United States v. Niedermeier

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4510
GLEN MICHAEL NIEDERMEIER,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, Chief District Judge.
(CR-02-34)
Submitted: January 14, 2004
Decided: April 8, 2004
Before WIDENER, WILKINSON, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jonathan D. Fittro, Clarksburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Zelda E. Wesley, Assistant
United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NIEDERMEIER
OPINION
PER CURIAM:
Glen Michael Niedermeier appeals his conviction and sixty-three
month sentence imposed for two counts of possession of a firearm
after being convicted of a felony, in violation 18 U.S.C. § 922(g)
(2000).
Niedermeier first contends that the district court erred in denying
his motion to dismiss the indictment based on his claim of pre-
indictment delay. However, Niedermeier has not established that any
delay was intentionally designed to give the Government a tactical
advantage over him. Neither has he shown that he suffered actual
prejudice because of such delay. Accordingly, we affirm the district
court’s ruling. See United States v. Marion, 404 U.S. 307, 324 (1971);
United States v. Automated Med. Labs., Inc., 770 F.2d 399, 403-04
(4th Cir. 1985).
Niedermeier also contends that the district court erred in admitting
evidence of marijuana plants found on his property because the proba-
tive value of the evidence was substantially outweighed by its prejudi-
cial nature. A district court’s evidentiary rulings are entitled to
substantial deference and will not be reversed absent a clear abuse of
discretion. Sasaki v. Class, 92 F.3d 232, 241 (4th Cir. 1996). After a
close review of the evidence, we find no abuse of discretion. Id.Niedermeier contends that the district court erred in increasing his
criminal history category based upon his state court conviction for
manufacturing marijuana because had the Government indicted him
in a timely fashion, he would not have been forced to plead guilty to
state charges of marijuana manufacturing prior to facing federal fire-
arm charges. However, the Sentencing Guidelines clearly provide for
a one-point increase for Niedermeier’s state conviction. U.S. Sentenc-
ing Guidelines Manual §§ 4A1.1, 4A1.2, comment. (n.1) (2000).
Moreover, we conclude that Niedermeier’s claim of pre-indictment
delay has no bearing on the calculation of his criminal history.
Accordingly, we conclude that the district court properly calculated
Niedermeier’s criminal history points.
UNITED STATES v. NIEDERMEIER 3
Finally, Niedermeier contends that the court should not have
increased his criminal history score by two points for committing the
instant offense while on probation because he was not on active
supervised probation in the state of New Jersey. However, the Sen-
tencing Guidelines provide for two additional criminal history points
if the instant offense is committed while the individual is "under any
criminal justice sentence, including probation." USSG § 4A1.1(d).
Moreover, application note four states that "active supervision is not
required for this item to apply." USSG § 4A1.1(d), comment. (n.4).
Accordingly, we conclude that the district court correctly applied
these two points to Niedermeier’s criminal history score.
Accordingly, we affirm Niedermeier’s conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED