UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-4842
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDDIE MCLEAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-02-37-BO)
Submitted: August 24, 2005 Decided: October 12, 2005
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
W. Gregory Duke, BLOUNT & DUKE, Greenville, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eddie McLean was convicted by a jury of two counts of
unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1)
(2000), and was sentenced to a term of 110 months imprisonment.
McLean appeals his conviction and sentence. We affirm.
At McLean’s trial, the government’s evidence showed that,
on May 13, 2001, Fayetteville, North Carolina, Police Officer
Jamison Keltner responded to a report of “shots fired” and was
directed to McLean’s house. Keltner testified that he found McLean
standing on his front porch smelling strongly of alcohol. When
Keltner asked McLean where the gun was, McLean said that he had put
it on the porch. Keltner seized a 12-gauge shotgun from McLean’s
porch, a short distance from where McLean was standing. There were
several shotgun shells lying on the porch. McLean told Keltner
that he had fired the shotgun because he was tired of “drug boys”
being in the street in front of his house. McLean was not
arrested, although the shotgun was confiscated.
Officer Brenda Senkier testified that, on July 9, 2001,
she responded to a report of shots being fired at McLean’s house.
When she arrived, she saw McLean standing on his porch holding a
pistol. Senkier told McLean to put the gun down, but he ran inside
and went to the kitchen at the back of the house. Senkier heard
the sound of a drawer closing, after which McLean returned to his
porch and confronted Senkier belligerently. When a backup officer
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arrived, he and Senkier placed McLean in a patrol car, then went
into McLean’s kitchen, where they found a pistol in the drawer
below the oven. The pistol had recently been fired. The backup
officer testified at trial, corroborating Senkier’s account. The
government also produced evidence that McLean had a prior felony
drug conviction. McLean was convicted of both counts of being a
felon in possession of a firearm.
At sentencing, the district court grouped both counts
together pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(d)
(2002), and determined that a base offense level of 24 applied
under USSG § 2K2.1(a)(2) because McLean had two prior felony
convictions for aggravated assault. With eighteen criminal history
points, McLean was in criminal history category VI. His guideline
range was 100-120 months. McLean argued pro se that his criminal
history and base offense level were incorrectly calculated;
however, the district court summarily overruled his objections and
imposed a sentence of 110 months imprisonment.
On appeal, McLean first challenges the district court’s
denial of his motion in limine, in which he sought to suppress the
pistol seized from his house. The motion was filed on August 27,
2002, although the district court’s pretrial scheduling order
required that pretrial motions be filed by March 29, 2002. The
court denied the motion on two grounds: (1) that it was an
untimely motion to suppress, and (2) that a warrantless entry into
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McLean’s house was justified by exigent circumstances. McLean
concedes that the motion was untimely, but argues that the issue
was preserved for appeal because the court addressed the merits of
his motion. He claims that the court clearly erred in finding that
exigent circumstances were present.
Suppression motions must be filed before trial. Fed. R.
Crim. P. 12(b)(3)(C); United States v. Wilson, 115 F.3d 1185, 1190
(4th Cir. 1997). The district court may set a date before which
pretrial motions must be filed. Fed. R. Crim. P. 12(c). A
defendant’s failure to make a pretrial motion before the court’s
deadline constitutes a waiver of the issue unless the court grants
relief from the waiver for good cause. Fed. R. Crim. P. 12(e).
The district court’s decision to deny a suppression motion as
untimely is reviewed for abuse of discretion, with consideration
given to the defendant’s reason for the untimely filing. United
States v. Denman, 100 F.3d 399, 402 (5th Cir. 1996). McLean did
not request relief from the waiver or provide any explanation for
his late filing. Therefore, the district court did not abuse its
discretion in denying McLean’s motion in limine seeking to suppress
the pistol.*
*
We also conclude that the district court did not clearly err
in finding that the officers’ limited warrantless search for the
pistol was justified by exigent circumstances. United States v.
Cephas, 254 F.3d 488, 495 (4th Cir. 2001) (citing United States v.
Turner, 650 F.2d 526, 528 (4th Cir. 1981)). The officers did not
know whether there were other persons in the house who might remove
or use the firearm.
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McLean next argues that the district court refused him
the right to represent himself or to obtain a new attorney of his
own choosing. McLean moved to represent himself on August 27,
2002, the scheduled trial date, but he indicated that his real
desire was to obtain a different lawyer. The court offered to
continue the trial and discharge McLean’s lawyer if he wished.
