UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-4143

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROGER DALE FRANKLIN,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:14-cr-00081-RLV-DCK-1)

Submitted: November 22, 2016 Decided: November 29, 2016

Before DIAZ and THACKER, Circuit Judges, and DAVIS, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Samuel Bayness Winthrop, WINTHROP & WINTHROP, Statesville, North 

Carolina, for Appellant. Amy Elizabeth Ray, Assistant United 

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

A jury convicted Roger Dale Franklin of conspiracy to 

distribute and possess with intent to distribute 

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 846 

(2012); possession with intent to distribute methamphetamine,

and aiding and abetting, in violation of 18 U.S.C. § 2 (2012) 

and 21 U.S.C. § 841(b)(1)(C) (2012); possession of a firearm by 

a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2012); 

and possession of a firearm in furtherance of a drug trafficking 

crime and aiding an abetting, in violation of 18 U.S.C. §§ 2, 

924(c) (2012). The district court sentenced Franklin to 480 

months in prison. 

Appellate counsel has filed a brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), conceding there are no grounds 

for appeal, but asserting that: (1) the district court should 

have suppressed evidence seized during the traffic stop that 

gave rise to three counts of conviction or, in the alternative, 

that the three convictions should be vacated because defense 

counsel was ineffective for failing to file a motion to suppress 

the evidence seized; and (2) the district court should have 

dismissed the firearms counts based on insufficient evidence.

Franklin filed a pro se supplemental brief in which he asserts 

that trial counsel was ineffective, and also suggests that his 
3

criminal history score was incorrectly calculated.* Finding no 

error, we affirm.

First, we find no reversible error in the district court’s 

admission of evidence seized during law enforcement’s August 19, 

2013, search of the vehicle in which Franklin was a passenger. 

Whereas Federal Rule of Criminal Procedure 51 governs the 

preservation of most claimed errors in criminal cases, Federal 

Rule of Evidence 103(a) governs objections to the admission or 

suppression of evidence. Rule 103(a) expressly requires that, 

to preserve a claim of error as to the admission of evidence, 

the party must “timely object[]” and “state[] the specific 

ground, unless it was apparent from the context[.]” Fed. R.

Evid. 103(a)(1). Because Franklin did not move to suppress the 

evidence that gave rise to the charges against him, we review 

Franklin’s challenge to the admission of the seized evidence 

only for plain error. Fed. R. Crim. P. 52(b); Henderson v. 

United States, 133 S. Ct. 1121, 1126-27 (2013). 

 * We have considered Franklin’s pro se arguments and find 

them to be without merit. Although Franklin points to several 

ways in which he asserts counsel’s performance was 

constitutionally deficient, ineffective assistance does not 

conclusively appear on this record. Thus, Franklin’s arguments 

are more appropriately raised, if at all, in a 28 U.S.C. § 2255 

(2012) motion. See United States v. Baldovinos, 434 F.3d 233, 

239 & n.4 (4th Cir. 2006). We express no opinion as to the 

merits of Franklin’s ineffective assistance of counsel claims.
4

To establish plain error, Franklin bears the burden of 

demonstrating that: (1) the district court committed an error; 

(2) the error was plain; and (3) the error affected his 

substantial rights. Henderson, 133 S. Ct. at 1126. If these 

three elements are met, we may exercise our discretion to notice 

the error only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id.

(internal quotation marks omitted). We have reviewed the record 

and considered counsel’s arguments and discern no plain error 

arising from the admission of the seized evidence. Cf. Michigan 

v. Long, 463 U.S. 1032, 1049 (1983) (holding that “the search of 

the passenger compartment of an automobile . . . is permissible 

if the police officer possesses a reasonable belief based on 

specific and articulable facts which, taken together with the 

rational inferences from those facts, reasonably warrant the 

officers in believing that the suspect is dangerous and the 

suspect may gain immediate control of weapons” (internal 

quotation marks omitted)); Pennsylvania v. Mimms, 434 U.S. 106, 

112 (1977) (recognizing that where an officer concludes that a 

suspect is armed, the suspect “pose[s] a serious and present 

danger to the safety of the officer”). 

We also find no error in the district court’s decision to 

deny Franklin’s motion to dismiss the firearms charges against 

him. See United States v. Cloud, 680 F.3d 396, 403 (4th Cir. 
5

2012) (recognizing that the denial of a Fed. R. Crim. P. 29 

motion is reviewed de novo). This court must uphold a jury’s

verdict “if there is substantial evidence in the record to 

support it.” United States v. Bailey, 819 F.3d 92, 95 (4th Cir. 

2016) (internal quotation marks omitted). “In determining 

whether the evidence in the record is substantial, we view the 

evidence in the light most favorable to the [G]overnment and 

inquire whether there is evidence that a reasonable finder of 

fact could accept as adequate and sufficient to support a 

conclusion of a defendant’s guilt beyond a reasonable doubt.” 

Id. (internal quotation marks omitted).

In resolving issues of substantial evidence, this court 

does not reweigh the evidence or reassess the factfinder’s 

determination of witness credibility, and it must assume that 

the jury resolved all contradictions in testimony in favor of 

the Government. See United States v. Roe, 606 F.3d 180, 186 

(4th Cir. 2010). Thus, a defendant challenging the sufficiency 

of the evidence faces a heavy burden. See United States v. 

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). We have reviewed 

the record in its entirety and considered counsel’s arguments 

and conclude that the Government produced sufficient evidence to 

support Franklin’s firearms convictions. 

In accordance with Anders, we have reviewed the record in 

this case and found no meritorious issues for appeal. We 
6

therefore affirm the district court’s judgment. This court 

requires that counsel inform Franklin, in writing, of the right 

to petition the Supreme Court of the United States for further 

review. If Franklin 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 Franklin. We dispense with oral argument because 

the facts and legal contentions are adequately presented in the 

materials before this court and argument would not aid the 

decisional process.

AFFIRMED