US v. Cornell Vincent, No. 07-5037 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5037 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CORNELL VINCENT, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:05-cr-00371-CCB) Submitted: January 28, 2009 Decided: March 13, 2009 Before TRAXLER, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Lee Ann Anderson McCall, Washington, D.C., for Appellant. Rod J. Rosenstein, United States Attorney, Charles J. Peters, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Cornell Vincent was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006), and was sentenced to 120 months in prison with a three-year term of supervised release to follow. Vincent timely appealed. On appeal, Vincent argues that the court: (1) erred in instructing the jury on the interstate commerce element of the offense; (2) erred in admitting expert testimony; (3) abused its discretion possession; and statutory maximum. in (4) admitting evidence imposed a of sentence uncharged in excess drug of the Finding no error, we affirm. First, relying on United States v. Lopez, 514 U.S. 549 (1995), Vincent contends that the trial court s instruction on the interstate nexus element of § 922(g)(1) unconstitutionally broadened the interstate commerce requirement of the statute by incorrectly focusing on the interstate travel of the firearm instead of the interstate impact of Vincent s possession of the firearm. to the We have previously considered and rejected a challenge constitutionality of § 922(g)(1) based on Lopez. In United States v. Wells, 98 F.3d 808, 810-11 (4th Cir. 1996), we determined that [u]nlike the statute at issue in Lopez, § 922(g) expressly requires the Government to prove the firearm was shipped or transported in interstate or foreign commerce; 2 was possessed in or affected commerce; or was received after having been shipped or transported commerce. Wells, 98 F.3d omitted). Thus, [t]he at in 811 interstate (internal existence of or foreign quotation this marks jurisdictional element, requiring the Government to show that a nexus exists between the firearm and interstate commerce to obtain a conviction under § 922(g), distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause. Id. Accordingly, this claim must fail. Moreover, the district court properly instructed the jury on the interstate commerce portion of the statute. The content of a jury instruction is reviewed to determine whether, viewed as a whole, the instruction fairly states applicable law. United States v. McQueen, 445 F.3d 757, 759 (4th Cir. 2006). Vincent s argument is foreclosed by this Court s holding in McQueen, where we affirmed that the Government may establish the requisite interstate commerce nexus by showing that a firearm was manufactured outside the state where the defendant possessed it and that [Lopez and its progeny] did not alter this required showing. Id. at 759 (quoting United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001)). We conclude the jury instruction fairly stated controlling law. Next, Vincent argues that the court erred in admitting the unreliable and prejudicial 3 expert testimony of Special Agent Hodnett of the Bureau of Alcohol, Tobacco, Firearms and Explosives, because he was not qualified to testify as an expert regarding the interstate nexus of firearms. Because counsel for Vincent did not object to the testimony, the claim is reviewed for plain error. United States v. Olano, 507 U.S. 725, 732-34 (1993). This court reviews the admission of expert testimony for an abuse of discretion. See United States v. Beasley, 495 F.3d 142, 150 (4th Cir. 2007), cert. denied, 128 S. Ct. 1471 (2008). Expert testimony is admissible if it concerns: (1) scientific, technical, or other specialized knowledge that (2) will aid the jury or other trier of fact to understand or resolve a fact at issue. Fed. R. Evid. 702; see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (extending Daubert s two-pronged gatekeeping expert testimony). test for scientific evidence to all An expert s testimony is admissible under Rule 702 if it rests on a reliable foundation and is relevant, Kumho Tire Co., 526 U.S. at 141 (internal quotation marks and citation omitted), and falls outside the common knowledge of the jury. See United States v. Dorsey, 45 F.3d 809, 814-15 (4th Cir. 1995). Hodnett testified that he examined the records of the firearm manufacturer and found that 4 the firearm was made in Florida. Hodnett gave his opinion that the firearm necessarily traveled across recovered evidence state lines because in Maryland, in was reliable, relevant the Vincent s to firearm was possession. whether the later Hodnett s firearm had traveled in interstate commerce, and outside the jury s common knowledge. Based on this testimony, the jury was free to conclude the weapon had crossed state lines by traveling between Florida and Maryland, and thus moved in interstate commerce. The district court did not abuse its discretion in admitting this testimony. Vincent also argues that the district court erred when it admitted testimony about the drugs found on Vincent s person at his arrest. with any He contends that, because he was not charged for offense relating to the drugs, their admission irrelevant, unnecessary, and unfairly prejudicial. was This court reviews the district court s admission of evidence for an abuse See United States v. Hodge, 354 F.3d 305, 312 of discretion. (4th Cir. 2004). can be said An abuse of discretion occurs only when it that the trial court irrationally in admitting evidence. acted arbitrarily or United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal quotation marks and citation omitted). Rule 404(b), Fed. R. Evid., prohibits the admission of evidence of other crimes solely to prove a defendant s bad 5 character, but purposes, such such as evidence proof may of be admissible motive, for opportunity, other intent, preparation, plan, knowledge, identity, or absence of mistake or accident. 404(b)). crime Hodge, 354 F.3d at 311-12 (quoting Fed. R. Evid. Rule 404(b) only applies to acts extrinsic to the charged. [W]here testimony is admitted as to acts intrinsic to the crime charged, and is not admitted solely to demonstrate bad character, it is admissible. Chin, 83 F.3d 83, 88 (4th Cir. 1996). United States v. [A]cts are intrinsic when they are inextricably intertwined or both acts are part of a single criminal episode or the other preliminaries to the crime charged. marks and citation omitted). acts Id. were necessary (internal quotation In addition, evidence of other crimes or uncharged conduct is not considered other crimes for Rule 404(b) purposes if it arose out of the same series of transactions as the charged offense, or if it is necessary to complete the story of the crime on trial. United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation marks, alterations, and citation omitted). Vincent argues that the drug evidence was inadmissible because it reflected a prior bad irrelevant to the firearm charge. act and the He is incorrect. drugs were First, the drug evidence, though uncharged, was intrinsic to the firearm conviction as the drugs and firearm were found together during 6 the same criminal episode. Moreover, the jury heard testimony from a police officer that individuals who carry drugs often carry firearms to protect themselves. Thus, the evidence was indicative of Vincent s knowing possession of the firearm and was admissible. Additionally, the court made clear through its instruction to the considered only if whether court the the defendant noted Therefore, jury that we that jury the found knowingly Vincent conclude was the drug it helpful possessed not on district evidence the trial court did in should be determining firearm. for any not The drugs. abuse its discretion in admitting this evidence. Finally, Vincent argues that the district court erred by sentencing him to 120 months plus three years of supervised release. statutory Vincent ten-year contends maximum that sentence his of sentence 18 U.S.C. exceeds the § 924(a)(2) (2006), because if he violates the terms of supervised release he can be ordered to serve all or part of those three years, with the consequence that he would be imprisoned for more than ten years. We have previously held that supervised release is not considered to be part of the incarceration portion of a sentence and therefore is not limited by the statutory maximum term of incarceration. 178 (4th Cir. 1996). United States v. Pierce, 75 F.3d 173, Therefore, the district court did not err in imposing the term of supervised release. 7 Accordingly, sentence. legal before affirm Vincent s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8

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