UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AL JAMES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (CR-03-195-1)
Submitted: September 30, 2005 Decided: November 3, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, 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Unpublished opinions are not binding precedent in this circuit.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:
Al James Smith appeals from his conviction and sentence
imposed for making a false statement in acquisition of a firearm,
in violation of 18 U.S.C. § 922(a)(6) (2000), being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
(2000), engaging in the business of dealing in firearms without a
license, in violation of 18 U.S.C. § 922(a)(1)(A) (2000), and
conspiracy to engage in the business of dealing in firearms without
a license, in violation of 18 U.S.C. §§ 371, 922(a)(1)(A) (2000).
Finding no error, we affirm.
I
Smith challenges the district court’s decision to admit
the testimony of an expert on handwriting comparison analysis. The
Government presented Carl McClary, a questioned document examiner
with the ATF, to give his opinion on whether Smith’s known
handwriting samples matched the signatures on the completed ATF
4473 forms used to purchase the handguns at Cumberland Pawn Shop.
The district court’s decision to admit expert testimony
is reviewed for abuse of discretion. Gen. Elec. Co. v. Joiner, 522
U.S. 136, 139 (1997); United States v. Powers, 59 F.3d 1460, 1470-
71 (4th Cir. 1995). The introduction of expert opinion testimony
is governed by Federal Rule of Evidence 702, which provides that
“[i]f scientific, technical, or other specialized knowledge will
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assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert . . . may testify
thereto in the form of an opinion or otherwise.” Fed. R. Evid.
702. Expert testimony is admissible under Rule 702, then, if it
concerns (1) scientific, technical, or other specialized knowledge,
(2) that will aid the jury or other trier of fact to understand or
resolve a fact at issue. Daubert v. Merrill Dow Pharms., Inc., 509
U.S. 579, 592 (1993); see also Kumho Tire Co., Ltd. v. Carmichael,
526 U.S. 137, 141 (1999) (extending Daubert’s two-part gatekeeping
test to all expert testimony).
This court has held in a challenge to handwriting
comparison analysis that such evidence is admissible. United
States v. Crisp, 324 F.3d 261, 270-71 (4th Cir.), cert. denied, 540
U.S. 888 (2003). We found that “every circuit to have addressed
the issue has concluded . . . that such evidence is properly
admissible.” Crisp, 324 F.3d at 270. We noted “[t]he fact that
handwriting comparison analysis has achieved widespread and lasting
acceptance in the expert community gives [it] the assurance of
reliability that Daubert requires.” Id. at 271. In addition,
because the role of the handwriting expert “is primarily to draw
the jury’s attention to similarities between a known exemplar and
a contested sample,” a jury is left to decide for itself whether to
agree with the expert. Id. We also stated that the defendant had
not presented any reason to doubt the reliability of handwriting
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analysis evidence. Id. Lastly, cross-examination is available to
show any shortcomings in the testimony. Id.; see Daubert, 509 U.S.
at 588-89.
Here, as in Crisp, the defendant did not present any
evidence that handwriting analysis was unreliable. There was no
challenge to McClary’s testimony that, during the ten years that he
has testified, handwriting comparison has been generally accepted.
Further, McClary testified that he helped develop standards for
examination of questioned documents. He was certified by a non-
governmental agency.
Under Daubert, the district court need not:
expend scarce judicial resources reexamining a familiar
form of expertise every time opinion evidence is offered.
In fact, if a given theory or technique is ‘so firmly
established as to have attained the status of scientific
law,’ then it need not be examined at all, but instead
may properly be subject to judicial notice.
Crisp, 324 F.3d at 268 (quoting Daubert, 509 U.S. at 592 n.11). In
Crisp, this court found that handwriting analysis has the
reliability that Daubert requires even if it does not have the
status of scientific law. Crisp, 324 F.3d at 271. Finally, cross-
examination was available to show any shortcomings in the
testimony. Id.; see Daubert, 509 U.S. at 588-89. We therefore
conclude that the district court did not abuse its discretion in
admitting McClary’s testimony.
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II
ATF Agent Don Baucom’s testimony was introduced to show
that the firearms had previously traveled in interstate commerce,
in order to fulfill the “interstate nexus” of the firearm
possession charge. 18 U.S.C. § 922(g) (2000). Smith argues that
Agent Baucom had insufficient training and experience to qualify as
an expert.
We hold that the trial court did not abuse its discretion
by allowing a specially trained agent to testify that the firearms
in question were manufactured outside North Carolina and had
traveled in interstate commerce. The agent had sufficient
experience and knowledge to qualify him to testify about the origin
of the firearms in question.
It was established at trial that Baucom was an ATF agent
who had extensive training in firearms, had handled 2000 firearms
since his first interstate nexus training, and had previously
testified in court regarding the interstate nexus of firearms after
having received advanced specialized training on the subject in
2002. We therefore conclude that the trial court did not abuse its
discretion by admitting Agent Baucom’s testimony. See Powers, 59
F.3d at 1470-71.
