UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4150

ANTHONY HATCHES,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4151

SHAMICA TENNELLE POINDEXTER,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(CR-02-58)

Submitted: August 29, 2003

Decided: September 17, 2003

Before TRAXLER and SHEDD, Circuit Judges,

and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 
COUNSEL

John E. Davidson, DAVIDSON & KITZMANN, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville, Virginia, for Appellants. John L. Brownlee, United States Attorney, Bruce A. Pagel,

Assistant United States Attorney, Charlottesville, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Following a jury trial, Anthony Hatches and Shamica Poindexter

were both convicted of conspiracy to distribute and possess with

intent to distribute five or more grams of cocaine base in violation of

21 U.S.C. § 846 (2000); Hatches was convicted of possession with

intent to distribute five or more grams of cocaine base in violation of

21 U.S.C. § 841 (2000); and Poindexter was convicted of the lesser

included offense of possession with intent to distribute cocaine base.

Hatches was additionally convicted of possessing a firearm during

and in relation to or in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (2000); possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2000); and

possessing a firearm as a drug user in violation of 18 U.S.C.

§ 922(g)(3) (2000). In these consolidated appeals, Hatches and

Poindexter challenge various aspects of their convictions and sentences. We affirm. We first address the claims raised by Hatches.

Hatches argues that under Fed. R. Crim. P. 14 the district court erred

in denying his motion to sever his trial on Count 4, the felon-inpossession of a firearm charge. He claims he suffered devastating

prejudice from the introduction of his previous felony conviction at

trial, even though counsel stipulated to the district court’s limiting

instruction, which informed the jury that Hatches’s previous felony

2 UNITED STATES v. HATCHES
conviction was only relevant to establish an element of Count 4 and

was not related to drugs or firearms. 

We review the denial of a motion to sever for an abuse of discretion. United States v. Rhodes, 32 F.3d 867, 872 (4th Cir. 1994). While

the introduction of a previous felony for purposes of establishing a

felon-in-possession charge can be prejudicial to a criminal defendant

charged in a multiple count indictment, we reject Hatches’s invitation

to establish a per se rule regarding severance of such charges. See

United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984).* Moreover,

Hatches’s arguments do not persuade us that severance would likely

have led to a single disposition of all charges following trial on the

remaining counts. Hence, we find that the district court did not abuse

its discretion in denying Hatches’s motion and that its limiting

instruction cured any possible prejudice caused by the introduction of

the prior felony conviction. 

Next, Hatches asks the Court to strike his convictions under 18

U.S.C. § 922(g)(1), (3) as unconstitutional under the Commerce

Clause. We have already addressed and rejected such a claim. See

United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001); United

States v. Bostic, 168 F.3d 718, 723 (4th Cir. 1999). 

Hatches objects to the district court’s refusal to instruct the jury

that it could only convict him of the § 922(g)(3) count if it determined

that he was using a controlled substance while simultaneously possessing a firearm. We rejected this argument in United States v. Jackson, 280 F.3d 403, 406 (4th Cir.), cert. denied, 536 U.S. 911 (2002).

Thus, Hatches’s argument is without merit. We likewise reject Hatches’s alternative argument that the statute is unconstitutionally vague.

Hatches next raises two sufficiency of the evidence claims. He first

attacks the evidence supporting his § 924(c) conviction, arguing it

failed to establish that he possessed a firearm during and in relation

to or in furtherance of a drug trafficking crime. He also challenges all

*To the extent that Hatches asks us to overturn our existing precedent,

we are bound by prior precedent in the absence of any contrary en banc

or Supreme Court ruling. United States v. Rhue, 191 F.3d. 376, 388 (4th

Cir. 1999). 

UNITED STATES v. HATCHES 3
three of his firearm convictions on the basis that the Government

failed to prove that his firearm was not an antique firearm exempted

from prosecution under § 921(a)(3). As to the first claim, we find the

evidence, viewed in the light most favorable to the Government, supports the jury’s conclusion that Hatches possessed the firearm during

and in relation to or in furtherance of a drug trafficking crime. See

United States v. Lomax, 293 F.3d 701, 705 (4th Cir.), cert. denied,

123 S. Ct. 555 (2002). We likewise reject Hatches’s sufficiency of the

evidence claim concerning the firearm as baseless, the Government

having introduced sufficient evidence to establish that the firearm in

question was not an antique as defined in § 921(a)(16)(A)-(C). 

