United States v. Badey , 147 F. App'x 338 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS LEVON BADEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-02-279)
Argued: May 27, 2005 Decided: August 26, 2005
Before MOTZ and KING, Circuit Judges, and Eugene E. SILER, Jr.,
Senior Circuit Judge of the United States Court of Appeals for the
Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jane Ely Pearce, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Christine Witcover Dean,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas
P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant
Federal Public Defender, Raleigh, North Carolina, for Appellant.
Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
PER CURIAM:
Appellant Marcus L. Badey challenges his conviction and
sentence in the Eastern District of North Carolina for possession
of a firearm by a convicted felon, in contravention of 18 U.S.C. §
922(g)(1). In his appeal, Badey contends that the trial court
committed reversible error in three respects: (1) in refusing to
admit a police report into evidence on his behalf; (2) in ruling
that his predicate state conviction constituted a felony; and (3)
in enhancing his sentence on the basis of judge-found facts. As
explained below, we reject each of these contentions and affirm.
I.
On November 6, 2002, Badey was indicted on two federal
firearms offenses — possession of a firearm by a felon, see 18
U.S.C. § 922(g)(1), and possession of a firearm with an obliterated
serial number, see 18 U.S.C. § 922(k).1 Badey’s jury trial was
conducted in the federal court at New Bern, North Carolina, in July
2003. At trial, Officer Charles Ansin of the Fayetteville Police
Department testified that, on the evening of November 18, 2001, he
pulled over a tan or brown Hyundai, registered to Wanda Badey
1
More specifically, Count One of the Indictment alleged, in
relevant part, that, on November 18, 2001, Badey, “having been
convicted of a crime punishable by imprisonment for a term
exceeding one year, knowingly possessed . . . a Lorcin .25 caliber
pistol, in violation of Title 18, United States Code, Section[]
922(g)(1).”
3
(Badey’s mother), after ascertaining that the vehicle was not
insured. Badey was the driver of the vehicle, in which he carried
three passengers — Stacy McCrowie, Crystal Dawson, and Dawson’s
niece. In response to Officer Ansin’s request for a driver’s
license and a Hyundai registration, Badey advised that he did not
have proof of identity and that the Hyundai did not belong to him.
Badey falsely identified himself as “Mike Brady.” After
determining that there was no valid driver’s license for such a
person, Officer Ansin arrested Badey, requested the passengers to
leave the Hyundai, and called for a canine officer.
Upon arrival of the canine officer, the driver’s side door to
the Hyundai was opened, and the dog alerted by scratching at the
bottom of the seat. Officer Ansin then found and recovered a
Lorcin .25 caliber handgun from underneath the driver’s seat. He
also seized a brown wallet from the top of the center console of
the vehicle, containing a photo identification card for Badey.
After running Badey’s correct name through the proper computer
files, Ansin determined that Badey’s driver’s license was
suspended.
Officer Ansin thereafter transported Badey to the Cumberland
County Jail and filled out an Incident/Investigation Report (the
“Report”). Upon reviewing Badey’s criminal record at the jail,
Ansin remarked in Badey’s presence, “You’re a convicted felon, this
4
could be a federal crime.”2 Badey responded by admitting to Ansin
that he had found the firearm and was attempting to sell it.
Officer Ansin failed to supplement the Report with this statement,
however, and he neither advised the magistrate of the statement at
a bond hearing that day nor mentioned it in a subsequent court
proceeding.
At trial, the prosecution also presented the testimony of two
of Badey’s passengers, McCrowie and Dawson, who testified that
neither owned the firearm. During the Government’s case, the court
read the jury a stipulation by the parties that Badey had been
previously convicted of a felony and that the firearm had
theretofore travelled in interstate commerce.
After the Government rested its case-in-chief, Badey moved to
admit the Report into evidence as part of his defense as, inter
alia, an official report excepted from the hearsay rule under
Federal Rule of Evidence 803(8)(C).3 The court, however, ruled the
Report inadmissible, observing that: “It would just be a waste of
time to call this witness and put the report into evidence. You’re
2
In 1999, following a guilty plea in state court, Badey had
been convicted of possession with intent to manufacture, sell, or
deliver marijuana, in violation of North Carolina law, see N.C.
