United States v. Addison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4319
SEAN ROBERT ADDISON, a/k/a
Bounce,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-99-659-DWS)
Submitted: March 30, 2001
Decided: April 23, 2001
Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher F. Cowan, COWAN, NORTH, & LAFRATTA, L.L.P.,
Richmond, Virginia, for Appellant. Marshall Prince, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
2 UNITED STATES v. ADDISON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sean Robert Addison appeals his conviction on four counts related
to his involvement in the robbery of Stateline 51, a video poker casino
located in South Carolina. The indictment against Addison and twelve
other individuals charged him in four of its fifteen counts with rob-
bery, 18 U.S.C. § 1951(a) (1994), and its related conspiracy charge,
see id. and 18 U.S.C. § 2 (1994), use of a firearm in relation to a fel-
ony, 18 U.S.C. § 924(c)(1)(A)(ii) (1994), and its analog conspiracy
offense. 18 U.S.C. § 924(o) (1994). After a trial, the jury found Addi-
son guilty on all four counts. Addison noted a timely appeal and his
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738,
744 (1967), in which he represents that there are no arguable issues
of merit in this appeal. Nonetheless, in his brief, counsel addressed
the possibility that the district court lacked jurisdiction over the
offense, that there was insufficient evidence to support Addison’s
conviction, and that the district court erred in calculating Addison’s
Offense Level at sentencing. Addison filed a supplemental brief
asserting that the district court erred in failing to suppress certain evi-
dence, that the district court was biased against him at sentencing, that
the court erred in calculating his Offense Level and that trial counsel
failed to render constitutionally sufficient assistance. This court also
appointed replacement appellate counsel for Addison after granting
original counsel’s motion to withdraw. Replacement counsel filed a
supplemental brief raising and rejecting the possibility that trial coun-
sel rendered constitutionally insufficient assistance. Finding no merit
to any of these claims of error, and discovering no other reversible
error in our review of the record, we affirm the conviction and sen-
tence.
In his brief on appeal, counsel suggests that there was insufficient
evidence to support Addison’s conviction under 18 U.S.C. § 1951(a)
(1994), both in terms of the jurisdictional element of the statute and
UNITED STATES v. ADDISON 3
Addison’s actual involvement in the robbery. In order to establish the
elements of a violation of § 1951, the prosecution must show that the
robbery occurred in such a way as to affect interstate commerce.
United States v. Bailey, 990 F.2d 119, 125 (4th Cir. 1993). In this
case, the manager of the video poker parlor testified that, not only did
he advertise in interstate commerce, but that approximately eighty-
five percent of his business came from outside of South Carolina. In
addition, the manager noted a near-crippling drop-off in business fol-
lowing the robbery by Addison and his compatriots. This evidence
was more than sufficient to show that Addison’s robbery affected
interstate commerce and vested jurisdiction in the district court.
United States v. Paredes, 139 F.3d 840, 843-44 (11th Cir. 1998). Sim-
ilarly, viewed in the light most favorable to the government, there was
evidence that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of Addison’s guilt of the robbery
beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). Not only did all four of his accomplices in
the robbery testify against him, but the Government introduced Addi-
son’s own written statement admitting his involvement in the offense.
This evidence was sufficient to support Addison’s conviction. See
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). The same
is true of the evidence supporting his conviction for using or carrying
a firearm in relation to a violent crime in violation of 18 U.S.C.
§ 924(c). See United States v. Mitchell, 104 F.3d 649, 652 (4th Cir.
1997).
Counsel also challenges the district court’s rulings at sentencing.
However, our review of the record reveals that the district court did
not commit clear error with respect to its calculation of Addison’s
Offense Level. See United States v. Jones, 31 F.3d 1304, 1315 (4th
Cir. 1994). The district court properly determined that Addison had
not shown that he was entitled to a reduction for a mitigating role of
any sort. See United States v. Reavis, 48 F.3d 763, 869 (4th Cir.
1995). Similarly, based on his testimony at trial denying knowledge
of the robbery, the district court properly imposed an upward adjust-
ment for obstruction of justice. See United States v. Dunnigan, 507
U.S. 87, 92-98 (1993).
In his pro se supplemental brief, Addison claims that the district
court erred in failing to suppress his written statement and other
4 UNITED STATES v. ADDISON
incriminating statements obtained after his arrest. However, Addison
has waived this assignment of error by his failure to afford the district
court an opportunity to rule on the suppression of the evidence prior
to trial. See Fed. R. Crim. P. 12(b)(3); 12(f); United States v. Ricco,
52 F.3d 58, 62 (4th Cir. 1995). Addison also makes several assign-
ments of error with respect to sentencing. However, we can find no
plain error in the district court’s failure to sua sponte recuse itself
from the sentencing proceeding. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732-33 (1993); see also Liteky v.
United States, 510 U.S. 540, 555 (1994). Similarly, there was no error
of that magnitude in the district court’s application of USSG
§ 2B3.1(b)(3)(C) or USSG § 2K2.1(d)(5). See United States v. Grubb,
11 F.3d 426, 440 (4th Cir. 1993); United States v. Love, 134 F.3d 595,
606 (4th Cir. 1998).
Finally, Addison and replacement appellate counsel suggest that
Addison’s trial counsel failed to render constitutionally sufficient
assistance. See Strickland v. Washington, 466 U.S. 668, 688 (1984).
However, a claim of ineffective assistance of counsel is only appro-
priate on direct appeal where counsel’s ineffectiveness is apparent
from the face of the record. United States v. Williams, 977 F.2d 866,
871 (4th Cir. 1992). Our review of the record reveals no such obvious
error on the part of trial counsel. This claim is therefore inappropriate
for direct appeal. See United States v. DeFusco, 949 F.2d 114, 120
(4th Cir. 1991).
As required by Anders, we have independently reviewed the entire
record and all pertinent documents. We have considered all possible
issues presented by this record and conclude that there are no non-
frivolous grounds for this appeal. Pursuant to the plan adopted by the
Fourth Circuit Judicial Council in implementation of the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A (1994), this court requires
that counsel inform his client, in writing, of his right to petition the
Supreme Court for further review. If requested by the client to do so,
counsel should prepare a timely petition for writ of certiorari, unless
counsel believes such a petition would be frivolous. In that case,
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
UNITED STATES v. ADDISON 5
Addison’s conviction and sentence are affirmed. 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