US v. Jimmie Daniels

Filing 920090121

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4063

UNITED STATES OF AMERICA, Plaintiff - Appellee, V. JIMMIE CRAIG DANIELS, Defendant - Appellant,

Appeal from the United States District Court for the District of South Carolina, at Florence. R. Bryan Harwell, District Judge. (4:07-cr-00341-RBH-1)

Submitted:

January 7, 2009

Decided:

January 21, 2009

Before MOTZ, DUNCAN, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joshua S. Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia, South Carolina, for Appellant. William E. Day, II, Assistant United States Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jimmie Craig Daniels appeals his conviction and 108month sentence for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2006). Counsel for Daniels filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues for appeal, but asks this court to review whether the district court erred in denying Daniels' motion to suppress and imposing a two-level offense level enhancement for obstruction of justice. Daniels

filed a pro se supplemental brief in which he makes a multitude of allegations of ineffective assistance of counsel and other claims relating to his trial. This court reviews Finding no error, we affirm. the district court's factual

findings underlying the denial of a motion to suppress for clear error and reviews its legal rulings de novo. Johnson, 400 F.3d 187, 193 (4th Cir. 2005). United States v.

The court construes

the evidence in the light most favorable to the Government, the prevailing party below. 547 (4th Cir. that with 1998). he the made United States v. Seidman, 156 F.3d 542, In his motion to to suppress, without to Daniels being v.

contended provided

statements warnings

police

required

pursuant

Miranda

Arizona, 384 U.S. 436 (1966).

Based on the testimony by state

and federal officers that Daniels was provided with the Miranda warnings before any questioning 2 occurred, the district court

found

that

Daniels' should

account be

was

not

credible Because based on

and the

that

his

statements court's

not was

suppressed.

district

ruling

ultimately

credibility

determinations that are not subject to appellate review, see United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989), we find the district court did not err in denying Daniels' motion to suppress. Daniels district court for next asks in the court a to review whether the

erred

imposing of

two-level

offense to

level U.S. When

enhancement Sentencing reviewing

obstruction Manual

justice,

pursuant

Guidelines the district

("USSG")

§ 3C1.1 of

(2006). the

court's

application

Sentencing

Guidelines, this court reviews findings of fact for clear error and questions of law de novo. 449, 456 (4th Cir. 2006). that the definition of United States v. Green, 436 F.3d

The commentary to § 3C1.1 indicates obstruction of justice includes USSG

"committing, suborning, or attempting to suborn perjury." § 3C1.1, comment. (n.4(b)). This enhancement

applies

"regardless of whether the perjurious testimony is given during trial or during a pre-trial proceeding." United States v.

Jones, 308 F.3d 425, 428 (4th Cir. 2002).

"For a sentencing

court to apply the obstruction of justice enhancement based upon perjury, it must find, by a preponderance of the evidence, that the defendant when testifying 3 under oath: (1) gave false

testimony; (2) concerning a material matter; (3) with willful intent to deceive (rather than as a result of confusion,

mistake, or faulty memory)."

Id. at 428 n.2.

Based on Daniels' testimony at the suppression hearing and at trial, the district court had sufficient grounds to find that Daniels gave false testimony regarding a material matter with intent to deceive. The district court noted that Daniels

had falsely testified, at both the suppression hearing and at trial, that he was not provided with any Miranda warnings by the officers. The district court also identified Daniels' trial

testimony as perjurious, as Daniels falsely stated that he never intentionally looked for child pornography, that he put the

pornographic images on various storage media in an effort to remove them from his computer, and that he created a list of pornographic sites as part of an effort to block them.

Accordingly, we find the district court did not err in imposing a two-level offense level enhancement for obstruction of

justice. In addition to his Anders brief, Daniels has filed a pro se supplemental brief in which he raises nearly two dozen claims of error. A number of the claims are allegations of

ineffective assistance by trial counsel, as Daniels asserts that trial counsel did not provide him with access to discovery and trial materials, failed to move to suppress the evidence seized 4

pursuant to the search warrant, and did not request a computer expert for the defense. However, these claims should be raised

in a 28 U.S.C. § 2255 (2000) motion rather than on direct appeal unless the record conclusively demonstrates ineffective

assistance. Cir. 1997).

See United States v. King, 119 F.3d 290, 295 (4th Such claims cannot be fairly adjudicated on direct

appeal when the appellant has not raised the issue before the district court and there is no statement from counsel on the record. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Because the existing record fails to conclusively

Cir. 1991).

support any of Daniels' allegations of ineffective assistance, these claims must be raised as part of a § 2255 motion rather than on direct appeal. Another group of Daniels' claims allege there was

insufficient evidence to support his conviction. * challenging burden." the sufficiency of the evidence

A defendant a heavy

"bears

United States v. Beidler, 110 F.3d 1064, 1067 (4th "The verdict of a jury must be sustained if there

Cir. 1997).

is substantial evidence, taking the view most favorable to the

Daniels contends that he could not have purchased child pornography with a "dead credit card" and that he did not know "how or why this stuff was sent to my computer." Daniels also asserts that he was not the only person with access to the computer and that the child pornography found on his computer might have been due to "online file sharing."

*

5

Government, to support it." 60, 80 (1942).

Glasser v. United States, 315 U.S.

In evaluating the sufficiency of the evidence,

this court does not review the credibility of the witnesses and assumes that the jury resolved all contradictions in the

testimony in favor of the government. 148 F.3d 359, 364 (4th Cir. 1998).

United States v. Romer, The court reviews both

direct and circumstantial evidence and permits "the government the benefit of all reasonable inferences from the facts proven to those sought to be established." 677 F.2d 1018, 1021 (4th Cir. 1982). In his pro se brief, Daniels merely repeats United States v. Tresvant,

allegations he made at trial that were rejected by the jury and were the basis for the district court's determination that he committed perjury. Not only was Daniels' testimony contradicted

by the Government's evidence, but the jury's determination that Daniels' testimony was not credible is not subject to appellate review. See Romer, 148 F.3d at 364. Based on the testimony and

evidence put forth by the Government in support of the charge, we find there was sufficient evidence to support Daniels'

conviction for possession of child pornography. As for the other numerous claims raised by Daniels in his pro se brief, we have accorded them careful consideration and find them lacking in merit.

6

In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. requires that counsel inform his client, in This court of his

writing,

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 such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. was served on Counsel's motion must state that a copy thereof 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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