       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Carter                     No. 02-2165
    ELECTRONIC CITATION: 2004 FED App. 0033P (6th Cir.)
                File Name: 04a0033p.06                    Appellant. Andrew B. Birge, UNITED STATES
                                                          ATTORNEY, Grand Rapids, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

UNITED STATES OF AMERICA , X                                 SILER, Circuit Judge. Jermaine Cortez Carter appeals his
                                                          conviction and sentence under 18 U.S.C. § 922(g)(1)(felon in
            Plaintiff-Appellee, -                         possession of a firearm) on the basis of: (1) insufficiency of
                                  -
                                  -   No. 02-2165         the evidence; (2) ineffective assistance of counsel for failing
           v.                     -                       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
JERMAINE CORTEZ CARTER ,          -
          Defendant-Appellant. -                          connection with another felony offense under USSG
                                                          § 2K2.1(b)(5); and (4) denial of his right of allocution at
                                 N                        sentencing. For the reasons that follow, we AFFIRM.
       Appeal from the United States District Court
  for the Western District of Michigan at Grand Rapids.                        BACKGROUND
No. 02-00067—Robert Holmes Bell, Chief District Judge.
                                                             In 2002, two detectives in Grand Rapids were on
               Argued: December 3, 2003                   surveillance duty in an area known to be used by drug
                                                          traffickers. They saw a four-door Cadillac pull up to the curb
         Decided and Filed: January 27, 2004              and watched Carter and another individual run up to the
                                                          vehicle. Carter looked around and conversed with the driver
 Before: SILER, DAUGHTREY, and GIBBONS, Circuit           while the other individual interacted with the passenger. The
                    Judges.                               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
                       COUNSEL                            the vehicle when the detectives’ van pulled in behind the
                                                          Cadillac. The detectives observed the rear passenger-side
ARGUED:       Paul L. Nelson, FEDERAL PUBLIC              individual immediately place his hands on the headrest of the
DEFENDERS     OFFICE, Grand Rapids, Michigan, for         seat in front of him. Carter, the other back-seat passenger,
Appellant.    Hagen W. Frank, UNITED STATES               was observed leaning forward with his right shoulder, looking
ATTORNEY,     Grand Rapids, Michigan, for Appellee.       back at the officers while digging underneath the driver’s
ON BRIEF:       Paul L. Nelson, FEDERAL PUBLIC            seat.
DEFENDERS     OFFICE, Grand Rapids, Michigan, for

                            1
No. 02-2165                      United States v. Carter      3    4        United States v. Carter                           No. 02-2165

  When the front passenger exited, several bags of marijuana           THE COURT: Well, Mr. Carter, what is the most
fell from the shoulder area of his seat. This was directly in          accurate predictor of the future, the past or what you tell
the area where the rear passenger-seat occupant had placed his         me about the future?1
hands. As one detective approached the vehicle from the rear           DEFENDANT CARTER: If you give me a chance,
on the driver’s side, he noticed a .25 caliber pistol underneath       Your Honor, I’m–
the driver’s seat toward the back.                                     THE COURT: I’m asking you a question. If you could
                                                                       just answer it.
   Carter was indicted as a felon in possession of a firearm.          DEFENDANT CARTER: Excuse me?
At trial, Sylvester Evans, the front passenger and owner of the        THE COURT: What’s the most accurate predictor of the
vehicle, testified that he and the driver, Adowa Reed, were            future, the past or your promises for the future?
out to obtain some marijuana. They picked up Carter and                DEFENDANT CARTER: My promises for the future.
drove to a house. When a van pulled in behind them in the              THE COURT: Oh, okay. Continue.
driveway, there was a lot of commotion in the back seat.               DEFENDANT CARTER: Okay. This is my first and
During this commotion Evans saw something in Carter’s hand             only chance to address the Court. Accordingly, I will
that resembled the pistol shown to him in court. Evans                 speak briefly about the trial proceedings, the lack of
testified that neither he nor Reed had brought the pistol into         evidence presented to the jury by the U.S. attorneys–
the vehicle. Carter was convicted for possessing the pistol as         THE COURT: Sir, you were convicted. I don’t want to
a felon. No motion for judgment of acquittal under Fed. R.             hear any more about that.
Crim. P. 29 was made.                                                  DEFENDANT CARTER: Okay. Okay, thank you.
                                                                       THE COURT: Continue.
  Carter’s presentence report (PSR) added a four-level                 DEFENDANT CARTER: I’ll just speak about my
enhancement under USSG § 2K2.1(b)(5) for possessing the                future.
pistol in connection with another felony offense, the                  THE COURT: Please do.
possession of marijuana with intent to distribute. Carter’s
companion, Mark Matthews, was convicted of this offense in         Carter went on to outline his future plans. Carter did not
state court. Carter did not raise any objection to the PSR or      object to any of the district court’s actions during sentencing.
the guideline range computation when specifically asked by
the district court.                                                                             ANALYSIS
   At sentencing, the court interrupted Carter twice during his    A. Sufficiency of the evidence
final remarks. After being asked personally by the court if he
had anything to say before sentencing, Carter began with a           A review of the sufficiency of the evidence to convict, in
few opening remarks and then continued into the following          the absence of a Fed. R. Crim. P. 29 motion, is limited to
exchange:
  DEFENDANT CARTER: ...my purpose in speaking at                        1
                                                                          This first interruption sho uld be seen in the context of Carter’s
  this time is so the Court may reflect on me as a person          criminal history. Between the ages of 17 and 25, Carter had amassed 18
  and not so much my prior history. This is my--                   convictions, 5 othe r arrests and thre e separate p ending charges in state
                                                                   court, two allegedly committed while Carter aw aited trial before the
                                                                   district co urt. Th is had b een o utlined b y the PS R before the court.
No. 02-2165                     United States v. Carter      5    6       United States v. Carter                         No. 02-2165