Gen. Stat. § 90-95(a)(1).
3
Federal Rule of Evidence 803(8)(C) provides, in relevant
part, that “factual findings resulting from an investigation made
pursuant to authority granted by law” is not excluded by the
hearsay rule if introduced against the Government in criminal
cases, “unless the sources of information or other circumstances
indicate lack of trustworthiness.”
5
proving a point that is not — that is not controverted . . . .”
The court also noted that “the danger of admitting the entire
report is to bring in a whole lot of other stuff that may not have
a proper place in the case.” Following presentation of the
defense, Badey’s lawyer repeated his request that the court admit
the Report into evidence. The court again ruled the Report
inadmissible, finding that “[it] really adds little if anything to
the — state of the record,” and it would not be “that helpful to
the jury.” Nevertheless, the court authorized Badey to recall
Ansin to inquire whether his Report omitted any pertinent
information. Officer Ansin then testified before the jury that he
had mistakenly omitted Badey’s statement (that Badey had found the
firearm and was attempting to sell it) from the Report and that the
Report was thus incomplete.
On July 8, 2003, the jury returned a guilty verdict on the
felon in possession count of the Indictment, see 18 U.S.C. §
922(g)(1), but it acquitted Badey of the separate charge that he
had knowingly possessed a firearm with an obliterated serial
number. On November 20, 2003, the court conducted Badey’s
sentencing hearing. In determining the appropriate sentence, the
court calculated a base offense level of 20, inasmuch as Badey had
committed the firearm possession offense following a felony
conviction for a drug-trafficking crime. See United States
Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2003). The court
6
also enhanced Badey’s sentence by two levels because the firearm
had an obliterated serial number, increasing his offense level to
22. See USSG § 2K2.1(b)(4). After determining that Badey’s proper
criminal history category was III, the court sentenced him, inter
alia, to fifty-one months of imprisonment, within the Guidelines
range of 51 to 63 months. Badey has appealed, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A trial court possesses broad discretion in ruling on the
admissibility of evidence, and we will not overturn an evidentiary
ruling absent an abuse of discretion. United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996). An abuse of discretion occurs
only when a trial court has acted “arbitrarily” or “irrationally”
in an evidence ruling, United States v. Simpson, 910 F.2d 154, 157
(4th Cir. 1990) (internal quotation marks omitted), when a court
has failed to consider “judicially recognized factors constraining
its exercise” of discretion, or when it has relied on “erroneous
factual or legal premises,” James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993).
On the other hand, we review for plain error a contention
asserted first on appeal and not previously presented in the trial
court. United States v. Olano, 507 U.S. 725 (1993). The plain
error mandate of Olano is only satisfied if: (1) there was error;
7
(2) it was plain; and (3) it affected the defendant’s substantial
rights. 507 U.S. at 732. If these conditions are met, we may then
exercise our discretion to notice the error, but only if it
“seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted).
III.
First of all, Badey contends on appeal that the trial court
erred in refusing to admit the Report into evidence under Federal
Rule of Evidence 803(8)(C). Second, he maintains that his
predicate state conviction was not a felony offense in light of
Blakely v. Washington, 124 S. Ct. 2531 (2004). Finally, Badey
contends that his sentence contravened his Sixth Amendment right to
a jury trial because it was based on judge-found facts, in
violation of United States v. Booker, 125 S. Ct. 738 (2005). We
address these contentions in turn.
A.
Pursuant to Rule 803(8)(C), “factual findings resulting from
an investigation made pursuant to authority granted by law” may be
admissible against the Government in a criminal proceeding
notwithstanding the hearsay rule, “unless the sources of
information or other circumstances indicate lack of
trustworthiness.” Police reports may be appropriately admitted on
8
behalf of a defendant if the provisions of this rule are satisfied.
See, e.g., United States v. Lanese, 890 F.2d 1284, 1290-91 (2d Cir.
1989) (finding exclusion of police report under Rule 803(8)(C) for
lack of trustworthiness proper). However, “Rule 803 does not
mandate admission, it only allows reception of qualifying
evidence.” United States v. MacDonald, 688 F.2d 224, 230 (4th Cir.