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III
Smith assigns error to the district court’s denial of his
motion for judgment of acquittal on the felon in possession of a
firearm counts. He focuses his argument on possession of the gun
found under the car seat during his arrest on February 13, 2003,
and then states that there is even less evidence supporting
possession on the dates charged: February 11, 2003, April 9, 2003,
and May 5, 2003. The Government notes, however, that the felon in
possession counts stem from the pawn shop purchases and not the
firearm in his presence on the date of arrest.
A defendant challenging the sufficiency of the evidence
faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[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).
This court “ha[s] defined ‘substantial evidence,’ in the context of
a criminal action, as that evidence which ‘a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.’”
United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003)
(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)).
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We find that there was substantial evidence to support
the verdict that Smith possessed the firearms. Employees of
Cumberland Pawn Shop identified Smith as the person to whom they
sold the firearms, and the employees testified that they gave him
the firearms at the time of sale. The driver’s licenses used in
connection with the sales were found at Smith’s residence and had
Smith’s photograph on them. Reginald Currie, Smith’s co-
conspirator, testified that he and Smith took firearms to New York
where a friend, Flowers, sold them. Smith, Currie, and Flowers
were arrested together in New York in a car co-owned by Smith and
his girlfriend, two days after Smith purchased the firearms in
North Carolina. At the time of his arrest, Smith had $1,800 and a
small amount of cocaine on his person. The possession of the drugs
and money was consistent with Currie’s testimony that Smith sold
the guns at an approximate value of $700 each in cash and drugs.
We therefore conclude that viewing the evidence in the light most
favorable to the Government, the district court did not err in
denying the motion for acquittal.
IV
Last, Smith contends that his sentence was increased
based upon facts that were not found by a jury beyond a reasonable
doubt. He did not raise this issue in the district court,
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therefore it is reviewed for plain error. United States v. Hughes,
401 F.3d 540 (4th Cir. 2005).
Smith’s base offense level was increased based on the
number of firearms involved in the offense. However, these
enhancements did not affect the final sentence. It was not plain
error for the district court to apply the Sentencing Guidelines in
light of United States v. Booker, 125 S. Ct. 738 (2005), because
Smith was sentenced under the Armed Career Criminal Act, which
determined his Guideline range. Smith’s claim is foreclosed by
circuit precedent. See United States v. Thompson, 421 F.3d 278,
284-86 (4th Cir. 2005) (holding that prior convictions could not be
severed from their essential components, and these components
include integral facts such as the statutory violation and date of
offense, therefore these facts were inherent to convictions not
extraneous to them); United States v. Cheek, 415 F.3d 349, 350 (4th
Cir. 2005) (holding that defendant’s Sixth Amendment right to trial
by a jury was not violated by district court’s reliance on his
prior convictions for purposes of sentencing under the Armed Career
Criminal Act).
Moreover, on appeal, Smith does not challenge any factual
findings regarding the prior convictions, and he does not dispute
the factual basis for the district court’s conclusions that he was
an armed career criminal. Accordingly, Smith’s assertion that his
sentence violated the Sixth Amendment is without merit. See United
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States v. Collins, 412 F.3d 515, 523 (4th Cir. 2005) (holding that,
where defendant did not dispute any of the facts supporting the
career offender status in district court, there is no
constitutional violation in relying on defendant’s prior
convictions).
To the extent that Smith contests his sentence based upon
the mandatory nature of the application of the Sentencing
Guidelines, the claim is without merit. In United States v. White,
405 F.3d 208 (4th Cir. 2005), we determined that imposing a
sentence under the Guidelines as mandatory was error that was
plain. 405 F.3d at 216-17. However, we then discussed the third
prong of the plain error analysis. In determining whether an error
affected the defendant’s substantial rights, we reasoned that “the
error of sentencing a defendant under a mandatory guidelines
regime” was not an error for which prejudice would be presumed.
Id. at 219-20, 224. Rather, the defendant bears the burden of
showing that this error prejudiced him, or “‘affected the outcome
of the district court proceedings.’” Id. at 223 (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)).
Here, Smith provides no non-speculative basis for
concluding that the treatment of the Guidelines as mandatory
affected the selection of the sentence imposed. He points to his
personal circumstances of an impoverished childhood and an adult
life addicted to drugs that under the Guidelines did not qualify
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him for a downward departure. However, the district court did not
make any statements indicating that it wished to impose a sentence
below the Guideline range. In fact, it imposed a sentence at the
high-end of the Guideline range and specifically noted that Smith
had an extensive criminal history with twenty-three prior felony
convictions and had not taken advantage of the many opportunities
to reform his behavior. We therefore conclude that Smith cannot
succeed on a claim challenging the mandatory application of the
Guidelines.
We therefore affirm the judgment. 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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