United States v. Wallace ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4579
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RASHAWN RAKI WALLACE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson Jr., District
Judge. (3:07-cr-00155-JFA-17)
Submitted: July 29, 2010 Decided: August 12, 2010
Before TRAXLER, Chief Judge, and NIEMEYER and AGEE, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rashawn Wallace was convicted of eight counts of
distribution and possession with intent to distribute crack
cocaine, see 21 U.S.C. § 841, and was sentenced to 400 months’
imprisonment. Wallace appeals, challenging his conviction and
sentence. We affirm.
Wallace first contends the district court erred by allowing
the government to introduce in its case-in-chief evidence of
Wallace’s 2004 state-court conviction for possession with intent
to distribute crack cocaine. We find no error.
“Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.” Fed. R. Evid. 404(b). Such
evidence, however, may “be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id.By pleading not guilty, Wallace placed his intent at issue, and
we cannot say the district court abused its discretion by
admitting the conviction as evidence of Wallace’s knowledge and
intent to distribute. See, e.g., United States v. Hodge, 354
F.3d 305, 312 (4th Cir. 2004); United States v. Sanchez, 118
F.3d 192, 195-96 (4th Cir. 1997). Similarly, we find no error
in the district court’s determination that the probative value
of the evidence was not substantially outweighed by the danger
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of unfair prejudice. See United States v. Williams, 445 F.3d
724, 732 (4th Cir. 2006) (“A district court’s decision to admit
evidence over a Rule 403 objection will not be overturned except
under the most extraordinary of circumstances, where that
discretion has been plainly abused. Such an abuse occurs only
when it can be said that the trial court acted arbitrarily or
irrationally in admitting evidence.” (citation and internal
quotation marks omitted)).
We likewise reject Wallace’s constitutional challenges to
the admission of the 2004 conviction. To the extent Wallace
contends his Sixth Amendment rights were violated when the
government read the conviction into the record rather than
calling a witness to establish the conviction, Wallace waived
any complaint in that regard when counsel agreed to the
procedure at trial. See, e.g., United States v. David, 83 F.3d
638, 641 n.5 (4th Cir. 1996) (explaining that “waiver, unlike
forfeiture, may extinguish an error under Rule 52(b)” (internal
quotation marks omitted)). Wallace also contends the government
violated his Fifth Amendment rights by informing the jury that
he pleaded guilty to the charge instead of informing the jury
that he was convicted of the charge. Because Wallace did not
raise this issue below, we review for plain error only, and
Wallace thus bears the burden of establishing that a plain error
occurred and that his substantial rights were affected by the
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error. See United States v. Knight, 606 F.3d 171, 177 (4th Cir.
2010). Even if we assume that the other elements can be
established, Wallace cannot show, given the strength of the
government’s evidence against him, that his substantial rights
were affected by any error in this regard. See, e.g., United
States v. Olano, 507 U.S. 725, 734 (1993) (explaining that an
error affected a defendant’s substantial rights if it “affected
the outcome of the district court proceedings”).
Wallace also contends that the district court erred by
relying on the 2004 conviction to sentence Wallace as a career
offender. See U.S.S.G. § 4B1.1(a)(3). According to Wallace,
the 2004 conviction is part of the relevant conduct for the
offenses of conviction and therefore should not have been
considered a predicate conviction for career-offender purposes.
See U.S.S.G. § 4A1.2, cmt. n.1 (“‘Prior sentence’ means a
sentence imposed prior to sentencing on the instant offense,
other than a sentence for conduct that is part of the instant
offense. . . . Conduct that is part of the instant offense
means conduct that is relevant conduct to the instant offense
under the provisions of § 1B1.3.”); U.S.S.G. § 4B1.2 cmt. n.3
(“The provisions of § 4A1.2 . . . are applicable to the counting
of convictions under § 4B1.1.”). Because Wallace did not object
to his designation as a career offender, we review this claim
for plain error only.
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Wallace pleaded guilty to the state charge in 2004, but the
PSR shows that he was arrested for the underlying crime in
December 2001. Although the indictment alleged a conspiracy
beginning in 1999, the conspiracy count was dropped and Wallace
was tried only on the substantive drug counts, all of which
occurred in 2006. Wallace has not established that the 2001
crime underlying the 2004 guilty plea was related in any way to
the substantive distribution crimes involved in this case, and
Wallace cannot show that it was error to use the 2004 conviction
as a predicate conviction for career-offender purposes. Wallace
therefore has not carried his burden of showing the existence of
an error, plain or otherwise.
Accordingly, we affirm. 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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