UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5194

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MICHAEL WALLACE RICE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, District

Judge. (CR-05-11)

Submitted: November 30, 2006 Decided: December 29, 2006

 

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Joseph Ryland Winston, Richmond, Virginia, for Appellant. Chuck

Rosenberg, United States Attorney, Elizabeth C. Wu, Assistant

United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
*

U.S. Sentencing Guidelines Manual (2005) (USSG).

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PER CURIAM:

Michael W. Rice appeals his conviction after a jury trial

of one count of conspiracy to possess with intent to distribute

more than 500 grams of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (2000) (Count One) and one count of possession of

heroin, in violation of 21 U.S.C. § 844 (2000) (Count Four), and

the 360-month sentence imposed by the district court. We affirm.

In determining the sentencing range for Rice under the

Sentencing Guidelines,* the probation officer recommended that Rice

be held accountable for at least 500 grams but less than two

kilograms of cocaine and 0.46 grams of heroin, which resulted in a

base offense level of twenty-six pursuant to USSG § 2D1.1(c)(7).

The probation officer recommended a two-level enhancement for

obstruction of justice pursuant to USSG § 3C1.1, because Rice

presented false testimony at trial, yielding a total offense level

of twenty-eight. Based on Rice’s prior crimes, however, he was

classified as a career offender pursuant to USSG § 4B1.1, and his

offense level was thirty-seven. Rice’s prior criminal activity

yielded a total of nine criminal history points, placing him in

Category IV. His status as a career offender, however, mandated

criminal history Category VI. The resulting sentencing range based

on a total offense level of thirty-seven and criminal history

category VI was 360 months to life imprisonment. The district
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court sentenced Rice to 360 months of imprisonment and Rice timely

appealed.

On appeal, counsel first asserts that the district court

erred in allowing the admission of testimony that a witness had

purchased drugs from Rice daily, cross-examination by the Assistant

United States Attorney (AUSA) concerning Rice’s drug conviction

sixteen years earlier, and questions from the AUSA about Rice’s

possession of heroin when he was arrested in connection with the

instant case. Review of a district court’s determination of the

admissibility of evidence under Federal Rule of Evidence 404(b) is

for abuse of discretion. See United States v. Queen, 132 F.3d 991,

995 (4th Cir. 1997). A district court will not be found to have

abused its discretion unless its decision to admit evidence under

Rule 404(b) was arbitrary or irrational. See United States v.

White, 405 F.3d 208, 212-13 (4th Cir. 2005); United States v.

Hodge, 354 F.3d 305, 311-12 (4th Cir. 2004) (upholding admission of

evidence of prior drug sales).

Evidence of other crimes is not admissible to prove bad

character or criminal propensity. Fed. R. Evid. 404(b). Such

evidence is admissible, however, to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule

404(b) is an inclusive rule, allowing evidence of other crimes or

acts except that which tends to prove only criminal disposition.
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Queen, 132 F.3d at 994-95; United States v. Rawle, 845 F.2d 1244,

1247 (4th Cir. 1988). Evidence of prior acts is admissible under

Rules 404(b) and 403 if the evidence is: (1) relevant to an issue

other than the general character of the defendant, (2) necessary,

and (3) reliable, and if the probative value of the evidence is not

substantially outweighed by its prejudicial effect. Queen, 132

F.3d at 997. Limiting jury instructions explaining the purpose for

admitting evidence of prior acts and advance notice of the intent

to introduce prior act evidence provide additional protection to

defendants. Id. We have reviewed the trial transcripts and

conclude that the district court did not abuse its discretion in

its rulings regarding the evidence in question.

Counsel next asserts that the district court erred in

enhancing Rice’s offense level for obstruction of justice because

the facts supporting this enhancement were not found by the jury,

and the evidence supporting the enhancement was insufficient. We

review a district court’s determination that a defendant obstructed

justice for clear error. United States v. Hughes, 401 F.3d 540,

560 (4th Cir. 2005). In this case, however, such review is

unnecessary, as the enhancement had no effect on Rice’s sentence.

The length of Rice’s sentence was controlled by the determination

that he qualified for sentencing as a career offender. At

sentencing, Rice withdrew his objection to the use of a particular

predicate conviction and agreed that the career offender provision
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was properly applied, and counsel does not contest its application

on appeal. Rice’s offense level based solely on drug quantity and

the obstruction enhancement was twenty-eight. His status as a

career offender with a prior felony drug conviction increased his

offense level to thirty-seven. Accordingly, even if the district

court erred in imposing the obstruction of justice enhancement,

Rice suffered no prejudice from the error because it did not affect

the determination of his sentence. United States v. Harp, 406 F.3d

242, 247 n.3 (4th Cir.), cert. denied, 126 S. Ct. 297 (2005).

Counsel argues that the district court erred in imposing

a sentence of 360 months of imprisonment. He asserts that the

length of the sentence is unreasonable because it shocks the

conscience. This court reviews a district court’s sentence for

reasonableness. United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005). “Consistent with the remedial scheme set forth in

Booker, a district court shall first calculate (after making the

appropriate findings of fact) the range prescribed by the

guidelines.” Id. at 546.

Next, the district court must consider the Guideline

range in conjunction with other relevant factors under the

Guidelines and 18 U.S.C.A. § 3553(a) (West Supp. 2006), and impose

a sentence. “A sentence within the proper advisory Guidelines

range is presumptively reasonable.” United States v. Johnson, 445

F.3d 339, 341-42 (4th Cir. 2006). If a court imposes a sentence
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outside the Guideline range, the court must state its reasons for

doing so. Hughes, 401 F.3d at 546. The sentence must be “within

the statutorily prescribed range and . . . reasonable.” Id. at

546-47 (citations omitted). Rice’s conviction of a drug conspiracy

involving 500 or more grams of cocaine and his prior felony drug

convictions exposed him to a statutory sentence of at least ten

years up to life imprisonment, 21 U.S.C.A. § 841(b)(1)(B); and his

conviction of possession of heroin carried a statutory maximum of

three years. 21 U.S.C. § 844(a).

In this case the district court calculated the Guideline

range and heard argument from counsel and a statement by Rice. The

court specifically stated that it considered the advisory

Guidelines and the factors in § 3553(a) before imposing sentence.

Our review of the record convinces us that the district court

considered the § 3553(a) factors and adequately explained its

reasoning in selecting the sentence imposed. “The district court

need not discuss each factor set forth in § 3553(a) ‘in checklist

fashion’; ‘it is enough to calculate the range accurately and

explain why (if the sentence lies outside it) this defendant

deserves more or less.’” United States v. Moreland, 437 F.3d 424,

432 (4th Cir.) (quoting United States v. Dean, 414 F.3d 725, 729

(7th Cir. 2005)), cert. denied, 126 S. Ct. 2054 (2006).

Rice’s sentence was within the properly calculated

Guideline range and did not exceed the statutory maximum. The
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“sentence was selected pursuant to a reasoned process in accordance

with law, in which the court did not give excessive weight to any

relevant factor, and which effected a fair and just result in light

of the relevant facts and law.” United States v. Green, 436 F.3d

449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). To the

extent Rice is arguing that his sentence is disproportionate, we

find this argument meritless.

Accordingly, we affirm Rice’s convictions and sentence.

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