UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4689

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID LYNN HATFIELD,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-02-219)

Submitted: September 12, 2008 Decided: September 26, 2008

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished per

curiam opinion.

Robert E. Barrat, Martinsburg, West Virginia, for Appellant.

Joshua Clarke Hanks, Assistant United States Attorney, Charleston,

West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

David Lynn Hatfield was convicted by a jury of two counts

of possession of a firearm by a felon (Counts One & Eleven), eight

counts of distribution of oxycodone and hydrocodone (Counts Four

through Ten & Twelve), and one count of using and carrying a

firearm during and in relation to a drug trafficking crime (Count

Thirteen), in violation of 18 U.S.C. §§ 922(g)(1); 924(c)(1)(A); 21

U.S.C. § 841(a)(1) (2000). Hatfield was sentenced to a total of

138 months’ imprisonment. On appeal, counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

there are no meritorious grounds for appeal, but raising various

issues for review. In a pro se supplemental brief, Hatfield joined

in those issues raised by counsel and raised additional grounds for

review. The Government elected not to file a responding brief.

Hatfield first contends that his counsel provided

ineffective assistance. An ineffective assistance of counsel claim

is generally not cognizable on direct appeal, but should instead be

asserted in a post-conviction motion under 28 U.S.C. § 2255 (2000).

See United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).

However, we have recognized an exception to the general rule when

“it ‘conclusively appears’ from the record that defense counsel did

not provide effective representation.” Id. (quoting United States

v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994)). Because the
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record does not conclusively establish that counsel was

ineffective, Hatfield’s claim is not cognizable on direct appeal.

Next, Hatfield contends that the district court erred by

refusing his motion for the appointment of an expert to review

audio recordings admitted by the Government, which he believed had

been edited or otherwise tampered with. “Indigent defendants are

entitled by law to money for investigative and expert services that

are ‘necessary for adequate representation.’” United States v.

Hartsell, 127 F.3d 343, 349 (4th Cir. 1997) (quoting 18 U.S.C.

§ 3006A(e)(1) (2000)). We review a district court’s decision

regarding the necessity of expert services for abuse of discretion.

Id. “To show reversible error in a district court’s refusal to

appoint an expert, a defendant must demonstrate that the court’s

refusal was prejudicial to his defense.” United States v. Perrera,

842 F.2d 73, 77 (4th Cir. 1988) (per curiam). As Hatfield failed

to offer any evidence in support of his motion for the appointment

of an expert, or alternatively establish that his case was

prejudiced in any manner by the denial, we conclude that the

district court did not abuse its discretion in denying the motion.

Hatfield further contends that the search of his person

and trailer were improper and the evidence obtained pursuant

thereto should have been suppressed. We previously held in the

Government’s appeal from the district court’s suppression of

evidence that an unannounced entry by deputy sheriffs into
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Hatfield’s residence was reasonable and did not violate the Fourth

Amendment. See United States v. Hatfield, 365 F.3d 332, 338-41

(4th Cir. 2004). That holding is now the law of the case, and,

since Hatfield has not alleged any of the exceptions to the law of

the case doctrine, he may not relitigate that issue in this appeal.

See United States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999).

Finally, Hatfield contends that the evidence was

insufficient to support a conviction for using and carrying a

firearm during and in relation to a drug trafficking crime (Count

Thirteen) under 18 U.S.C. § 924(c)(1)(A). To determine if there

was sufficient evidence to support a conviction, we consider

whether, taking the evidence in the light most favorable to the

government, substantial evidence supports the jury’s verdict.

Glasser v. United States, 315 U.S. 60, 80 (1942). We review both

direct and circumstantial evidence, and permit the “government the

benefit of all reasonable inferences from the facts proven to those

sought to be established.” United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982). 

Hatfield argues that even if he “allegedly accepted the

gun” in payment for a controlled substance, he did not “use” it as

contemplated by the ordinary meaning of the word in § 924(c)(1)(A).

The facts of this case are very similar to those in Watson v.

United States, 128 S. Ct. 579, 582, 586 (2007), wherein the Supreme

Court reversed a defendant’s conviction for use of a firearm in
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furtherance of a drug trafficking offense, which was predicated on

the defendant’s receipt of the firearm in exchange for drugs. As

in Watson, the basis for the § 924(c)(1)(A) charge here was

Hatfield’s receipt of the firearm in trade for a controlled

substance. Therefore, even construing the facts in the light most

favorable to the Government, we conclude there was insufficient

evidence to support the jury’s verdict.

In accordance with Anders, we have reviewed the entire

record in this case. While we affirm Hatfield’s convictions on

Count One and Counts Four through Twelve, we reverse Hatfield’s

conviction on Count Thirteen based on the Supreme Court’s holding

in Watson. We remand to the district court for further

proceedings. Additionally, we grant Hatfield’s motion to withdraw

his motion to dismiss the federal indictment and deny his remaining

motions. We also deny Appellee’s motion to dismiss, but grant the

motion as to the request for remand.

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 in the decisional process.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED