UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-4842

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

EDDIE MCLEAN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Terrence W. Boyle, Chief

District Judge. (CR-02-37-BO)

Submitted: August 24, 2005 Decided: October 12, 2005

Before MICHAEL, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

W. Gregory Duke, BLOUNT & DUKE, Greenville, North Carolina, for

Appellant. Frank D. Whitney, United States Attorney, Anne M.

Hayes, Christine Witcover Dean, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Eddie McLean was convicted by a jury of two counts of

unlawful possession of a firearm by a felon, 18 U.S.C. § 922(g)(1)

(2000), and was sentenced to a term of 110 months imprisonment.

McLean appeals his conviction and sentence. We affirm.

At McLean’s trial, the government’s evidence showed that,

on May 13, 2001, Fayetteville, North Carolina, Police Officer

Jamison Keltner responded to a report of “shots fired” and was

directed to McLean’s house. Keltner testified that he found McLean

standing on his front porch smelling strongly of alcohol. When

Keltner asked McLean where the gun was, McLean said that he had put

it on the porch. Keltner seized a 12-gauge shotgun from McLean’s

porch, a short distance from where McLean was standing. There were

several shotgun shells lying on the porch. McLean told Keltner

that he had fired the shotgun because he was tired of “drug boys”

being in the street in front of his house. McLean was not

arrested, although the shotgun was confiscated. 

Officer Brenda Senkier testified that, on July 9, 2001,

she responded to a report of shots being fired at McLean’s house.

When she arrived, she saw McLean standing on his porch holding a

pistol. Senkier told McLean to put the gun down, but he ran inside

and went to the kitchen at the back of the house. Senkier heard

the sound of a drawer closing, after which McLean returned to his

porch and confronted Senkier belligerently. When a backup officer
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arrived, he and Senkier placed McLean in a patrol car, then went

into McLean’s kitchen, where they found a pistol in the drawer

below the oven. The pistol had recently been fired. The backup

officer testified at trial, corroborating Senkier’s account. The

government also produced evidence that McLean had a prior felony

drug conviction. McLean was convicted of both counts of being a

felon in possession of a firearm.

At sentencing, the district court grouped both counts

together pursuant to U.S. Sentencing Guidelines Manual § 3D1.2(d)

(2002), and determined that a base offense level of 24 applied

under USSG § 2K2.1(a)(2) because McLean had two prior felony

convictions for aggravated assault. With eighteen criminal history

points, McLean was in criminal history category VI. His guideline

range was 100-120 months. McLean argued pro se that his criminal

history and base offense level were incorrectly calculated;

however, the district court summarily overruled his objections and

imposed a sentence of 110 months imprisonment.

On appeal, McLean first challenges the district court’s

denial of his motion in limine, in which he sought to suppress the

pistol seized from his house. The motion was filed on August 27,

2002, although the district court’s pretrial scheduling order

required that pretrial motions be filed by March 29, 2002. The

court denied the motion on two grounds: (1) that it was an

untimely motion to suppress, and (2) that a warrantless entry into
*We also conclude that the district court did not clearly err

in finding that the officers’ limited warrantless search for the

pistol was justified by exigent circumstances. United States v.

Cephas, 254 F.3d 488, 495 (4th Cir. 2001) (citing United States v.

Turner, 650 F.2d 526, 528 (4th Cir. 1981)). The officers did not

know whether there were other persons in the house who might remove

or use the firearm.

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McLean’s house was justified by exigent circumstances. McLean

concedes that the motion was untimely, but argues that the issue

was preserved for appeal because the court addressed the merits of

his motion. He claims that the court clearly erred in finding that

exigent circumstances were present.

Suppression motions must be filed before trial. Fed. R.

Crim. P. 12(b)(3)(C); United States v. Wilson, 115 F.3d 1185, 1190

(4th Cir. 1997). The district court may set a date before which

pretrial motions must be filed. Fed. R. Crim. P. 12(c). A

defendant’s failure to make a pretrial motion before the court’s

deadline constitutes a waiver of the issue unless the court grants

relief from the waiver for good cause. Fed. R. Crim. P. 12(e).

The district court’s decision to deny a suppression motion as

untimely is reviewed for abuse of discretion, with consideration

given to the defendant’s reason for the untimely filing. United

States v. Denman, 100 F.3d 399, 402 (5th Cir. 1996). McLean did

not request relief from the waiver or provide any explanation for

his late filing. Therefore, the district court did not abuse its

discretion in denying McLean’s motion in limine seeking to suppress

the pistol.*
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McLean next argues that the district court refused him

the right to represent himself or to obtain a new attorney of his

own choosing. McLean moved to represent himself on August 27,

2002, the scheduled trial date, but he indicated that his real

desire was to obtain a different lawyer. The court offered to

continue the trial and discharge McLean’s lawyer if he wished.

