                                                                                  F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  MAY 18 2004
                                    TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                             No. 03-7037
 HERBERT LEWIS, JR.,                                      (D.C. No. 02-CR-71-P)
                                                             (E.D. Oklahoma)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and HARTZ, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Herbert Lewis, Jr., appeals his convictions for two counts of possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii),

and the 240-month concurrent sentences imposed. We exercise jurisdiction pursuant to



       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
28 U.S.C. § 1291 and affirm.

       Count One arose out of a traffic stop that occurred on February 9, 2002, in Bryan

County, Oklahoma, while Lewis and a companion (Sherman Brown) were transporting a

large quantity of cocaine base to Tulsa. Count Two arose out of Lewis’ subsequent arrest

on April 17, 2002, in Okmulgee County, Oklahoma, for possession of a separate quantity

of cocaine base. In finding Lewis guilty on both counts, the jury specifically found with

respect to Count One that Lewis was in possession of more than 50 grams of a mixture or

substance containing cocaine base.

       Counsel for Lewis has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and has moved to withdraw. In response, Lewis has filed a pro se brief

identifying additional issues for appeal. Anders holds that “if counsel finds his case to be

wholly frivolous, after a conscientious examination of it, he should so advise the court

and request permission to withdraw.” Id. at 744. Upon receiving an Anders brief and the

defendant’s response thereto, we are required to conduct “a full examination of all the

proceedings” in order “to decide whether the case is wholly frivolous.” Id.

       The Anders brief filed by Lewis’ counsel identifies three potential appellate issues:

(1) whether the district court erred in denying Lewis’ motion to suppress evidence

obtained during the February 9, 2002, traffic stop; (2) whether the evidence presented at

trial was sufficient to support Lewis’ convictions; and (3) whether Lewis’ trial counsel

was ineffective for failing to present the testimony of Sherman Brown, who allegedly


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would have testified that Lewis knew nothing about the cocaine base seized during the

traffic stop. After a thorough review of the record, we agree that these issues are without

merit.

         The record amply supports the district court’s conclusion that the seizure of drugs

during the traffic stop was constitutionally valid. More specifically, the record supports

the court’s conclusions that (1) Lewis and Brown were stopped lawfully for a traffic

violation; (2) because Brown did not have a driver’s license, the trooper executing the

stop was justified in questioning Lewis to determine if he had a valid driver’s license; (3)

Lewis lawfully was detained while the trooper verified the validity of his driver’s license;

and (4) Lewis voluntarily abandoned the cocaine base by throwing it out the window of

the vehicle. As for the sufficiency of the evidence issue, a review of the record indicates

the evidence presented by the government overwhelmingly demonstrated Lewis’

dominion and control over the separate quantities of cocaine base seized on February 9,

and April 17, 2002.

         Although we typically decline to entertain ineffective assistance claims on direct

appeal, we will address this claim in this case because the claim identified was rejected on

the merits by the district court, does not merit further factual inquiry, and indeed is

patently frivolous. See United States v. Montoan-Herrera, 351 F.3d 462, 465 (10th Cir.

2003). Lewis’ allegations that Brown would testify that he knew nothing about the

cocaine base seized during the traffic stop are contrary to Brown’s post-arrest statements


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to law enforcement authorities and are belied by Lewis’ post-arrest statements in which

he admitted knowledge of and involvement with the cocaine base, as well as a videotape

of the traffic stop that showed Lewis throwing the cocaine base out the window of the

vehicle. The decision by Lewis’ trial counsel not to subpoena Brown to testify at trial

was objectively reasonable and, in any event, did not prejudice Lewis.

       Lewis identifies three additional issues. First, he contends the special

interrogatory submitted by the trial court to the jury, asking it to determine whether

“Count One involved in excess of fifty (50) grams or more of a mixture or substance

containing cocaine base,” ROA, Doc. 33, effectively amended the indictment. Lewis

asserts Count One merely alleged the existence of “a detectable amount of cocaine base,”

Pro Se Response Br. at 4, whereas the special interrogatory referred to a much larger

quantity. Lewis interprets the reference to “detectable amount” to mean that “[n]o

specific amount of cocaine base was ever alleged and/or stated in the indictment.” Id.

Lewis reads the phrase “detectable amount” in isolation. Viewed in its entirety, Count

One alleged that Lewis possessed with intent to distribute “227.6 grams or more of a

mixture or substance containing a detectable amount of cocaine base.” ROA, Doc. 1.

Because Count One alleged possession of a specific amount of cocaine, far in excess of

50 grams, there is no merit to the assertion that the special interrogatory amended the

indictment.

       Second, Lewis contends there was insufficient evidence to support the jury’s


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finding that Count One involved more than 50 grams of cocaine base. Lewis notes the

lab report pertaining to the drugs seized on February 9, 2002, referred to “cocaine” rather

than “cocaine base.” Although Lewis acknowledges that Drew Fout, the drug analyst

who tested the drug, confirmed at trial that the drugs contained cocaine base, he

complains that Fout failed to specifically “[attest] to the actual amount of cocaine base.”

Pro Se Response Br. at 6. Fout testified at trial that his laboratory tests differentiated

between cocaine and cocaine base and that the drugs tested positive for cocaine base.

Based upon this testimony, the jury reasonably could have found the entire quantity of

drugs seized on February 9, 2002, contained cocaine base.

       Third, and relatedly, Lewis contends the district court erred in calculating his base

offense level under U.S.S.G. § 2D1.1 because the court treated all of the drugs at issue as

containing cocaine base. We reject this contention for the reasons previously stated.

       AFFIRMED. Counsel’s motion to withdraw is GRANTED.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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