1982); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167-
68 (1988) (observing that evaluative reports are subject to
“safeguards built into other portions of the Federal Rules, such as
those dealing with relevance and prejudice”). Under Federal Rule
of Evidence 403, however, otherwise relevant evidence may be
excluded by a trial court when its probative value is substantially
outweighed by the danger of “misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
In this proceeding, the trial court was not obliged to admit
the Report under Rule 803(8)(C), and properly exercised its
gatekeeping authority under Rule 403. See Coleman v. Home Depot,
Inc., 306 F.3d 1333, 1343 (3rd Cir. 2002) (holding that report was
properly excluded under Rule 403 to avoid undue delay and waste of
time notwithstanding its admissibility under Rule 803(8)(C)); see
also Cortes v. Maxus Exploration Co., 977 F.2d 195, 201 (5th Cir.
1992) (holding that evidence otherwise admissible under Rule
9
803(8)(C) remains subject to limitations of Rule 403).4 In
assessing the probative value of the Report, the court observed
that it “really adds little if anything to the — state of the
record.” The court also noted: “It would just be a waste of time
to call this witness and put the report into evidence. You’re
proving a point that is not — that is not controverted . . . .”
The trial court’s observations are especially apt in light of
Badey’s extensive cross-examination of Ansin regarding the omission
of Badey’s statement from the Report. Indeed, Officer Ansin
testified to that omission twice, including when he was recalled to
the witness stand by the defense.
In ruling as it did, the trial court also assessed and
rejected the risk that the jury might be misled by the Report. The
court noted that the Report was “not that helpful to the jury,” and
that “the danger of admitting the entire report is to bring in a
whole lot of other stuff that may not have a proper place in the
case.” Taking into account the potential evidentiary value of the
Report, coupled with the confusing extraneous material contained
4
Although this trial court, like the court in United States v.
Young, did not explicitly rely on Rule 403 in excluding the Report,
“it discussed many of the factors that are relevant to a Rule 403
analysis.” 248 F.3d 260, 268 & n.4 (4th Cir. 2001). Because the
court made the necessary factual findings, we “have no trouble
affirming” on this ground. Id.; cf. Westberry v. Gislaved Gummi
AB, 178 F.3d 257, 262 (4th Cir. 1999) (“[W]e can affirm the
evidentiary ruling of the district court on a ground different from
that employed below . . . .”).
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therein, we are unable to conclude that the trial court abused its
discretion — i.e., that it acted arbitrarily or irrationally,
failed to consider judicially recognized factors, or relied on
erroneous factual or legal premises — in excluding the Report
under Rule 403.
B.
Badey next maintains that his predicate state conviction —
possession with intent to manufacture, sell, or deliver marijuana
in violation of North Carolina General Statute § 90-95(a)(1) — did
not constitute a felony under federal law. See 18 U.S.C. §
922(g)(1) (providing that it is unlawful “for any person who has
been convicted in any court of[] a crime punishable by imprisonment
for a term exceeding one year” to possess a firearm).
Specifically, Badey contends that his offense was not punishable by
imprisonment for a term exceeding one year, in light of the Supreme
Court’s decision in Blakely v. Washington. 124 S. Ct. 2531 (2004)
(holding that defendant’s Sixth Amendment rights were contravened
when he was sentenced under Washington State sentencing scheme
based on judge-found facts). According to Badey, North Carolina’s
sentencing scheme at the time of his predicate conviction, which
authorized a defendant to be sentenced based on aggravating factors
not admitted by the defendant or found by the jury, contravened the
Sixth Amendment. Specifically, Badey’s maximum non-aggravated
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punishment was only twelve months under North Carolina law,
although the maximum aggravated punishment for Badey’s predicate
drug conviction was fifteen months. See N.C. Gen. Stat. §
15A-1340.17(c), (d). And, because Badey did not plead guilty to an
offense involving any of the aggravating factors, the maximum
sentence he could have received was twelve months. Badey thus
maintains that his sentence could not have exceeded a year, and
that his predicate drug conviction was not a felony.
