UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4210
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY JEROME LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00061-RLV-DCK-1)
Submitted: August 31, 2011 Decided: October 12, 2011
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Jerome Lewis appeals his aggregate 180-month
sentence following his jury conviction of one count of
possession with the intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006) (“Count
One”); one count of possession of a firearm in furtherance of a
drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2006) (“Count Two”); and one count of possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2006) (“Count Three”). On appeal, Lewis argues that the
district court abused its discretion and violated Federal Rule
of Evidence 403 in admitting photographs of him with large sums
of cash, and plainly erred in applying an enhanced statutory
minimum on Count One. Finding no reversible error, we affirm.
We review evidentiary rulings for abuse of discretion.
United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009). A
district court abuses its discretion when it acts arbitrarily or
irrationally in admitting evidence. United States v. Weaver,
282 F.3d 302, 313 (4th Cir. 2002). Rule 403 provides that
“relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.”
Under Rule 403, “damage to a defendant’s case is not a basis for
excluding probative evidence” because “[e]vidence that is highly
probative invariably will be prejudicial to the defense.”
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United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).
Evidence is unfairly prejudicial for purposes of Rule 403 “only
in those instances where the trial judge believes that there is
a genuine risk that the emotions of the jury will be excited to
irrational behavior, and that this risk is disproportionate to
the probative value of the offered evidence.” United States v.
Powers, 59 F.3d 1460, 1467 (4th Cir. 1995) (internal quotation
marks omitted).
Here, as the district court noted, the photographs
were found on the walls of the house in which Lewis was staying
and tended to show that Lewis had a strong connection to the
house, making it more likely that the evidence found on the
property belonged to him. Further, the photographs “could be
rationally viewed by the jury as evidence of [Lewis’s]
involvement in a drug distribution scheme.” United States v.
Young, 609 F.3d 348, 355 (4th Cir. 2010). Because we conclude
that the photographs would not excite the emotions of the jury
to irrational behavior, we hold that the district court did not
abuse its discretion in finding that their probative value was
not outweighed by the danger of unfair prejudice.
As Lewis concedes, because he did not challenge the
application of the enhanced statutory minimum before the
district court, his claim is reviewed for plain error. United
States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010). To
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establish plain error, Lewis must demonstrate that (1) there was
error; (2) the error was plain; and (3) the error affected his
substantial rights. See United States v. Olano, 507 U.S. 725,
732 (1993). “To demonstrate that a sentencing error affected
his substantial rights, [Lewis] would have to show that, absent
the error, a different sentence might have been imposed.”
United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010).
Under 21 U.S.C. §§ 841(b)(1)(B), 851 (2006), upon an
information filed by the Government, a defendant with a prior
conviction for a felony drug offense is subject to an enhanced
statutory minimum of ten years. A felony for purposes of § 841
is defined as a crime “punishable by imprisonment for more than
one year.” 21 U.S.C. § 802(44).
Lewis was sentenced consistent with our decision in
United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005).
Thus, because under North Carolina law the maximum aggravated
sentence that could be imposed for felony possession of cocaine
upon a defendant with the worst possible history exceeded one
year, Lewis qualified as a felon for purposes of § 841. We
recently overruled Harp with our en banc decision in United
States v. Simmons, No. 08-4475, 2011 WL 3607266, at *3 (4th Cir.
Aug. 17, 2011), holding that a North Carolina offense may not be
classified as a felony based upon the maximum aggravated
sentence that could be imposed upon a repeat offender if the
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individual defendant was not eligible for such a sentence. Id.
at *8.
Because the district court sentenced Lewis in
accordance with Harp, we hold that the district court erred and
the error was plain.* However, although sentencing Lewis in
accordance with Simmons would have resulted in a lower statutory
mandatory minimum on Count One, it would not have changed his
aggregate sentence. Lewis was sentenced to a concurrent 120-
month sentence on Count Three and a consecutive sixty months on
Count Two. These sentences are wholly unaffected by Simmons.
Thus, even if the district court had applied only a five-year
statutory minimum on Count One, Lewis’s total sentence would
have remained 180 months. Accordingly, because the error did
not affect Lewis’s substantial rights, the district court did
not commit plain error.
We therefore affirm the district court’s judgment. 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
*
We of course do not fault the Government or the district
court for reliance upon, and application of, unambiguous circuit
authority at the time of Lewis’s sentencing.
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