                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4592


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ISAAC LAMONT WILLIAMS,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cr-00111-TDS-1)


Submitted:   February 16, 2012            Decided:   March 1, 2012


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Robert A. J. Lang, Assistant United States Attorney, Brodie
Erwin, Third Year Law Student, Winston-Salem, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             After     a     jury    trial,       Isaac    Lamont       Williams     was

convicted of one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e) (2006)

and sentenced as an armed career criminal.                      On appeal, Williams

claims the following:             (1) the district court plainly erred by

admitting testimony from a crime scene technician and an FBI

agent; (2) the court erred by not giving Williams access to

grand jury testimony; (3) his right to due process was violated

because an exculpatory witness was deported; (4) the evidence

was   not    sufficient      to   support       the   conviction;   (5)     the    court

erred by relying on a prior conviction to support his armed

career      criminal       status;   and        (5)   counsel     was     ineffective.

Finding no error, we affirm.

             Williams was arrested after a high speed car chase and

foot pursuit.        Police also seized a shotgun that was thrown from

the vehicle.         At trial, it was stipulated that Williams had a

predicate felony conviction.

             Williams       claims    the       district   court        plainly    erred

because it allowed the crime scene technician to testify about

retrieving palm prints from the vehicle without qualifying her

as an expert.        Similarly, he claims the court plainly erred by

permitting an FBI agent to testify about whether he believed the

shotgun was operable.

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            This      court    reviews       a     district         court’s     evidentiary

decisions for abuse of discretion.                       United States v. Johnson,

617 F.3d 286, 292 (4th Cir. 2010).                           Evidentiary rulings are

subject    to   harmless       error     review,        and,    in    order        to   find    a

district court’s error harmless, this court “need only be able

to say with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that the

judgment    was      not    substantially         swayed       by    the     error.”        Id.

(internal quotation marks omitted); see also United States v.

Forrest, 429 F.3d 73, 81 (4th Cir. 2005).

            Because        Williams     did       not    object       to     the    testimony

offered    by   either      witness,     review         is   for     plain    error.        See

United States v. Wilson, 484 F.3d 267, 277-78 (4th Cir. 2007).

Under this standard, there must be an error that is plain that

affects the defendant’s substantial rights.                          Id. at 278.            Even

if Williams makes this showing, the error will be noticed only

if   it   seriously        affects     the    fairness,         integrity          or   public

reputation      of    the     judicial       proceedings.             United       States      v.

Hughes, 401 F.3d 540, 555 (4th Cir. 2005).

            Federal Rule of Evidence 701 permits opinion testimony

by a lay witness if it is rationally based upon the witness’

perception, helpful to provide a clearer understanding of the

testimony or to determining a fact in issue and is not based



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upon scientific, technical or other specialized knowledge within

the scope of Federal Rule of Evidence 702.

                 Under Rule 702, expert testimony is admissible if it

will assist the trier of fact and is (1) “based on sufficient

facts      or    data,”     (2)   “the    product       of    reliable     principles      and

methods,”         and     (3)     “the     expert       has     reliably     applied       the

principles and methods to the facts of the case.”                           Fed. R. Evid.

702.

                 We have reviewed the challenged testimony and conclude

there was no error, much less plain error.                           Both witnesses were

clearly testifying from their perception and offering opinions

based on their perception. *

                 Williams       also   claims        the     district    court     erred    in

denying         him   access      to     grand       jury    testimony     based    on     his

assertion that a witness did not testify before the grand jury

consistently with the police reports.                        We conclude this claim is

without         merit.       Unlike      the     situation      in    United     States     v.

Feurtado, 191 F.3d 420, 423-24 (4th Cir. 1999), Williams failed

to provide any substantive evidence showing that the witness

gave false or misleading testimony that led to the indictment.


       *
       Even if there was error, Williams fails to show his
substantial rights were violated because he fails to show that
the witnesses would not have qualified as experts had counsel
objected.



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              Williams       also    claims       his   right   to    due   process      was

violated because an exculpatory witness was deported prior to

trial.     This claim is reviewed for plain error because Williams

initially raised this claim some ten months after the trial.

The    Sixth      Amendment     right        of    a    defendant      in     a    criminal

proceeding        to     compulsory       process        for      witnesses         is   “so

fundamental and essential to a fair trial[.]”                            Washington v.

Texas,    388     U.S.    14,   17-18    (1967).         The    right    to       compulsory

process is not absolute, and is available only if the defendant

can    show     that   the   evidence     is      relevant,     material      and    vital.

United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 873-74

(1982).       Evidence is “material” only if there is a “reasonable

likelihood that the testimony could have affected the judgment

of the trier of fact.”              Id. at 874.

