UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5154
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORY D. HARRIS, a/k/a Corey D. Harris,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11-cr-00097-HEH-1)
Submitted: June 18, 2012 Decided: September 13, 2012
Before GREGORY, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Peter S. Duffey, Assistant United States
Attorney, Jamie L. Mickelson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, Cory D. Harris challenges the district
court’s evidentiary ruling and his sentence of 600 months’
imprisonment. First he contends that the district court erred
in permitting the Government to admit evidence that he was
involved with controlled substances, marijuana and heroin, that
were not charged within the superseding indictment. Second he
argues that the district court applied the wrong mandatory
minimum sentence. For the following reasons, we affirm Harris’s
convictions and sentences.
I.
On June 8, 2011, a six-count superseding indictment was
filed against Harris for cocaine-base and firearm-related
offenses. 1 The superseding indictment alleged that from January
2010 through April 2011, Harris conspired to distribute cocaine
base. It further alleged that on January 29, 2010, and January
24, 2011, Harris possessed with the intent to distribute cocaine
1
The superseding indictment charged Harris with one count
of conspiracy to possess with intent to distribute 280 grams or
more of cocaine base, in violation of 21 U.S.C. § 846; one count
of possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 841; two counts of
possessing a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c); and two counts of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1).
2
base and possessed several firearms to further his drug
trafficking. After a two-day trial, the jury returned a guilty
verdict on all six counts. On November 23, 2011, the district
court sentenced Harris to 600 months’ imprisonment: 240 months
on counts one and two to run concurrently; 60 months on count
three to run consecutively; 300 months on count four to run
consecutively; and 120 months on counts five and six to run
concurrently. The district court also imposed ten years of
supervised release and a special assessment of $100 per count.
Harris timely filed this appeal on November 30, 2011.
II.
Harris first challenges the district court’s ruling
permitting the Government to admit evidence that involved
marijuana and heroin, drugs not charged in the superseding
indictment. A week before trial, the United States filed a
notice of intent to present evidence that Harris possessed
controlled substances other than cocaine. In the notice, the
Government argued that the evidence was not evidence of “other
crimes,” which is generally prohibited under Federal Rule of
Evidence 404(b), but was relevant evidence “intertwined” with
the case’s charged conduct and necessary to complete the story
of Harris’s crimes. Harris objected to the Government’s notice,
arguing that the evidence is offered to show his bad character.
3
This Court reviews the district court’s evidentiary rulings
for abuse of discretion. United States v. Hodge, 354 F.3d 305,
312 (4th Cir. 2004). A district court abuses its discretion
when it “act[s] arbitrarily or irrationally in admitting
evidence.” United States v. Basham, 561 F.3d 302, 326 (4th Cir.
2009) (internal quotation marks omitted).
Generally, evidence that is relevant to the case is
admissible, FED R. EVID. 402; however, relevant evidence may be
excluded “if the probative value is substantially outweighed by
the danger of unfair prejudice,” FED R. EVID. 403. Additionally,
Federal Rule 404(b) prohibits admitting into evidence other
crimes or bad acts not charged in the indictment for the purpose
of showing that the person has a bad character. Rule 404(b)
does not apply, however, to uncharged conduct that is intrinsic
to the crime. See United States v. Chin, 83 F.3d 83, 88 (4th
Cir. 1996). Uncharged conduct is considered intrinsic to the
crime when it is “inextricably intertwined or . . . [is] part of
a single criminal episode or . . . w[as] [a] necessary
preliminar[y] to the crime charged.” Id. (quoting United States
v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993) cert. denied,
510 U.S. 926 (1993)). Additionally, Rule 404(b)’s prohibition
does not apply if the uncharged conduct is “necessary to
complete the story of the crime.” United States v. Kennedy, 32
4
F.3d 876, 885 (4th Cir. 1994) (internal quotation marks
omitted).
In finding the evidence admissible, the district court
reasoned that all the evidence submitted by the Government was
relevant to the charged conduct because it took place during the
time frame of the alleged conspiracy, occurred at the same time
that there was evidence of cocaine base, or involved cocaine.
After a review of the record, we find that the district court
did not abuse its discretion. The evidence that involved other
controlled substances took place during the period of January
2010 through April 2011, the time frame charged in the
superseding indictment to support count one, and in each
instance, either the testifying witnesses or the contraband
seized involved the sale or presence of cocaine base.
Accordingly, this evidence was “inextricably intertwined” with
the charged conduct, Chin, 83 F.3d at 88, and certainly was
required to complete the story of Harris’s conspiracy to possess
and distribute cocaine base and his unlawful possession of
firearms, see United States v. Johnson, 415 F. App’x 495, 504
(4th Cir. 2011) (finding no abuse of discretion when the
district court permitted a witness to testify that the
defendant, charged with cocaine conspiracy, had initially sold
him marijuana but later on sold him heroin and cocaine). Thus,
Rule 404(b) does not apply to this evidence.
