United States v. Felder , 320 F. App'x 182 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4383
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL JEROME FELDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:07-cr-00203-TLW-1)
Submitted: March 26, 2009 Decided: April 7, 2009
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicole E. Nicolette, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. Walter W. Wilkins, III, United States
Attorney, Columbia, South Carolina, A. Bradley Parham, Assistant
United States Attorney, Florence, South Carolina; Thomas E.
Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Jerome Felder was found guilty of conspiracy
to possess with intent to distribute fifty grams or more of
cocaine base (Count 1), possession with intent to distribute
five grams or more of cocaine base (Count 2), and possession
with intent to distribute cocaine (Count 3). He was sentenced
to 240 months of imprisonment. On appeal, he raises two issues:
(1) whether the district court erred by denying his motion to
dismiss the indictment under the Speedy Trial Act (“STA”); and
(2) whether the district court erred by allowing into evidence
facts regarding his prior 2002 South Carolina conviction for
possession with intent to distribute cocaine in violation of
Fed. R. Evid. 404(b). For the reasons that follow, we affirm.
First, we find no reversible error by the court in
denying Felder’s motion to dismiss under the STA. United
States v. Stoudenmire, 74 F.3d 60, 63 (4th Cir. 1996) (stating
review standard). Certain pretrial motions, and a court’s time
to take the motions under advisement, are exempted from the
STA’s seventy-day time period. See 18 U.S.C. §§ 3161(h)(1)(D),
(h)(1)(H) (Westlaw through Oct. 2008 amendments). Second, we
find no abuse of discretion by the district court in admitting
the evidence of Felder’s prior state conviction. See United
States v. Mark, 943 F.2d 444, 447 (4th Cir. 1991) (stating
review standard for admission of Rule 404(b) evidence). The
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court admitted the conviction based upon its finding that this
evidence was “intrinsic” to the charged conspiracy, which dated
back to 1998 and therefore included the period of time for the
2002 state conviction. Acts that are intrinsic to the charged
offense do not fall under the limitations of Rule 404(b), United
States v. Chin, 83 F.3d 83, 87 (4th Cir. 1996), and therefore,
the district court did not err by declining to issue Felder’s
Rule 404(b) jury instruction. Finally, Felder’s collateral
estoppel argument fails as such claims are analyzed under the
Double Jeopardy Clause and the states and federal government are
separate sovereigns. See United States v. Wheeler, 435 U.S.
313, 328-30 (1978) (discussing dual sovereignty doctrine).
Accordingly, we affirm Felder’s convictions. 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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