United States v. Sweat , 246 F. App'x 213 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4312
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KENON DURELL SWEAT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:05-cr-00280-NCT-3)
Submitted: July 23, 2007 Decided: August 28, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, P.A., Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Kenon Durell Sweat of bank robbery, in
violation of 18 U.S.C. § 2113(a) (2000) (Count One); armed bank
robbery, in violation of 18 U.S.C. § 2113(a), (d) (Count Two);
possession and brandishing of a firearm in furtherance of a bank
robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (2000) (Count
Three); and possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2000) (Count Four).
He was sentenced to 360 months’ imprisonment. Sweat appealed his
convictions. Finding no error, we affirm.
Counsel contends, inter alia, there was insufficient
evidence to convict Sweat on Count Four because there was no
evidence the firearm affected interstate commerce. Counsel also
raised separate claims in accordance with Anders v. California, 386
U.S. 738 (1967), concluding the claims are not meritorious, but
questioning whether the district court abused its discretion in
failing to allow the jury to consider evidence that would tend to
show Sweat did not incriminate himself or seek to influence
witnesses after his arrest and whether trial counsel provided
ineffective assistance. Sweat was advised of his right to file a
pro se supplemental brief, but has not done so.
Sweat asserts that the evidence was insufficient to
convict him on Count Four because the Government failed to prove
the firearm affected interstate commerce. Sweat himself, however,
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stipulated that the firearm “was possessed in and affect[ed]
interstate commerce.” (JA 325-26). Sweat’s stipulation relieved
the Government of any obligation to prove that element of Count
Four. See United States v. Clark, 993 F.2d 402, 405-06 (4th Cir.
1993). Nevertheless, Sweat contends that this stipulation was the
result of ineffective assistance of counsel. Yet, because the
record does not conclusively establish ineffective assistance of
counsel, we find that Sweat’s ineffective assistance claim is not
cognizable on direct appeal. See United States v. DeFusco, 949
F.2d 114, 120-21 (4th Cir. 1991) (holding that claims of
ineffective assistance of counsel must be brought in a collateral
proceeding under 28 U.S.C. § 2255 (2000), unless it conclusively
appears from the face of the record that counsel was ineffective).
Sweat also contends that his convictions for both bank
robbery and felon in possession of a firearm is multiplicious and
“could” violate the Double Jeopardy Clause. We find that because
the offenses have different elements, they are not multiplicious
and do not constitute double jeopardy. See Blockburger v. United
States, 284 U.S. 299, 304 (1932).
Counsel first questions in the Anders portion of the
brief, whether the district court erred in excluding evidence that
would purportedly show Sweat did not incriminate himself and did
not seek to influence witness testimony. The determination of the
probative and prejudicial value of evidence is left to the sound
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discretion of the trial court and will not be disturbed absent
extraordinary circumstances. See United States v. MacDonald, 688
F.2d 224, 227-28 (4th Cir. 1982). This court reviews errors in the
admission or exclusion of evidence for harmless error. See United
States v. Davis, 657 F.2d 637, 640 (4th Cir. 1981). After a
thorough review of the record, we conclude there is no reversible
error in the district court’s evidentiary rulings.
Counsel also questions whether trial counsel provided
ineffective assistance. For the same reason that we reject Sweat’s
ineffective assistance claim with respect to the stipulation on
Count Four, we find the additional ineffective assistance claims
are also not cognizable on direct appeal. See DeFusco, 949 F.2d at
120-21.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Sweat’s convictions and sentence.
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 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 adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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