United States v. Winchaus A. Hayes ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4365
WINCHAUS ANGELO HAYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-98-91)
Submitted: October 29, 1999
Decided: November 18, 1999
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Darryl J. Mitchell,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Winchaus Angelo Hayes appeals his conviction and thirty-seven-
month sentence imposed after a jury found him guilty of possession
of ammunition by a convicted felon, in violation of 18 U.S.C.A.
§§ 922(g)(1), 924(a)(2) (West Supp. 1999). On appeal, Hayes con-
tends that the district court erred by denying his motion to suppress
the ammunition, that the evidence was insufficient to convict him, and
that the court erred in calculating his criminal history category. Find-
ing no error, we affirm the conviction and sentence.
Hayes moved to suppress the ammunition on the ground that there
was no articulable suspicion to support the officer's pat-down of
Hayes. On appeal, Hayes presents a new argument as to why the dis-
trict court should have suppressed the ammunition--that the officers
did not have probable cause to arrest him. Hayes'"failure to preserve
the issue properly amounts to waiver under [Fed. R. Crim. P.] 12(f)."
United States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997). Hayes
never sought relief below for his default by showing cause under Rule
12(f) nor has he established plain error on appeal. See United States
v. Wilkerson, 84 F.3d 692, 694-95 (4th Cir. 1996) (discussing plain
error standard); United States v. Dorlouis, 107 F.3d 248, 255 (4th Cir.
1997) (defining probable cause).
Next, Hayes asserts that the evidence was insufficient to convict
him of possession of ammunition by a convicted felon because the
Government failed to establish knowing possession. Taking the evi-
dence in the light most favorable to the Government, we conclude that
the evidence was sufficient for a rational trier of fact to have found
the essential elements of the crime beyond a reasonable doubt. See
United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc)
(providing standard); United States v. Hobbs, 136 F.3d 384, 390 (4th
Cir.) (outlining elements of § 922(g)(1)), cert. denied, 118 S. Ct. 2358(1998).
Finally, Hayes challenges his thirty-seven-month sentence on the
ground that the district court erred in calculating his criminal history
score. Specifically, he asserts that two convictions on which the dis-
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trict court relied were "related" because the state court imposed con-
current sentences on the same day after revoking Hayes' probation on
offenses that were committed at different times and separated by an
intervening arrest. We find no error in the district court's calculation
of Hayes' criminal history. See United States v. Breckenridge, 93 F.3d
132, 137 (4th Cir. 1996); U.S. Sentencing Guidelines Manual
§ 4A1.2, comment. (n.3) (1998).
Accordingly, we affirm Hayes' conviction and sentence. We dis-
pense 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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