United States v. Parry , 225 F. App'x 480 ( 2007 )

MEMORANDUM ^**

Defendant Ronald Lester Parry appeals his convictions and sentence for being a felon in possession of a firearm after previously having been convicted of three “serious drug offenses” in violation of 18 U.S.C. § 922(g)(1) and § 924(e); possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 812(b)(2) & (c), Schedule 11(c), § 841(a) & (b)(1)(c), and § 851; and possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c) and § 921(a)(8).¹

1. On de novo review, United States v. Meek, 366 F.3d 705, 711 (9th Cir.2004), we conclude that the district court did not err by refusing to suppress the evidence retrieved after the traffic stop. The police officer had probable cause to stop Defendant’s truck because he had reasonable suspicion that Defendant’s passenger was not wearing a seatbelt, which is a crime in Oregon. See Or.Rev. Stat. § 811.210(l)(d); United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000) (describing criteria for reasonable suspicion). The officer testified that he saw that the passenger was not wearing a seat belt before he pulled over Defendant’s truck. The Affidavit for Probable Cause Determination does not contradict that testimony because it says that the passenger “sat up and put her seatbelt on as the vehicle was coming to a stop,” which can suggest that first she sat up, the police officer started to pull Defendant over, and then the passenger put on her seatbelt as the truck pulled off the road. Additionally, the officer reasonably suspected that Defendant was driving under the influence of intoxicants. See Or.Rev.Stat. § 813.010 (defining crime).

2. We review for abuse of discretion, United States v. Nguyen, 88 F.3d 812, 818 (9th Cir.1996), a district court’s decision to bifurcate a trial, and we conclude that it did not err. The district court’s decision to bifurcate the trial so that the Armed Career Criminal Act charge — being a felon in possession of a handgun and having previously committed three “serious drug offenses” — was heard after Defendant’s other two charges was in accordance with our case law. Id. at 815.

3. We review for abuse of discretion, United States v. Ramirez-Robles, 386 F.3d 1234, 1240 (9th Cir.2004), cert. denied, 544 U.S. 1035, 125 S.Ct. 2251, 161 L.Ed.2d 1063 (2005), a district court’s decision to admit evidence of prior bad acts, and we conclude that there was no error. Evidence of Defendant’s two prior convictions for delivery of methamphetamine were admissible under Federal Rule of Evidence 404(b): (1) They proved a material element of the offense for which Defendant was charged — possessing methamphetamine with intent to distribute— because Defendant claimed that he had nothing to do with the drugs, but his prior convictions were for similar conduct, suggesting that he had knowledge and intent, Ramirez-Robles, 386 F.3d at 1242; (2) the current conviction is similar to his prior convictions, especially because in all cases Defendant used a very unusual method of transporting methamphetamine, in vials instead of baggies, id. at 1243; (3) there was sufficient evidence that Defendant committed the prior crimes because he pleaded guilty to them, id.; (4) Defendant’s prior convictions were not too remote in time, because they occurred between three and four years before the current conviction, id.; and (5) the district court did not abuse its discretion by determining that their probative value outweighed any prejudicial effect under Federal Rule of Evidence 403.

4. On de novo review, United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir.2006), we hold that the district court did not err in concluding that Defendant was a “career offender” under U.S.S.G. § 4B1.1. The question whether Defendant’s prior convictions qualify as predicate offenses under § 4B1.1 is a legal one and, therefore, the elements of that guideline did not have to be pleaded or proved to a jury beyond a reasonable doubt. United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir.2005) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . One of Defendant’s challenges to his sentence has been dealt with in an opinion published this date.