UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4415
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARK XAVIER WALLACE, a/k/a Mark Xavier Grinage, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
District Judge. (4:10-cr-00116-RBS-DEM-1)
Submitted: April 26, 2012 Decided: May 22, 2012
Before MOTZ, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Howard J. Zlotnick, Assistant United States Attorney,
Michelle Sudano, Second Year Law Student, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Xavier Wallace was convicted of possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006). He
was sentenced to 120 months in prison. (J.A. 278). Wallace now
appeals, raising three issues. We affirm.
I
Wallace first claims that the district court
erroneously denied his Fed. R. Crim. P. 29 motion for judgment
of acquittal. Specifically, he contends that, although three
witnesses testified that they saw Wallace holding the firearm,
the evidence was insufficient to establish that he possessed the
gun.
“We review de novo the district court’s ruling on a
motion for judgment of acquittal and . . . will uphold the
verdict if, viewing the evidence in the light most favorable to
the government, it is supported by substantial evidence.”
United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008); see
Glasser v. United States, 315 U.S. 60, 80 (1942). “Substantial
evidence is 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.” Reid, 523 F.3d at
317 (internal quotation marks omitted).
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“[W]e can reverse a conviction on insufficiency
grounds only when the prosecution’s failure is clear.” United
States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)
(internal quotation marks omitted). “[I]t is the province of the
jury to weigh the credibility of competing witnesses.”
Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009).
“[T]o prove a violation of § 922(g)(1), the government
must prove, beyond a reasonable doubt, that: (1) the defendant
previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) the defendant knowingly
possessed . . . the firearm; and (3) the possession was in or
affecting commerce.” United States v. Langley, 62 F.3d 602, 606
(4th Cir. 1995) (en banc). Wallace stipulated that he was a
convicted felon and that the gun in question had traveled in
interstate commerce.
Three Newport News police officers testified that on
the night of June 4-5, 2010, they were assisting in another
matter when they heard eight to ten gunshots coming from a
nearby shopping center. Officers Seaborne and Townsend and Sgt.
Shull rushed to the scene. They observed Wallace running toward
them. Each officer testified that he saw Wallace holding a
black handgun; Sgt. Shull recognized the gun as a Glock 19.
Wallace initially ignored directions to drop the gun. When
Wallace raised his arm as if to shoot, Officer Townsend fired at
3
him. Wallace then fell to the ground. Both Officer Seaborne
and Sgt. Shull witnessed Wallace move his right arm in a
sweeping motion, flinging the gun against a curb. Once Wallace
was subdued, officers recovered the gun, a Glock 19, from the
area where Wallace had flung it.
Officers recovered nine 9 mm. shell casings from the
parking lot of the shopping center. A forensic analyst
testified with scientific certainty that the shells were fired
from the Glock that was recovered.
Each officer testified that he saw Wallace in
possession of the gun. In light of this eyewitness testimony,
we hold that evidence of possession was established and that the
district court correctly denied the Rule 29 motion.
II
Officer Townsend testified that he fired at Wallace
after Wallace raised his gun, pointing it at Townsend, and that
Wallace was arrested at the scene. On cross-examination,
defense counsel asked what state offenses Wallace was charged
with and what the disposition of those charges was. The
district court sustained the Government’s objections to these
questions, finding them irrelevant to the federal charge.
Wallace claims that the district court’s ruling was
erroneous. He argues that the information sought was intrinsic
4
to the federal offense and tended to show Officer Townsend’s
bias. We review this evidentiary ruling for abuse of
discretion. See United States v. Brooks, 111 F.3d 365, 371 (4th
Cir. 1997). Evidentiary rulings “are subject to harmless error
review.” Id.; see Fed. R. Crim. P. 52. “In order to find a
district court’s error harmless, we need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Brooks, 111 F.3d at
371 (internal quotation marks omitted).
Under Fed. R. Evid. 404(b), evidence of other crimes,
wrongs, or acts of the defendant is admissible for limited
purposes. For Rule 404(b) evidence to be admissible, it must
be: “(1) relevant to an issue other than the general character
of the defendant; (2) necessary to prove an element of the
charged offense; and (3) reliable.” United States v. Hodge, 354
F.3d 305, 312 (4th Cir. 2004). Rule 404(b) excludes acts
extrinsic to the crime charged. United States v. Basham, 561
F.3d 302, 326 (4th Cir. 2009). Intrinsic acts, however, are not
subject to Rule 404(b)’s restrictions. Id. “Other criminal
acts 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.” United
5
States v. Chin, 83 F.3d 83, 88 (4th Cir. 1996) (internal
quotation marks omitted).
Evidence about state charges against Wallace and the
disposition of those charges does not qualify under the case law
as evidence intrinsic to the federal offense. Such evidence
simply was not “necessary to prove an element of the charged
offense. * See Hodge, 354 F.3d at 312.
III
Finally, Wallace claims that his sentence was
improperly enhanced by four levels on the ground that he
possessed the firearm in connection with another felony offense.
See U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2010). The
Guideline provides for a four-level enhancement “[i]f the
defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense.” USSG § 2K2.1(b)(6)(B).
“Another felony offense . . . means any federal, state, or local
offense, other than the . . . firearms possession . . . offense,
punishable by imprisonment for a term exceeding one year,
*
Nor was the evidence admissible to expose the alleged bias
of Officer Townsend. Nothing in the record suggests the
existence of any such bias. Moreover, even if the evidence was
improperly excluded on this point, its exclusion constitutes
harmless error, given the overwhelming evidence of Wallace’s
guilt.
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regardless of whether a criminal charge was brought, or a
conviction obtained.” USSG § 2K2.1, cmt. n.14(C). It is
irrelevant whether the defendant was charged with or convicted
of the separate felony. United States v. Perez, 585 F.3d 880,
886 (5th Cir. 2009). “[T]he purpose of Section 2K2.1(b)(6) [is]
to punish more severely a defendant who commits a separate
felony offense that is rendered more dangerous by the presence
of a firearm.” United States v. Jenkins, 566 F.3d 160, 164 (4th
Cir. 2009) (internal quotation marks omitted).
At trial, a witness testified that there was an
altercation at a nightclub located in the shopping center where
the shots were fired. The witness was escorted out of the
nightclub. He heard several shots, and one bullet grazed his
right leg. He was treated for his wound at a hospital.
Because Wallace did not raise this claim in the
district court, our review is for plain error. See United
States v. Olano, 507 U.S. 725, 732 (1993). We discern no such
error. Rather, the testimonial and forensic evidence supports
the finding that it was Wallace who fired the series of shots
outside the nightclub, wounding the witness. This constitutes a
felony under Virginia law, which provides:
If any person willfully discharges or causes to be
discharged any firearm in any . . . public business or
place or public gathering, and such conduct results in
bodily injury to another person, he shall be guilty of
a Class 6 felony.
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Va. Code Ann. § 18.2-280(A) (West 2011). Class 6 felonies are
punishable by “imprisonment of not less than one year.” Va.
Code Ann. § 18-2.10 (West 2011).
IV
We accordingly affirm. 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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