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w . v i l l a no v a . e du/thir dc ir c uit_2013/865NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 1310

_____________ UNITED STATES OF AMERICA

v. ROBERT WESTON,

Appellant

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 10

- cr - 00 281

- 0 03) District Judge: Hon. Mitchell S. Goldberg

_______________ Submitted Under Third Circuit LAR 34.1(a)

April 23, 2013 Before: SLOVITER, JORDAN and NYGAARD, Circuit Judges

.

(Filed: May 6, 2013 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Robert Weston appeals a judgment of conviction and sentence imposed by the United States District Court for the Eastern District of Pennsylvania for possession of a firearm by a felon

. For the reasons that follow, we will affirm

.2

I. Background On the evening of January 6, 20 10, officers from the Philadelphia Police Department‟s 14th District Narcotics Enforcement Team were investigatin g suspected drug trafficking in a neighborhood in North Philadelphia. Two of the officers were waiting in an unmarked ca r when they received a radio call from a surveillance team who described a n individual suspected of be ing a drug purchaser. T hey drove toward that individual, later id entified as Weston, and stopped him with the headlights of their car shining on him. As the officers got out of their car, Weston pulled a gun out of his waistband and began running. The officers ran after him. As Weston tu rned into a vacant lot, he tos sed away the gun. One of the officers apprehended Weston, handed him off to his partner, and recovered the gun , which turned out to be a loaded .40 caliber
semi

- automatic revolver with the serial number obliterated

. The officers searched
Weston and recov ered Xanax (alprazolam) pills and marijuana from his pocket. The Narcotics Enforcement Team continued its investigation in the area until approximately 3 a.m. the next morning. During that time, they arres ted four other persons and obtained and executed search warrants for two apartments nearby. The execution of the search warrants resulted in the recovery of thr ee guns and a significant quantity of prescription drugs and marijuana. The officers who arrested Weston included
his arrest in a police repor t that described all of the Narcotics Enforcement Team‟s activities on the night of his arrest.
A federal grand jury return ed an indictment charging Weston with one count of possession of a firearm and ammunition by a felon, in violation of 1 8 U.S.C. § 9 22 (g)(1),3

and one count of posses sion of a controlled substance , in violation of 21 U.S.C. § 844(a). The case went to trial only o n the felon

- in

- possession count, as to which t he jury returned a guilty verdict. Later, Weston requested and was granted new coun sel. He then filed a motion for a new trial, alleging that his trial counsel had been ineffective. The District
Cou rt held an evidentiary hearing and denied that motion. At sentencing, the District Court determined that Weston was an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to 180 months ‟ imprisonment and 3 years‟ supervised release, along with a $100 special assessment. This timely appeal followed.
II. Discussion 1
Weston raises five arguments in this appeal: f irst, that the i ndictment agai nst him was defective and that the District Court erred when it failed to alter the indictment sua sponte ; s econd, that the evidence was in suffi cient to support his conviction; t hird, that the Court abused its discretion when it permitted cer tain evidence against him to be admitted at trial; f ourth, that his trial counsel provided ineffective assistance and that the Court erred in den ying his motion for a new trial; and fifth, that the Court erred when it calculated his guidelines sentence and determined that he was sub ject to a minimum sentence of 180 months as an armed career criminal. We address each of tho se arguments in turn.

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).4

A. Challenge to the Indictment
Weston first argues that the indictment was defective because it contained a refer ence to “an obliterat ed serial number” on the gun (App. at 31) , which was unrelated to the offenses charged. 2 He contends that that reference was prejudicial surplusage and that the District Court should h ave struck it from the indictment on its own motio n. Although we normally treat alleged defects in an indictment as “a legal question requiring plenary review,” United States v. Haddy , 134 F.3d 542, 547 (3d Cir. 1998), Weston failed to p reserve this objection at trial and we thus review the issue only fo r plain error, United States v. Plotts , 359 F.3d 247, 248

- 49 (3d Cir. 2004). Federal Rule of Criminal Procedure 7(d) provides that “[u]pon the defendant‟s motion, the court may strike surplusage from the indictment or information.” Fed. R. Crim. P. 7(d)

. “T he authority of the court to strike such surplusage is t o be limited to doing so on defendant‟s motion, in the light of the rule that the guaranty of indictment by a grand jury implies that an indictment may not be amended.” Fed. R. Crim. P. 7 adviso ry committee‟s note. Weston admits tha t he did not move to strike the alleged surplusage from the indictment. Therefore, t he Distric t Court did not deviate from Rule 7(d) and it committed no error , let alone plain error, in not striking the alleged sur pl usage .

