                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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




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