United States v. Padgett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5240

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY ASHLEY PADGETT,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-05-14)

Argued: November 30, 2006 Decided: May 10, 2007

Before MOTZ and DUNCAN, Circuit Judges, and Gerald Bruce LEE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John Charles Hunter, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Defendant Timothy Ashley Padgett appeals his conviction. This

case concerns the use of Defendant Padgett’s prior convictions to

enhance his sentence for possession of 100 grams or more of a

substance containing a detectable amount of pseudoephedrine with

the intent to manufacture methamphetamine and conspiracy to

manufacture methamphetamine. First, the Court must determine

whether the District Court improperly sentenced Defendant Padgett

as a career offender when: (1) he disputed that one of his prior

convictions was not a crime of violence but rather a non-violent

theft crime and the judge considered the prior conviction; (2) one

of the predicate prior convictions for a crime of violence used to

establish career offender status was not “counted” in the

calculation of the Defendant’s criminal history points; (3) two

prior felony convictions that were crimes of violence or controlled

substance offenses were not admitted by the Defendant, included in

the indictment, nor submitted to a jury and found beyond a

reasonable doubt; and (4) Defendant failed to receive notice prior

to any enhancement of his sentence based on prior convictions in

accord with 21 U.S.C. § 851. Second, the Court must determine

whether the District Court abused its discretion when it admitted

testimony related to prior bad acts of the Defendant under Federal

Rules of Evidence 403 or 404(b).

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 The Court holds that (1) the face of the Judgment gave the

District Court sufficient information to determine that the

Defendant was convicted of a felony, not a non-violent theft crime;

(2) simply because a predicate conviction was not “counted” in the

criminal history points does not mean that it cannot be used to

establish career offender status; (3) there is no need under

current precedent to submit prior convictions in an indictment or

to a jury to be found beyond a reasonable doubt; and (4) there is

no need to receive notice under current precedent for enhancement

of a sentence based on prior convictions. As to the evidentiary

issue, the Court holds that the District Court did not abuse its

discretion when it admitted testimony related to prior bad acts

because the admission of the evidence was not arbitrary or

irrational. Therefore, the District Court’s rulings are affirmed.

I. BACKGROUND

Timothy Ashley Padgett, Laura Lee Dryman, and Melody Suzette

Nelson were jointly indicted on February 8, 2005. Defendant

Padgett was charged with possession of 100 grams or more of a

substance containing a detectable amount of pseudoephedrine with

the intent to manufacture methamphetamine, in violation of 21

U.S.C. 841(a)(1) and (c); and for conspiracy to attempt to

manufacture methamphetamine, in violation of 21 U.S.C. §§ 841 and

846. J.A. 7-8. After a jury trial, the jury found Defendant

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guilty of both counts. The Pre-sentence Report (“PSR”) noted an

aggravated burglary in Humphreys County, Tennessee and a

residential burglary in Cross County, Arkansas - these qualified

the defendant for career offender status pursuant to United States

Sentencing Guidelines § 4B1.1 with a resulting offense level of 34.

J.A. 328-29. The Probation office counted four criminal history

points for Defendant’s nine prior convictions, and a total of 16

criminal history points. The final criminal history category of

VI, matched with an offense level of 34, produced a Guideline

sentence range between 262 and 327 months. J.A. 342.

Defendant objected to the PSR, arguing (1) that the aggravated

burglary conviction from Tennessee was not a qualifying predicate

conviction because the Code section referenced referred to theft of

property and not burglary (J.A. 345); (2) the Arkansas conviction

should not be considered a predicate conviction because it was not

counted in the criminal history points (J.A. 345, 346); and (3)

there was no notice by the government that it would rely upon prior

convictions for sentencing enhancements pursuant to 21 U.S.C. § 851

(J.A. 345).

At trial, the Government presented the testimony of several

witnesses: Detective Kenneth Cope of the Macon County Sheriff’s

Department (J.A. 21), Detective Don Willis (J.A. 49-50), Ms.

Nelson, Ms. Dryman, Mr. Johnny Fortner (a fellow prisoner of Mr.

Padgett in Macon County Jail) (J.A. 176, 178-79), Jennifer Johnson

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of Lowe’s (J.A. 189), and several law enforcement witnesses (a

chemist, a Special Agent with the North Carolina State Bureau of

Investigation, and a Special Agent with the Drug Enforcement

Administration). Defendant objected to Ms. Nelson’s testimony

about car theft, shoplifting, casual drug use and a previous charge

of manufacturing methamphetamine - Defendant argued this was

prejudicial and not relevant. The Court issued a limiting

instruction to the jury at the close of Ms. Nelson’s testimony; the

Court instructed the jury to disregard any testimony relating to

any prior offense committed by Mr. Padgett during their

deliberations.

On December 8, 2005, the Defendant was sentenced to 240 months

for Count I and 262 months for Count II (to run concurrently).

J.A. 316. Defendant’s appeal is now before this Court.

II. DISCUSSION

A. Standard of Review

This Court reviews de novo appeals arguing that a sentence was

unconstitutionally imposed as a matter of law. United States v.

Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005). Under the

Sentencing Guidelines, a criminal defendant qualifies as a career

offender if

(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled

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 substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.

U.S. Sentencing Guidelines Manual § 4B1.1(a) (2002). A “crime of

violence” constitutes

any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that – (1)
has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.

U.S. Sentencing Guidelines Manual § 4B1.1(a).

The Court of Appeals reviews evidentiary rulings under the

abuse of discretion standard. United States v. Queen, 132 F.3d

991, 995 (4th Cir. 1997). A decision by a district court judge to

admit evidence under Federal Rule of Evidence 404(b) will not be

overturned on appeal unless it was “‘arbitrary or irrational.’”

United States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).

B. Analysis

1. Aggravated Burglary Charge

The Court affirms the District Court’s ruling that the

Defendant’s aggravated burglary charge was a crime of violence

because the face of the Judgment gave the District Court sufficient

information to determine that the Defendant was convicted of a

felony, not a non-violent theft crime. As detailed above, crimes

of violence are one of the categories of crime that contribute to

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a Defendant being labeled a “career offender.” Burglary of a

dwelling is considered a crime of violence under the United States

Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 4B1.1

app. 1.

“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 jury beyond a reasonable doubt.”

United States v. Booker, 543 U.S. 220, 244 (2005); Almendarez-

Torres v. United States, 523 U.S. 224, 226-27 (1998); United States

v. Thompson, 421 F.3d 278, 281 (4th Cir. 2005). The Supreme Court

did not give judges the power to resolve “disputed fact[s]” about

prior convictions if they needed to use data that was “not inherent

in that prior conviction.” Thompson, 421 F.3d at 281-82 (citing

Shepard v. United States, 544 U.S. 13, 24-25 (2005)). The Supreme

Court “authorized judges to rely on a variety of conclusive court

documents when determining the nature of a prior conviction.” Id.

at 281. The Court in Thompson stated: “Approved sources include,

for instance, the prior court’s jury instructions or the ‘charging

documents filed in the court of conviction.’” Id. at 281-82 (citing

Shepard, 544 U.S. at 1259). For prior guilty pleas, courts may

look to “‘the terms of the charging document, the terms of a plea

agreement or transcript of colloquy between judge and defendant in

which the factual basis for the plea was confirmed by the

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defendant, or [ ] some comparable judicial record of this

information.’” Id. at 282 (citing Shepard, 544 U.S. at 1263).

Defendant argues that the District Court committed an error

when it relied on a “prior conviction” for an alleged “crime of

violence” about which there was a factual dispute which could not

be resolved by the Court through simple reference to the charging

document or the Judgment. Defendant argues that he had entered a

plea agreement for theft of property, not a violent burglary felony

offense. Defendant also argues that there was a clearly disputed

factual issue here, and that the sentencing Court went far beyond

the documents to which it should have looked when inquiring about

the factual dispute. Also, argues Defendant, the Court applied a

preponderance of the evidence standard here, when really the Court

should have used a beyond a reasonable doubt standard. The

Government responds that while there was a typographical error on

the Tennessee aggravated burglary judgment of conviction, the other

facts stated on that judgment all lead to the conclusion that Mr.