2 Weston was charged as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and not a s a person in possession of a firearm that has had the manufacturer‟s serial number removed, which would have been a violation of § 922(k).5

B. Sufficiency of the Evidence
Weston next argues that the evidence was in sufficie nt for a jury to convict him of a violation of § 922(g) because the government failed to prove beyond a reasonable doubt that he knowingly possessed a handgun on the night of January 6, 2010. “[A] claim of insufficiency of the evidence places a very heavy burden on an appellant.” United States
v. Dent , 149 F.3d 180, 1 87 (3d Cir. 1998) (internal quotation marks omitted)

. “We apply a particularly deferential standard of review to challenges to the sufficiency of the evidence supporting conviction.” United States v. Powell , 693 F.3d 398, 401 n.6 (3d Cir. 2012) (internal quotation marks omitted). Moreover, b ecause Weston did not move for a judgment of acquittal based on the sufficiency of evidence pursuant to Federal Rule of Criminal Procedure 29(c), “we review this claim under a plain error standard.” United States v. Gordon , 290 F.3d 539, 547 (3d Cir. 2002). “A conviction based on insufficient evidence is plain error only if the verdict constitutes a fundamental miscarriage of justice.” Id. (internal quotation marks omitted). To show that Weston was a felon in possession of a firearm in violation of § 922(g)(1), the government was required to prove beyond a reaso nable doubt “(1) that [he] had previously been convicted of a crime punishable by imprisonment for a term exceeding one year ; (2) that [he] knowingl y possessed a firearm; and (3) that the firearm had passed in interstate commerce.” United States v. Dodd , 225 F.3d 340, 344 (3d Cir. 2000). Weston concedes that the government proved the first and third elements but argues that it failed to prove the second. He bases that argument on the fact t he arres t report did not say that he pulled a gun out of his wais tband or that he had run. However,6

both arresting officers testified to th ose details at trial. One officer testified unequivocally that he saw Weston holding the gun and that he later recovered it from the place where Weston had thrown it, while the oth er officer c orroborated that testimony.
T he jury evidently found that testimony credible

. “Credibility determinations are the unique province of a fact finder, ” and “ it is not for an appellate court to set [them] aside.” United States v. Kole , 16 4 F.3d 1 64, 177 (3d Cir. 1998). B ecause no miscarriage of justice occurred in convicting Weston of a violation of § 922(g) based on the officers‟ testimony , there was no plain error and we will not disturb the jury‟s verdict.
C. Evidentiary Challenges
Weston nex t claims that the District Court e rred in admitting certain evidence at trial. Spe cifically, he contends that evidence of the radio call that alerted the police to hi s approach should not have been admitted because it was hearsay. He also say s that evide nce relating to the execution of search warrant s at apartment s nearby should not have been admitted because it was irrelevant and prejudicial. “We afford a district court‟s evidentiary ruling [s] plenary review insofar as [they were] based on an interpreta tion of the Federal Rules of Evidence, but review a ruling to admit or exclude evidence, if based on a permissible interpretation of those rules, for an abuse of discretion.” United States v. Saada , 212 F.3d 210 , 220 (3d Cir. 2000)

. The abuse of
discreti on standard also applies to our review of a district court‟s application of the hearsay rule. United States v. Tyler , 281 F.3d 84, 98 (3d Cir. 2002).
An out

- of

- court statement is hearsay if “a party offers [it] in evidence to prove the
truth of the matt er asserted in the statement.” Fed. R. Evid. 80 1(c)(2). Consequently,7

“[w]hether a disputed statement is hearsay frequently turns on the purpose for which it is offered.” United States v. Sallins , 993 F.2d 344, 346 (3d Cir. 1993). In this case , the

con tents of the radio call were not of fered for their truth but for the proper purpose of show ing why the polic e stopped Weston on the street, and the evidence is therefore not hearsay

. 3 Cf. United States v. Price , 458 F.3d 202, 208 (3d Cir. 2006) (“In crimi nal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened on the scene; he should be allowed some explanation of his presence and conduct.” (interna l quotation marks omitted)). Weston also c ontends that the District Court erred when it admitted testimony regarding the ar restin g officers‟ execution of search war rant s following his arrest. The

exec ution of those two warrant s resulted in the re covery of guns and drugs , all of which was describe d in the same police report as the officers‟ account of Weston‟s arrest.
Weston o bjects that the testimony in question was both irrelevant and prejudicial. Evidence is relevant if “it has any tendency to make a fact more or less probable
than it would be without the evidence,” Fed. R. Evid 401(a), and if “the fact is of consequence in determining the actio n,” Fed. R. Evid. 401(b). Evidence of a “crime, wrong, or other act” is generally inadmissible to prove a defendant‟s character or that he
acted in ac cordance with that character. Fed. R. Evid. 404(b)(1). However, such

3 Because we conclude that the testimony regarding the radio call was not hearsay, we need not consider Weston‟s ot her argument concerning the radio call evidence, namely that its admission violated the Confrontation Clause. See Crawford v. Washington , 541 U.S. 36, 59 n.9 (2004) (“The [Confrontation] Clause ... does not bar the use of testimonial statements for purpos es other than establishing the truth of the matter asserted.”).8

evidence is admissible for certain other purpose s , such as showing motive, opportunity, or intent. Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of inclusion rather than of exclusio n[,] ... [and] [e]vidence can be admitted even if it does not fit one of the specific exceptions listed in the rule ... .” United States v. Jemal , 26 F.3d 126 7, 1272 (3d Cir. 1994) (citation omitted) . Still , “the district court must weigh the probative v alue of the evidence against it s potential to cause undue prejudice ... .” Id. The evidence of the execution of the warrant was relevant and not unduly prejudicial. Weston‟s defense relied primarily on the fact t hat t he police report omitted

some details , such as that he pulled the gun out of his waistband a nd that he had r un from the police. He argued at trial that the absence of such details raised a reasonable doubt as to whether he had been in possession of a gun. T he testimony about the execution o f the warrant was relevant, as the government explained in response to Weston‟s objection, “to show the scope of the [police] operation so the jury understands how much went on that night and all the things that had to be included” in the police report. ( App. at 258.) Any prejudice to Weston was limited because the jury was fully informed of the limited reason for the evidence and that Weston was not associated with the apartments that were the subject of the warrant s . Therefore, as with the evidence of the radio call, the District Court did not abuse its discretion in admitting the evidence of the execution of the

warrant s . D. Motion for New Trial
Weston argues t hat his counsel was ineffective and that the District Court erred when it denied his motion for a new trial. He bases his ineffective assistance claim on his9

trial counsel‟s alleged failure to inform him that he was facing a 15

- year mandatory minimum term of imprisonment, as well as on counsel‟s agreement to the dismissal of the count charging h im with possession of a controlled substance before trial. We ordinarily de fer the issue of ineffective assistance to a collateral attack, unless the record on direct

a ppeal is sufficient to allow for determination of the issue

. United States v. Thornton , 327 F.3d 268, 271 (3d Cir. 2003). In this case, the District Court held an evidentiary hearing with respect to Weston‟s ineffective assistance claim, so the record is indeed sufficient for us to render a decision

. See United States v. Headley , 923 F.2d 1079, 1083 (3d Cir. 1991) (“Where the record is sufficient to allow determination of ineffective assistance of counsel, an evidentiary hearing to dev elop the facts is not needed.”)

. “We exercise plenary review over the legal component of a claim of ineff ective assistance of counsel,” United States v. Smack , 347 F.3d 533, 537 (3d Cir. 2003), and “[t]he underlying facts are reviewed for clea r error, [but] are subject to independent judgment on whether the facts thus found constitute constitutionally ineffec tive assistance of counsel,” id. (internal quotation marks omitted). We review the District Court‟s denial of Weston‟s motion for a new trial for an abuse of discretion, although we exercise plenary review over the Court‟s legal conclusions. United State s v. Chorin , 322 F.3d 274, 277 (3d Cir. 2003). To secure a new trial based on an ineffective assistance claim, a defendant must show that “ counsel‟ s representation fell below an objective standard of reasonableness,” Strickland v. Washington , 466 U.S. 668, 6 88 (1984), and that “there is a reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceed ing10

would have been different,” id. at 6 94. We therefore “undertake t he familiar two

- step inquiry” and consider first “whether counsel‟s pe rformance was so deficient as to constitute a denial of counsel” and , second, “whether the alleged errors prejudiced [the defendant] by depriving [him] of a fair trial.” Thomas v. Varner , 428 F.3d 491, 499 (3d Cir. 2005). In answering the fi rst question, “[a] fair assessment of attorney performance requires that every effort be made to eliminate distorting effects of hindsight[] ... and to evaluate the conduct from counsel‟s perspective at the time.” Id. (internal quotation marks omitted). Both of Weston‟s inef

fective assistance claims fail the first prong of Strickland because there is no credible evide nce that counsel‟s representation was deficient . His

c laim that counsel failed to inform him of the mandatory 15

- year minimum sentence is directly contradicted by the record of the evidentiary hearing, in which his trial counsel testified that he had “ [ a ] bsolutely” discussed t he potential penalty with Weston “ on the first day that [he ] met him.” (App. at 416 .) The District Court accepted c ounsel‟s

account of the representation rather than Weston‟s contrary testimony . We may only disturb that factual determination if it is clearly erroneous, United States v. Barbosa , 271 F.3d 438, 469 (3d Cir. 2001), and nothing in the record suggests that it is

. Weston‟s claim that counsel was ineffect ive in consenting to th e government‟s
dismissal of the controlled substances count fails because counsel had no meaningful authority to consent or not on that charging decision

. 4 Under Federal R ule of Crimi nal

4 Weston alleges that his counsel agreed not to objec t to the admission of evidence that drugs had been found on Weston at trial on the felon in possession count, if the11

Procedure 48, prior to trial, “[t]he go vernment may, with leave of court, dismiss an indictment, information, or complaint;” consent from the defense is only required for dismissal after a trial has com menced. Fed. R. Crim. P. 48(a). “Only after tria l shall have begun is the consent of the defendant required.” United States v. Boiardo , 408 F.2d 112, 114 (3d Cir. 1969)

. Here , the government dismissed the controlled substance count with the District Court‟s approval before the trial began. Therefore, no assistance of counsel, effective or otherwise , was required, and the Court correctly determined that Weston had not been denied effective assistance of counsel. It follows that there was no abuse of discretion in denying Weston‟s motion for a new tria l.
E

. Sentencing Challenges Finally, Weston contends that the District Court erred when it determined , pursuant to 18 U.S.C. § 924(e)(1), that he was an armed career criminal . He claims that he did not have the three necessary predicate convictions to be so categorized , and that the convictions he did have were not for serious drug offenses. We review for clear error the factual findings on which a District Court bases a sentence. United States v. Grier , 475 F.3d 556, 570 (3d Cir. 2007) (en banc). “A f indin g is „clearly erroneous‟ when [,] although there is evidence to support it, the reviewing [body] on the entire evidence is left

government dropped the controlled substance count. Weston contends that that agreement was ill

- advised, because if had been tried on both counts, he would have requested and been granted bifurcation of the charges, and the jury on the felon

- in

possession count would not have h eard evidence of his possession of controlled substances. His speculation of what he would have requested and what the Court would have ruled does not amount to proof of ineffective assistance of counsel under these circumstances.12

with the definite and firm conviction that a mistake has been committed.” Id. (alterations in original) (internal quotation marks omitted). Section 924(e) provides for a minimum sentence of 15 years‟ imprisonment for a person convicted as a felon in possession under § 922(g) who has “three p revious convictions ... for a violent felony or a serious drug offense, or both ... .” 18 U.S.C. § 924(e)(1). A “serious drug offense” includes, inter alia , “an offense under State law , involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ... .” Id. § 924(e)(2)(A)(ii). Prio r to his conviction on the present offense, Weston had three convictions in Pennsylvania state court for serious drug offenses. 5 Weston contends that one o f those convictions should not count for purposes of § 924(e) because he entered a plea of nolo cont endere that did not constitute an admission of the elements of a predi cate offense. But § 924(e) does not require proof

or admission of the elements of a predicate offense. It requires only a judgment of conviction. See United States v. Jefferson , 88 F. 3d 240, 243 (3d C ir. 1996) (holding that any “adjudication of guilt” constitutes a “conviction” under Pennsylvania law for purposes of § 924(e)). Weston also makes the puzzling argument that the District Court should have treated two of his prior offense s as a single offense because he committed one before he was sentenced on the other and so they should not be seen as having occurred on different occasions. That is clearly wrong, as § 924(e) “does not require that the predicate felonies

5 Each of those convicti ons was for the m anufacture, delivery, or possession with intent to manufacture or deliver a controlled substance.13

be separated by conviction and punishment” but merely that they be “[d]iscrete criminal episodes

. ” United States v. Gray , 85 F.3d 380, 381 (8th Cir. 1996). Lastly, Weston suggests that § 924(e) doe s not apply at all, because his “three predicate [drug] convictions are not serious in the sense that the amounts were small.” (Appellant‟s Opening Br. at 45.) Because it speaks only to “convictions” and not to “amounts,” § 924(e) forecloses that argument as we l l. The District Court‟s conclusion that Weston had three prior convictions for serious drug offenses wa s not clearly erroneous, and the Court did not err in imposing the minimum sentence required by § 924(e). 6
III. Conclusion For the foregoing reasons, we will affirm the judgment of conviction and sentence
of the District Court

.

6 Weston also argues that the District Court improperly appl ied a four

- level increase in his offense level for possession of a firearm with an obliterated serial number, pursuant to Sentencing Guidelines § 2K2.1(b)(4)(B). Specifically, he contends that the District Court erred because the jury was not asked to make a finding on whether the firearm had an obliterated serial number. He assert s that such a finding is required under the Supreme Court‟s holding in Apprendi v. New Jersey , 530 U.S. 466 (2000), that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. It is well established, however, that Apprendi does not apply to guideline enhancements. See United States v. Grier , 475 F.3d 556, 565 (3d Cir. 2007) (“[T]he right to proof beyond a reasonable doubt does not apply to fac ts relevant to enhancements under an advisory Guidelines regime.”). More to the point, though, the District Court determined that Weston was an armed career criminal and sentenced him based on the guideline range set forth in U.S.S.G § 4B.1.4, not § 2K2.1

.