous issues. We affirm.
I
Pegram does not challenge his conviction on Count
Four, and our review of the record discloses no meritorious
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issues for appeal with respect to that conviction. The
transcript of the Fed. R. Crim. P. 11 hearing reveals that the
district court substantially complied with Rule 11. Further, as
the district court found, the plea was entered knowingly and
voluntarily, and there was a factual basis for the plea.
II
We find no merit to the issues raised in the Anders
brief. We will not address the claim of ineffective assistance
of defense counsel because ineffectiveness does not conclusively
appear on the face of the record. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Pegram’s
contention that the prosecutor engaged in misconduct lacks
merit: the brief cites no specific examples of misconduct, and
our review of the record discloses none. Finally, the record
does not demonstrate judicial bias at sentencing.
III
In his pro se brief, Pegram raises a wide array of
claims, none of which have merit. First, contrary to Pegram’s
assertion, the district court properly denied his Fed. R. Crim.
P. 29 motion for judgment of acquittal. Pegram’s primary
argument is that the evidence was insufficient to establish that
he possessed the truck inside which officers found four firearms
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and a quantity of marijuana. The evidence—including the
presence in the truck of an eviction notice addressed to Pegram,
the testimony of Van Milton Cole and Archie Emory, and the tags
on the truck—demonstrates Pegram’s constructive possession of
the truck.
The parties were directed to submit supplemental
briefing regarding a stipulation concerning Pegram’s status as a
convicted felon. The indictment identified two felonies that
qualified under § 922(g)(1). Pegram, however, stipulated at
trial as to only one felony, a 1998 conviction for possession of
marijuana in jail. The government conceded that, after United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), that
conviction does not qualify as a predicate felony. However, a
1994 conviction identified in the indictment does so qualify.
The 1994 conviction, however, was not stipulated to at trial.
After reviewing the supplemental briefs, we conclude
that there was no reversible error. The indictment placed
Pegram on notice that the Government might use either the 1994
or the 1998 offense, or both, to establish his status. The fact
that the crime to which Pegram ultimately stipulated was not a
felony under Simmons does not, on plain error review, destroy
the validity of the stipulation when the 1994 crime does so
qualify.
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With respect to Pegram’s remaining claims, our review
of the record discloses either no error or no plain error that
we will, in our discretion, recognize. We address only a few of
those claims and do so very briefly. First, the court’s
instructions to the jury did not constructively amend the
indictment because time generally is not a material element of a
criminal offense, United States v. Stuckey, 220 F.3d 976, 982
(8th Cir. 2000), and Pegram was not, as he urges, tried on
charges other than those made in the indictment. See United
States v. Floresca, 38 F.3d 708, 711 (4th Cir. 1994). Second,
taken as a whole, the circumstances surrounding Pegram’s initial
questioning at a bar do not establish that he was in custody.
Accordingly, it was not necessary that the police administer
warnings in accordance with Miranda v. Arizona, 384 U.S. 436(1966). Third, the removal of Pegram’s wife from the courtroom
did not violate his right to a public trial, for there is
absolutely no evidence that the courtroom did not remain open to
the general public. Fourth, no hearing under Remmer v. United
States, 347 U.S. 227 (1954), was required because the record
establishes that the court assured itself that there had been no
unauthorized communication between Pegram’s wife and any juror.
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IV
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore grant the motion to file a pro se
supplemental brief, and we affirm Pegram’s convictions and
sentence. This Court requires that counsel inform Pegram, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Pegram 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 Pegram. 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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