Padgett was convicted of a violent felony.

We affirm the District Court judgment that the Defendant

qualifies as a career offender because the judgment at issue

indicates a crime of violence, not a non-violent crime. Even

though Defendant argues that he entered a plea agreement for theft

of property, not a violent burglary felony offense, examining the

Judgment as a whole reveals that the theft of property citation was

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a typographical error--all other indicators of the offense on the

face of the Judgment point to a felony. J.A. 375; Appendix 1. The

box for “felony” (as opposed to “misdemeanor”) is checked in two

different places on the Judgment. Id. The offense is listed as

“Aggravated Burglary.” Id. The sentence length and probation

length are each four years. Id. Therefore, it is appropriate for

this Court (and was appropriate for the District Court) to find

that Defendant qualifies as a career offender because he was at

least eighteen years of age at the time of the controlled substance

offenses at issue here and had two prior felony convictions for

crimes of violence (aggravated burglary and residential burglary).

2. Predicate Conviction

The Court affirms the District Court’s decision that one of

the predicate prior convictions for a crime of violence used to

establish career offender status did not need to be “counted” in

the calculation of the Defendant’s criminal history points; simply

because a predicate conviction was not “counted” in the criminal

history points does not mean that it cannot be used to establish

career offender status. Under United States Sentencing Guidelines

§ 4A1.2(c), “[s]entences for all felony offenses are counted” when

determining career offender status. Under United States Sentencing

Guidelines § 4A1.1, one criminal history point is assigned, up to

a total of four (4) points, for prior sentences not falling into

§ 4A1.1(a) or (b).

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 The Defendant argues that one of the two convictions upon

which his career offender sentence enhancement was predicated was

not among those convictions “counted” in the calculation of his

criminal history points total; therefore, he argues, it should not

have qualified as a “prior conviction” for purposes of a career

offender enhancement. The Government argues that the District

Court did not err in relying on Defendant’s prior felony conviction

from Arkansas, even though that conviction could not count when

calculating the Defendant’s criminal history point total; sentences

for all felony offenses are counted when determining career

offender status under § 4A1.2(c).

The District Court properly used the Defendant’s prior

conviction for Residential Burglary on June 11, 2002 to establish

career offender status because all violent and controlled substance

felonies should be considered when deciding whether to assign a

Defendant career offender status. The Sentencing Guidelines

instruct that all felony offenses should be counted when

determining if a Defendant qualifies for career offender status.

Simply because one of the Defendant’s prior convictions was not

included in his four criminal history points under § 4A1.1 does not

mean that it cannot be considered when determining if Defendant is

a career offender for purposes of the Guidelines--under 4A.1.2(c),

all felony offenses relating to violence and controlled substances

are considered when determining if a person qualifies as a career

offender. Thus, the Court properly used the Defendant’s

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residential burglary conviction to establish career offender

status.

3. Prior Convictions Not Listed in Indictment

This Court affirms the District Court’s holding that the prior

felony convictions of the Defendant could be used to enhance his

sentence because there is no need under current precedent to submit

prior convictions in an indictment or to a jury to be found beyond

a reasonable doubt. Under current precedent, the Sixth Amendment

to the United States Constitution (as the Defendant acknowledges)

does not require that a prior conviction used as a basis for a

sentencing enhancement be pled in an indictment and submitted to a

jury for proof beyond a reasonable doubt. Even if this Court

thought otherwise, as this Court stated in United States v. Cheek,

415 F.3d 349 (4th Cir. 2005), we may not overrule or ignore the

Supreme Court’s existing precedents. In Cheek, the Defendant

argued that prior convictions used to enhance a sentence must be

pled in an indictment and submitted to a jury for proof beyond a

reasonable doubt if it would increase his sentence above the

statutory maximum. Id. at 351. The Defendant in Cheek argued, as

does Mr. Padgett, that Apprendi v. New Jersey, 530 U.S. 466 (2000)

and Blakely v. Washington, 542 U.S. 296 (2004), “called into

question” the holding of Almendarez-Torres v. United States, 523

U.S. 224 (1998) (holding that the Constitution does not require the

Government to plead a prior conviction in an indictment in order

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for it to be used to enhance a defendant’s sentence). Cheek, 415

F.3d at 351. The Fourth Circuit found in Cheek that the Supreme

Court reaffirmed the holding that there is an exception for

recidivism-based enhancements in sentencing in United States v.

