UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5564

DAVID MASSIE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Lynchburg.

Samuel G. Wilson, District Judge.

(CR-94-128)

Submitted: February 27, 1997

Decided: March 12, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William R. Light, KILLIS T. HOWARD, P.C., Lynchburg, Virginia,

for Appellant. Robert P. Crouch, Jr., United States Attorney, Thomas

J. Bondurant, Assistant United States Attorney; Thomas E. Booth,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

David Massie appeals his conviction for conspiracy to distribute

marijuana, 21 U.S.C. § 846 (1994), and his sentence of 262 months

imprisonment. He contends that the evidence was insufficient for a

conviction and that the district court abused its discretion in admitting

evidence that he beat his girlfriend during the conspiracy. With

respect to his sentence, he argues that the district court clearly erred

in finding that he was responsible for more than 50 kilograms of marijuana and also erred in sentencing him as a career offender. United

States Sentencing Commission, Guidelines Manual §§ 2D1.1, 4B1.1

(Nov. 1994). We affirm.

Viewed in the light most favorable to the government, Glasser v.

United States, 315 U.S. 60, 80 (1942), the government's evidence

showed that Massie conspired with Wendell Wood in the late 1980's

and early 1990's to buy marijuana in Texas and transport it to Virginia. Co-conspirator Michael Ramsey bought the marijuana with

money which he received directly from Wood or one of Wood's close

associates. When Ramsey returned to Virginia with the marijuana, he

delivered it to one of Wood's friends, such as Cecil Rucker, who in

turn made deliveries to various people including Massie. Ramsey usually bought about 100 pounds of marijuana on each trip. However, on

one trip, he bought about 300 pounds of marijuana, paying between

$250,000 to $300,000. The money was supplied by Wood and Massie. That marijuana purchase was split into two loads for the return

trip. Massie's brother was one of the drivers. He was arrested in Tennessee with 200 pounds of marijuana.

Ramsey, Rucker, and others involved in the conspiracy testified at

the joint trial of Massie and Wood. Ramsey testified that Massie sold

a large part of the marijuana brought in from Texas. Shirley Ann

Jackson, Massie's ex-girlfriend, testified that, at some point while she

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was living with Massie in the fall and early winter of 1991-92, she

saw him receive a delivery of 100 pounds of marijuana. She said that

Massie always kept marijuana on hand for personal use and had frequent visitors with whom he dealt behind closed doors because, he

told her, it would be safer if she did not know what was going on. A

conviction must be sustained if there is substantial evidence to support it. Id. We have no difficulty in finding that there was sufficient

evidence for a reasonable jury to convict Massie of participation in

the conspiracy.

Massie argues that district court abused its discretion in permitting

testimony about his beating of Shirley Ann Jackson in January 1992

because it was evidence of a bad act unrelated to the conspiracy

which should have been excluded under Fed. R. Crim. P. 404(b). He

also argues that this evidence was more prejudicial than probative.

Fed. R. Crim. P. 403. Rule 404(b) provides that evidence of bad acts

unrelated to the charged offense are not admissible to prove the

defendant's bad character and thereby suggest that the defendant is

guilty of the charged offense. Such evidence is admissible to prove

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. However, acts intrinsic to the crime

charged are not excluded under Rule 404(b). Acts are intrinsic to the

charged offense if they are inextricably intertwined with it, if they are

part of a single criminal incident, or if the other acts are preliminary

to it. United States v. Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).

Here, Jackson's testimony disclosed that the worst part of the beating occurred after she tried to call the police because Massie was

afraid they would discover his marijuana. She said Massie tied her up,

then called Ramsey and asked him to come and get 75 pounds of marijuana which were stored in the attic. Consequently, the beating was

intertwined with the drug offense and testimony about it was properly

admitted. See also United States v. Kennedy, 32 F.3d 876, 885-86 (4th

Cir. 1994) (Rule 404(b) not applicable to evidence necessary to complete story of charged offense). Moreover, Jackson's testimony about

the beating was more probative than prejudicial because it corroborated Ramsey's testimony that he once removed two garbage bags

from Massie's attic while Massie was sitting on top of a woman with

duct tape around her head.

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The evidence bears out the district court's finding that Massie was

responsible for more than 50 kilograms of marijuana (approximately

110 pounds). We also find that the district court correctly sentenced

him as a career offender. Under USSG § 4B1.1, a defendant who is

over eighteen, is involved in drug offense, and has two prior convictions for a controlled substance offense is a career offender and

receives an enhanced sentence. Massie argues that his prior Virginia

convictions for conspiracy with intent to distribute marijuana and possession of marijuana with intent to distribute were not controlled substance offenses as defined in USSG § 4B1.2* because marijuana is

not classified as a controlled substance in the Virginia statutes.

Instead, it is penalized by a separate statute which went into effect on

July 1, 1980. See Va. Code Ann. § 2-248.1 (Michie 1996). One of

Massie's prior convictions predated the change in the Virginia law

and was without doubt a controlled substance offense. The other was

properly counted as well because Virginia merely changed its method

of controlling marijuana. Cf. United States v. Pinckney, 938 F.2d 519,

522 (4th Cir. 1991) (holding that federal definition of a felony

adopted by the Sentencing Commission controls where charge of possession with intent to distribute marijuana was a misdemeanor under

state law).

Massie's final argument, that the Sentencing Commission exceeded

its statutory authority under 28 U.S.C. § 994(h) (1994) when it

included conspiracy as a predicate offense for career offender status,

has been considered and rejected by this and other circuits. See United

States v. Morsley, 64 F.3d 907, 915 n.6 (4th Cir. 1995), cert. denied,

___ U.S. ___, 64 U.S.L.W. 3467 (U.S. Jan. 8, 1996) (No. 95-6942).

The conviction and sentence are therefore affirmed. 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

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*The guideline defines a controlled substance offense as "an offense

under federal or state law prohibiting the manufacture, import, export,

distribution, or dispensing of a controlled substance. . . ." USSG

§ 4B1.2(2).

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