United States v. Harris , 98 F. App'x 240 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4360
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAMONT VAN HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-01-261)
Submitted: April 26, 2004 Decided: May 24, 2004
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Wiley W. Newbold, Morgantown, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lamont Van Harris appeals his conviction pursuant to a
guilty plea and his seventy-two month prison term for one count of
possession with intent to distribute cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2000). Counsel for Harris has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which he
states there are no meritorious issues for appeal, but presents
three issues for this court’s review. Harris has filed a
supplemental pro se brief, and we have considered it as well.
Finding no reversible error, we affirm.
Harris contends that his guilty plea was not knowing and
voluntary. This court generally reviews the adequacy of a guilty
plea proceeding de novo. See United States v. Damon, 191 F.3d 561,
564 n.2 (4th Cir. 1999) (citing United States v. Goins, 51 F.3d
400, 402 (4th Cir. 1995)). Rule 11 violations, however, are
reviewed under a harmless error standard. See id. Any variance
from the Rule 11 requirements that does not affect the substantial
rights of the defendant is disregarded. See Fed. R. Crim. P.
11(h); United States v. DeFusco, 949 F.2d 114, 117 (4th Cir. 1991).
We have reviewed the district court’s thorough Rule 11 colloquy,
and conclude that Harris cannot show that his guilty plea was
unknowing or involuntary.
Harris objects to the determination of his relevant
conduct at sentencing. A district court’s determination of the
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drug quantity attributable to a defendant is a factual finding
reviewed for clear error. United States v. Randall, 171 F.3d 195,
210 (4th Cir. 1999). In calculating drug amounts, the court may
consider any relevant information, provided that the information
has sufficient indicia of reliability to support its accuracy.
United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir. 1992).
Harris objects to the inclusion of a quantity of marijuana shipped
to a third party, which the recipient stated he was receiving for
Harris. We conclude that the district court’s credibility
determination was not clearly erroneous. Harris also objects to
the inclusion of drugs found during a search of his residence.
Harris did not file a motion to suppress the drugs. Even
illegally-seized evidence may be used against the defendant at
sentencing. See United States v. Lee, 540 F.2d 1205, 1211-12 (4th
Cir. 1976); see also United States v. Acosta, 303 F.3d 78, 84-85
(1st Cir. 2002) (collecting cases). Here, the drugs were not
suppressed, and Harris is unable to show that their attribution to
his relevant conduct at sentencing was clearly erroneous.
Finally, Harris contends that he received ineffective
assistance of counsel. Ineffective assistance claims are not
generally addressed on direct appeal. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999) (providing standard and noting
that ineffective assistance of counsel claims generally should be
raised by motion under 28 U.S.C. § 2255 (2000)). We conclude that
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Harris has not shown conclusively from the face of the record that
counsel provided ineffective representation. Richardson, 195 F.3d
at 198. Therefore, we decline to address his claim of ineffective
assistance of counsel at this juncture.
We have examined the entire record in this case in
accordance with the requirements of Anders and find no meritorious
issues for appeal. Accordingly, we affirm Harris’s conviction 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 materials before the court and argument would not
aid the decisional process.
AFFIRMED
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