UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORNELL VINCENT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:05-cr-00371-CCB)
Submitted: January 28, 2009 Decided: March 13, 2009
Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lee Ann Anderson McCall, Washington, D.C., for Appellant. Rod
J. Rosenstein, United States Attorney, Charles J. Peters,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Cornell Vincent was convicted
of possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (2006), and was sentenced to 120 months in
prison with a three-year term of supervised release to follow.
Vincent timely appealed.
On appeal, Vincent argues that the court: (1) erred
in instructing the jury on the interstate commerce element of
the offense; (2) erred in admitting expert testimony; (3) abused
its discretion in admitting evidence of uncharged drug
possession; and (4) imposed a sentence in excess of the
statutory maximum. Finding no error, we affirm.
First, relying on United States v. Lopez, 514 U.S. 549
(1995), Vincent contends that the trial court’s instruction on
the interstate nexus element of § 922(g)(1) “unconstitutionally
broadened” the interstate commerce requirement of the statute by
incorrectly focusing on the interstate travel of the firearm
instead of the interstate impact of Vincent’s possession of the
firearm. We have previously considered and rejected a challenge
to the constitutionality of § 922(g)(1) based on Lopez. In
United States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996), we
determined that “[u]nlike the statute at issue in Lopez,
§ 922(g) expressly requires the Government to prove the firearm
was shipped or transported in interstate or foreign commerce;
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was possessed in or affected commerce; or was received after
having been shipped or transported in interstate or foreign
commerce.” Wells, 98 F.3d at 811 (internal quotation marks
omitted). Thus, “[t]he existence of this jurisdictional
element, requiring the Government to show that a nexus exists
between the firearm and interstate commerce to obtain a
conviction under § 922(g), distinguishes Lopez and satisfies the
minimal nexus required for the Commerce Clause.” Id.
Accordingly, this claim must fail.
Moreover, the district court properly instructed the
jury on the interstate commerce portion of the statute. The
content of a jury instruction is reviewed to determine whether,
viewed as a whole, the instruction fairly states applicable law.
United States v. McQueen, 445 F.3d 757, 759 (4th Cir. 2006).
Vincent’s argument is foreclosed by this Court’s holding in
McQueen, where we affirmed that “‘the Government may establish
the requisite interstate commerce nexus by showing that a
firearm was manufactured outside the state where the defendant
possessed it’ and that [Lopez and its progeny] did not alter
this required showing.” Id. at 759 (quoting United States v.
Gallimore, 247 F.3d 134, 138 (4th Cir. 2001)). We conclude the
jury instruction fairly stated controlling law.
Next, Vincent argues that the court erred in admitting
the “unreliable and prejudicial” expert testimony of Special
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Agent Hodnett of the Bureau of Alcohol, Tobacco, Firearms and
Explosives, because he was not qualified to testify as an expert
regarding the interstate nexus of firearms. Because counsel for
Vincent did not object to the testimony, the claim is reviewed
for plain error. United States v. Olano, 507 U.S. 725, 732-34
(1993).
This court reviews the admission of expert testimony
for an abuse of discretion. See United States v. Beasley, 495
F.3d 142, 150 (4th Cir. 2007), cert. denied, 128 S. Ct. 1471
(2008). Expert testimony is admissible if it concerns:
(1) scientific, technical, or other specialized knowledge that
(2) will aid the jury or other trier of fact to understand or
resolve a fact at issue. Fed. R. Evid. 702; see Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993); Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert’s
two-pronged gatekeeping test for scientific evidence to all
expert testimony). An expert’s testimony is admissible under
Rule 702 if it “rests on a reliable foundation and is relevant,”
Kumho Tire Co., 526 U.S. at 141 (internal quotation marks and
citation omitted), and falls outside the common knowledge of the
jury. See United States v. Dorsey, 45 F.3d 809, 814-15 (4th
Cir. 1995).
Hodnett testified that he examined the records of the
firearm manufacturer and found that the firearm was made in
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Florida. Hodnett gave his opinion that the firearm necessarily
traveled across state lines because the firearm was later
recovered in Maryland, in Vincent’s possession. Hodnett’s
evidence was reliable, relevant to whether the firearm had
traveled in interstate commerce, and outside the jury’s common
knowledge. Based on this testimony, the jury was free to
conclude the weapon had crossed state lines by traveling between
Florida and Maryland, and thus moved in interstate commerce.
The district court did not abuse its discretion in admitting
this testimony.
Vincent also argues that the district court erred when
it admitted testimony about the drugs found on Vincent’s person
at his arrest. He contends that, because he was not charged for
with any offense relating to the drugs, their admission was
irrelevant, unnecessary, and unfairly prejudicial. This court
reviews the district court’s admission of evidence for an abuse
of discretion. See United States v. Hodge, 354 F.3d 305, 312
(4th Cir. 2004). An abuse of discretion occurs “only when it
can be said that the trial court acted arbitrarily or
irrationally in admitting evidence.” United States v. Williams,
445 F.3d 724, 732 (4th Cir. 2006) (internal quotation marks and
citation omitted).
Rule 404(b), Fed. R. Evid., prohibits the admission of
evidence of “other crimes” solely to prove a defendant’s bad
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character, but such evidence may be admissible for other
purposes, such as “‘proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.’” Hodge, 354 F.3d at 311-12 (quoting Fed. R. Evid.
404(b)). Rule 404(b) only applies to acts extrinsic to the
crime charged. “[W]here testimony is admitted as to acts
intrinsic to the crime charged, and is not admitted solely to
demonstrate bad character, it is admissible.” United States v.
Chin, 83 F.3d 83, 88 (4th Cir. 1996). “[A]cts are intrinsic
when they are inextricably intertwined or both acts are part of
a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” Id. (internal quotation
marks and citation omitted). In addition, evidence of other
crimes or “uncharged conduct is not considered ‘other crimes’”
for Rule 404(b) purposes “if it arose out of the same series of
transactions as the charged offense, or if it is necessary to
complete the story of the crime on trial.” United States v.
Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation
marks, alterations, and citation omitted).
Vincent argues that the drug evidence was inadmissible
because it reflected a prior bad act and the drugs were
irrelevant to the firearm charge. He is incorrect. First, the
drug evidence, though uncharged, was intrinsic to the firearm
conviction as the drugs and firearm were found together during
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the same criminal episode. Moreover, the jury heard testimony
from a police officer that individuals who carry drugs often
carry firearms to protect themselves. Thus, the evidence was
indicative of Vincent’s knowing possession of the firearm and
was admissible. Additionally, the court made clear through its
instruction to the jury that the drug evidence should be
considered only if the jury found it helpful in determining
whether the defendant knowingly possessed the firearm. The
court noted that Vincent was not on trial for any drugs.
Therefore, we conclude the district court did not abuse its
discretion in admitting this evidence.
Finally, Vincent argues that the district court erred
by sentencing him to 120 months plus three years of supervised
release. Vincent contends that his sentence exceeds the
statutory ten-year maximum sentence of 18 U.S.C. § 924(a)(2)
(2006), because if he violates the terms of supervised release
he can be ordered to serve all or part of those three years,
with the consequence that he would be imprisoned for more than
ten years. We have previously held that “supervised release is
not considered to be part of the incarceration portion of a
sentence and therefore is not limited by the statutory maximum
term of incarceration.” United States v. Pierce, 75 F.3d 173,
178 (4th Cir. 1996). Therefore, the district court did not err
in imposing the term of supervised release.
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Accordingly, we affirm Vincent’s 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
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