McLean then relinquished his request to represent himself, stating,
“If you will continue it, I’ll stay with him until I see about
getting another lawyer.” The district court continued the trial
and ruled that, “[a]ny request the defendant has made to discharge
his lawyer is denied.” McLean was represented at trial by his
appointed counsel. He obtained a new lawyer for the sentencing
hearing. He did not ask to represent himself again.
The district court’s denial of a defendant’s motion to
represent himself is reviewed de novo. United States v. Singleton,
107 F.3d 1091, 1096-97 (4th Cir. 1997). Although a defendant has
a right to represent himself, Faretta v. California, 422 U.S. 806,
819 (1975), his assertion of the right “must be (1) clear and
unequivocal; (2) knowing, intelligent and voluntary; and (3)
timely.” United States v. Frazier-El, 204 F.3d 553, 558-59 (4th
Cir. 2000) (internal citations omitted). The record in this case
reveals that McLean never made an unequivocal request to represent
himself. On these facts, the district court did not err when it
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denied McLean’s motion to discharge his lawyer and represent
himself.
McLean contends that the evidence was insufficient to
establish that he possessed either the shotgun or the pistol
because the shotgun was not in his hands on May 12, 2001, when
Officer Keltner arrived and because Officer Senkier did not
positively identify the pistol found in McLean’s kitchen as the
weapon she saw in his hand when she approached his house on July 9,
2001. We review de novo the district court’s decision to deny a
Fed. R. Crim. P. 29 motion for acquittal. United States v. Wilson,
118 F.3d 228, 234 (4th Cir. 1997). Where, as here, the motion was
based on insufficient evidence, “[t]he verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942); United States v. Wills, 346 F.3d
476, 495 (4th Cir. 2003), cert. denied, 124 S. Ct. 2906 (2004).
The reviewing court considers 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). Witness credibility is within the sole province of the
jury, and the appellate court does not reassess the credibility of
testimony. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.
1989).
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Here, the government’s evidence was sufficient to show
that McLean actually possessed a firearm on each date charged in
the indictment. Officer Keltner testified that, when he walked up
to McLean’s porch and asked McLean where the gun was, McLean
pointed out where the shotgun was lying on the porch and said he
had put it there. Keltner also testified that McLean told him he
had fired the shotgun before Keltner arrived. Because the jury
found Keltner’s testimony credible, his testimony established that
McLean possessed the shotgun on that date. Similarly, Officer
Senkier testified that she observed McLean standing on his porch
with a pistol in his hand. When Senkier approached the porch,
McLean ran into his house toward what she knew to be the kitchen.
She heard a bang, after which McLean immediately came out of the
house again and said to her, “You are not getting it.” Senkier and
the backup officer then recovered from a drawer in the kitchen a
handgun that had recently been fired. Senkier testified that the
recovered gun was the same gun she saw McLean holding on the porch.
This evidence was sufficient to establish that McLean possessed the
seized firearm on that date.
Relying on Blakely v. Washington, 542 U.S. 296 (2004),
McLean contends that the court’s decision to enhance his base
offense level based on his two prior convictions for crimes of
violence violates the Fifth and Sixth Amendments. Because McLean
did not challenge his sentence on constitutional grounds in the
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district court, his claim is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993). McLean’s base
offense level was set at 24 based on his two 1997 convictions for
aggravated assault. McLean was arrested in January 1996 and again
in July 1996; he pled guilty in each case and was sentenced to
concurrent four-year terms of imprisonment on August 14, 1997.
Each conviction involved an assault on a different victim, on
different dates.
In United States v. Booker, 125 S. Ct. 738 (2005), the
Supreme Court held that Blakely applies to the federal sentencing
guidelines and that the Sixth Amendment is violated when a sentence
is imposed under the mandatory guidelines scheme which is greater
than the maximum authorized by the facts admitted by the defendant
or found by the jury. See 125 S. Ct. at 746, 750-51. The Court
remedied the constitutional violation by severing and excising the
statutory provisions that mandate sentencing and appellate review
under the guidelines, thus making the guidelines advisory. Id. at
756-57. Booker reaffirmed the prior conviction exception set out
in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
preserved in Apprendi v. New Jersey, 530 U.S. 466 (2000). See
Booker, 125 S. Ct. at 756 (“Any fact (other than a prior
conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or
a jury verdict must be admitted by the defendant or proved to a
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jury beyond a reasonable doubt”). Subsequently, the Supreme Court
held in Shepard v. United States, 125 S. Ct. 1254 (2005), that the
same Sixth Amendment principle applies to “a disputed fact . . .
about a prior conviction” that is not evident from the prior
judicial record, id. at 1262, as opposed to the mere fact of a
prior conviction. See also United States v. Collins, 412 F.3d 515
(4th Cir. 2005) (finding no Sixth Amendment violation where nature
and separateness of predicate offenses for career offender status
was undisputed); cf. United States v. Washington, 404 F.3d 834, 843
(4th Cir. 2005) (finding that district court’s reliance on disputed
facts about prior conviction to determine that it was a crime of
violence violated the Sixth Amendment).
McLean acknowledges the exception for “the fact of a
prior conviction,” upheld in Blakely, 542 U.S. at ___, 124 S. Ct.
at 2536, but argues that Almendarez-Torres, 523 U.S. at 233-36, on
which it is based, must now be narrowly applied and may no longer
be good law. Further, McLean argues that the factual findings
required to determine whether particular convictions are countable
and how many points are assessed involve more than the mere fact of
a prior conviction and therefore are subject to the requirements of
Blakely.
This argument is foreclosed by the Supreme Court’s
reaffirmation of the Almendarez-Torres prior conviction exception
in Booker. In this case, the district court’s determination of
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McLean’s criminal history did not violate the Sixth Amendment
because the court did not consider any facts McLean had not
admitted. The court relied on the record of McLean’s prior
convictions and sentences. As in Collins, the violent nature and
separateness of McLean’s prior convictions for aggravated assault
were evident from the record. McLean’s due process or Fifth
Amendment claim also fails. See United States v. Harp, 406 F.3d
242, 247 (4th Cir. 2005) (holding that, even if the district court
plainly erred in determining that defendant was a career offender
when elements of career offender status had not been charged in
indictment, this court would not exercise its discretion to correct
the error because Harp “had no legitimate defense to the career
offender designation”). McLean similarly lacks a legitimate
defense to the base offense level that was applied under
§ 2K2.1(a)(2).
McLean also argues that the district court plainly erred
by using his two aggravated assault convictions to enhance his base
offense level under § 2K2.1(a)(2) and giving him three criminal
history points for the sentence in each case because this
constitutes improper double counting. Because McLean did not
object to his criminal history calculation on this ground in the
district court, this claim is reviewed for plain error.
No error occurred because double counting is permitted
under the guidelines “except where it is expressly prohibited.”
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United States v. Crawford, 18 F.3d 1173, 1179 (4th Cir. 1994).
Therefore, it is permissible to enhance a defendant’s base offense
level because he has certain prior felony convictions and to assess
criminal history points for the sentences imposed for the same
convictions. Id. at 1180. McLean concedes that his argument was
rejected in Crawford, but he suggests that Crawford should be
overruled. Because a panel of this court may not overrule another
panel, see United States v. Chong, 285 F.3d 343, 346 (4th Cir.
2002), his claim fails.
Next, McLean contends that the district court plainly
erred in not counting the sentences for his two 1997 convictions as
one prior sentence under § 4A1.2(a)(2) because they were related
cases as defined in Application Note 3 to § 4A1.2. Cases are
related if they occurred on the same occasion, they were part of a
single common scheme or plan, or they were consolidated for trial
or sentencing. However, Application Note 3 states that cases are
never considered related if there was an intervening arrest, that
is, the defendant was arrested for the first offense before he
committed the second offense. McLean was arrested for the first
aggravated assault in January 1996; he committed the second
aggravated assault on a different victim in July 1996.
Consequently, the district court did not err in counting the
sentences imposed in these cases separately.
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Finally, McLean maintains, again for the first time, that
the district court erred in awarding criminal history points under
§ 4A1.1(a) and (c) for his prior sentences because the convictions
were not charged in the indictment or found by a jury beyond a
reasonable doubt. He also argues that the court plainly erred in
assessing two criminal history points under § 4A1.1(e) for
commission of the instant offense while on probation when his
probationary status was not charged or proved to a jury. No Sixth
Amendment error occurred because the court relied solely on the
judicial record which established the fact of McLean’s prior
convictions and sentences, including his probationary sentence.
All these facts come within the prior conviction exception upheld
in Booker. 125 S. Ct. at 756. The court did not make fact
findings to resolve any dispute about the prior convictions; all
the information used to calculate McLean’s criminal history was
evident from the judicial record. Shepard, 125 S. Ct. at 1262-63.
We therefore affirm the conviction and sentence imposed
by the district court. 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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