United States v. Jackson ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLEN EDWARD JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:01-CR-56-1-R)
August 5, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Glen Edward Jackson appeals his conviction for possessing a
firearm as a convicted felon and his sentence as an armed career
criminal. We affirm.
Jackson contends that his prior state conviction for burglary
of a building should not have been counted as a “crime of violence”
under the career offender provisions of U.S.S.G. 4B1.2(a). However
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Jackson was actually sentenced as an armed career criminal under
U.S.S.G. 4B1.4 and U.S.S.G. § 924(e). Under these provisions, the
burglary of a building is a “crime of violence.”1
Jackson contends that the district court violated the Ex Post
Facto Clause by counting his Texas conviction of possessing a
short-barreled shotgun as a prior conviction of a “crime of
violence” under the career offender provisions of U.S.S.G. §
4B1.2(a). Once again, because Jackson was not sentenced as a
4B1.2(a) career offender, this contention lacks merit.
Jackson also argues that the district court erred in
permitting witnesses to testify that he was arrested in a “high
crime” area. Because Jackson did not object to the admission of
this testimony below, we review only for plain error.2 A plain
error is an error that is clear or plain, affects the defendant's
substantial rights, and that seriously affects the fairness,
integrity or public reputation of judicial proceedings.3 The
government states that it offered this testimony simply to provide
preliminary background information regarding why the arresting
officers acted as they did, rather than to suggest anything about
Jackson. Although its relevance is marginal, the admission of this
testimony did not affect Jackson’s substantial rights, given the
substantial evidence of his guilt. It does not rise to the level of
1
Taylor v. United States, 495 U.S. 575, 599 (1990).
2
United States v. Moreci, 283 F.3d 293, 296 (5th Cir. 2002).
3
Id.
plain error.
Johnson contends that the district court erred by permitting
the prosecution to cross-examine his mother about his prior firearm
convictions after she testified that he “never did mess with guns.”
Extrinsic evidence, including prior convictions, is admissible
under the general standards of Rules 402 and 403 to contradict
specific testimony, as long as the evidence is relevant and its
probative value is not substantially outweighed by the danger of
unfair prejudice.4 The district court did not abuse its discretion
by permitting the rebuttal of specific evidence that would have
otherwise misled the jury.
Jackson also argues that the district court erred by not
permitting him to introduce evidence that a defense witness who had
been arrested at the same time and place as Jackson had been
acquitted of possessing marijuana. This argument is without merit.5
Johnson also contests the sufficiency of the evidence
supporting his conviction. We review the evidence in the light most
favorable to the government, and draw all reasonable inferences in
favor of the jury’s verdict.6 Johnson argues that the central issue
in this case came down to a question of witness credibility, but of
course credibility determinations are the sole province of the jury
4
United States v. Lopez, 979 F.2d 1024, 1034 (5th Cir. 1992).
5
United States v. De La Rosa, 171 F.3d 215, 219-20 (5th Cir.
1999).
6
United States v. Rodriguez, 278 F.3d 486, 490 (5th Cir.
2002).
and we will not second-guess their judgment here.7 Insofar as
Johnson argues that the jury’s judgment was colored by evidentiary
rulings that he has challenged on appeal, his claim is without
merit.
AFFIRMED.
7
United States v. Morales, 272 F.3d 284, 287 (5th Cir. 2001).