United States of America v. Jermaine Cortez Carter

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0033P (6th Cir.)
File Name: 04a0033p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERMAINE CORTEZ CARTER,
Defendant-Appellant.
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No. 02-2165
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 02-00067—Robert Holmes Bell, Chief District Judge.
Argued: December 3, 2003
Decided and Filed: January 27, 2004
Before: SILER, DAUGHTREY, and GIBBONS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
Appellant. Hagen W. Frank, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC
DEFENDERS OFFICE, Grand Rapids, Michigan, for
2 United States v. Carter No. 02-2165
Appellant. Andrew B. Birge, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Jermaine Cortez Carter appeals his
conviction and sentence under 18 U.S.C. § 922(g)(1)(felon in
possession of a firearm) on the basis of: (1) insufficiency of
the evidence; (2) ineffective assistance of counsel for failing
to move the court for acquittal based upon the insufficiency
of the evidence; (3) the addition of a four-level enhancement
to his sentencing guideline range for possessing the firearm in
connection with another felony offense under USSG
§ 2K2.1(b)(5); and (4) denial of his right of allocution at
sentencing. For the reasons that follow, we AFFIRM.
BACKGROUND
In 2002, two detectives in Grand Rapids were on
surveillance duty in an area known to be used by drug
traffickers. They saw a four-door Cadillac pull up to the curb
and watched Carter and another individual run up to the
vehicle. Carter looked around and conversed with the driver
while the other individual interacted with the passenger. The
two men entered the rear of the vehicle and drove off, with
Carter sitting behind the driver. The detectives followed the
vehicle until the Cadillac pulled into a driveway. One
detective saw a great deal of commotion in the back seat of
the vehicle when the detectives’ van pulled in behind the
Cadillac. The detectives observed the rear passenger-side
individual immediately place his hands on the headrest of the
seat in front of him. Carter, the other back-seat passenger,
was observed leaning forward with his right shoulder, looking
back at the officers while digging underneath the driver’s
seat.

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No. 02-2165 United States v. Carter 3
When the front passenger exited, several bags of marijuana
fell from the shoulder area of his seat. This was directly in
the area where the rear passenger-seat occupant had placed his
hands. As one detective approached the vehicle from the rear
on the driver’s side, he noticed a .25 caliber pistol underneath
the driver’s seat toward the back.
Carter was indicted as a felon in possession of a firearm.
At trial, Sylvester Evans, the front passenger and owner of the
vehicle, testified that he and the driver, Adowa Reed, were
out to obtain some marijuana. They picked up Carter and
drove to a house. When a van pulled in behind them in the
driveway, there was a lot of commotion in the back seat.
During this commotion Evans saw something in Carter’s hand
that resembled the pistol shown to him in court. Evans
testified that neither he nor Reed had brought the pistol into
the vehicle. Carter was convicted for possessing the pistol as
a felon. No motion for judgment of acquittal under Fed. R.
Crim. P. 29 was made.
Carter’s presentence report (PSR) added a four-level
enhancement under USSG § 2K2.1(b)(5) for possessing the
pistol in connection with another felony offense, the
possession of marijuana with intent to distribute. Carter’s
companion, Mark Matthews, was convicted of this offense in
state court. Carter did not raise any objection to the PSR or
the guideline range computation when specifically asked by
the district court.
At sentencing, the court interrupted Carter twice during his
final remarks. After being asked personally by the court if he
had anything to say before sentencing, Carter began with a
few opening remarks and then continued into the following
exchange:
DEFENDANT CARTER: ...my purpose in speaking at
this time is so the Court may reflect on me as a person
and not so much my prior history. This is my--
4 United States v. Carter No. 02-2165
1This first interruption sho uld be seen in the context of Carter’s
criminal history. Between the ages of 17 and 25, Carter had amassed 18
convictions, 5 othe r arrests and three separate p ending charges in state
court, two allegedly committed while Carter aw aited trial before the
district co urt. This had b een o utlined b y the PS R before the court.
THE COURT: Well, Mr. Carter, what is the most
accurate predictor of the future, the past or what you tell
me about the future?1
DEFENDANT CARTER: If you give me a chance,
Your Honor, I’m–
THE COURT: I’m asking you a question. If you could
just answer it.
DEFENDANT CARTER: Excuse me?
THE COURT: What’s the most accurate predictor of the
future, the past or your promises for the future?
DEFENDANT CARTER: My promises for the future.
THE COURT: Oh, okay. Continue.
DEFENDANT CARTER: Okay. This is my first and
only chance to address the Court. Accordingly, I will
speak briefly about the trial proceedings, the lack of
evidence presented to the jury by the U.S. attorneys–
THE COURT: Sir, you were convicted. I don’t want to
hear any more about that.
DEFENDANT CARTER: Okay. Okay, thank you.
THE COURT: Continue.
DEFENDANT CARTER: I’ll just speak about my
future.
THE COURT: Please do.
Carter went on to outline his future plans. Carter did not
object to any of the district court’s actions during sentencing.
ANALYSIS
A. Sufficiency of the evidence
A review of the sufficiency of the evidence to convict, in
the absence of a Fed. R. Crim. P. 29 motion, is limited to

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No. 02-2165 United States v. Carter 5
determining whether there was a manifest miscarriage of
justice. United States v. Carnes, 309 F.3d 950, 956 (6th Cir.
2002). In his brief, Carter does not argue that there was no
evidence to support his conviction. He further concedes that
he cannot prevail upon this claim since this court can only
reverse if the record is devoid of evidence pointing to guilt.
Id. Carter’s sole argument for reviewing the conviction is that
his counsel was constitutionally ineffective for failing to
make a motion for acquittal based on the insufficiency of the
government’s case. As the resolution of the ineffectiveness
claim disposes of the sufficiency claim, we turn to it to
address both issues.
B. Ineffective assistance of counsel
Ineffective assistance of counsel claims are mixed questions
of law and fact that are reviewed de novo. United States v.
Fortson, 194 F.3d 730, 736 (6th Cir. 1999). Generally, this
court does not review ineffective assistance of counsel claims
for the first time on appeal, instead requiring a record be
developed pursuant to a motion under 28 U.S.C. § 2255. Id.
An exception exists when a record is adequate enough to
address the merits. Id. As the sole claim for ineffectiveness
is that Carter’s counsel did not recognize the insufficiency of
the evidence, which is entirely encompassed within the
record, the issue is adequately developed.
Carter’s ineffectiveness claim must establish that: (1) his
lawyer’s performance was deficient compared to an objective
standard of reasonable performance, and (2) there is a
reasonable probability that this deficiency prejudiced the
outcome. United States v. Davis, 306 F.3d 398, 422 (6th Cir.
2002). Failing to make a motion for a judgment of acquittal
that had no chance of success fails both prongs. First, counsel
cannot be said to be deficient for failing to take frivolous
action, particularly since a frivolous effort takes attention
away from non-frivolous issues. Second, it is evident that
6 United States v. Carter No. 02-2165
2“An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.” Strickland v. Washington, 466 U.S. 668,
691-92 (19 84).
failing to make a motion with no chance of success could not
possibly prejudice the outcome.2
There was no reasonable probability that a motion for
acquittal would succeed. Carter stipulated to all elements of
the crime, except for possession of the pistol. However, there
was ample evidence that Carter possessed the pistol. Evans
testified that neither he nor his companion brought the pistol
into the vehicle. Evans saw “something” that resembled the
pistol in Carter’s hand when a commotion started in the rear
seat upon the approach of the officers. A detective saw Carter
reach under the seat while looking back over his shoulder at
the detective when he approached the vehicle. Both
detectives observed Matthews, who was sitting in the rear
passenger seat, immediately put his hands on the headrest in
front of him, circumstantially removing himself from being
the source of the pistol’s placement under the driver’s seat at
that time.
Given this evidence, a Rule 29 motion would have had no
chance of success, since “[i]t is well established that a trial
judge confronted with a Rule 29 motion must consider all of
the evidence in a light most favorable to the government.”
United States v. Head, 927 F.2d 1361, 1365 (6th Cir. 1991).
“The government must be given the benefit of all inferences
which can reasonably be drawn from the evidence, even if the
evidence is circumstantial. It is not necessary that the
evidence exclude every reasonable hypothesis except that of
guilt.” Id.
Carter’s attacks on the evidence in his brief are not directly
aimed at any evidentiary deficiency, but at the credibility of
the witnesses. “It is well settled in this Circuit that attacks on
witness credibility are simply challenges to the quality of the

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No. 02-2165 United States v. Carter 7
government’s evidence and not to the sufficiency of the
evidence.” United States v. Farley, 2 F.3d 645, 652 (6th Cir.
1993) (emphasis in original). “It is equally clear that issues
of witness credibility are for the jury.” Id. As a Rule 29
motion did not have a reasonable likelihood of success, it
cannot be said that Carter’s trial counsel was ineffective on
either prong of Davis. Additionally, since the record is not
devoid of evidence of his guilt, Carter’s sufficiency challenge
must fail. See Carnes, 309 F.3d at 956.
C. Improper application of sentencing guidelines
Sentencing issues presented for the first time on appeal are
reviewed only for plain error. United States v. King, 341
F.3d 503, 505 (6th Cir. 2003). Carter contends the district
court erred by applying a four-level increase for possessing
the firearm in connection with another felony offense. To
establish plain error, Carter must first show that an error
occurred. Id.
The district court is required to add four points to the
offense level if the pistol was possessed in connection with
another felony offense. USSG § 2K2.1(b)(5). “So long as the
government proves by a preponderance of the evidence that
the firearm served some purpose with respect to the felonious
conduct, section 2K2.1(b)(5)’s ‘in connection with’
requirement is satisfied.” United States v. Spurgeon, 117
F.3d 641, 644 (6th Cir. 1997)(quoting United States v. Wyatt,
102 F.3d 241, 247 (7th Cir. 1996)). “A firearm is used or
possessed ‘in connection with’ an offense if the weapon
facilitated or potentially facilitated the felonious conduct, or
emboldened the defendant during the felonious conduct.”
United States v. Sanders, 162 F.3d 396, 404 (6th Cir. 1998).
The PSR detailed Carter’s involvement during his
possession offense with a drug transaction for which his
companion, Matthews, was convicted. Carter did not lodge
an objection to the PSR; indeed, his counsel specifically
accepted it. “The district court is allowed to accept as true all
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3United States v. Wo lfe, 71 F.3d 611 , 614 (6th C ir. 199 5), set forth
a de no vo standard of review for denial of allocutio n allegations.
However, in a case like Carter’s, where the allegation is not that there was
a complete denial but only an inappropriate limitation, the defense should
indicate some type of discontent. In Carter’s case, the allocution ended
with “[t]hank you for giving me this op portunity to be heard before the
Court, Your Honor. TH E COU RT : Thank you.” Neither Carter no r his
counsel voiced any discontent that he was not able to personally address
the court in a specific manner desired. See also United States v. Li, 115
F.3d 125, 132 (2d Cir. 1997) (contemporaneous objection to an
inapp ropriate limitation of allocution found in the defendant’s attemp t to
make herself heard b y a court despite lacking a formal objection from
counsel).
factual allegations in a presentence report to which the
defendant does not object.” United States v. Levy, 250 F.3d
1015, 1018 (6th Cir. 2001); see also United States v. Garcia-
Meza, 315 F.3d 683, 686 (6th Cir. 2003)(no plain error where
the district court accepts a PSR to which no objection was
lodged). The court found, without objection, that Carter
possessed the firearm in conjunction with a felony drug
offense. There was no plain error in this finding.
D. Denial of allocution
As Carter did not lodge an objection during sentencing, this
court reviews his allocution claim only for plain error.
Garcia-Meza, 315 F.3d at 685-86.3
Fed. R. Crim. P. 32(c)(3)(C) requires the court to “address
the defendant personally and determine whether the defendant
wishes to make a statement and to present any information in
mitigation of the sentence.” Carter claims when the court
stated it did not want to hear about the lack of evidence used
to convict him, he was denied allocution. Denial of allocution
is reversible error. United States v. Riascos-Suarez, 73 F.3d
616, 627 (6th Cir. 1996). A denial generally occurs when a
defendant is not, personally and unambiguously, invited to
address the court before sentencing, Green v. United States,
365 U.S. 301, 305 (1961), or when a court refuses to listen to

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No. 02-2165 United States v. Carter 9
4Carter argues that he was compe nsating for his counsel’s failure to
address the sufficiency of the evidence at closing. T his ignores the fact
that his counsel gave a thoughtful and detailed closing argument
addressing the weakness of the case against Carter. W hile not persuasive
to the jury, it calls into question Carter’s post hoc need to address the
subje ct. At oral argum ent, Carte r raised the issue of residual doubt as a
proper mitigating subject to address in his allocution. Leaving aside the
fact Carter did not raise this to the trial court, there have been only a few
the defendant’s statement. Li, 115 F.3d 125, 133 (2d Cir.
1997) (“Rule demands that each defendant be allowed a
meaningful right to express relevant mitigating information
before an attentive and receptive district judge”).
Allocution is the right to present a defendant’s plea in
mitigation, see Green, 365 U.S. at 304, and is not unlimited.
Li,115 F.3d at 133 (“[A] defendant’s right to allocution is not
unlimited in terms of either time or content.”); United States
v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993)(“[T]he judge
does not have to let the defendant re-argue the case at
sentencing.”); United States v. Kellogg, 955 F.2d 1244, 1250
(9th Cir. 1992) (“Although the defendant has a right of
allocution at sentencing, that right is not unlimited.”).
Defendants may address the amount or quality of evidence
adduced at trial to explain their role in an offense or the
severity of their conduct, see Li, 115 F.3d at 131-35, but not
merely to continue to deny guilt. See Muniz,1 F.3d at 1024-
25. Addressing the evidence to show a mitigating role is
particularly apt if a plea was not entered explaining a
defendant’s conduct and/or mental state, or if the defendant
did not testify during trial. However, as the sole contested
fact in Carter’s trial was whether he possessed the firearm,
this is not such a case.
The court merely informed Carter it did not wish to hear an
irrelevant sentencing argument which had already been
properly made before the court during Carter’s closing
argument.4 The court’s ongoing interaction with Carter
10 United States v. Carter No. 02-2165
times that any legitimacy has be en given to the notion that defendants
have the right to argue their innocence during sentencing, even for capital
defendants. See Franklin v. Lynaugh, 487 U.S. 164 , 173 -74 (1 988 ).
during allocution evidenced a substantive colloquy bearing
upon the sentence. See Riascos-Suarez, 73 F.3d at 627. The
court demonstrated attentiveness to Carter’s allocution by
informing him, after imposing sentence, which comments
were ineffective and why, along with the court’s approval of
Carter’s future plans. Therefore, as Carter was personally
invited to address the court and then engaged in a substantive
colloquy with the trial judge bearing upon his sentence, the
requirements of Fed. R. Crim. P. 32(c)(3)(C) were fulfilled.
Since the court permitted Carter to discuss any relevant
matters desired in relation to his sentencing during this
colloquy, Carter was not denied his right of allocution.
AFFIRMED.

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