UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4324

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL GREENE, a/k/a Mike,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:09-cr-00039-FDW-DCK-5)

Submitted: September 25, 2012 Decided: March 7, 2013

Before KEENAN and THACKER, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part; vacated and remanded in part by unpublished 

per curiam opinion.

James B. Craven III, Durham, North Carolina, for Appellant. 

Anne M. Tompkins, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

After a jury trial, Michael Greene was convicted of 

one count of conspiracy to distribute and possess with intent to 

distribute 50 grams or more of crack cocaine and less than 500 

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

851 (West 1999 & Supp. 2012), and one count of conspiracy to 

commit robbery affecting interstate commerce, in violation of 18 

U.S.C. § 1951 (2006). He was sentenced to life imprisonment. 

Counsel filed a brief under Anders v. California, 386 U.S. 738 

(1967), asserting there are no meritorious issues for review but 

raising for the Court’s consideration: (1) the sufficiency of 

the evidence and (2) the ineffectiveness of counsel. Counsel 

subsequently filed a supplemental brief asserting that Greene’s 

sentence was in error based on the rule announced in United 

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The 

Government filed a brief addressing the Simmons issue and Greene 

filed a pro se supplemental brief raising several issues. While 

we affirm the convictions, we find that Greene’s life sentence 

violates the rule announced in Dorsey v. United States, 132 S. 

Ct. 2321 (2012), and vacate the sentence and remand for 

resentencing.1

 

 1 Dorsey was issued after Greene was sentenced but during 

the pendency of this appeal.
3

A jury’s verdict “must be sustained if there is 

substantial evidence, taking the view most favorable to the 

Government, to support it.” Glasser v. United States, 315 U.S. 

60, 80 (1942); see United States v. Perkins, 470 F.3d 150, 160 

(4th Cir. 2006). Substantial evidence 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.” United States v. Alerre, 430 F.3d 681, 693 

(4th Cir. 2005) (internal quotation marks omitted). The court 

considers both circumstantial and direct evidence, drawing all 

reasonable inferences from such evidence in the Government’s 

favor. United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 

2008). In evaluating sufficiency of the evidence, this court 

does not reweigh the evidence or reassess the factfinder’s 

determination of witness credibility, United States v. Brooks, 

524 F.3d 549, 563 (4th Cir. 2008), and “can reverse a conviction 

on insufficiency grounds only when the prosecution’s failure is 

clear.” United States v. Moye, 454 F.3d 390, 394 (4th Cir. 

2006) (en banc) (internal quotation marks omitted).

We conclude that there was substantial evidence to 

support both convictions. The evidence in support of the 

convictions came from law enforcement and several of Greene’s 

co-conspirators. In addition, there was evidence of wiretaps, 

weapons seizures, DNA and drug analysis that offered clear 
4

support for the guilty verdicts. There was more than sufficient 

evidence showing that Greene voluntarily agreed to engage in a 

conspiracy to distribute drugs and to commit a robbery. 

Accordingly, we affirm the convictions. 

When Greene was sentenced it was believed that he 

faced a statutory maximum sentence of life imprisonment. After 

sentencing, the Supreme Court issued Dorsey, which held that the 

more lenient penalties of the Fair Sentencing Act (“FSA”) 

applied to pre-FSA offenders who were sentenced after the Act’s 

effective date. Dorsey, 132 S. Ct. at 2331. Because Greene was 

sentenced after the Act’s effective date for conduct that 

occurred prior to enactment, the Act applies to him. Greene was 

found guilty of conspiracy to distribute at least 50 grams of 

crack cocaine and 500 grams of cocaine. Under the amended 

version of 21 U.S.C.A. § 841(b)(1)(A), Greene’s statutory 

maximum sentence is forty years’ imprisonment. We conclude, 

therefore, that Greene’s sentence must be vacated and remanded 

to the district court for resentencing. We note, however, that 

we find no error in the Guidelines’ calculations and the court’s 

findings regarding Greene’s total offense level and criminal 

history category.2 

 2 Because we are remanding for resentencing under the rule 

announced in Dorsey, the Simmons issue raised by counsel in his 

first supplemental brief is rendered moot.
5

We have reviewed the issues raised in Greene’s pro se 

supplemental brief and find them without merit. Greene’s 

ineffective assistance of counsel claim is not cognizable on 

direct appeal. Such claims are not reviewable on direct appeal

unless the record conclusively establishes ineffective 

assistance. United States v. Richardson, 195 F.3d 192, 198 (4th 

Cir. 1999). Rather, to allow for adequate development of the 

record, claims of ineffective assistance generally should be 

brought in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion. 

United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).

Accordingly, we affirm the convictions and vacate the 

sentence and remand for resentencing in accordance with the rule 

announced in Dorsey. In accordance with Anders, we have 

reviewed the record for other meritorious issues and have found 

none. Greene has filed a motion to replace counsel and assign a 

new appointed counsel and his counsel has filed a motion to 

withdraw, both of which we deny.3

 We dispense with oral argument 

because the facts and legal contentions are adequately presented 

 3 We acknowledge that Greene’s counsel has filed a second 

supplemental brief concerning newly discovered evidence. We 

take no position on this issue, recognizing that Greene has 

filed a motion for a new trial in the district court concerning 

this same evidence. It is appropriate for the district court to 

address the issues raised in the motion in the first instance. 
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in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART