ORDER
A jury found Tralvis Edmond guilty of possession of a firearm by a felon, 18 U.S.C. § 922(g)(1), and possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1). Prior felony convictions for robbery, battery, and distribution of heroin made Edmond a career offender, see U.S.S.G. § 4Bl.l(a), and the district court calculated a guidelines imprisonment range of 210 to 262 months. Both parties urged the district court to impose a below-guidelines sentence, and the district court concluded thаt 84 months was appropriate. Edmond filed a notice of appeal, but his appointed attorney, who also represented him at trial, asserts that the appeal is frivolous and seeks to withdraw under Anders v. California,
Police in Chicago executed a search warrant at an аpartment where Edmond was known to stay several nights a week. The officers discovered 2 loaded guns, 3 grams of heroin divided among 14 packets, 8 grams of cocaine, and several documents corroborating Edmond’s use of the apartment, including his social security card, receipts, and bills. Edmond was not present at the time (though his girlfriend and their children were), so the officers entered an investigative аlert for him in a computer database. A few months later Edmond was arrested for a traffic offense and taken to a Chicago police station for processing. After Miranda warnings he agreed to bе interviewed about the investigative alert. Edmond said he had obtained the guns to protect his girlfriend and children from someone who was trying to kill them, and that he was holding the drugs for a neighborhood dealer who hаd threatened harm if he refused. The interviewing officer’s report documents that Miranda warnings had been given but does not say expressly that Edmond waived his Fifth Amendment rights after those warnings.
After Edmond was charged in federal court, he moved to suppress this confession. In his motion Edmond asserted through counsel that he never received Miranda warnings or waived his Fifth Amendment rights. He later submitted an affidavit averring that the interviewing officer did not givе him Miranda warnings before he confessed. Yet Edmond did not testify or present other evidence at the evidentiary hearing conducted on his motion by District Judge Manning. In contrast, the interviewing police officer (who also was the affiant for the search warrant) testified that Edmond had waived his rights after Miranda warnings, though the officer conceded that no witness had been present. Judge Manning credited the officer’s testimony аnd denied Edmond’s motion.
The case then was reassigned to Judge Kennelly. At trial the government called the police officers who found the guns and foil packages (which were all together in a tinted рlastic bag), and a chemist who
After the government had rested, Edmond moved for a judgment of acquittal. He argued that no eyewitness had seen him with the guns or heroin. The district court denied the motion, explaining that Edmond’s confession was enough to convict. The defense then called one witness, another occupant of the apartment building, who testified that Edmond’s girlfriend and children lived in the building but that he was present only two or three times per week. The jury then returned guilty verdicts, and the judge denied Edmond’s renewed mоtion for judgment of acquittal.
Counsel and Edmond first question whether the defendant could argue on appeal that Judge Manning erroneously denied his motion to suppress. We review credibility determinations mаde on a motion to suppress for clear error. United States v. Vallar,
Appellate counsel also correctly asserts that it would be frivolous for Edmond to contest the sufficiency of the evidence supрorting his convictions. When evaluating a sufficiency challenge, we view the evidence in the light most favorable to the government and will uphold the verdict so long as any rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Aldridge,
On the § 922(g)(1) count, the parties stipulated that Edmond already was a convicted felon before the apartment search and that the guns had traveled in interstate commerce. Only the element of possession was at issue, see United States v. Morris,
On the heroin count, the government’s evidence is not as strong and might have been problematic if not for Edmond’s explanation for having the 14 foil packets. Edmond’s lawyer tells us that it would be frivolous to raise a claim of insufficient evidence because intent to distribute can
Nevertheless, we agrеe with counsel that on these facts a sufficiency challenge would be frivolous because drawing an inference about intent from the drug quantity was unnecessary. When Edmond was interviewed about his possession of the heroin, he did not say it was for personal use or even that he is a heroin user. Rather, he said that he was holding it for the dealer it belonged to, which implies that he intended to return — to distribute— the dealer’s stash when he came calling. See United States v. Tingle,
In his Rule 51(b) response, Edmond also asserts that he could argue on appeal that the district judge committed clear error by applying a two-level upward adjustment fоr obstruction of justice. See U.S.S.G. § 3C1.1. The judge assessed that increase after finding that Edmond falsely stated in his affidavit that he did not receive Miranda warnings. Judge Manning had credited the interviewing officer’s version of events, and Judge Kеnnelly reasoned that, since Edmond’s affidavit directly contradicts the officer’s testimony, the affidavit must be false. Providing materially false information to a judge is ground for this upward adjustment, U.S.S.G. § 3C1.1, cmt. n. 4(f), and thus an appеllate challenge would be frivolous, see United States v. Gonzalez-Mendoza,
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.