5
This Court must still consider the evidence under Rule 403,
however, “our discretion to exclude evidence under [the Rule] is
narrowly circumscribed.” Johnson, 415 F. App’x at 504 (quoting
United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.), cert
denied, 491 U.S. 907 (1989)) (internal quotation marks omitted).
Here, Harris does not indicate how he was prejudiced by the
evidence related to other controlled substances, other than
asserting generally that such evidence demonstrates his bad
character. What’s more, Harris points out that the district
court gave an instruction regarding uncharged conduct, yet he
believes the instruction was too vague to cure the alleged
prejudice. See United States v. Whorley, 550 F.3d 326, 338 (4th
Cir. 2008) (finding that the court reduced the risk of prejudice
stemming from evidence of the defendant’s prior conviction by
giving the jury a limiting instruction). Regardless, Harris has
not explained why the district court’s ruling is irrational or
arbitrary in light of the fact that the evidence was within the
conspiracy period and demonstrated Harris’s involvement with
trafficking cocaine base and illegal possession of firearms.
Accordingly, the Court finds that there was no clear error in
admitting the evidence that mentioned other controlled
substances.
Harris next challenges the district court’s application of
the 240-month, mandatory minimum sentence for count two,
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possession with intent to distribute 50 grams or more of cocaine
base, in violation of 21 U.S.C. § 841. Count two arose from the
police seizing approximately 110 grams of cocaine base from
Harris’s residence on January 29, 2010. At the time of the
offense conduct, the prison sentence for possession with the
intent to distribute 50 grams or more of cocaine base was not
less than 120 months and not more than life. In Harris’s case,
since he had previously been convicted of a felony drug offense,
his mandatory minimum sentence for count two would have
increased to 240 months. 21 U.S.C. § 851. Prior to Harris’s
indictment and conviction for his crimes, Congress enacted the
Fair Sentencing Act (“FSA”), which amended 21 U.S.C. § 841,
reducing the crime’s sentence range to a minimum of 5 years and
a maximum of 40 years. Applying the amendment, and taking into
consideration his prior felony conviction, Harris faced a lower
mandatory minimum sentence of 120 months.
Before trial, the Government filed a notice of enhancement
under 21 U.S.C. § 851, specifying that Harris qualified for a
sentencing enhancement for counts one and two due to his prior
felony conviction and that this enhancement would double his
mandatory minimum sentences to 240 months and 120 months,
respectively. In a footnote in the notice, the Government
stated that it had taken the position that the FSA amendments
applied to Harris even though his offense occurred prior to the
7
law’s enactment. However, at sentencing the probation officer
concluded that because the offense conduct took place prior to
the FSA, Harris was subject to the pre-amendment mandatory
minimum of 240 months’ imprisonment on count two. Neither party
objected to the probation officer’s conclusion and the district
court sentenced Harris to 240 months’ imprisonment for count two
to run concurrently with his sentence of 240 months’
imprisonment for count one. Harris contends that the district
court erred in not sentencing him under the FSA. The Government
responds that even if the district court erred, the error is
harmless because regardless of whether Harris would have
received a reduced sentence for count two, he nonetheless would
have to serve a 240-month sentence for his conviction on count
one, which runs concurrent with count two.
Recently, the Supreme Court has held that the FSA applies
to a defendant who committed the offense prior to the FSA but
was sentenced after its enactment. See Dorsey v. United States,
132 S. Ct. 2321, 2335 (2012). We find that in this case the
district court’s error is harmless. See United States v.
Christian, 452 F. App’x 283, 288 (4th Cir. 2011) (per curiam).
In Christian, the Court determined that even if the district
court erred in not applying the FSA to the defendant’s sentence
due to his crimes being committed prior to the law’s enactment,
the error was harmless because “[r]egardless of what sentence he
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receive[d] on the drug count, [the defendant] will be required
to serve his forty-year mandatory minimum sentence on the
firearm charges.” Id. at 288. The Court cited United States v.
Ellis, 326 F.3d 593, 599-600 (4th Cir. 2003) in which the Court
held that a sentence on a count that exceeded the statutory
maximum sentence did not affect the defendant’s substantive
rights because the error did not result in a longer term of
imprisonment given that the defendant received a life sentence
on a different concurrent count. Id. Here, Harris will be
serving 240 months in prison for count one even if the FSA
applied to him and reduced his sentence for count two. Because
Harris’s overall time in prison remains unaffected, we find the
error is harmless in this case.
III.
For the foregoing reasons, we affirm Harris’s convictions
and sentences. 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. 2
AFFIRMED
2
We have reviewed the additional issues raised in Harris’s
pro se supplemental brief and find that they lack merit.
9