United States v. Stevens

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4159

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS RADFORD STEVENS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-57)

Submitted: September 30, 2005 Decided: November 21, 2005

Before GREGORY and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Sue Genrich Berry, BOWEN, BERRY AND POWERS, PLLC, 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Unpublished opinions are not binding precedent in this circuit.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:

Thomas Radford Stevens was convicted of bank robbery and

aiding and abetting bank robbery, in violation of 18 U.S.C.

§§ 2113(a), 2 (2000), and was sentenced to 240 months’

imprisonment. He appeals his conviction, claiming that the

district court admitted evidence prejudicial to his defense.

Further, he appeals his sentence, asserting that his classification

as a career offender, pursuant to U.S. Sentencing Guidelines Manual

§ 4B1.1 (2003), was based on the fact of prior convictions neither

admitted by him nor proven to the jury beyond a reasonable doubt,

in violation of his Sixth Amendment rights. For the following

reasons, we affirm both Stevens’ conviction and sentence.

A district court has discretion generally to conduct a

trial, including the presentation of evidence, in whatever manner

the court deems appropriate; thus, the district court’s evidentiary

rulings are entitled to substantial deference and will not be

reversed absent a clear abuse of discretion. See United States v.

Leftenant, 341 F.3d 338, 342 (4th Cir. 2003), cert. denied, 124 S.

Ct. 1183 (2004); Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996);

United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994). A

district court will not be found to have abused its discretion

unless its decision to admit evidence under Fed. R. Evid. 404(b)

was arbitrary or irrational. United States v. Haney, 914 F.2d 602,

607 (4th Cir. 1990). We conclude that the admission of evidence

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demonstrating that Stevens used crack cocaine and carried a

negative balance in his checking account in the time period

directly preceding the bank robbery was neither arbitrary nor

irrational. Moreover, the prejudicial effect of the evidence did

not substantially outweigh its probative value. See Fed. R. Evid.

403.*

Because Stevens did not object to the career offender

designation at sentencing, we review for plain error. See Fed. R.

Crim. P. 52(b). In Almendarez-Torres v. United States, 523 U.S.

224 (1998), the Supreme Court held that the government need not

allege in its indictment and need not prove beyond reasonable doubt

that a defendant had prior convictions for a district court to use

those convictions for purposes of enhancing a sentence. Although

the opinion of Apprendi v. New Jersey, 530 U.S. 466 (2000),

expressed some uncertainty regarding the future viability of

Almendarez-Torres, this court has recently confirmed that

Almendarez-Torres was not overruled by Apprendi and remains the

law. See United States v. Cheek, 415 F.3d 349 (4th Cir. 2005); see

generally Shepard v. United States, 125 S. Ct. 1254 (2005)

(discussing documents that a sentencing court may consider in

determining whether a prior conviction is considered a violent

*
Stevens also asserts for the first time on appeal that the
district court’s limiting instructions were inadequate. Stevens
has not established that the instructions were plainly erroneous.
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
732 (1993).

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felony). We therefore conclude that the district court did not

commit plain error in designating Stevens as a career offender, and

Stevens’ sentence did not violate the Sixth Amendment.

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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