determining whether there was a manifest miscarriage of           failing to make a motion with no chance of success could not
justice. United States v. Carnes, 309 F.3d 950, 956 (6th Cir.     possibly prejudice the outcome.2
2002). In his brief, Carter does not argue that there was no
evidence to support his conviction. He further concedes that        There was no reasonable probability that a motion for
he cannot prevail upon this claim since this court can only       acquittal would succeed. Carter stipulated to all elements of
reverse if the record is devoid of evidence pointing to guilt.    the crime, except for possession of the pistol. However, there
Id. Carter’s sole argument for reviewing the conviction is that   was ample evidence that Carter possessed the pistol. Evans
his counsel was constitutionally ineffective for failing to       testified that neither he nor his companion brought the pistol
make a motion for acquittal based on the insufficiency of the     into the vehicle. Evans saw “something” that resembled the
government’s case. As the resolution of the ineffectiveness       pistol in Carter’s hand when a commotion started in the rear
claim disposes of the sufficiency claim, we turn to it to         seat upon the approach of the officers. A detective saw Carter
address both issues.                                              reach under the seat while looking back over his shoulder at
                                                                  the detective when he approached the vehicle. Both
B. Ineffective assistance of counsel                              detectives observed Matthews, who was sitting in the rear
                                                                  passenger seat, immediately put his hands on the headrest in
   Ineffective assistance of counsel claims are mixed questions   front of him, circumstantially removing himself from being
of law and fact that are reviewed de novo. United States v.       the source of the pistol’s placement under the driver’s seat at
Fortson, 194 F.3d 730, 736 (6th Cir. 1999). Generally, this       that time.
court does not review ineffective assistance of counsel claims
for the first time on appeal, instead requiring a record be         Given this evidence, a Rule 29 motion would have had no
developed pursuant to a motion under 28 U.S.C. § 2255. Id.        chance of success, since “[i]t is well established that a trial
An exception exists when a record is adequate enough to           judge confronted with a Rule 29 motion must consider all of
address the merits. Id. As the sole claim for ineffectiveness     the evidence in a light most favorable to the government.”
is that Carter’s counsel did not recognize the insufficiency of   United States v. Head, 927 F.2d 1361, 1365 (6th Cir. 1991).
the evidence, which is entirely encompassed within the            “The government must be given the benefit of all inferences
record, the issue is adequately developed.                        which can reasonably be drawn from the evidence, even if the
                                                                  evidence is circumstantial. It is not necessary that the
   Carter’s ineffectiveness claim must establish that: (1) his    evidence exclude every reasonable hypothesis except that of
lawyer’s performance was deficient compared to an objective       guilt.” Id.
standard of reasonable performance, and (2) there is a
reasonable probability that this deficiency prejudiced the          Carter’s attacks on the evidence in his brief are not directly
outcome. United States v. Davis, 306 F.3d 398, 422 (6th Cir.      aimed at any evidentiary deficiency, but at the credibility of
2002). Failing to make a motion for a judgment of acquittal       the witnesses. “It is well settled in this Circuit that attacks on
that had no chance of success fails both prongs. First, counsel   witness credibility are simply challenges to the quality of the
cannot be said to be deficient for failing to take frivolous
action, particularly since a frivolous effort takes attention
                                                                      2
away from non-frivolous issues. Second, it is evident that             “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).
No. 02-2165                      United States v. Carter       7    8       United States v. Carter                             No. 02-2165

