UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4007

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARCUS LEVON BADEY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Malcolm J. Howard,

District Judge. (CR-02-279)

Argued: May 27, 2005 Decided: August 26, 2005

Before MOTZ and KING, Circuit Judges, and Eugene E. SILER, Jr.,

Senior Circuit Judge of the United States Court of Appeals for the

Sixth Circuit, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Jane Ely Pearce, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Raleigh, North Carolina, for Appellant. Christine Witcover Dean,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Thomas

P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant

Federal Public Defender, Raleigh, North Carolina, for Appellant.

Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant

United States Attorney, Raleigh, North Carolina, for Appellee. 
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

More specifically, Count One of the Indictment alleged, in

relevant part, that, on November 18, 2001, Badey, “having been

convicted of a crime punishable by imprisonment for a term

exceeding one year, knowingly possessed . . . a Lorcin .25 caliber

pistol, in violation of Title 18, United States Code, Section[]

922(g)(1).”

3

PER CURIAM:

Appellant Marcus L. Badey challenges his conviction and

sentence in the Eastern District of North Carolina for possession

of a firearm by a convicted felon, in contravention of 18 U.S.C. §

922(g)(1). In his appeal, Badey contends that the trial court

committed reversible error in three respects: (1) in refusing to

admit a police report into evidence on his behalf; (2) in ruling

that his predicate state conviction constituted a felony; and (3)

in enhancing his sentence on the basis of judge-found facts. As

explained below, we reject each of these contentions and affirm.

I. 

On November 6, 2002, Badey was indicted on two federal

firearms offenses — possession of a firearm by a felon, see 18

U.S.C. § 922(g)(1), and possession of a firearm with an obliterated

serial number, see 18 U.S.C. § 922(k).1 Badey’s jury trial was

conducted in the federal court at New Bern, North Carolina, in July

2003. At trial, Officer Charles Ansin of the Fayetteville Police

Department testified that, on the evening of November 18, 2001, he

pulled over a tan or brown Hyundai, registered to Wanda Badey
4

(Badey’s mother), after ascertaining that the vehicle was not

insured. Badey was the driver of the vehicle, in which he carried

three passengers — Stacy McCrowie, Crystal Dawson, and Dawson’s

niece. In response to Officer Ansin’s request for a driver’s

license and a Hyundai registration, Badey advised that he did not

have proof of identity and that the Hyundai did not belong to him.

Badey falsely identified himself as “Mike Brady.” After

determining that there was no valid driver’s license for such a

person, Officer Ansin arrested Badey, requested the passengers to

leave the Hyundai, and called for a canine officer.

Upon arrival of the canine officer, the driver’s side door to

the Hyundai was opened, and the dog alerted by scratching at the

bottom of the seat. Officer Ansin then found and recovered a

Lorcin .25 caliber handgun from underneath the driver’s seat. He

also seized a brown wallet from the top of the center console of

the vehicle, containing a photo identification card for Badey.

After running Badey’s correct name through the proper computer

files, Ansin determined that Badey’s driver’s license was

suspended.

Officer Ansin thereafter transported Badey to the Cumberland

County Jail and filled out an Incident/Investigation Report (the

“Report”). Upon reviewing Badey’s criminal record at the jail,

Ansin remarked in Badey’s presence, “You’re a convicted felon, this
2

In 1999, following a guilty plea in state court, Badey had

been convicted of possession with intent to manufacture, sell, or

deliver marijuana, in violation of North Carolina law, see N.C.

Gen. Stat. § 90-95(a)(1). 

3

Federal Rule of Evidence 803(8)(C) provides, in relevant

part, that “factual findings resulting from an investigation made

pursuant to authority granted by law” is not excluded by the

hearsay rule if introduced against the Government in criminal

cases, “unless the sources of information or other circumstances

indicate lack of trustworthiness.”

5

could be a federal crime.”2 Badey responded by admitting to Ansin

that he had found the firearm and was attempting to sell it.

Officer Ansin failed to supplement the Report with this statement,

however, and he neither advised the magistrate of the statement at

a bond hearing that day nor mentioned it in a subsequent court

proceeding.

