United States v. Hines , 27 F. App'x 159 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4119
JAMES A. HINES,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-00-282-MJG)
Submitted: September 28, 2001
Decided: November 5, 2001
Before WILKINS, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Beth Farber, Assistant Federal
Public Defender, Andrea Dennis Callaman, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Stephen M. Schen-
ning, United States Attorney, James H. Green, Special Assistant
United States Attorney, Philip S. Jackson, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. HINES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
James A. Hines was convicted of one count of possession of a fire-
arm by a convicted felon, 18 U.S.C.A. § 922(g) (West 2000). Hines
now appeals his conviction and his forty-four month sentence. We
affirm.
I
Baltimore City Police Officer Todd Stahm testified that he and his
partner, Christopher Timms, were in an unmarked police car when
Timms directed Stahm’s attention to Hines, who was walking towards
the officers’ unmarked police car. Stahm and Timms observed a bulge
in Hines’ front waist area. Hines looked in the officers’ direction,
stopped, patted the area, and began walking in the opposite direction.
Stahm followed Hines in the car, caught up with him, and asked him
whether he had anything on him. Instead of answering, Hines fled.
Stahm pursued Hines on foot through an alley. While in the alley,
Stahm observed Hines retrieve a handgun from his waistband and toss
the gun away. After he tackled Hines, Stahm radioed his location to
Timms. Timms arrived almost immediately and took control of Hines.
Stahm then went into the alley and found the gun.
Timms testified next, reiterating Stahm’s testimony. Timms said
that he told Stahm he would take charge of Hines, and "Todd said to
me he threw a gun." Defense counsel objected to this statement as
hearsay. The district court sustained the objection and cautioned the
jury not to consider Timms’ testimony about what Stahm had told
him. During cross-examination, defense counsel asked a question
intended to determine how much time elapsed between Timms’ and
other officers’ arrival at the scene and Stahm’s leaving to retrieve the
gun. Timms replied, "Todd said, he threw the gun right back there.
He left directly after that. It was a matter of seconds." Counsel did not
object, but later moved for a mistrial. The court denied the motion.
UNITED STATES v. HINES 3
The parties stipulated that Hines was a convicted felon and that the
firearm had traveled in interstate commerce. The jury returned a
guilty verdict, and the district court sentenced Hines to forty-four
months in prison, to be served consecutively to a state sentence Hines
was serving at the time of sentencing. Hines now appeals both his
conviction and sentence, contending that Timms’ second statement
about what Stahm told him was inadmissible hearsay so prejudicial
as to have infected the entire trial. He also contends that his sentence
should have run concurrently with the state sentence.
II
Both present sense impressions and excited utterances are excep-
tions to the general rule against hearsay, even if the declarant is avail-
able as a witness. Fed. R. Evid. 803(1), (2). Timms’ testimony about
Stahm’s statement, which was made under the stress of a foot pursuit
and apprehension and almost immediately after Stahm saw Hines toss
the gun, was admissible under both of these exceptions to the hearsay
rule. See United States v. Jackson, 124 F.3d 607, 618 (4th Cir. 1997).
Further, even if the statement was inadmissible hearsay, no mistrial
was required. In light of Stahm’s detailed testimony and the stipula-
tions, Timms’ testimony could not have improperly influenced the
jury. See United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997)
(stating standard for granting mistrial based on improperly admitted
evidence).
III
Hines contends that the district court should have directed that his
sentence run concurrently with, rather than consecutive to, a state sen-
tence that he was serving at the time. First, the district court was obli-
gated under the sentencing guidelines to impose a consecutive
sentence. U.S. Sentencing Guidelines Manual § 5G1.3, cmt. n.6
(2000). Further, we are satisfied from our review of the sentencing
transcript that the court sufficiently addressed the factors identified at
18 U.S.C.A. § 3553(a) (West 2000). For instance, the court was cog-
nizant of its sentencing options under applicable statutes and guide-
lines and was familiar with the facts of this case, Hines’ criminal past,
and his twice having violated state supervision. The court determined
that this was an average felon-in-possession case, warranting a sen-
4 UNITED STATES v. HINES
tence in the middle of the guideline range. We note that district courts
are not required to make specific findings as to each of the § 3553(a)
factors. United States v. Johnson, 138 F.3d 115, 119 (4th Cir. 1998);
United States v. Velasquez, 136 F.3d 921, 924 (2d Cir. 1998).
IV
We therefore affirm Hines’ conviction and sentence. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before us and argument would not
aid the decisional process.
AFFIRMED