United States v. Kelvin Moss , 445 F. App'x 632 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5119
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KELVIN GERARD MOSS, a/k/a Kelvin Girard Moss,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:08-cr-00097-FDW-1)
Submitted: August 25, 2011 Decided: September 7, 2011
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rena G. Berry, Roanoke, Virginia, for Appellant. Anne M.
Tompkins, United States Attorney, Richard Lee Edwards, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Gerard Moss appeals his convictions and multi-
life sentences. A jury found Moss guilty of bank robbery in
violation of 18 U.S.C. § 2113(a) (2006) (Count 1), use and carry
of a firearm in furtherance of a crime of violence in violation
of 18 U.S.C. § 924(c) (2006) (Count 2), possession of a firearm
by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1),
924(e)(1) (2006) (Count 3), and escape from custody in violation
of 18 U.S.C. §§ 751(a), 4082 (2006) (Count 4). As punishment
for these offenses, the district court imposed concurrent
custodial sentences of life, life, and sixty months on Counts 1,
3, and 4, and a consecutive sentence of life on Count 2. We
affirm.
Moss first challenges the admission of certain
testimony during his trial as hearsay and unfairly prejudicial.
This Court “review[s] a trial court’s rulings on the
admissibility of evidence for abuse of discretion, and [] will
only overturn an evidentiary ruling that is arbitrary and
irrational.” United States v. Cole, 631 F.3d 146, 153 (4th Cir.
2011) (internal quotation marks omitted). But when evidence is
admitted without objection, the standard of review is plain
error. See Fed. R. Evid. 103(d); see also United States v.
Chin, 83 F.3d 83, 87 (4th Cir. 1996).
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Hearsay is “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). Hearsay is generally inadmissible. Fed. R. Evid.
802. However, a statement offered against a party is not
hearsay if it is a party’s own statement. Fed. R. Evid.
801(d)(2). Here, the challenged statements were uttered by
Moss; thus, the statements were not hearsay.
Relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Fed. R. Evid. 403.
However, “Rule 403 is a rule of inclusion, generally favoring
admissibility.” United States v. Udeozor, 515 F.3d 260, 264-65
(4th Cir. 2008) (internal quotation marks and brackets omitted).
When assessing a Rule 403 challenge on appeal, this Court
“look[s] at the evidence in a light most favorable to its
proponent, maximizing its probative value and minimizing its
prejudicial effect.” United States v. Simpson, 910 F.2d 154,
157 (4th Cir. 1990) (internal quotation marks omitted). The
challenged testimony demonstrated Moss’s willingness and intent
to commit a robbery; we do not find it to be so unfairly
prejudicial as to warrant exclusion under Fed. R. Evid. 403.
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Moss next raises a double jeopardy challenge to his
sentence for escape, claiming that he has already been punished
by the Bureau of Prisons. We review double jeopardy claims de
novo. United States v. Studifin, 240 F.3d 415, 418 (4th Cir.
2001). “Where the issue is solely that of multiple punishment,
as opposed to multiple prosecutions, the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing
greater punishment than the legislature intended.” Id.
(internal quotation marks omitted).
It has long been accepted that disciplinary changes in
prison conditions do not preclude criminal punishment for the
same conduct. See, e.g., Patterson v. United States, 183 F.2d
327, 328 (4th Cir. 1950) (per curiam). Moss fails to convince
us otherwise and thus we find no double jeopardy violation on
this record.
Moss also claims that the district court erred by
finding that he was subject to mandatory life sentences under 18
U.S.C. § 3559(c)(1) (2006). A person convicted by a federal
court of a serious violent felony shall be sentenced to life
imprisonment if that person has previously been convicted of at
least two serious violent felonies or at least one serious
violent felony plus at least one serious drug offense. 18
U.S.C. § 3559(c)(1)(A). To qualify, each of the predicate
offenses (other than the first) must be “committed after the
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defendant’s conviction of the preceding serious violent felony
or serious drug offense.” 18 U.S.C. § 3559(c)(1)(B). The
district court found that mandatory life sentences applied to
Counts 1 and 2.
The district court carefully noted on the record which
documents it relied upon in finding each of Moss’s predicate
offenses for the purposes of 18 U.S.C. § 3559(c)(1). We find no
error in its use of the records before it. In finding the
nature of the prior convictions, the sentencing court properly
confined itself to documents inherent in the prior convictions
in accord with applicable precedent.
Likewise, we find no merit in Moss’s contention that
his 1992 breaking and entering conviction was not a “serious
violent felony” because that crime is now punishable by a
maximum term of less than ten years. As reflected by the state
court judgment, the maximum term of incarceration at the time of
Moss’s conviction was ten years. We do not find that the plain
language of 18 U.S.C. § 3559(c)(2)(F)(ii) (2006) directs a
sentencing court to analyze the maximum punishment at the time
of the federal sentencing hearing rather than at the time of the
prior conviction.
Moreover, to focus on the punishment available at the
time of federal sentencing would transform the predicate status
of a prior conviction into a moving target. Indeed, a state’s
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reformulation of its sentencing scheme could cause whole classes
of prior convictions to disappear from predicate status and the
application of 18 U.S.C. § 3559(c)(1) could depend in large part
on the fortuitous timing of the sentencing hearing. Cf.
McNeil v. United States, 131 S. Ct. 2218 (2011) (rejecting an
analogous argument with respect to the Armed Career Criminal
Act). In light of the plain language of the statute and the
absurd results that would result from adopting Moss’s
interpretation, the district court properly found that his
previous breaking and entering conviction qualified as a
“serious violent felony” under the definition set forth in 18
U.S.C. § 3559(c)(2)(F)(ii).
Moss’s final appellate challenge is to the
reasonableness of his sentence. We review a sentence under a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). The first step in this review
requires us to inspect for procedural reasonableness by ensuring
that the district court committed no significant procedural
errors, such as failing to calculate or improperly calculating
the Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2006) factors, or failing to adequately explain the
sentence. United States v. Boulware, 604 F.3d 832, 837-38 (4th
Cir. 2010). We then consider the substantive reasonableness of
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the sentence imposed, taking into account the totality of the
circumstances. Gall, 552 U.S. at 51.
We find Moss’s arguments as to the order in which the
district court conducted his sentencing hearing unconvincing.
Because a statutory minimum or maximum sentence limits the
Guidelines range, a district court must always determine a
defendant’s statutory sentence in calculating his Guidelines
range. Both Moss and his attorney were afforded adequate
opportunity to speak and argue for a different sentence. Nor do
we detect any infirmity in the length of the sentences imposed.
We therefore do not find Moss’s sentence to be either
procedurally or substantively unreasonable.
We accordingly affirm the district court’s judgment.
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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