UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00017-RJC-6)
Submitted: November 17, 2016 Decided: August 14, 2017
Before WILKINSON, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James P. McLoughlin, Jr., MOORE & VAN ALLEN, PLLC, Charlotte, North Carolina,
for Appellant. Jill Westmoreland Rose, United States Attorney, Elizabeth Greenough,
Assistant United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Smith appeals his conviction and sentence for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1) (2012). Finding no
reversible error, we affirm.
I.
Smith first claims that the district court erred in admitting witness testimony that he
had previously possessed a firearm matching the description of one of the firearms listed
in the indictment. We review a district court’s rulings as to the admissibility of evidence
for abuse of discretion. United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014).
Evidence of other wrongful conduct cannot be used to establish a defendant’s
character; however, evidence of other wrongs may be admissible to prove “motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b). Such evidence also “may be introduced if it concerns acts
intrinsic to the alleged crime because evidence of such acts does not fall under Rule
404(b)’s limitations to begin with.” United States v. Otuya, 720 F.3d 183, 188 (4th Cir.
2013) (alteration and internal quotation marks omitted). We have held that evidence of
other bad acts is considered intrinsic 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) (alterations and internal quotation
marks omitted). Evidence is also intrinsic if it “is necessary to provide context relevant to
the criminal charges.” United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009) (internal
quotation marks omitted).
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The district court admitted the witness testimony as intrinsic to the charged offenses
or, in the alternative, pursuant to Rule 404(b). Upon review, we find the district court did
not abuse its discretion in admitting the evidence that Smith possessed a firearm matching
the description of one of the firearms found in his house. See United States v. Brown, 151
F. App’x 286, 287–88 (4th Cir. 2005) (finding district court did not err, under Rule 404(b),
in admitting evidence that defendant was observed shooting the same firearm a week before
the incident at issue in felon-in-possession conviction); United States v. Holmes, 376 F.3d
270, 273 n.1 (4th Cir. 2004) (finding no reversible error where district court admitted
evidence that defendant had used a pistol in several past robberies, and district court found
evidence was intrinsic to the charged offenses of being a felon in possession of a weapon
and therefore did not fall under Rule 404(b)); see also United States v. Brooks, 715 F.3d
1069, 1076–77 (8th Cir. 2013) (finding that admission of cell phone photos and videos of
defendant posing with firearm were admissible as evidence intrinsic to charges, including
possession of a firearm by a convicted felon).
II.
Smith also claims that the evidence at trial was insufficient as a matter of law to
support his conviction. We will uphold a jury’s guilty verdict if it is supported by
substantial evidence, defined as “evidence that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Louthian, 756 F.3d 295, 303 (4th Cir. 2014) (internal quotation
marks omitted). In making this determination, we view the evidence and draw all
reasonable inferences in the light most favorable to the Government. United States v.
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McNeal, 818 F.3d 141, 148 (4th Cir.), cert. denied, 137 S. Ct. 164 (2016). We defer to the
jury’s credibility determinations and resolutions of conflicting evidence, as those decisions
“are within the sole province of the jury and are not susceptible to judicial review.”
Louthian, 756 F.3d at 303 (internal quotation marks omitted). We also must “consider the
evidence in cumulative context rather than in a piecemeal fashion.” United States v.
Strayhorn, 743 F.3d 917, 922 (4th Cir. 2014) (internal quotation marks omitted).
“Appellate reversal on grounds of insufficient evidence will be confined to cases where the
prosecution’s failure is clear.” United States v. Fuertes, 805 F.3d 485, 502 (4th Cir. 2015)
(alterations and internal quotation marks omitted), cert. denied, 136 S. Ct. 1220 (2016).
After viewing the evidence as a whole and in the light most favorable to the
Government, we conclude that there was sufficient evidence to establish that Smith
intentionally exercised dominion and control over the firearms in question. See United
States v. Moye, 454 F.3d 390, 395 (4th Cir.2006) (setting forth elements for possession of
a firearm by a convicted felon); United States v. Al Sabahi, 719 F.3d 305, 311 (4th Cir.
2013) (providing that the “government can prove constructive possession by showing that
[the defendant] intentionally exercised dominion and control over the firearm, or had the
power and the intention to exercise dominion and control over the firearm” (internal
quotation marks omitted)). Because the jury’s verdict was supported by substantial
evidence, we affirm Smith’s conviction.
III.
Smith next challenges both 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e)(1) as
unconstitutionally void for vagueness. Specifically, he claims that “constructive
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possession is an abstraction as to which [§ 922(g)(1)] gives neither sufficient notice nor
guidance.” He further claims that the phrase “committed on occasions different from one
another” in 18 U.S.C. § 924(e)(1) is void for vagueness. Because Smith failed to raise
these challenges below, we review for plain error. United States v. Moore, 810 F.3d 932,
939 (4th Cir. 2016). “[W]e may reverse only on a finding that (1) there was error, (2) that
was plain, (3) that affected substantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of judicial proceedings.” Id. (alterations and internal
quotation marks omitted).
“The void-for-vagueness doctrine requires that penal statutes define crimes so that
ordinary people can understand the conduct prohibited and so that arbitrary and
discriminatory enforcement is not encouraged.” United States v. Klecker, 348 F.3d 69, 71
(4th Cir. 2003) (internal quotation marks omitted). “[A] court considering a vagueness
challenge must determine if the statutory prohibitions are set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply with.”