Booker, 543 U.S. 220 (2005). Id. at 352.

It is thus clear that the Supreme Court continues to hold
that the Sixth Amendment (as well as due process) does
not demand that the mere fact of a prior conviction used
as a basis for a sentencing enhancement be pleaded in an
indictment and submitted to a jury for proof beyond a
reasonable doubt.

Id. at 352. The Court added that even if it were to agree with

Defendant’s forecast that the Supreme Court will overrule

Almendarez-Torres, “we are not free to overrule or ignore the

Supreme Court’s precedents.” Id. at 352-53 (citation omitted).

Defendant argues that the Court should not use the two prior

convictions to impose an enhanced sentence when they were not in

the indictment, found by a jury beyond a reasonable doubt, nor

admitted by the Defendant. The caselaw, argues Defendant, as it

stands now, does not support the idea that a prior conviction must

be pled in an indictment and submitted to a jury for proof beyond

a reasonable doubt before it can be used as a basis for a sentence

enhancement. However, Mr. Padgett argues that the Court should

reconsider the precedent and not apply the current Supreme Court

precedent.

The Government argues that the District Court did not violate

Defendant’s Sixth Amendment right to a jury trial by not submitting

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the fact of Defendant’s prior convictions to a jury. The Government

points out that the Supreme Court held in United States v. Booker,

543 U.S. 220, 224 (2005): “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

jury beyond a reasonable doubt.” Booker, 543 U.S. at 244; see

Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000).

The Court affirms the District Court’s holding because the

precedent is clear - there is no requirement that prior convictions

used to enhance a sentence be proven to a jury beyond a reasonable

doubt or included in an indictment. Under Booker, the Government

did not need to include prior convictions in an indictment and have

them proven beyond a reasonable doubt in order for them to be used

to enhance the Defendant Padgett’s (a recidivist) sentence. Booker,

543 U.S. at 224.

4. Prior Notice

The Court affirms the District Court’s holding that the

Defendant did not need to receive notice prior to any enhancement

of his sentence based on prior convictions because there is no need

to receive notice under current precedent. This Court held in

United States v. Foster, 68 F.3d 86 (4th Cir. 1995), that it would

join its “sister circuits” in holding that “section 851 was never

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intended to extend to enhancements under the Guidelines.” Id. at 89

(referring to 21 U.S.C. § 851). This Court further noted that the

“Sentencing Guidelines were promulgated well after section 851 was

enacted and include no relevant reference to section 851.” Id.

Defendant argues that he was entitled to notice prior to the

District Court’s use of one or more prior convictions to increase

his punishment pursuant to 21 U.S.C. § 851. While United States v.

Foster, 68 F.3d 86 (4th Cir. 1995), supports the District Court’s

decision, the Defendant asks the Court to reconsider its holding in

Foster. Defendant notes that the Supreme Court has not taken up

this issue yet. The Government argues that the District Court did

not err in holding that an § 851 notice was not required for the

application of the career offender Guidelines enhancement. The

Government points out that even the Defendant understands that his

argument on this point is directly contradicted by this Court’s

precedent--United States v. Foster, 68 F.3d 86 (4th Cir. 1995).

This Court affirms the District Court holding that no notice

was required to use prior convictions to enhance a sentence because

21 U.S.C. 851 does not apply to sentencing enhancements. In keeping

with Foster, this Court holds that the Defendant was not entitled

to notice under § 851 that his sentence would be enhanced by his

prior convictions.

