United States v. Morrison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4448
RON KEITH MORRISON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-02-107-BR)
Submitted: January 28, 2004
Decided: March 12, 2004
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Samuel John Randall, IV, LAW OFFICES OF SAMUEL J. RAN-
DALL, IV, P.C., Wilmington, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine Wit-
cover Dean, Assistant United States Attorneys, Raleigh, North Caro-
lina, for Appellee.
2 UNITED STATES v. MORRISON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ron Keith Morrison was convicted by a jury of two counts of pos-
session of ammunition by a convicted felon, 18 U.S.C. § 922(g)(1)
(2000) (Counts Two and Three), and one count of possession of
cocaine base (crack) with intent to distribute, 21 U.S.C.A. § 841(West 1999 & Supp. 2003) (Count Four), and was sentenced as a
career offender to concurrent terms of 120 months for the § 922(g)
convictions and 210 months for the drug offense. Morrison contends
on appeal that the district court abused its discretion in permitting the
government to cross-examine him about his prior misdemeanor con-
victions for carrying a concealed weapon and erred in sentencing him
as a career offender. U.S. Sentencing Guidelines Manual § 4B1.1
(2002). We affirm.
Morrison was convicted of illegally possessing ammunition on
February 25, 2002, and on August 31, 2002, and of possessing crack
cocaine with intent to distribute on the latter date. Testifying in his
own defense, Morrison denied all the charged conduct, contradicting
the testimony of the various government witnesses, including testi-
mony indicating that he had possessed a firearm as well as ammuni-
tion on February 25. On direct examination, Morrison denied
possessing either a gun or ammunition on February 25, 2002. Later
in his direct testimony he acknowledged that he had pled guilty to car-
rying a concealed weapon on that date, but resolved the inconsistency
by testifying that he did not know to what charge he entered a guilty
plea. He thus avoided an acknowledgment that his guilty plea was an
admission that he had in fact possessed a gun on February 25.
Although Morrison was not on trial for possession of a firearm on
February 25, his denial of that fact was part of his defense of claiming
that all allegations of unlawful possession made against him by the
government’s witnesses were untrue. Under cross-examination, Mor-
rison stated that he had pled guilty to the February 25 charge of carry-
UNITED STATES v. MORRISON 3
ing a concealed weapon even though he was not guilty, and did not
understand that his guilty plea was an admission that he had actually
possessed a firearm on February 25. The district court ruled that the
government could introduce evidence of Morrison’s three prior con-
victions for carrying a concealed weapon to impeach his claim that he
did not understand the legal effect of a conviction of the offense.
Evidence of a defendant’s "other crimes, wrongs, or acts is not
admissible to prove" bad character but may be admissible to prove
"motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . ." Fed. R. Evid. 404(b). Such
evidence may not be more prejudicial than probative. Fed. R. Evid.
403. Evidence of prior conduct is admissible under Rule 404(b) and
403 if it is (1) "necessary in the sense that it is probative of an essen-
tial claim or an element of the offense;" (2) reliable, and (3) "its pro-
bative value" is not "substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate reason to emotion
in the factfinding process." United States v. Queen, 132 F.3d 991, 997
(4th Cir. 1997). The district court’s decision to admit evidence of
prior bad acts is reviewed for abuse of discretion. Id. at 998. In United
States v. Lamarr, 75 F.3d 964, 970-71 (4th Cir. 1996), this court held
that evidence necessary to prove a defendant’s lack of credibility is
an issue separate from character that satisfies Rule 404(b).
Evidence of a prior felony conviction is admissible under Fed. R.
Evid. 609 for the purpose of attacking the credibility of a defendant.
Lamarr, 75 F.3d at 970. Generally, a prior misdemeanor conviction
is admissible under the rule for attacking credibility only if the crime
involved dishonesty or false statement. Fed. R. Evid. 609(a)(2). How-
ever, Rule 609 "does not address the admissibility of prior convictions
when they are offered for another purpose." United States v. Norton,
26 F.3d 240, 243 (1st Cir. 1994) (conviction sustained more than ten
years earlier, beyond Rule 609’s time limit, was properly admitted to
contradict defendant’s misleading assertion). Thus, Rule 609 does not
prevent the introduction of any prior conviction that is offered to
prove the falsity of testimony offered by the defendant in his direct
examination concerning a material issue. Id. at 243-44 (citations omit-
ted). Applying these principles, we conclude that the rule did not pre-
clude introduction of Morrison’s prior misdemeanor conviction for
carrying a concealed weapon under the circumstances, and the evi-
4 UNITED STATES v. MORRISON
dence was not unfairly prejudicial to him. Therefore, the district court
did not abuse its discretion in admitting the evidence.
Next, although Morrison concedes that his 1989 conviction for
assault with a deadly weapon inflicting serious bodily injury, an
offense committed when he was sixteen, was an adult conviction, he
argues that it should not have been treated as a predicate conviction
for career offender status, nor should the sentence have been counted
in his criminal history, because his North Carolina committed youth-
ful offender sentence was a quasi-juvenile sentence. Legal questions
concerning the district court’s application of the sentencing guidelines
are reviewed de novo. United States v. Bacon, 94 F.3d 158, 161 (4th
Cir. 1996).
A defendant is a career offender if (1) he was at least eighteen
years old when he committed the instant offense, (2) the instant
offense is a felony that is either a crime of violence or a controlled
substance offense, and (3) he has at least two prior felony convictions
for either a crime of violence or a controlled substance offense. A
prior felony conviction must be "a prior adult federal or state convic-
tion for an offense punishable by death or imprisonment for an
offense exceeding one year . . . ." USSG § 4A1.2, comment. (n.1). A
conviction sustained before age eighteen may qualify as a predicate
conviction "if it is classified as an adult conviction under the laws of
the jurisdiction in which the defendant was convicted." Id.
Morrison relies on United States v. Mason, 284 F.3d 555 (4th Cir.
2002) (holding that adult conviction for which juvenile sentence
imposed may not be predicate conviction under § 4B1.1). Morrison’s
reliance on Mason is misplaced, as it deals with a West Virginia sen-
tencing scheme that permits a defendant under eighteen who is con-
victed as an adult to be sentenced as a juvenile, while the North
Carolina Youthful Offender Act had no similar provision.* A youth-
ful offender sentence was one type of adult sentence. Because Mason
is inapposite, Morrison has not demonstrated that the district court
erred in deciding that his North Carolina committed youthful offender
sentence was an adult sentence.
*The Youthful Offender Act was repealed in 1995. See N.C. Gen. Stat.
§ 148-49.10 (2001).
UNITED STATES v. MORRISON 5
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED