United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 3, 2003
Charles R. Fulbruge III
Clerk
No. 02-60990
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
TYRANT O’NEAL GABLE
also known as Sealed Defendant 1
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 02-CR-26-1-BrR
--------------------
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Tyrant O’Neal Gable appeals his jury conviction of being a
felon in possession of a firearm. Gable argues that the district
court abused its discretion in admitting portions of a videotape
from Gable’s previous arrest into evidence for impeachment
purposes because the videotape’s prejudicial value outweighed its
probative value.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-60990
-2-
Here, the district court properly allowed in only those
portions of the videotape that impeached Gable’s statement that
he would never fight with a police officer. See United States v.
Lollar, 606 F.2d 587, 588 (5th Cir. 1979). The district court
weighed the prejudicial value against the probative value of the
videotape and determined that only portions of the videotape
should be admitted, and the court allowed Gable the opportunity
to explain the videotape. Additionally, the district court
instructed the jury that the videotape was not being admitted to
prove the content of the statements on it but only to determine
whether those statements were consistent with Gable’s trial
testimony. The district court did not abuse its discretion. See
United States v. Perez, 217 F.3d 323, 329-30 (5th Cir. 2000).
Gable also argues that the district court erred in admitting
photographs of injuries sustained by the police officer because
those photographs were not relevant and were merely cumulative.
In admitting the photographs, the district court performed the
required balancing test and determined that nothing in them would
shock the conscience. Gable has not shown that the district
court abused its discretion in admitting the photographs. See
United States v. Hays, 872 F.2d 582, 587 (5th Cir. 1989).
Gable argues that the district court erred in admitting into
evidence an exhibit because it was not properly authenticated.
Even if the document arguably is not self-authenticating under
FED. R. EVID. 902(4), the district court did not err in admitting
No. 02-60990
-3-
it because there was sufficient evidence to support a finding
that that document was what the Government claimed it to be. See
United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir.
1989). Moreover, the contents of the document were consistent
with the testimony at trial of the probation officer, who had
determined that Gable previously had been convicted of grand
larceny, and Gable’s own testimony. The district court did not
abuse its discretion in admitting the document. See id.
Gable argues that the district court erred in overruling his
motion for judgment of acquittal because there was insufficient
credible evidence to show beyond a reasonable doubt that he was
the person in possession of the firearm. A review of the record
reveals sufficient evidence to support the verdict. The officer
testified that he observed the handle of a gun in Gable’s
waistband and that, in the course of fighting with Gable, the gun
fell out of Gable’s waistband. Although the jury also heard the
testimony of two bystanders who said that they saw Gable’s
brother, not Gable, with a gun, that testimony is not necessarily
inconsistent with the officer’s testimony.
Gable also argues that the district court abused its
discretion in allowing the Bureau of Alcohol, Tobacco, and
Firearms (ATF) agent to testify as an expert in interstate
transportation of firearms. Here, the ATF agent had been an
agent with the ATF for approximately three years and three months
and had completed the only ATF-required course in nexus training.
No. 02-60990
-4-
The district court did not abuse its discretion in accepting him
as an expert based on his training and experience. See United
States v. Townsend, 31 F.3d 262, 270 (5th Cir. 1994).
Gable argues, to preserve the issue for further review, that
Apprendi v. New Jersey, 530 U.S. 466 (2000), is applicable
because the Government was attempting to enhance his sentence
using the existence of an uncharged felony. Where, as here, the
defendant’s sentence is below the maximum authorized by statute,
Apprendi is inapplicable. See United States v. Doggett, 230 F.3d
160, 165 (5th Cir. 2000). As Gable concedes, his Apprendi
challenge is foreclosed.
Gable also argues that the facts of the altercation with the
police officer showed only a misdemeanor and not a felony and
therefore the district court should not have enhanced his
sentence under U.S.S.G. § 2K2.1(b)(5).
The record supports the district court’s determination that
at least a preponderance of evidence supported a finding that
Gable was engaged in a serious altercation with the officer,
which was a felony offense. See United States v. McKinney, 53
F.3d 664, 677 (5th Cir. 1995). The officer testified that the
reason he grabbed Gable was to protect the bystanders. He did
not testify that he grabbed Gable to arrest him. The officer
explained that, once he grabbed Gable, Gable began fighting with
him violently and that Gable knew who he was because he had
spoken with him before and the officer was in uniform. The
No. 02-60990
-5-
district court did not clearly err in applying U.S.S.G.
§ 2K2.1(b)(5). See United States v. Edwards, 65 F.3d 430, 432
(5th Cir. 1995).
Finally, Gable argues that the cumulative effect of all of
the errors deprived him of a fair trial, requiring that his
conviction be reversed and the matter remanded for a new trial.
Because Gable has not demonstrated any error in his trial, this
issue lacks merit. The judgment of the district court is
AFFIRMED.