              We conclude there was no plain error because Williams

cannot show his substantial rights were violated.                                 Williams’

claim that the witness would have offered exculpatory testimony

is speculative at best.               Furthermore, as will be discussed, the

evidence against Williams was overwhelming.

              Williams       claims    the     evidence     was      insufficient.         A

defendant challenging the sufficiency of the evidence bears “a

heavy burden.”           United States v. Beidler, 110 F.3d 1064, 1067

(4th     Cir.     1997)      (internal       quotation      marks      omitted).          In

determining whether the evidence in the record is sufficient,

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this court views the evidence in the light most favorable to the

Government.         United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)      (en      banc).          This        court     reviews       both    direct      and

circumstantial evidence and permits the “government the benefit

of   all   reasonable        inferences          from     the   facts    proven      to   those

sought to be established.”                     United States v. Tresvant, 677 F.2d

1018, 1021 (4th Cir. 1982).                       This court does not review the

credibility of witnesses and assumes the factfinder resolved all

contradictions        in     the       testimony     in    favor    of    the   Government.

United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002).

               To support a conviction for felon in possession of a

firearm under 18 U.S.C. § 922(g)(1), the Government must prove

the following elements:                  (1) the defendant previously had been

convicted of a felony; (2) the defendant knowingly possessed a

firearm; and (3) the possession was in or affecting commerce,

because       the   firearm        had    travelled        in   interstate      or    foreign

commerce at some point during its existence.                             United States v.

Moye, 454 F.3d 390, 395 (4th Cir. 2006) (en banc).

               The evidence against Williams and in support of the

conviction was overwhelming.                      Williams was identified as the

person leaving the vehicle after engaging in a high speed car

chase.     The shotgun was retrieved after it was seen being thrown

from    the      vehicle.         It     was    determined      that     the    shotgun    was

operable      and    that    it     had    moved     in    interstate      commerce.         In

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addition, it was stipulated that Williams had a prior felony

conviction.            As       additional           support,          we     note       there        was

fingerprint evidence, video tape recordings and photographs and

evidence    of   statements           Williams           made      after      his    arrest.            We

conclude     there             was   substantial               evidence           supporting          the

conviction.

            Williams claims that his 1990 conviction for attempt

to sell cocaine should not have been considered a serious drug

offense    for    purposes           of     his        armed       career         criminal        status

(“ACCA”)     because            it   does       not          involve        the     manufacturing,

distributing      or      possession          of     a    controlled         substance.               This

court   reviews       a     district      court’s            determination          of       whether    a

prior     conviction           qualifies        as       a     predicate          conviction          for

purposes of the ACCA de novo.                            United States v. Brandon, 247

F.3d 186, 188 (4th Cir. 2001).                          Under the ACCA, if a defendant

is convicted of violating § 922(g) and has sustained three prior

convictions      for        violent       felonies            or   serious          drug      offenses

committed on occasions different from one another, the defendant

is subject to a statutory mandatory minimum of fifteen years

imprisonment.             18    U.S.C.    §     924(e)(1).              The       ACCA       defines    a

serious drug offense as “an offense under State law, involving

manufacturing,         distributing,               or     possessing          with       intent         to

manufacture      or    distribute,          a      controlled          substance         .    .   .   for



                                                   7
which a maximum term of imprisonment of ten years or more is

prescribed by law.”       18 U.S.C.A. § 924(e)(2)(A)(ii).

            As    noted   in    Brandon,    the   word   “involve”   should    be

“read expansively.”            Brandon, 247 F.3d at 190.           Clearly, an

attempt   to     distribute,     manufacture      or   possess   cocaine    would

involve conduct defined as a serious drug offense.                   In United

States v. Winbush, 407 F.3d 703, 706-08 (5th Cir. 2005), the

appellant claimed that his attempt offense was not a serious

drug offense because it was not a completed offense.                  The court

rejected his claim, finding that the use of the word “involve”

did not serve to narrow the types of convictions that could be

considered for ACCA purposes.              We agree and cite as additional

support for the conclusion United States v. Alexander, 331 F.3d

116, 130-31 (D.C. Cir. 2003), and United States v. King, 325

F.3d 110, 113-14 (2d Cir. 2003).

            Finally,      Williams    claims       his   trial    counsel     was

ineffective.       Ineffective assistance of counsel claims are not

generally      cognizable       on   direct       appeal,   however,       unless

ineffective assistance “conclusively appears” on the record, see

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006),

and such a claim should generally be raised by a habeas corpus

motion under 28 U.S.C.A. § 2255 (West Supp. 2011).                   See United

States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999).                       We

have reviewed the record and took note of the issues raised by

                                       8
Williams and conclude that the record does not conclusively show

that counsel was ineffective.

           Accordingly,       we   affirm   the   conviction   and   sentence.

We   dispense   with   oral    argument     because   the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                      AFFIRMED




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