McLean then relinquished his request to represent himself, stating,

“If you will continue it, I’ll stay with him until I see about

getting another lawyer.” The district court continued the trial

and ruled that, “[a]ny request the defendant has made to discharge

his lawyer is denied.” McLean was represented at trial by his

appointed counsel. He obtained a new lawyer for the sentencing

hearing. He did not ask to represent himself again. 

The district court’s denial of a defendant’s motion to

represent himself is reviewed de novo. United States v. Singleton,

107 F.3d 1091, 1096-97 (4th Cir. 1997). Although a defendant has

a right to represent himself, Faretta v. California, 422 U.S. 806,

819 (1975), his assertion of the right “must be (1) clear and

unequivocal; (2) knowing, intelligent and voluntary; and (3)

timely.” United States v. Frazier-El, 204 F.3d 553, 558-59 (4th

Cir. 2000) (internal citations omitted). The record in this case

reveals that McLean never made an unequivocal request to represent

himself. On these facts, the district court did not err when it
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denied McLean’s motion to discharge his lawyer and represent

himself.

McLean contends that the evidence was insufficient to

establish that he possessed either the shotgun or the pistol

because the shotgun was not in his hands on May 12, 2001, when

Officer Keltner arrived and because Officer Senkier did not

positively identify the pistol found in McLean’s kitchen as the

weapon she saw in his hand when she approached his house on July 9,

2001. We review de novo the district court’s decision to deny a

Fed. R. Crim. P. 29 motion for acquittal. United States v. Wilson,

118 F.3d 228, 234 (4th Cir. 1997). Where, as here, the motion was

based on insufficient evidence, “[t]he verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.” Glasser v. United

States, 315 U.S. 60, 80 (1942); United States v. Wills, 346 F.3d

476, 495 (4th Cir. 2003), cert. denied, 124 S. Ct. 2906 (2004).

The reviewing court considers both direct and circumstantial

evidence and permits “the government the benefit of all reasonable

inferences from the facts proven to those sought to be

established.” United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982). Witness credibility is within the sole province of the

jury, and the appellate court does not reassess the credibility of

testimony. United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989). 
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Here, the government’s evidence was sufficient to show

that McLean actually possessed a firearm on each date charged in

the indictment. Officer Keltner testified that, when he walked up

to McLean’s porch and asked McLean where the gun was, McLean

pointed out where the shotgun was lying on the porch and said he

had put it there. Keltner also testified that McLean told him he

had fired the shotgun before Keltner arrived. Because the jury

found Keltner’s testimony credible, his testimony established that

McLean possessed the shotgun on that date. Similarly, Officer

Senkier testified that she observed McLean standing on his porch

with a pistol in his hand. When Senkier approached the porch,

McLean ran into his house toward what she knew to be the kitchen.

She heard a bang, after which McLean immediately came out of the

house again and said to her, “You are not getting it.” Senkier and

the backup officer then recovered from a drawer in the kitchen a

handgun that had recently been fired. Senkier testified that the

recovered gun was the same gun she saw McLean holding on the porch.

This evidence was sufficient to establish that McLean possessed the

seized firearm on that date.

Relying on Blakely v. Washington, 542 U.S. 296 (2004),

McLean contends that the court’s decision to enhance his base

offense level based on his two prior convictions for crimes of

violence violates the Fifth and Sixth Amendments. Because McLean

did not challenge his sentence on constitutional grounds in the
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district court, his claim is reviewed for plain error. United

States v. Olano, 507 U.S. 725, 731-32 (1993). McLean’s base

offense level was set at 24 based on his two 1997 convictions for

aggravated assault. McLean was arrested in January 1996 and again

in July 1996; he pled guilty in each case and was sentenced to

concurrent four-year terms of imprisonment on August 14, 1997.

Each conviction involved an assault on a different victim, on

different dates. 

