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United States v. Ashe ( 2003 )


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  •                          UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,              
Plaintiff-Appellee,
v.                             No. 02-4032
CHARLES ANTHONY ASHE, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CR-01-63)
Submitted: March 7, 2003
Decided: March 27, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant.
Thomas M. DiBiagio, United States Attorney, Sandra Wilkinson,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                        UNITED STATES v. ASHE
OPINION
PER CURIAM:
Charles Anthony Ashe appeals his conviction following a jury trial
of one count of possession with intent to distribute cocaine base in
violation of
    21 U.S.C. § 841
    (a)(1) (2000), one count of possession
with intent to distribute marijuana in violation of
    21 U.S.C. § 841
    (a)(1), one count of possession of a firearm after having been
convicted of a felony in violation of
    18 U.S.C. § 922
    (g)(1) (2000),
and one count of possession of ammunition after having been con-
victed of a felony in violation of
    18 U.S.C. § 922
    (g)(1). We affirm.
First, Ashe argues joinder of the drug, firearm and ammunition
offenses was not proper under Fed. R. Crim. P. 8. We review de novo
the district court’s refusal to grant a misjoinder motion to determine
whether the initial joinder of the offenses was proper under Rule 8(a).
United States v. Mackins,
    315 F.3d 399
    , 412 (4th Cir. 2003). If join-
der was proper, we review the denial of a motion to sever for abuse
of discretion under Fed. R. Crim. P. 14.
    Id.
     If joinder was improper,
we review this nonconstitutional error for harmless error.
    Id.
     We have
reviewed the record and conclude that joinder was proper under Rule
8 and that the district court did not abuse its discretion by denying
Ashe’s motion to sever.
Next, Ashe challenges two of the district court’s evidentiary rulings
at trial under Fed. R. Evid. 401 and 404(b). First, Ashe argues the dis-
trict court erred in allowing the introduction of his cell phone greet-
ing, which bore the message "thug life." We review a district court’s
determination of the admissibility of evidence under Fed. R. Evid.
404(b) for abuse of discretion. United States v. Queen,
    132 F.3d 991
    ,
995 (4th Cir. 1997). We have reviewed the record and find no error.
Second, Ashe argues the district court erred when it permitted testi-
mony that the firearm he possessed was "inherently unlawful."
Because Ashe did not object to the testimony, we review for plain
error. United States v. Olano,
    507 U.S. 725
    , 731-32 (1993). Under
this standard, we exercise our discretion only to correct errors that are
plain, material, or affecting substantial rights, and that seriously affect
the fairness, integrity or public reputation of judicial proceedings.
    Id.
    UNITED STATES v. ASHE                          3
Because the testimony directly related to the crime for which Ashe
was charged, we find no plain error. See United States v. Kennedy,
    32 F.3d 876
    , 885 (4th Cir. 1994).
Finally, Ashe asserts the police officers conducted an illegal war-
rantless search of his vehicle after it was impounded and taken to a
private impound lot. We review the factual findings underlying a
motion to suppress for clear error, and the district court’s legal deter-
minations de novo. See Ornelas v. United States,
    517 U.S. 690
    , 699
(1996); United States v. Rusher,
    966 F.2d 868
    , 873 (4th Cir. 1992).
When a suppression motion has been denied, we review the evidence
in the light most favorable to the Government. See United States v.
Seidman,
    156 F.3d 542
    , 547 (4th Cir. 1998). We have reviewed the
record and conclude the district court did not err when it denied the
motion to suppress because the officers had probable cause to believe
that evidence of a crime would be discovered in Ashe’s vehicle. See
Pennsylvania v. Lebron,
    518 U.S. 938
    , 940 (1996) (per curiam).
We therefore affirm Ashe’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED