United States v. Newcomb, John D.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
flanitm grater Qtuurt of gppeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2005*
Decided July 19, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
NO. 04—4285
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Western
District of Wisconsin
11.
No. 04-CR-O9O
JOHN D. NEWCOMB,
Defendant-Appellant. John C. Shabaz,
Judge.
0 R D E R
John Newcomb was convicted after a jury trial of manufacturing
methamphetamine, 21 U.S.C. § 841(a)(1), and related charges, id. §§ 841(c)(2),
843(a)(6), and was sentenced to a total of 180 months’ imprisonment and five years’
supervised release. The district court also required $2,788 in restitution, see 21
U.S.C. § 853(q)(2), to cover the costs of cleaning up Newcomb’s clandestine
laboratory. Newcomb filed a notice of appeal, but his appointed counsel now moves
to Withdraw, stating that he is unable to find a nonfrivolous basis for appeal. See
*After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 04-4285 Page 2
Anders v. California, 386 US. 738 (1967). Newcomb received a copy of counsel’s
motion, see Cir. R. 51(b), and has responded. Our review is limited to the potential
issues identified in counsel’s facially adequate brief and in Newcomb’s response.
See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).
At trial, various witnesses connected Newcomb with methamphetamine
production. A state narcotics investigator described evidence of a
“methamphetamine lab” seized during execution of a search warrant at a house
rented by Newcomb. Newcomb’s landlord, who was also a neighbor, confirmed
Newcomb’s frequent presence at the house. A store clerk reported seeing Newcomb
and a friend buying supplies commonly used in making methamphetamine and of
the same type as those seized at the house. Tanya Wolfe, an eX-girlfriend, and Cory
Smith, a friend of both Wolfe and Newcomb, told the jury that they saw Newcomb
make methamphetamine and admitted helping him by performing small processing
tasks, procuring manufacturing supplies, and distributing the end-product.
Moreover, police officers recalled finding fully processed methamphetamine when
they encountered Newcomb away from home on two separate occasions.
Newcomb did not call any witnesses and did not testify himself. His theory of
defense was that the laboratory belonged to Tanya Wolfe and that his own
involvement was peripheral. The jury concluded otherwise, returning guilty
verdicts on three of the four counts charged. The fourth count, which the jury
rejected, charged Newcomb with conspiracy to distribute methamphetamine.
Counsel first considers whether Newcomb might challenge the sufficiency of
the evidence. Sustaining that challenge would be a heavy burden because we give
great deference to a jury’s verdict. United States v. Melendez, 401 F.3d 851, 854
(7th Cir. 2005); United States v. Hicks, 368 F.3d 801, 804 (7th Cir. 2004). We will
draw all permissible inferences in the government’s favor, and uphold a conviction
so long as any rational trier of fact could have found the defendant guilty beyond a
reasonable doubt. United States v. Henry, 408 F.3d 930, 933 (7th Cir. 2005); United
States v. Askew, 403 F.3d 496, 502 (7th Cir. 2005). Here the government provided
both circumstantial evidence that someone manufactured methamphetamine in
Newcomb’s home, and direct evidence that Newcomb was the principal
manufacturer. We agree that it would be frivolous to challenge the sufficiency of
this evidence.
Next counsel considers whether Newcomb might challenge the district court’s
rulings on his two pretrial motions in limine. One motion was granted, so any
argument about that ruling would be patently frivolous; the district court responded
to the other motion by allowing the government to use the challenged evidence but
granting a short continuance so that Newcomb could not later claim that he was
prejudiced by inadequate time to meet the evidence. The court ordered this
continuance sua sponte, despite Newcomb’s assertion that he wanted to withdraw
No. 04-4285 Page 8
his motion if it would result in delay. Counsel proposes and rejects the idea that
imposing the continuance against Newcomb’s wishes violated the Speedy Trial Act,
see 18 U.S.C. § 3161(h)(8)(A), because, says counsel, the decision to continue was
within the discretion of the district court and Newcomb is unable to show prejudice.
We agree that any argument based on the Speedy Trial Act would be frivolous,
although for a more fundamental reason. Newcomb did not move to dismiss the
indictment before trial, and this means that he waived his rights under the Act.
See United States v. Morgan, 384 F.3d 439, 442 (7th Cir. 2004).
Counsel then considers whether Newcomb may claim an entitlement to a
limited remand under United States v. Booker, 125 S. Ct. 738 (2005), and United
States v. Paladino, 401 F.3d 471 (7th Cir. 2005), and concludes that he may not.
The district court, anticipating the Supreme Court’s decision in Booker, specified an
alternative sentence fashioned by relying on the guidelines as advisory and also
invoking the provisions of 18 U.S.C. § 3558(a). This alternative sentence—180
months, the same as the guideline sentence the court imposed—eliminates any need
for a limited remand.
In his response, Newcomb proposes to argue that counsel was ineffective in
refusing to call three favorable Witnesses at trial and in failing to argue that
Shepard v. United States, 125 S. Ct. 1254 (2005), barred the use of his prior
convictions at sentencing. But ineffective assistance of counsel claims are better
saved for collateral review where the record is directed toward examining the
reasons underlying counsel’s choices and strategies. Massaro v. United States, 538
US. 500, 504-05 (2008); United States v. Schuh, 289 F.3d 968, 976 (7th Cir. 2002);
United States v. Martinez, 169 F.8d 1049, 1052 (7th Cir. 1999). A motion under 28
U.S.C. § 2255 is the appropriate vehicle for raising arguments about counsel’s
performance. Massaro, 538 US. at 509.
Newcomb also moves for the appointment of new counsel for this appeal, but
given our disposition, we deny his request. Counsel’s motion to withdraw is
GRANTED, and the appeal is DISMISSED.