United States v. Bell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4130
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH ANTHONY BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-04-108-BR)
Submitted: January 27, 2006 Decided: February 10, 2006
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Sherri R. Alspaugh,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Christine Witcover Dean, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Anthony Bell appeals his conviction and sentence for
being a felon in possession of a firearm after having been
convicted of a felony offense, in violation of 18 U.S.C.
§ 922(g)(1) and 924. Under United States Sentencing Guideline
(“USSG”) §2K2.1, Bell’s base offense level for the violation was
twenty, increased by two levels pursuant to USSG § 2K2.1(b)(1)(A)
because the offense involved three-to-seven firearms. With a total
offense level of twenty-two, and a criminal history category of
III, Bell’s recommended guideline range was fifty-one to sixty-
three months’ imprisonment. The district court treated the
guidelines as mandatory and imposed a sentence of fifty-six months
imprisonment along with a three-year term of supervised release.
However, following our guidance in United States v. Hammoud, 381
F.3d 316, 353 (4th Cir. 2004) (en banc), judgment vacated, 125
S. Ct. 1051 (2005), the district court stated that the sentence
would be the same if the guidelines were merely advisory. Finding
no reversible error, we affirm.
Bell’s first claim is that his prior North Carolina conviction
of possession with intent to distribute marijuana, imposed pursuant
to N.C. Gen. Stat. § 15A-1340.17, cannot form the predicate for his
§ 922(g) conviction because the former was not for a crime
punishable by imprisonment for a term exceeding one year. For the
same reason, Bell argues that the district court erred in relying
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upon this conviction to increase his base offense level from
fourteen to twenty under USSG § 2K2.1(b)(1)(A). Bell’s arguments
in this regard are foreclosed by our recent decision in United
States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (holding that
United States v. Jones, 195 F.3d 205 (4th Cir. 1999), is still
viable after Blakely v. Washington, 542 U.S. 296 (2004) and United
States v. Booker, 125 S. Ct. 738 (2005), and reaffirming that “a
prior North Carolina conviction was for a crime punishable by
imprisonment for a term exceeding one year if any defendant charged
with that crime could receive a sentence of more than one year”
(internal citation and quotation marks omitted)).
Bell next claims that the district court abused its discretion
when it excluded testimony offered to impeach the character and
conduct of two witnesses called by the prosecution. The district
court ruled that the evidence was not admissible under Federal Rule
of Evidence 608 and disallowed the testimony. We have reviewed the
parties’ briefs on this issue, the joint appendix, and the district
court’s order and conclude that the district court did not abuse
its discretion in ruling that the evidence was not admissible under
Rule 608.
Bell next contends that his sentence was unreasonable because
the district court erroneously imposed a two-level enhancement for
an offense involving three-to-seven firearms pursuant to USSG
§ 2K2.1(b)(1)(A), in its guideline calculation. At the time of his
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arrest, Bell was traveling as a passenger in a car driven by Harold
Oxendine. A rifle was found in the trunk of the vehicle, which
Bell and Oxendine had earlier retrieved from a garage at his
parents’ home. Bell admitted that the rifle belonged to him, and
advised federal agents that there were three additional firearms
stored in the same garage. On appeal, Bell argues that this
evidence of mere ownership was insufficient to demonstrate that he
had actual or constructive possession of guns stored in a garage
owned by someone else. We hold that the district court’s
imposition of the two-level enhancement was not clearly erroneous.
See United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)
(Constructive possession exists when “the defendant exercised, or
had the power to exercise, dominion and control over the item.”
(internal quotation marks omitted)).
In addition to the above claims, Bell has sought leave to file
a pro se supplemental brief, raising a Booker claim, as well as a
claim that the court erred in not imposing an offense level of six
pursuant to the provisions of USSG § 2K2.1(b)(2). We find no error
in the district court’s guidelines calculation under § 2K2.1 and,
because the district court imposed an identical sentence pursuant
to our guidance in Hammoud, the asserted Booker error was harmless.
Accordingly, we grant Bell’s motion to file a supplemental
brief. We affirm Bell’s conviction and sentence. We dispense with
oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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