United States v. Duckett ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4536
SHERWIN DREW DUCKETT,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(CR-97-393-AW)
Submitted: April 28, 2000
Decided: September 21, 2000
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
James C. Savage, LAW OFFICES OF JAMES SAVAGE, Rockville,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Bryan E. Foreman, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Sherwin D. Duckett appeals from his criminal conviction and sen-
tence for distribution of cocaine base and possession of the same with
intent to distribute in violation of 21 U.S.C.A.§ 841 (West 1999). We
affirm.
Duckett first contends that the district court erred in denying his
motion to suppress evidence obtained during a search of his truck.
The legal conclusions of the district court regarding suppression are
reviewed de novo, while factual determinations are subject to review
only for clear error. See United States v. Rusher, 966 F.2d 868, 873
(4th Cir. 1992). Our review of the record under this standard reveals
no error in the district court's denial of Duckett's motion.
Next, Duckett asserts that the district court erred in failing to
instruct the jury that it must unanimously determine which specific
drug transaction formed the basis of the distribution conviction.
Because Duckett did not object, we review this claim for plain error.
See United States v. Olano, 507 U.S. 725, 7332 (1993) (providing
standard). Our review reveals that Duckett is unable to demonstrate
plain error. We therefore find that he is not entitled to relief on this
claim.
Duckett next argues that he was improperly sentenced as a career
offender. In order to qualify as a career offender, a defendant must
have "at least two prior felony convictions of either a crime of vio-
lence or a controlled substance offense." U.S. Sentencing Guidelines
Manual § 4B1.1 (1997). Although conceding that he has two prior
drug trafficking offenses, Duckett contends these two prior cases were
related and therefore should be treated as only one prior felony
offense for purposes of the career offender determination.
Under USSG § 4A1.2(a)(2), sentences for related cases are treated
as one sentence. Cases are considered related if there was no interven-
ing arrest and: (1) the offenses occurred on the same occasion, (2)
were part of a single common scheme or plan, or (3) were consoli-
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dated for trial or sentencing. See USSG§ 4A1.2, comment. (n.3).
Examining Duckett's challenged sentences in light of this standard,
we find that the district court did not err in finding the offenses to be
unrelated and in sentencing Duckett as a career offender.
Duckett contends next that the district court erred in admitting evi-
dence of his prior drug dealings. A district court's evidentiary rulings
are reviewed for an abuse of discretion. See United States v. Aramony,
88 F.3d 1369, 1377 (4th Cir. 1996). Evidence is admissible under
Fed. R. Evid. 404(b) if it is used to show something other than the
defendant's propensity to commit a crime, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or the
absence of mistake or accident. See Fed. R. Evid. 404(b); United
States v. Queen, 132 F.3d 991, 993-98 (4th Cir. 1997), cert. denied,
523 U.S. 1101 (1998). Rule 404(b) is a rule of inclusion that allows
all evidence of other crimes relevant to an issue in a trial, except that
which tends to prove only criminal disposition. See id. at 994; United
States v. Masters, 622 F.2d 83, 87 n.2 (4th Cir. 1980) (citations omit-
ted).
Under this and other evidentiary principles, prior bad acts evidence
is admissible under Rule 404(b) if it is: (1) relevant to some issue
other than character, and in this regard, the more similar the prior act,
the more relevant it becomes; (2) necessary in the sense that it is pro-
bative of an essential claim or an element of the offense; (3) reliable;
and (4) more probative than prejudicial under the Fed. R. Evid.
401/403 balancing test. See Queen, 132 F.3d at 997.
Duckett specifically concedes that the challenged evidence was rel-
evant of intent, but argues that the evidence was unnecessary, stating
that "since the testimony of Office[r] Piper was so clear on this point,
his personal observations of `hand to hand transactions' . . . there was
no need for the other `bad act evidence.'" We find no abuse of discre-
tion in the admission of this evidence, but note that even assuming it
was improperly admitted, as Duckett contends, any error was harm-
less. See United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (pro-
viding harmlessness standard).
Finally, Duckett contends that the district court failed to conduct
the inquiry required by 21 U.S.C.A. § 851(b) (West 1999). Although
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the record contains no indication of an inquiry by the district court,
it does show that Duckett received the substantive protections of the
statute. Specifically, prior to sentencing Duckett filed a sentencing
memorandum addressing his two prior convictions and arguing that
they were related offenses. In this filing, Duckett stated that he did not
challenge the presentence report's records of his criminal convictions.
Moreover, in his brief before this court, Duckett does not argue that
he would or could have raised a proper challenge to his prior convic-
tions had he received the district court's warning under § 851(b). We
therefore find that any error in the court's failure to comply with
§ 851(b) was harmless. See United States v. Campbell, 980 F.2d 245(4th Cir. 1992) (finding that defendant received substantive protec-
tions where he filed a presentence motion challenging the prior con-
viction only for enhancement purposes and where the district court
held a lengthy hearing on the challenged issue); see also United States
v. Fragoso, 978 F.2d 896, 902-03 (5th Cir. 1992) (finding district
court's failure to follow § 851 procedures harmless where defendant
never challenged government's failure to prove conviction at trial and
there was no contention that defendant would or could have raised
proper challenge to his prior convictions had he received district
court's warning).
In light of the above determinations, we affirm Duckett's convic-
tion and sentence. 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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