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 5. Evidentiary Issues

The Court holds that the District Court did not abuse its

discretion when it admitted testimony related to prior bad acts

because the admission of the evidence was not arbitrary or

irrational. As mentioned above, decisions by district court judges

to admit evidence under Federal Rule of Evidence 404(b) will not be

overturned on appeal unless those decisions were “‘arbitrary or

irrational.’” Haney, 914 F.2d at 607. Under Federal Rule of

Evidence 404(b), evidence of other crimes, wrongs, or acts is

admissible for purposes of proving “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.” Fed. R. Evid. 404(b). If probative value will be

substantially outweighed by the danger of “unfair prejudice,

confusion of the issues, or misleading the jury,” then the evidence

should be excluded. Fed. R. Evid. 403. In the Fourth Circuit,

“[w]hether prejudicial error has been committed must be determined

on the basis of the record in its entirety and the result will

generally turn on the facts of each case.” United States v.

Johnson, 610 F.2d 194, 196 (4th Cir. 1979). Absent purposeful

introduction of prejudicial material by the prosecution, this Court

usually does not reverse a conviction. Id. at 197. In addition, as

long as the evidence is relevant to an issue other than the

defendant’s character and Rule 403 is not violated, evidence of

other crimes or acts can be admitted even if there is no clear and

15
convincing proof of such crimes or acts. Morgan v. Foretich, 846

F.2d 941, 944 (4th Cir. 1988).

Defendant Padgett argues that the District Court committed

reversible error when it allowed a co-defendant to testify

extensively about other criminal activities in which the Defendant

allegedly participated. Defendant argues that all of the testimony

should have been excluded pursuant to Rules 404 or 403 of the

Federal Rules of Evidence because it was highly prejudicial and

served only to a show a general criminal disposition. Defendant

argues that Ms. Nelson’s testimony regarding the Defendant’s

alleged criminal activity was not related to the charges on which

the Defendant was being tried and did not relate to a motive,

opportunity, plan or design (under Federal Rule of Evidence 404).

Also, Defendant argues that there were three major problems with

Ms. Nelson’s testimony: (1) she could have been asked about the

Lowe’s store credit cards without eliciting details about the

criminal activity involved in obtaining the cards; (2) no evidence

was introduced to show that the Defendant had been charged or

convicted of the manufacturing of methamphetamine charge of which

Ms. Nelson spoke; and (3) Ms. Nelson should not have been allowed

to testify about Defendant’s use of illegal drugs and attempts to

buy such drugs because it was not shown to be related to the

charges in the indictment.

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 In sum, the Government argues that all of the testimony of Ms.

Nelson was relevant to issues other than the Defendant’s character

and the probativeness outweighed any possible prejudice. The

Government argues that the Defendant’s use and attempted purchase

of drugs is admissible to establish absence of mistake,

preparation, knowledge, or plan and was not admitted solely to show

Defendant’s bad character. The Government further argues that Ms.

Nelson’s testimony explained why she stayed at the Dryman’s home

and attempted to manufacture methamphetamine at that location, how

the Lowe’s hardware store scam related to tools and cash for

producing methamphetamine, and explained a prior conversation

between the co-conspirators concerning manufacturing the drug

during which the prior manufacturing charge of the Defendant arose.

The District Court did not abuse its discretion when it

admitted Ms. Nelson’s testimony related to Defendant Padgett’s

prior bad acts because admission of the evidence was not arbitrary

or irrational. First, when Ms. Nelson mentioned that she thought

that Mr. Padgett had a prior charge of manufacturing

methamphetamine, it was in the context of a discussion about

whether or not she had previously “discussed the technicalities” of

making the drug with him and whether they had “discussed knowledge

of manufacture of methamphetamine.” J.A. 81-82. When asked by the

attorney if she had discussed the technicalities of making

methamphetamine with Mr. Padgett, she did not respond “yes” or

17
“no.” Rather, she responded with information that she seemed to

think would demonstrate that she had discussed the process with him

because he was knowledgeable about it--she mentioned a prior

manufacturing charge she thought Mr. Padgett had. Under Rule

404(b), evidence of crimes, wrongs or acts that would not be

admissible to prove the character of a person in order to show

action in conformity with that character can be admitted in order

to prove knowledge and absence of mistake, among other things.