At trial, the prosecution also presented the testimony of two

of Badey’s passengers, McCrowie and Dawson, who testified that

neither owned the firearm. During the Government’s case, the court

read the jury a stipulation by the parties that Badey had been

previously convicted of a felony and that the firearm had

theretofore travelled in interstate commerce. 

After the Government rested its case-in-chief, Badey moved to

admit the Report into evidence as part of his defense as, inter

alia, an official report excepted from the hearsay rule under

Federal Rule of Evidence 803(8)(C).3 The court, however, ruled the

Report inadmissible, observing that: “It would just be a waste of

time to call this witness and put the report into evidence. You’re
6

proving a point that is not — that is not controverted . . . .”

The court also noted that “the danger of admitting the entire

report is to bring in a whole lot of other stuff that may not have

a proper place in the case.” Following presentation of the

defense, Badey’s lawyer repeated his request that the court admit

the Report into evidence. The court again ruled the Report

inadmissible, finding that “[it] really adds little if anything to

the — state of the record,” and it would not be “that helpful to

the jury.” Nevertheless, the court authorized Badey to recall

Ansin to inquire whether his Report omitted any pertinent

information. Officer Ansin then testified before the jury that he

had mistakenly omitted Badey’s statement (that Badey had found the

firearm and was attempting to sell it) from the Report and that the

Report was thus incomplete. 

On July 8, 2003, the jury returned a guilty verdict on the

felon in possession count of the Indictment, see 18 U.S.C. §

922(g)(1), but it acquitted Badey of the separate charge that he

had knowingly possessed a firearm with an obliterated serial

number. On November 20, 2003, the court conducted Badey’s

sentencing hearing. In determining the appropriate sentence, the

court calculated a base offense level of 20, inasmuch as Badey had

committed the firearm possession offense following a felony

conviction for a drug-trafficking crime. See United States

Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2003). The court
7

also enhanced Badey’s sentence by two levels because the firearm

had an obliterated serial number, increasing his offense level to

22. See USSG § 2K2.1(b)(4). After determining that Badey’s proper

criminal history category was III, the court sentenced him, inter

alia, to fifty-one months of imprisonment, within the Guidelines

range of 51 to 63 months. Badey has appealed, and we possess

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

A trial court possesses broad discretion in ruling on the

admissibility of evidence, and we will not overturn an evidentiary

ruling absent an abuse of discretion. United States v. Aramony, 88

F.3d 1369, 1377 (4th Cir. 1996). An abuse of discretion occurs

only when a trial court has acted “arbitrarily” or “irrationally”

in an evidence ruling, United States v. Simpson, 910 F.2d 154, 157

(4th Cir. 1990) (internal quotation marks omitted), when a court

has failed to consider “judicially recognized factors constraining

its exercise” of discretion, or when it has relied on “erroneous

factual or legal premises,” James v. Jacobson, 6 F.3d 233, 239 (4th

Cir. 1993). 

On the other hand, we review for plain error a contention

asserted first on appeal and not previously presented in the trial

court. United States v. Olano, 507 U.S. 725 (1993). The plain

error mandate of Olano is only satisfied if: (1) there was error;
8

(2) it was plain; and (3) it affected the defendant’s substantial

rights. 507 U.S. at 732. If these conditions are met, we may then

exercise our discretion to notice the error, but only if it

“seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted).

III.

First of all, Badey contends on appeal that the trial court

erred in refusing to admit the Report into evidence under Federal

Rule of Evidence 803(8)(C). Second, he maintains that his

predicate state conviction was not a felony offense in light of

Blakely v. Washington, 124 S. Ct. 2531 (2004). Finally, Badey

contends that his sentence contravened his Sixth Amendment right to

a jury trial because it was based on judge-found facts, in

violation of United States v. Booker, 125 S. Ct. 738 (2005). We

address these contentions in turn.

A.

Pursuant to Rule 803(8)(C), “factual findings resulting from

an investigation made pursuant to authority granted by law” may be

admissible against the Government in a criminal proceeding

notwithstanding the hearsay rule, “unless the sources of

information or other circumstances indicate lack of

trustworthiness.” Police reports may be appropriately admitted on
9

behalf of a defendant if the provisions of this rule are satisfied.

See, e.g., United States v. Lanese, 890 F.2d 1284, 1290-91 (2d Cir.

1989) (finding exclusion of police report under Rule 803(8)(C) for

lack of trustworthiness proper). However, “Rule 803 does not

mandate admission, it only allows reception of qualifying

evidence.” United States v. MacDonald, 688 F.2d 224, 230 (4th Cir.

1982); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 167-

68 (1988) (observing that evaluative reports are subject to

“safeguards built into other portions of the Federal Rules, such as

those dealing with relevance and prejudice”). Under Federal Rule

of Evidence 403, however, otherwise relevant evidence may be

excluded by a trial court when its probative value is substantially

outweighed by the danger of “misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”

In this proceeding, the trial court was not obliged to admit

the Report under Rule 803(8)(C), and properly exercised its

gatekeeping authority under Rule 403. See Coleman v. Home Depot,

Inc., 306 F.3d 1333, 1343 (3rd Cir. 2002) (holding that report was

properly excluded under Rule 403 to avoid undue delay and waste of

time notwithstanding its admissibility under Rule 803(8)(C)); see

also Cortes v. Maxus Exploration Co., 977 F.2d 195, 201 (5th Cir.

1992) (holding that evidence otherwise admissible under Rule
4Although this trial court, like the court in United States v.

Young, did not explicitly rely on Rule 403 in excluding the Report,

“it discussed many of the factors that are relevant to a Rule 403

analysis.” 248 F.3d 260, 268 & n.4 (4th Cir. 2001). Because the

court made the necessary factual findings, we “have no trouble

affirming” on this ground. Id.; cf. Westberry v. Gislaved Gummi

AB, 178 F.3d 257, 262 (4th Cir. 1999) (“[W]e can affirm the

evidentiary ruling of the district court on a ground different from

that employed below . . . .”).

10

803(8)(C) remains subject to limitations of Rule 403).4 In

assessing the probative value of the Report, the court observed

that it “really adds little if anything to the — state of the

record.” The court also noted: “It would just be a waste of time

to call this witness and put the report into evidence. You’re

proving a point that is not — that is not controverted . . . .”

The trial court’s observations are especially apt in light of

Badey’s extensive cross-examination of Ansin regarding the omission

of Badey’s statement from the Report. Indeed, Officer Ansin

testified to that omission twice, including when he was recalled to

the witness stand by the defense.

In ruling as it did, the trial court also assessed and

rejected the risk that the jury might be misled by the Report. The

court noted that the Report was “not that helpful to the jury,” and

that “the danger of admitting the entire report is to bring in a

whole lot of other stuff that may not have a proper place in the

case.” Taking into account the potential evidentiary value of the

Report, coupled with the confusing extraneous material contained
11

therein, we are unable to conclude that the trial court abused its

discretion — i.e., that it acted arbitrarily or irrationally,

failed to consider judicially recognized factors, or relied on

erroneous factual or legal premises — in excluding the Report

under Rule 403. 

B.

Badey next maintains that his predicate state conviction —

possession with intent to manufacture, sell, or deliver marijuana

in violation of North Carolina General Statute § 90-95(a)(1) — did

not constitute a felony under federal law. See 18 U.S.C. §

922(g)(1) (providing that it is unlawful “for any person who has

been convicted in any court of[] a crime punishable by imprisonment

for a term exceeding one year” to possess a firearm).

Specifically, Badey contends that his offense was not punishable by

imprisonment for a term exceeding one year, in light of the Supreme

Court’s decision in Blakely v. Washington. 124 S. Ct. 2531 (2004)

(holding that defendant’s Sixth Amendment rights were contravened

when he was sentenced under Washington State sentencing scheme

based on judge-found facts). According to Badey, North Carolina’s

sentencing scheme at the time of his predicate conviction, which

authorized a defendant to be sentenced based on aggravating factors

not admitted by the defendant or found by the jury, contravened the

Sixth Amendment. Specifically, Badey’s maximum non-aggravated
12

punishment was only twelve months under North Carolina law,

although the maximum aggravated punishment for Badey’s predicate

drug conviction was fifteen months. See N.C. Gen. Stat. §

15A-1340.17(c), (d). And, because Badey did not plead guilty to an

offense involving any of the aggravating factors, the maximum

sentence he could have received was twelve months. Badey thus

maintains that his sentence could not have exceeded a year, and

that his predicate drug conviction was not a felony.

Because Badey has raised this contention of error for the

first time on appeal, we review it for plain error only. United

States v. Olano, 507 U.S. 725 (1993). And, in these circumstances,

we must conclude that, under Olano’s first prong, the district

court did not err. 507 U.S. at 732. This result is controlled by

our recent decision in United States v. Harp, where we addressed

the effect on a federal sentence of a pre-Blakely conviction under

the North Carolina statute at issue here. 406 F.3d 242, 246-47

(4th Cir. 2005) (citing N.C. Gen. Stat. § 15A-1340.17(c), (d)). As

Judge Wilkins explained in Harp, the Blakely rationale did not

alter our previous line of decisions, under which a prior North

Carolina conviction is a felony, “if any defendant charged with

that crime” could have received a sentence of more than a year

under the law in effect at the time of the conviction. Harp, 406

F.3d at 245-46 (citing United States v. Johnson, 114 F.3d 435, 445

(4th Cir. 1997), and United States v. Jones, 195 F.3d 205, 206-7
5

Because the Harp decision controls our disposition of Badey’s

contention regarding his predicate state conviction, we need not

reach or resolve the parties’ dispute over the effect of the trial

stipulation that Badey had been previously convicted of a state

felony.

13

(4th Cir. 1999)). Because “a” defendant — one who, unlike Badey,

qualified for the aggravating factors — could have received a

sentence greater than twelve months under the relevant North

Carolina statute at the time of Badey’s conviction, we are

constrained to conclude that his predicate crime constituted a

felony offense.5

C.

Finally, Badey challenges the constitutionality of his

sentence, which was premised on an enhancement under § 2K2.1(b)(4)

of the Guidelines, based on the court’s finding that the firearm

had an obliterated serial number. USSG § 2K2.1(b)(4) (“If any

firearm was stolen, or had an altered or obliterated serial number,

increase by 2 levels.”). Badey contends for the first time on

appeal that his sentence is unconstitutional under the Sixth

Amendment because it was based on judge-found facts that were

neither charged in the indictment nor proven beyond a reasonable

doubt. See Booker, 125 S. Ct. at 756 (holding Sixth Amendment

contravened when sentencing court, acting pursuant to Guidelines,
6

On July 23, 2004, following the Supreme Court’s June 2004

decision in Blakely, Badey directed this Court’s attention to its

potential implications in this appeal. Corrected Supp. Br. for

Appellant at 7 (“[T]he sentence imposed upon Mr. Badey violated his

right to jury trial under the Sixth Amendment.”).

14

imposes sentence greater than maximum authorized by facts found by

jury alone).6

We review this final contention for plain error only, again

applying the principles of Olano. 507 U.S. at 732; see United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). And, in these

circumstances, no error was made. Badey’s sentence, even with the

two level enhancement based on the obliterated serial number, was

yet within the range authorized by the verdict. That is, with the

enhancement, Badey qualified for an offense level of 22 and a

Guidelines range of 51 to 63 months. He was, in fact, sentenced to

fifty-one months in prison. Absent the finding on the obliterated

serial number under § 2K2.1(b)(4), Badey’s offense level would have

been 20 and his Guidelines sentence range would have been 41 to 51

months. As a result, the sentencing court’s finding on the

obliterated serial number did not result in a Sixth Amendment

violation under Booker, because it did not serve to increase

Badey’s sentence beyond the maximum that could have been imposed

based on the verdict alone, i.e., fifty-one months. See United

States v. Evans, No. 04-4522, slip op. at *3-4 (4th Cir. July 22,

2005) (finding no Sixth Amendment error under Olano where
7

Finally, we reject Badey’s contention that his constitutional

rights were violated in applying § 2K2.1(a)(4)(A) of the Guidelines

for his predicate state felony conviction of a controlled substance

offenses. See USSG § 2K2.1(a)(4)(A) (providing for base offense

level of 20 if defendant committed instant offense after sustaining

felony conviction of controlled substance offense). This

contention is also foreclosed by our decision in Harp, 406 F.3d at

247. 

15

enhancement for possession of stolen firearm failed to increase

sentence beyond maximum authorized by facts defendant admitted).7

IV.

Pursuant to the foregoing, we affirm Badey’s conviction and

sentence. 

AFFIRMED