government’s evidence and not to the sufficiency of the             factual allegations in a presentence report to which the
evidence.” United States v. Farley, 2 F.3d 645, 652 (6th Cir.       defendant does not object.” United States v. Levy, 250 F.3d
1993) (emphasis in original). “It is equally clear that issues      1015, 1018 (6th Cir. 2001); see also United States v. Garcia-
of witness credibility are for the jury.” Id. As a Rule 29          Meza, 315 F.3d 683, 686 (6th Cir. 2003)(no plain error where
motion did not have a reasonable likelihood of success, it          the district court accepts a PSR to which no objection was
cannot be said that Carter’s trial counsel was ineffective on       lodged). The court found, without objection, that Carter
either prong of Davis. Additionally, since the record is not        possessed the firearm in conjunction with a felony drug
devoid of evidence of his guilt, Carter’s sufficiency challenge     offense. There was no plain error in this finding.
must fail. See Carnes, 309 F.3d at 956.
                                                                    D. Denial of allocution
C. Improper application of sentencing guidelines
                                                                      As Carter did not lodge an objection during sentencing, this
  Sentencing issues presented for the first time on appeal are      court reviews his allocution claim only for plain error.
reviewed only for plain error. United States v. King, 341           Garcia-Meza, 315 F.3d at 685-86.3
F.3d 503, 505 (6th Cir. 2003). Carter contends the district
court erred by applying a four-level increase for possessing           Fed. R. Crim. P. 32(c)(3)(C) requires the court to “address
the firearm in connection with another felony offense. To           the defendant personally and determine whether the defendant
establish plain error, Carter must first show that an error         wishes to make a statement and to present any information in
occurred. Id.                                                       mitigation of the sentence.” Carter claims when the court
                                                                    stated it did not want to hear about the lack of evidence used
  The district court is required to add four points to the          to convict him, he was denied allocution. Denial of allocution
offense level if the pistol was possessed in connection with        is reversible error. United States v. Riascos-Suarez, 73 F.3d
another felony offense. USSG § 2K2.1(b)(5). “So long as the         616, 627 (6th Cir. 1996). A denial generally occurs when a
government proves by a preponderance of the evidence that           defendant is not, personally and unambiguously, invited to
the firearm served some purpose with respect to the felonious       address the court before sentencing, Green v. United States,
conduct, section 2K2.1(b)(5)’s ‘in connection with’                 365 U.S. 301, 305 (1961), or when a court refuses to listen to
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               3
                                                                          United States v. Wo lfe, 71 F.3d 611 , 614 (6th C ir. 199 5), set forth
possessed ‘in connection with’ an offense if the weapon             a de no vo standard of review for denial of allocutio n allegations.
facilitated or potentially facilitated the felonious conduct, or    However, in a case like Carter’s, where the allegation is not that there was
emboldened the defendant during the felonious conduct.”             a complete denial but only an inappro priate limitation, the defense should
United States v. Sanders, 162 F.3d 396, 404 (6th Cir. 1998).        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
  The PSR detailed Carter’s involvement during his                  Court, Yo ur Hono r. TH E COU RT : Tha nk you.” Ne ither Carter no r his
                                                                    counsel voiced any discontent that he was not able to persona lly address
possession offense with a drug transaction for which his            the court in a specific manner desired. See also United States v. Li, 115
companion, Matthews, was convicted. Carter did not lodge            F.3d 125, 132 (2d Cir. 1997) (contemporaneous objection to an
an objection to the PSR; indeed, his counsel specifically           inapp ropriate limitation of allocution found in the defendant’s attemp t to
accepted it. “The district court is allowed to accept as true all   make herself heard b y a court despite lacking a formal objection from
                                                                    counsel).
No. 02-2165                             United States v. Carter            9    10     United States v. Carter                             No. 02-2165

the defendant’s statement. Li, 115 F.3d 125, 133 (2d Cir.                       during allocution evidenced a substantive colloquy bearing
1997) (“Rule demands that each defendant be allowed a                           upon the sentence. See Riascos-Suarez, 73 F.3d at 627. The
meaningful right to express relevant mitigating information                     court demonstrated attentiveness to Carter’s allocution by
before an attentive and receptive district judge”).                             informing him, after imposing sentence, which comments
                                                                                were ineffective and why, along with the court’s approval of
   Allocution is the right to present a defendant’s plea in                     Carter’s future plans. Therefore, as Carter was personally
mitigation, see Green, 365 U.S. at 304, and is not unlimited.                   invited to address the court and then engaged in a substantive
Li,115 F.3d at 133 (“[A] defendant’s right to allocution is not                 colloquy with the trial judge bearing upon his sentence, the
unlimited in terms of either time or content.”); United States                  requirements of Fed. R. Crim. P. 32(c)(3)(C) were fulfilled.
v. Muniz, 1 F.3d 1018, 1025 (10th Cir. 1993)(“[T]he judge                       Since the court permitted Carter to discuss any relevant
does not have to let the defendant re-argue the case at                         matters desired in relation to his sentencing during this
sentencing.”); United States v. Kellogg, 955 F.2d 1244, 1250                    colloquy, Carter was not denied his right of allocution.
(9th Cir. 1992) (“Although the defendant has a right of
allocution at sentencing, that right is not unlimited.”).                         AFFIRMED.
  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


    4
      Carter argues that he was compe nsating fo r 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 o f 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    times that any legitimacy has be en given to the notion that defendants
proper mitigating subject to address in his allocution. Leaving aside the       have the right to argue their innocence during sentencing, even for capital
fact Carter did not raise this to the trial court, there have been only a few   defendants. See Franklin v. Lynaugh, 487 U.S. 164 , 173 -74 (1 988 ).
