UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4459

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, 

v. 

DAVID LEWIS, 

Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (5:11-cr-00229-F-8) 

Submitted: March 26, 2013 Decided: April 3, 2013

Before MOTZ, GREGORY, and SHEDD, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Mark A. Jones, BELL, DAVIS & PITT, P.A., Winston-Salem, North 

Carolina, for Appellant. Jennifer P. May-Parker, Assistant 

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

Unpublished opinions are not binding precedent in this circuit.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

David Lewis was convicted after a jury trial of one 

count of conspiracy to manufacture, distribute, dispense, and 

possess with intent to distribute 500 grams or more of 

methamphetamine, in violation of 21 U.S.C. § 846 (2006) 

(count one), one count of aiding and abetting the possession of 

pseudoephedrine with intent to manufacture methamphetamine, in 

violation of 18 U.S.C. § 2 (2006) and 21 U.S.C.A. § 841(c)(1) 

(West 2006 & Supp. 2012) (count two), and two counts of aiding 

and abetting the possession of equipment, chemicals, products, 

and material with intent to manufacture methamphetamine, in 

violation of 18 U.S.C. § 2 and 21 U.S.C.A. § 843(a)(6) 

(West 2006 & Supp. 2012) (counts three and twelve). 

The district court sentenced Lewis to concurrent terms of 

327 months’ imprisonment on count one, 240 months’ imprisonment 

on count two, and 120 months’ imprisonment on each of counts 

three and twelve, for a total prison term of 327 months. Lewis’ 

counsel has filed a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), stating that there are no meritorious 

issues for appeal, but questioning whether the district court 

plainly erred in instructing the jury with respect to count one 

and whether trial counsel rendered ineffective assistance. 

Lewis has filed a pro se supplemental brief. We affirm. 
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Counsel argues first that the district court’s 

instructions to the jury regarding count one contravened United 

States v. Collins, 415 F.3d 304 (4th Cir. 2005), because the 

jury was not instructed that it was required to determine 

whether 500 grams or more of methamphetamine was reasonably 

foreseeable to Lewis. Because Lewis did not object to the 

district court’s instructions on this basis, we review this 

issue for plain error only. United States v. Jeffers, 570 F.3d 

557, 569 (4th Cir. 2009). To obtain relief under plain error 

review, Lewis must establish that an error occurred, was plain, 

and affected his substantial rights. Id. Even if he makes such 

a showing, however, this court “can decline to correct the error 

unless it seriously affected the fairness, integrity, or public 

reputation of judicial proceedings.” Id. (internal quotation 

marks omitted). If the evidence “overwhelmingly establishe[s]” 

that the defendant was personally responsible for the threshold 

quantity of drugs, and if his assertions at trial “primarily 

focused on whether he committed the offenses and not on the drug 

quantities reasonably foreseeable to him,” we may decline to 

recognize a plain Collins error. United States v. Foster, 

507 F.3d 233, 252 (4th Cir. 2007). 

Our review of the record leads us to conclude that, 

although a plain Collins error occurred at Lewis’ trial because 

the jury was not instructed to determine the quantity of 
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methamphetamine reasonably foreseeable to Lewis,* we are 

nevertheless satisfied that Lewis’ conviction on count one 

should be upheld because the Collins error did not seriously 

affect the fairness, integrity, or public reputation of judicial 

proceedings. The evidence adduced at trial easily established 

that 500 grams or more of methamphetamine was reasonably 

foreseeable to Lewis. Additionally, Lewis’ trial assertions 

focused primarily on the issue of his guilt, rather than on drug 

quantity. Accordingly, we decline to recognize plain error in 

this regard. 

Next, counsel argues that the district court also 

plainly erred in instructing the jury on count one because it 

did not instruct the jury that it needed to “unanimously agree” 

Lewis conspired to violate at least one of the three objects of 

the conspiracy charged in the superseding indictment. 

We conclude after review that the record does not support 

counsel’s assertion, and we therefore discern no plain error. 

Counsel also argues that Lewis’ trial counsel rendered 

ineffective assistance prior to trial, at trial, and at 

sentencing. After review of the record, we find these claims 

 * Lewis’ rights were substantially affected by the Collins

error because he was sentenced to 327 months’ imprisonment on 

count one, eighty-seven months greater than the maximum of 240 

months’ imprisonment he could have received under 21 U.S.C.A. 

§ 841(b)(1)(C). 
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inappropriate for resolution on direct appeal. Because 

ineffectiveness of counsel is not conclusively established by 

the record, Lewis must assert such claims, if at all, in a 

motion pursuant to 28 U.S.C.A. § 2255 (West Supp. 2012). 

United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). 

Finally, in accordance with Anders, we have reviewed 

Lewis’ pro se supplemental brief and the remainder of the record 

and have found no meritorious issues for review. Accordingly, 

we affirm the district court’s judgment. This court requires 

that counsel inform Lewis, in writing, of the right to petition 

the Supreme Court of the United States for further review. 

If Lewis 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 

Lewis. 

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