United States v. Erik Webster , 510 F. App'x 597 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10040
Plaintiff - Appellee, D.C. No. 2:09-cr-00113-GMN-
PAL-4
v.
ERIK DUSHAWN WEBSTER, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted February 14, 2013
San Francisco, California
Before: SCHROEDER, NOONAN, and MURGUIA, Circuit Judges.
The district court sentenced Eric Dushawn Webster to 300 months
imprisonment after a jury convicted him of conspiring to traffic five or more
kilograms of cocaine (in violation of 21 U.S.C. §§ 841(a)(1) and 846) and
conspiring to launder money (in violation of 18 U.S.C. § 1956(h)). Webster
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals both his conviction and sentence. We have jurisdiction under 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a), and we affirm.
Webster argues first that he was assisted ineffectively by his trial counsel,
who may have failed to relay a plea offer that the Government might have made.
That Webster lacks a clear record of (1) whether an offer was made, and (2)
whether his attorney relayed the offer—if one was made in the first place—is fatal
to his claim. We will not entertain a claim of ineffective assistance of counsel on
direct appeal unless the record is developed well enough to allow us to evaluate
trial counsel’s effectiveness ourselves, or trial counsel’s performance was so
obviously deficient as to have denied the defendant his Sixth Amendment right to
counsel. United States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). This case
presents neither of those circumstances, and we will not remand to the district court
to allow Webster to burnish the record in support of this claim. United States v.
Rahman, 642 F.3d 1257, 1260 (9th Cir. 2011). If Webster wishes to challenge the
effectiveness of the assistance he received at trial, the proper vehicle for his
challenge is a motion made pursuant to 28 U.S.C. § 2255. McGowan, 668 F.3d at
606.
Webster argues next that he was entitled to a mistrial after his co-defendants
pled guilty, leaving him to face the jury on his own. Webster failed to raise this
2
issue before the district court, so we may reverse only if it was “so obvious” that
Webster was entitled to a mistrial that “a competent district judge” would have
granted him one without even being asked. United States v. Turman, 122 F.3d
1167, 1170 (9th Cir. 1997). On the facts before us, we can hardly conclude the
district court erred so grievously, if at all. After Webster’s co-defendants pled
guilty, the district judge asked both parties to propose a missing co-defendant
instruction. Without objection, the court then adopted the Government’s proposed
instruction, which mirrored Ninth Circuit Model Criminal Jury Instruction 2.14.
That instruction counsels jurors not to concern themselves with absent co-
defendants, and to base their verdict solely on the evidence against the remaining
defendant. We presume the jurors heeded the instruction. United States v.
Maloney, 699 F.3d 1130, 1147–48 (9th Cir. 2012).
Finally, Webster argues the district court lacked sufficient evidence to
attribute 150 kilograms of cocaine to him when calculating his sentence. “The
determination of the quantity of narcotics involved in an offense is a factual
finding,” which we review for clear error. United States v. Asagba, 77 F.3d 324,
325 (9th Cir. 1996). The Government seized no drugs directly from Webster,
leaving the district court to estimate a quantity for which Webster could be held
responsible. United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir. 1995). The
3
district court did so in light of various facts, including the size of the vehicles
Webster drove in the course of transporting the cocaine, the multiple trips Webster
took in those vehicles, the amount of money Webster was paid for each trip,
Webster’s direction of a co-conspirator who also transported drugs in service of the
conspiracy, and the similarly sized vehicle in which another of Webster’s co-
conspirators carried approximately 150 kilograms of cocaine in one trip. On this
record, the district court’s estimate of the amount of cocaine attributable to
Webster is not illogical, implausible, or unsupported by inferences from facts in
the record. United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012).
AFFIRMED.
4