In re Carney
United States Court of Appeals, Fifth Circuit
258 F.3d 415
In conclusion, I do not believe that the facts presented in this case are so exceptional as to fall outside the general rule that a party waives arguments not advanced in its initial brief. Moreover, I do not believe the facts presented in this case justify deviating from well-settled precedent from this court that prohibits an aggrieved litigant from raising arguments on appeal when he or she fails to raise the same before the district court judge. Finally, I do not believe our precedent has ever required a district court judge to review filings before a magistrate judge to determine if an unruled-upon implicit motion is buried in the docket.
The majority‘s position necessarily results in an undue restriction on a magistrate judge‘s ability to effectively perform his delegated tasks and imposes additional duties upon a delegating district court judge. Consequently, as envisioned by Arn, it has required the panel to address matters never addressed by the district court judge and has caused a substantial waste of judicial resources. The purpose of the Magistrates Act was to assist the judiciary as a whole to “reduce increasingly unmanageable caseloads.”
Schronce, 727 F.2d at 93. The Supreme Court has recognized that the judicial system would “grind nearly to a halt”
without the presence of magistrate judges at the trial court level. Wellness Intern. Network, Ltd. v. Sharif, — U.S. —, 135 S.Ct. 1932, 1939, 191 L.Ed.2d 911 (2015).
The majority‘s order in this case necessarily traverses several layers of waiver to conclude that remand of this matter to the district court is appropriate. The majority‘s opinion in In re Carney best explains why affirming the grant of summary judgment is the correct result:
For our litigation system to work effectively, litigants must comply with the
Federal Rules of Civil Procedure . [The Estate‘s] plight in this case exemplifies how repeated failures to do so ultimately preclude a party from presenting the merits of his case.
In re Carney, 258 F.3d 415, 422 (5th Cir. 2001). Given the aforementioned reasons, I must respectfully dissent.
UNITED STATES of America, Plaintiff-Appellee, v. Hubert Dwayne MESSER, Defendant-Appellant.
No. 15-4262
United States Court of Appeals, Fourth Circuit.
Submitted: May 25, 2016. Decided: July 25, 2016.
Before KEENAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hubert Dwayne Messer pled guilty, pursuant to a plea agreement, to conspiracy to distribute oxycodone, in violation of
“In considering a sentencing court‘s application of the guidelines, we review legal conclusions de novo, and factual findings for clear error.”
United States v. White, 771 F.3d 225, 235 (4th Cir. 2014) (internal alteration and quotation marks omitted), cert. denied, — U.S. —, 135 S.Ct. 1573, 191 L.Ed.2d 656 (2015). “Applying a clear error standard, we ‘will not reverse a lower court‘s finding of fact simply because we would have decided the case differently.’
“[W]e can find clear error only if, ‘on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed.’
Id. (quoting Easley, 532 U.S. at 242, 121 S.Ct. 1452) (internal brackets omitted).
For convictions involving the trafficking of controlled substances, a two-level enhancement is warranted when an individual possessed a firearm. “if the weapon was present unless it is clearly improbable that the weapon was connected with the offense.”
“In assessing whether a defendant possessed a firearm in connection with relevant drug activity, a sentencing court is entitled to consider several pertinent factors,”
such as “the type of firearm involved,”
“the location or proximity of a seized firearm,”
and “the settled connection between firearms and drug activities.”
Id. at 629.
We conclude that the district court did not clearly err in determining that the firearms were possessed in connection with Messer‘s drug trafficking. Messer stipulated that he stored at least two stolen handguns in his barn; we have repeatedly recognized that handguns are “a tool of the drug trade,”
and “a drug trafficker is much more likely to utilize a handgun”
than a long gun in his trafficking activities. Id. Furthermore, both the firearms and the drugs that Messer trafficked were stored in the same barn and in close proximity to each other, supporting the inference that the firearms were possessed in connection to that trafficking. See United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997) (noting that we have previously “approved an enhancement when the guns and drugs were located in the same home”
).
Turning to Messer‘s next argument, a two-level enhancement is warranted under “knowingly maintains a premises (i.e. a building, room, or enclosure) for the purpose of manufacturing or distributing a controlled substance, including storage of a controlled substance for the purpose of distribution.”
“[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant‘s primary or principal uses for the premises.”
It is undisputed that Messer maintained his barn; the only dispute is whether one of the barn‘s primary purposes was drug trafficking. Messer argues that because the barn was primarily used for the legitimate purpose of housing horses, its primary purpose could not be drug trafficking. We disagree. The evidence establishes that Messer stored drugs, proceeds from drug trafficking, and firearms derived from drug trafficking in the barn, and at least sometimes conducted his drug transactions in the barn. This evidence is sufficient to establish that the premises were primarily used for drug trafficking. See United States v. Bell, 766 F.3d 634, 638 (6th Cir. 2014) (“Drug storage on the property and transactions on the property will usually suffice [to establish primary use.]”
).
“the enhancement clearly contemplates that premises can have more than one principal use. ... [T]he proper inquiry is whether the drug transactions were a second primary use of the premises or were instead merely a collateral use”
), rev‘d on other grounds, — U.S. —, 134 S.Ct. 146, 187 L.Ed.2d 2 (2013); United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012) (holding enhancement applies “when a defendant uses the premises for the purpose of substantial drug-trafficking activities, even if the premises was also her family home at the times in question”
).
Turning to Messer‘s pro se filing, his claim of ineffective assistance of counsel is only cognizable on direct appeal if it conclusively appears on the record that counsel was ineffective. United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). To succeed on a claim of ineffective assistance of counsel, Messer must show that: (1) “counsel‘s representation fell below an objective standard of reasonableness”
; and (2) “the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record does not establish ineffective assistance of counsel. Therefore, Messer‘s claim is not cognizable on direct appeal and it should be raised, if at all, in a
Messer has also filed a pro se “motion for consideration/or to remand for resentencing based on Amendment 782 and the Supreme Court ruling in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).”
Because neither Amendment 782 nor the Supreme Court‘s ruling in Johnson affords Messer relief, we deny his motion.
In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Messer‘s convictions and sentence. This court requires that counsel inform Messer, in writing, of the right to petition the Supreme Court of the United States for further review. If Messer 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 Messer.
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