In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that Blakely applies to the federal sentencing

guidelines and that the Sixth Amendment is violated when a sentence

is imposed under the mandatory guidelines scheme which is greater

than the maximum authorized by the facts admitted by the defendant

or found by the jury. See 125 S. Ct. at 746, 750-51. The Court

remedied the constitutional violation by severing and excising the

statutory provisions that mandate sentencing and appellate review

under the guidelines, thus making the guidelines advisory. Id. at

756-57. Booker reaffirmed the prior conviction exception set out

in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and

preserved in Apprendi v. New Jersey, 530 U.S. 466 (2000). See

Booker, 125 S. Ct. at 756 (“Any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a
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jury beyond a reasonable doubt”). Subsequently, the Supreme Court

held in Shepard v. United States, 125 S. Ct. 1254 (2005), that the

same Sixth Amendment principle applies to “a disputed fact . . .

about a prior conviction” that is not evident from the prior

judicial record, id. at 1262, as opposed to the mere fact of a

prior conviction. See also United States v. Collins, 412 F.3d 515

(4th Cir. 2005) (finding no Sixth Amendment violation where nature

and separateness of predicate offenses for career offender status

was undisputed); cf. United States v. Washington, 404 F.3d 834, 843

(4th Cir. 2005) (finding that district court’s reliance on disputed

facts about prior conviction to determine that it was a crime of

violence violated the Sixth Amendment). 

McLean acknowledges the exception for “the fact of a

prior conviction,” upheld in Blakely, 542 U.S. at ___, 124 S. Ct.

at 2536, but argues that Almendarez-Torres, 523 U.S. at 233-36, on

which it is based, must now be narrowly applied and may no longer

be good law. Further, McLean argues that the factual findings

required to determine whether particular convictions are countable

and how many points are assessed involve more than the mere fact of

a prior conviction and therefore are subject to the requirements of

Blakely. 

This argument is foreclosed by the Supreme Court’s

reaffirmation of the Almendarez-Torres prior conviction exception

in Booker. In this case, the district court’s determination of
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McLean’s criminal history did not violate the Sixth Amendment

because the court did not consider any facts McLean had not

admitted. The court relied on the record of McLean’s prior

convictions and sentences. As in Collins, the violent nature and

separateness of McLean’s prior convictions for aggravated assault

were evident from the record. McLean’s due process or Fifth

Amendment claim also fails. See United States v. Harp, 406 F.3d

242, 247 (4th Cir. 2005) (holding that, even if the district court

plainly erred in determining that defendant was a career offender

when elements of career offender status had not been charged in

indictment, this court would not exercise its discretion to correct

the error because Harp “had no legitimate defense to the career

offender designation”). McLean similarly lacks a legitimate

defense to the base offense level that was applied under

§ 2K2.1(a)(2).

McLean also argues that the district court plainly erred

by using his two aggravated assault convictions to enhance his base

offense level under § 2K2.1(a)(2) and giving him three criminal

history points for the sentence in each case because this

constitutes improper double counting. Because McLean did not

object to his criminal history calculation on this ground in the

district court, this claim is reviewed for plain error.

No error occurred because double counting is permitted

under the guidelines “except where it is expressly prohibited.”
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United States v. Crawford, 18 F.3d 1173, 1179 (4th Cir. 1994).

Therefore, it is permissible to enhance a defendant’s base offense

level because he has certain prior felony convictions and to assess

criminal history points for the sentences imposed for the same

convictions. Id. at 1180. McLean concedes that his argument was

rejected in Crawford, but he suggests that Crawford should be

overruled. Because a panel of this court may not overrule another

panel, see United States v. Chong, 285 F.3d 343, 346 (4th Cir.

2002), his claim fails.

Next, McLean contends that the district court plainly

erred in not counting the sentences for his two 1997 convictions as

one prior sentence under § 4A1.2(a)(2) because they were related

cases as defined in Application Note 3 to § 4A1.2. Cases are

related if they occurred on the same occasion, they were part of a

single common scheme or plan, or they were consolidated for trial

or sentencing. However, Application Note 3 states that cases are

never considered related if there was an intervening arrest, that

is, the defendant was arrested for the first offense before he

committed the second offense. McLean was arrested for the first

aggravated assault in January 1996; he committed the second

aggravated assault on a different victim in July 1996.

Consequently, the district court did not err in counting the

sentences imposed in these cases separately.
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Finally, McLean maintains, again for the first time, that

the district court erred in awarding criminal history points under

§ 4A1.1(a) and (c) for his prior sentences because the convictions

were not charged in the indictment or found by a jury beyond a

reasonable doubt. He also argues that the court plainly erred in

assessing two criminal history points under § 4A1.1(e) for

commission of the instant offense while on probation when his

probationary status was not charged or proved to a jury. No Sixth

Amendment error occurred because the court relied solely on the

judicial record which established the fact of McLean’s prior

convictions and sentences, including his probationary sentence.

All these facts come within the prior conviction exception upheld

in Booker. 125 S. Ct. at 756. The court did not make fact

findings to resolve any dispute about the prior convictions; all

the information used to calculate McLean’s criminal history was

evident from the judicial record. Shepard, 125 S. Ct. at 1262-63.

We therefore affirm the conviction and 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 argument would not aid the

decisional process.

AFFIRMED