Here, Ms. Nelson’s testimony established her understanding of just

how knowledgeable Mr. Padgett was about methamphetamine

manufacturing (i.e. she thought he was so knowledgeable that she

believed that he even had been charged with methamphetamine

manufacturing before).

Ms. Nelson’s comment about a stolen car (J.A. 76) explained

how Mr. Padgett and she arrived in North Carolina to do the

“hustle” (J.A. 77) in order to get materials to manufacture the

drug. Thus, in a sense, it related to the plan. The record in its

entirety supports the conviction, and given the absence of any

purposeful introduction of the material (the “stolen” car comment

was off-handedly mentioned by Ms. Nelson in response to the

question of how Ms. Nelson arrived in North Carolina), under

Johnson the conviction will be affirmed. In addition, any ill

effects of allowing such testimony were cured by two blanket

statements by the Judge when instructing the jury after direct

examination of Ms. Nelson and at the close of the evidence. After

direct examination, the Judge advised that

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 if there was any evidence relating to any charge of this
defendant relating to any prior offense, the court
instructs you that such evidence is stricken and you are
not to consider it at any point in your deliberations.
The defendant is not on trial for anything not alleged in
this bill of indictment, if such other evidence is
related.

J.A. 100. At the close of evidence, the Judge advised the jury to

“not draw any inference concerning guilt or lack of guilt of the

crimes charged in this case based on evidence, if there was any, of

the defendant’s involvement with any offense not charged in the

indictment here.” J.A. 270.

Second, Ms. Nelson’s description of the “hustle” (J.A. 77-78,

85) that occurred in the Lowe’s store showed intent, plan, and

motive on the part of Mr. Padgett relating to the crime at issue.

Further, Ms. Nelson’s testimony about Ms. Dryman helps to show that

the Government was interested in establishing through its questions

who knew about manufacturing methamphetamine, the plan and intent.

J.A. 91. All of these are appropriate considerations under Rule

404(b). Even if the description was a bit more than Mr. Padgett

may have thought necessary, it was not arbitrary or irrational on

the Judge’s part to allow such testimony.

Third, while Ms. Nelson’s discussion of Mr. Padgett’s drug use

did not clearly establish any of the proper purposes under Rule

404(b), it was not arbitrary or irrational to allow it. Given that

it had already been established that Mr. Padgett was familiar with

methamphetamine manufacturing, the discussion of Mr. Padgett’s drug

19
use only really served to confirm Ms. Nelson’s relationship with

Padgett. J.A. 84, 96. Establishing that Mr. Padgett was a drug

user does not necessarily establish that he had knowledge of the

drug conspiracy or a plan to manufacture (in fact many drug dealers

are not drug users); however, it is possible to argue this way (as

the Government does). Thus, this Court holds that the admission of

such testimony was not arbitrary or irrational.

III. CONCLUSION

This Court affirms the District Court’s determination that the

Defendant qualifies as a career offender under the United States

Sentencing Guidelines, and affirms the District Court’s decision to

admit the testimony of Ms. Nelson with a limiting instruction.

First, the District Court did not err in sentencing the Defendant

as a career offender when the face of the Judgment gave the

District Court Judge sufficient information to determine that the

Defendant was convicted of a felony, not a non-violent theft crime.

Second, even though a predicate conviction was not “counted” in the

criminal history points does not mean that it cannot be used to

establish career offender status. Third, there is no need under

current precedent to submit prior convictions in an indictment or

to a jury to be found beyond a reasonable doubt. Fourth,

Defendants do not need to receive notice under current precedent

for enhancement of a sentence based on prior convictions. Finally,

20
the District Court did not abuse its discretion when it admitted

the testimony of Ms. Nelson because her testimony was relevant to

issues other than the Defendant’s character and the probativeness

outweighed any possible prejudice because the admission was not

arbitrary or irrational. Therefore, the District court’s holdings

are

AFFIRMED.

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APPENDIX 1

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