United States v. Whorley, 550 F.3d 326, 333 (4th Cir. 2008) (internal quotation marks
omitted). “In evaluating whether a statute is vague, a court must consider both whether it
provides notice to the public and whether it adequately curtails arbitrary enforcement.”
Klecker, 348 F.3d at 71; accord United States v. Saunders, 828 F.3d 198, 206 (4th Cir.
2016).
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Upon review, we conclude that Smith has failed to establish plain error. 1 See United
States v. Michel, 446 F.3d 1122, 1136 (10th Cir. 2006) (holding that the language of 18
U.S.C. § 924(e)(1) is “sufficiently definite to let a person of ordinary intelligence . . . know
that if he committed . . . separate crimes on the same day against separate victims at separate
locations, his sentence would be enhanced under the ACCA”); United States v. Rogers, 41
F.3d 25, 29 (1st Cir. 1994) (rejecting claim that 18 U.S.C. § 922(g) is void for vagueness
and finding that the term “‘possession’ concretely describes the conduct proscribed by the
statute”).
IV.
Smith also contends that the district court erred in determining that his predicate
convictions for robbery with a dangerous weapon were “committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1).
We have come to rely on five factors [(the Letterlough 2 factors)] to determine
whether predicate ACCA offenses were committed on different occasions:
(1) whether the offenses arose in different geographic locations; (2) whether
the nature of each offense was substantively different; (3) whether each
offense involved different victims; (4) whether each offense involved
different criminal objectives; and (5) whether the defendant had the
opportunity after committing the first-in-time offense to make a conscious
and knowing decision to engage in the next-in-time offense.
1
Moreover, although Smith claims that these statutes are void for vagueness under
Johnson v. United States, 135 S. Ct. 2551 (2015), the holding in Johnson has no direct
relevance to Smith’s argument, as § 922(g)(1) and § 924(e)(1) do not contain a provision
resembling the residual clause of the Armed Career Criminal Act (ACCA).
2
United States v. Letterlough, 63 F.3d 332 (4th Cir. 1995).
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United States v. Linney, 819 F.3d 747, 751 (4th Cir. 2016) (internal quotation marks
omitted). “Importantly, these five factors may be considered together or independently
and the strong presence of any one factor can dispositively segregate an extended criminal
episode into a series of separate and distinct episodes.” Id. (internal quotation marks
omitted). “In undertaking this five-factor analysis, courts rely on Shepard-approved
sources[,] . . . such as the indictment, judgment, any plea agreement, the plea transcript or
other comparable record confirming the factual basis for the plea, and any document
explicitly incorporated into one of the foregoing.” Id. at 751–52 (internal quotation marks
omitted); see also Shepard v. United States, 544 U.S. 13 (2005).
Smith does not contest that his January 3, 1997, robbery was committed on a
different occasion than his other three robberies. Even if we assume that the two offenses
that occurred on January 21, 1997, were part of a continuing offense, the indictment
indicates that Smith proceeded to use a firearm to steal a car from Gerald Wayne
McClamrock on January 22, 1997. This offense occurred on the following day, involved
a different victim, had a different criminal objective, and occurred after Smith had an
opportunity to rethink his previous criminal behavior. See United States v. Carr, 592 F.3d
636, 645 (4th Cir. 2010) (finding 13 prior convictions for breaking and entering 13 storage
units housed in the same building on the same date were separate and distinct episodes, as
the crimes had 10 different victims and, as he committed each crime, defendant “had the
opportunity to make a conscious and knowing decision to cease and desist his criminal
behavior or engage in yet another crime” (internal quotation marks omitted)). Thus,
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applying the Letterlough factors, we find no error in the district court’s conclusion that at
least three of Smith’s convictions occurred on different occasions.
V.
Smith also claims that the district court violated his due process rights in violation
of Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S.
220 (2005), in deciding that his predicate offenses were “committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). He contends that the application of this
provision is a factual determination that should be submitted to a jury. Because Smith
failed to raise this claim below, we review for plain error. Moore, 810 F.3d at 939.
We have rejected claims that the “‘separateness’ of the occasions” inquiry must be
submitted to a jury. See United States v. Thompson, 421 F.3d 278, 285–86 (4th Cir. 2005)
(“The line between facts that are inherent in a conviction and facts that are about a
conviction is a common-sensical one, and there is no way that our conclusion as to the
separateness of the occasions here can be seen to represent impermissible judicial
factfinding.”). Accordingly, we conclude that Smith fails to establish error, much less plain
error, in this regard.
VI.
Finally, Smith argues that the district court erred in determining that his prior North
Carolina convictions for robbery with a dangerous weapon are “crime[s] of violence for
purposes of 18 U.S.C. § 924(e).” Smith’s argument is squarely foreclosed by our recent
decision in United States v. Burns-Johnson, __ F.3d __, 2017 WL 3027872 (4th Cir. July
18, 2017), in which we held that a North Carolina conviction for robbery with a dangerous
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weapon categorically qualifies as a violent felony under the “force clause” of the ACCA.
See 18 U.S.C. § 924(e)(2)(B)(i). Because Smith committed a felony that “has as an element
the use, attempted use, or threatened use of physical force against the person of another,”
see id., we likewise reject Smith’s related argument that his convictions are not crimes of
violence under the identical force clause set forth in U.S. Sentencing Guidelines Manual
§ 4B1.2(a)(1) (2014), as well as his objection to the inclusion of two additional criminal
history points assigned to him pursuant to U.S.S.G. § 4A1.1(e).
Accordingly, we affirm Smith’s conviction and sentence. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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