UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4581
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BARRY WAYNE GRIGGS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-151)
Submitted: April 18, 2007 Decided: July 30, 2007
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Craig Brown, Florence, South Carolina, for Appellant. Reginald
I. Lloyd, United States Attorney, A. Bradley Parham, Assistant
United States Attorney, Thomas E. Booth, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry Wayne Griggs appeals from his jury conviction and
sentence on charges of possession of a firearm (a Marlin Model 60
.22 caliber rifle) and ammunition (Remington Brand .22 caliber
ammunition) by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), 924(e) (2000) (Count 1), and knowingly
receiving a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(n), 924(a)(1) (2000) (Count 2).
Following Griggs’ conviction, the probation officer prepared a
presentence investigation report ("PSR"), assigning Griggs a base
offense level of twenty, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 2K2.1(a)(4)(A) (2003), and an adjusted offense
level of thirty, after application of a six-level increase based on
the offense involving twenty-five to ninety-nine firearms (relevant
conduct), pursuant to USSG § 2K2.1(b)(1)(C), a two-level increase
for an offense involving a destructive device, pursuant to USSG
§ 2K2.1(b)(3), and an additional two-level increase for a firearm
that was stolen or had an altered or obliterated serial number,
pursuant to USSG § 2K2.1(b)(4).1 Combined with Griggs’ criminal
1
The enhancements were based on testimony and evidence of over
seventy firearms seized from Griggs’ North Carolina residence
approximately four months prior to Griggs’ arrest in South
Carolina. As a result of those firearms being found in his
residence, Griggs was indicted on a multi-count indictment in the
Western District of North Carolina and charged with being a felon
in possession of firearms. At the time of Griggs’ trial, the North
Carolina charges were still pending; they were subsequently
dismissed on September 29, 2005. The district court in the present
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history category of II, the total offense level of thirty
corresponded to a guidelines sentencing range of 108 to 135 months’
imprisonment. See USSG Ch. 5, Pt. A, table. The statutory maximum
sentence applicable to Count 1 is ten years, and the statutory
maximum on Count 2 is five years. 18 U.S.C. §§ 922(g)(1),
924(a)(2), and § 922(n), respectively. Accordingly, the applicable
advisory guideline range was 108 to 120 months’ imprisonment.
(Id.).
Following the taking of evidence2 and consideration of
arguments at sentencing, the district court determined that the
firearms found at Griggs’ home were properly deemed to be relevant
conduct, and allowed the ten-level enhancement of Griggs’ base
offense level. Specifically, the district court held that USSG
§ 1B1.3(a)(2) applied, the evidence was reliable, and Griggs’
possession of the uncharged firearms was part of a “common scheme
or plan to possess firearms or . . . was the same course of
conduct.” The district court sentenced Griggs to a term of
imprisonment of 115 months as to Count 1 and sixty months as to
Count 2, to run concurrently with one another, and to three years
case denied Griggs’ motion in limine and allowed introduction,
pursuant to Fed. R. Crim. P. 404(b), of evidence of the discovery
of the firearms seized in North Carolina.
2
At sentencing, Alcohol, Tobacco, and Firearms (“ATF”) Agent
Yvonne Becker testified that agents seized more than seventy
firearms, including a stolen .22 Colt pistol and a destructive
device during the November 2002 search of Griggs’ North Carolina
residence.
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of supervised release as to each count, also to run concurrently.
On appeal, Griggs challenges the district court’s admission of the
evidence regarding the additional firearms found in his home four
months prior to the instant arrest, and the enhancement of his
sentence based on those additional firearms. We affirm.
The evidence presented at the trial of this matter
demonstrated that Griggs, who was out on bail at the relevant time,
and his mother went to Wal-Mart in Cheraw, South Carolina on or
about March 19, 2003, to purchase a .22 caliber Marlin rifle. The
assistant manager, Patrick Pierre, testified that an associate told
him there was an “inquiry of a firearm that [a female customer]
wants to purchase.” Pierre testified that Griggs was “standing
around just watching [his mother],” and then he discussed with
Pierre a .22 caliber Rossi rifle. When it was determined that the
Rossi was unavailable, Griggs decided on the Marlin. The associate
gave Griggs’ mother the paperwork to complete for the firearm
purchase. Pierre attested that Griggs purchased ammunition for the
firearm, and was holding it when he left Wal-Mart. According to
Pierre, Griggs’ mother purchased the firearm, and Griggs only
pointed it out, but never touched it in Pierre’s presence.
Following the purchase of the firearm, Pierre carried the firearm
out of the store and handed it to Griggs’ mother.
Stephanie David, the Wal-Mart associate, testified that
Griggs came into Wal-Mart with his mother and that it was Griggs
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who inquired about the .22 caliber Rossi rifle. When Griggs was
advised that this weapon was unavailable, he inquired about
ordering it, and then eventually “pointed out the [rifle] he
wanted.” David testified that Mrs. Griggs asked no questions about
any guns, and that Griggs asked all the questions. She attested
further that Griggs’ mother completed the paperwork, and that
Griggs attempted to assist her, but was told that he could not do
so. David also testified that Griggs purchased ammunition, that he
paid for it in cash, and that she handed Griggs the ammunition
after the purchase.
Following testimony from an ATF agent concerning the
interstate nexus issue, the Government called Mrs. Griggs as a
witness, apparently expecting her to testify that she was a “straw
purchaser” of the firearm for her son. Instead, she testified that
she purchased the Marlin .22 caliber rifle to protect herself, that
it was the first gun she had ever bought, and that her son was
there merely to assist her. She further attested that while Griggs
“could have” given her “a dollar or two” to buy the gun, she paid
for it with most of her own money. Mrs. Griggs testified that
Griggs never possessed the firearm.
ATF Agent Becker testified regarding the firearms found
in Griggs’ home on November 5, 2002. Prior to her testimony, the
court instructed the jury as to the applicability of Fed. R. Evid.
404(b) relative to the upcoming evidence. Agent Becker testified
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that more than seventy firearms were found in, and seized from,
Griggs’ North Carolina home, including an explosive device found in
a safe. She attested to a log book found at the home that listed
the serial numbers, makes, models, and other characteristics of
many of the firearms that were seized.3
The Government introduced testimony from Officer R.A.
Davis, Jr., of the North Carolina Wildlife Department, who
testified about Griggs’ alleged involvement in, and arrest for, the
crime of night hunting on November 2, 2002. He attested that when
he arrested Griggs, he saw a firearm in the back seat of a locked
truck that Griggs allegedly was operating. Officer Davis testified
that during execution of a search warrant relative to the firearm,
seventy-three firearms were found in Griggs’ home, including
multiple .22 caliber rifles. Officer Davis also testified that he
tape-recorded a statement from Griggs during the execution of the
search of Griggs’ home in which Griggs claimed ownership of the
3
According to the PSR, when Agent Becker interviewed Mrs.
Griggs on January 23, 2004, and asked Mrs. Griggs if she recalled
purchasing a Marlin .22 caliber rifle for her son at Wal-Mart on
March 19, 2003, Mrs. Griggs immediately replied, “oh, the one for
Barry.” In addition, the PSR reflects that Agent Becker and
Detectives Walker and Tice were advised by Mrs. Griggs on the same
date that her son came to her residence and asked her to buy a gun
for him, that he told her what she needed to do to make the
purchase, and that he gave her most of the money to purchase the
weapon. She also told the officers that Griggs kept the firearm in
his possession after it was purchased, and stated that she was
afraid of guns and had no use for them, so “why should I keep it?”
Only portions of the trial testimony are included in the joint
appendix, and neither party referred to this testimony in their
brief.
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firearms. The district court allowed into evidence a transcript of
the tape-recording pursuant to Fed. R. Evid. 404(b), and gave a
limiting instruction to the jury on the admissibility of evidence
under Rule 404(b).
Following testimony by two witnesses called by Griggs
that the firearms seized at Griggs’ house belonged to them, Officer
Davis testified that Griggs told him he was a gun collector and
admitted to the officer that the firearms belonged to Griggs. The
district judge gave another instruction to the jury stating the law
with regard to Rule 404(b) evidence.
At the conclusion of the evidence, a specific charge
regarding the evidence previously admitted pursuant to Rule 404(b)
was given to the jury by the district court. The jury returned a
verdict of guilty on both counts.
On appeal, Griggs specifically asserts that the district
court erred in admitting, over his objection, the evidence of the
additional firearms discovered during the search of his home four
months prior to the arrest in the instant case, as well as the
night hunting incident of November 2, 2002. He claims the evidence
was not relevant, unduly prejudicial, confused the issues, and
misled the jury as to the charges on which Griggs was being tried.
We review the district court’s admission of evidence for abuse of
discretion. See United States v. Hodge, 354 F.3d 305, 312 (4th
Cir. 2004) (standard of review). Although inadmissible solely to
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prove the character of a defendant, evidence of other crimes,
wrongs, or acts “may . . . be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Fed. R.
Evid. 404(b). Such evidence is admissible if it is necessary,
reliable, and relevant to an issue other than the defendant’s
character. United States v. Queen, 132 F.3d 991, 995 (4th Cir.
1997). If the prior act evidence meets these criteria and its
probative value is not substantially outweighed by its prejudicial
effect, it may be admitted. Id.
A review of the record leads us to the conclusion that
the evidence of Griggs’ prior illegal firearms possession was
admissible under Rule 404(b), and was not unfairly prejudicial.
The similarity of the conduct alleged and the closeness in time of
the offenses tends to demonstrate Griggs’ knowledge and intent, as
well as an absence of mistake or accident, which are permissible
purposes for admission of evidence under Rule 404(b). See, e.g.,
United States v. Teague, 737 F.2d 378, 381 (4th Cir. 1984). Here,
Griggs’ defense was one of “innocent presence,” that is, that the
firearm and ammunition were for his mother and he was present
merely to assist her. The evidence of Griggs’ illegal possession
of other firearms went directly to the issue of Griggs’ intent to
possess illegally the Marlin .22 caliber rifle and ammunition on
this occasion, as well as the inference that he was the actual
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buyer and knowingly possessed the charged firearm and ammunition.
In addition, the evidence was necessary to rebut the damaging and
unexpected testimony from Mrs. Griggs that she purchased the
firearm for herself, and to establish a pattern of behavior by
Griggs of possessing illegal firearms and ammunition. Nor was the
evidence unduly prejudicial——it was not lurid or inflammatory, nor
did it tend to cause the jury to decide the case against Griggs on
an irrational basis. See United States v. Aramony, 88 F.3d 1369,
1378 (4th Cir. 1996). Moreover, the district court minimized the
risk of unfair prejudice by explaining repeatedly the proper uses
of other crimes evidence at the time the evidence was introduced,
as well as in the jury charge prior to deliberation.4 Hodge, 354
F.3d at 312; see United States v. Alerre, 430 F.3d 681, 692 (4th
Cir. 2005) (“Ordinarily, of course, we presume that a properly
instructed jury has acted in a manner consistent with the
instructions.”). Given these facts, we find that the district
court did not abuse its discretion in allowing the evidence
pursuant to Rule 404(b).
Griggs’ second issue on appeal is that the district
court erred in enhancing his sentence ten levels based on the
additional seventy-three firearms and the destructive device found
in the search of his home in North Carolina. Griggs argues that
4
Griggs indicated his satisfaction with the limiting
instructions provided by the district court at trial.
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the district court’s relevant conduct determination was erroneous
because his possession of the weapons found in his home was not
part of the same scheme or plan as the offense of conviction, and
was not charged in the indictment. He contends that such
extraneous offense conduct should not be used to enhance his felon-
in-possession case because the conduct was too remote in time (four
months earlier) and place (North Carolina versus South Carolina)
from the offense of conviction to warrant the increase in his
offense level. He asserts his sentence was erroneously enhanced
for conduct that did not occur during the commission of the offense
of conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.
Griggs does not claim that he did not possess the firearms and the
destructive device, or deny that one of the firearms was stolen.
We review a district court’s application of the
sentencing guidelines de novo, and its findings of fact for clear
error. United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989). We review a district court’s “relevant conduct” finding
under USSG § 1B1.3(a)(2) for clear error. Hodge, 354 F.3d at 313.
At sentencing, a district court properly may consider offenses for
which the defendant has neither been charged nor convicted,
provided they constitute “relevant conduct.” United States v.
Bowman, 926 F.2d 380, 381-82 (4th Cir. 1991).
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Relevant conduct includes offenses that are part of the
same course of conduct or common scheme or plan as the offense of
conviction. United States v. McAllister, 272 F.3d 228, 233-34 (4th
Cir. 2001); see USSG § 1B1.3(a)(2). “For two or more offenses to
constitute part of a common scheme or plan, they must be
substantially connected to each other by at least one common
factor, such as common victims, common accomplices, common purpose,
or similar modus operandi.” USSG § 1B1.3, comment. n.9(A).
“Offenses that do not qualify as part of a common scheme or plan
may nonetheless qualify as part of the same course of conduct if
they are sufficiently connected or related to each other as to
warrant the conclusion that they are part of a single episode,
spree, or ongoing series of offenses.” Id., comment. n.9(B). The
determining factors are “the degree of similarity of the offenses,
the regularity (repetitions) of the offenses, and the time interval
between the offenses.” Id.
A defendant’s repeated possession of uncharged firearms
during a brief period of time supports a “relevant conduct”
enhancement.5 Here, Griggs possessed not only the .22 caliber
5
See, e.g., United States v. Brummett, 355 F.3d 343, 345 (5th
Cir. 2003) (possession of four firearms on three separate occasions
within a nine-month period); United States v. Santoro, 159 F.3d
318, 321 (7th Cir. 1998) (possession of uncharged assault rifle
along with two other weapons within a six to nine-month period);
United States v. Windle, 74 F.3d 997, 1000-01 (10th Cir. 1996)
(possession of illegal firearms over four to five-month period
sufficient to constitute “same course of conduct”); United States
v. Powell, 50 F.3d 94, 104 (1st Cir. 1995) (“nearly
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Marlin rifle and ammunition after a felony conviction, but also
possessed more than seventy other firearms within only four months.
We find that Griggs’ pattern of behavior of possessing firearms was
similar and regular, and the four-month time period between the
offenses permits a reasonable conclusion that the firearms
possessions were part of an ongoing series of offenses.
Accordingly, we find no error in the district court’s determination
that the firearms recovered from Griggs’ home constituted relevant
conduct in relation to Griggs’ offense of conviction.6
Accordingly, we affirm Griggs’ conviction and sentence.
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
contemporaneous[] possession of uncharged firearms is . . .
relevant conduct in the context of a felon-in-possession
prosecution”).
6
Griggs’ assertion that USSG § 1B1.3(a)(2) does not apply
because his offenses could have been grouped under § 3D1.2(a)-(c)
and USSG § 3D1.3 instead of USSG § 3D1.2(d) is of no moment, as
USSG § 1B1.3(a)(2) specifically requires consideration of the
grouping rule in USSG § 3D1.2(d). Moreover, Griggs’ challenge to
the evidence supporting the enhancements as unreliable because the
underlying federal charges were dismissed before trial is without
merit because the evidence here (i.e., Agent Becker’s testimony at
trial and at sentencing establishing that Griggs possessed
uncharged firearms and ammunition) met the preponderance of the
evidence standard, and the fact that the charges were dismissed do
not form the basis for a meritorious challenge. See United States
v. Jones, 31 F.3d 1304, 1313, 1316 (4th Cir. 1994); see also USSG
§ 1B1.3.
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