Because Badey has raised this contention of error for the
first time on appeal, we review it for plain error only. United
States v. Olano, 507 U.S. 725 (1993). And, in these circumstances,
we must conclude that, under Olano’s first prong, the district
court did not err. 507 U.S. at 732. This result is controlled by
our recent decision in United States v. Harp, where we addressed
the effect on a federal sentence of a pre-Blakely conviction under
the North Carolina statute at issue here. 406 F.3d 242, 246-47
(4th Cir. 2005) (citing N.C. Gen. Stat. § 15A-1340.17(c), (d)). As
Judge Wilkins explained in Harp, the Blakely rationale did not
alter our previous line of decisions, under which a prior North
Carolina conviction is a felony, “if any defendant charged with
that crime” could have received a sentence of more than a year
under the law in effect at the time of the conviction. Harp, 406
F.3d at 245-46 (citing United States v. Johnson, 114 F.3d 435, 445
(4th Cir. 1997), and United States v. Jones, 195 F.3d 205, 206-7
12
(4th Cir. 1999)). Because “a” defendant — one who, unlike Badey,
qualified for the aggravating factors — could have received a
sentence greater than twelve months under the relevant North
Carolina statute at the time of Badey’s conviction, we are
constrained to conclude that his predicate crime constituted a
felony offense.5
C.
Finally, Badey challenges the constitutionality of his
sentence, which was premised on an enhancement under § 2K2.1(b)(4)
of the Guidelines, based on the court’s finding that the firearm
had an obliterated serial number. USSG § 2K2.1(b)(4) (“If any
firearm was stolen, or had an altered or obliterated serial number,
increase by 2 levels.”). Badey contends for the first time on
appeal that his sentence is unconstitutional under the Sixth
Amendment because it was based on judge-found facts that were
neither charged in the indictment nor proven beyond a reasonable
doubt. See Booker, 125 S. Ct. at 756 (holding Sixth Amendment
contravened when sentencing court, acting pursuant to Guidelines,
5
Because the Harp decision controls our disposition of Badey’s
contention regarding his predicate state conviction, we need not
reach or resolve the parties’ dispute over the effect of the trial
stipulation that Badey had been previously convicted of a state
felony.
13
imposes sentence greater than maximum authorized by facts found by
jury alone).6
We review this final contention for plain error only, again
applying the principles of Olano. 507 U.S. at 732; see United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). And, in these
circumstances, no error was made. Badey’s sentence, even with the
two level enhancement based on the obliterated serial number, was
yet within the range authorized by the verdict. That is, with the
enhancement, Badey qualified for an offense level of 22 and a
Guidelines range of 51 to 63 months. He was, in fact, sentenced to
fifty-one months in prison. Absent the finding on the obliterated
serial number under § 2K2.1(b)(4), Badey’s offense level would have
been 20 and his Guidelines sentence range would have been 41 to 51
months. As a result, the sentencing court’s finding on the
obliterated serial number did not result in a Sixth Amendment
violation under Booker, because it did not serve to increase
Badey’s sentence beyond the maximum that could have been imposed
based on the verdict alone, i.e., fifty-one months. See United
States v. Evans, No. 04-4522, slip op. at *3-4 (4th Cir. July 22,
2005) (finding no Sixth Amendment error under Olano where
6
On July 23, 2004, following the Supreme Court’s June 2004
decision in Blakely, Badey directed this Court’s attention to its
potential implications in this appeal. Corrected Supp. Br. for
Appellant at 7 (“[T]he sentence imposed upon Mr. Badey violated his
right to jury trial under the Sixth Amendment.”).
14
enhancement for possession of stolen firearm failed to increase
sentence beyond maximum authorized by facts defendant admitted).7
IV.
Pursuant to the foregoing, we affirm Badey’s conviction and
sentence.
AFFIRMED
7
Finally, we reject Badey’s contention that his constitutional
rights were violated in applying § 2K2.1(a)(4)(A) of the Guidelines
for his predicate state felony conviction of a controlled substance
offenses. See USSG § 2K2.1(a)(4)(A) (providing for base offense
level of 20 if defendant committed instant offense after sustaining
felony conviction of controlled substance offense). This
contention is also foreclosed by our decision in Harp, 406 F.3d at
247.
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