Finally, Hatches avers the district court erred in assigning three

criminal history points for Hatches’s New York robbery conviction

for an offense committed when he was sixteen. Pursuant to U.S. Sentencing Guidelines Manual § 4A1.2(d)(1) (2000), in reviewing a

defendant’s offense committed before the age of eighteen, the district

court is obligated to add three criminal points if the defendant was

convicted as an adult and sentenced to a term of imprisonment

exceeding one year and one month. Hatches initially served a sixmonth sentence for the robbery, and subsequently served another year

for the offense after a probation violation. Moreover, the New York

legislature has determined that a "juvenile delinquent means a person

over seven and less than sixteen years of age who does any act which,

if done by an adult, would constitute a crime." N.Y. Family Court Act

§ 301.2[1] (McKinney 2003) (emphasis added). Accordingly, because

Hatches was sixteen at the time of the offense and was sentenced as

an adult to a term of imprisonment exceeding one year and one

month, we reject this claim. 

Shamica Poindexter raises one claim challenging her convictions

and two claims challenging her sentence. We address each in turn.

She first argues the district court erred under Fed. R. Evid. 404(b) in

denying her motion to suppress two videotapes recorded several

months prior to her arrest. The videotapes show Poindexter selling

crack cocaine to a cab driver and paying for a cab ride with crack

cocaine to the same driver, who was a Government informant. The

district court instructed the jury that it must consider the videotapes

only for the limited purpose of determining whether they established

Poindexter’s intent to commit the alleged offenses at trial. 

4 UNITED STATES v. HATCHES
We review a district court’s evidentiary decisions for abuse of discretion. 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 was arbitrary or irrational. United

States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990). We have also

developed a four-part test for the admissibility of prior bad act evidence: (1) the prior-act evidence must be relevant to an issue other

than character, such as knowledge or intent; (2) it must be necessary

to prove an element of the crime charged; (3) it must be reliable; and

(4) as required by Federal Rule of Evidence 403, its probative value

must not be substantially outweighed by its prejudicial nature. Queen,

132 F.3d at 995. After careful consideration of Poindexter’s arguments, we find the district court did not abuse its discretion in admitting the videotape evidence. 

Next, Poindexter disputes the district court’s relevant conduct finding that she was responsible for thirty-seven grams of cocaine base.

Poindexter concedes she is responsible for one gram of cocaine base

found next to her on the bed and the cash equivalent of fourteen

grams of cocaine base converted from approximately $3000 recovered from the hotel room in which she and Hatches were arrested.

Instead, she concentrates her argument on twenty-two grams of

cocaine base found under the mattress of the second bed in the hotel

room, claiming she could not have foreseen that drug quantity. 

We review the district court’s drug quantity determination for clear

error, United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). The

Government has the burden of establishing the amount by a preponderance of the evidence, United States v. Cook, 76 F.3d 596, 604 (4th

Cir. 1996). We review the district court’s factual determinations concerning the application of the Sentencing Guidelines for clear error

and legal conclusions de novo. United States v. Daughtrey, 874 F.2d

213, 217 (4th Cir. 1989). After careful consideration, we find the preponderance of the evidence demonstrates Poindexter was responsible

for the twenty-two grams because they were reasonably foreseeable

within the scope of the conspiracy. See USSG § 1B1.3(1)(B) and

comment. (n.2). 

Lastly, Poindexter contests the district court’s two-level increase to

her base offense level pursuant to USSG § 2D1.1(b)(1) for possession

UNITED STATES v. HATCHES 5
of the firearm for which Hatches was indicted. The basis for Poindexter’s argument is that she could not possess a firearm that Hatches

owned and kept in his possession. We disagree. 

We review the district court’s decision to increase a defendant’s

base offense level for clear error. United States v. Apple, 915 F.2d

899, 914 (4th Cir. 1990). A conspirator can be held accountable for

a co-conspirator’s possession of a firearm, and we find sufficient evidence existed to support the district court’s two-level enhancement.

See, e.g., USSG § 1B1.3(a); United States v. Shorter, 328 F.3d 167,

172 (4th Cir.), petition for cert. filed, (U.S. Aug. 11, 2003) (No. 03-

5822) ("A defendant may have constructive possession of contraband

even if it is not in [her] immediate possession or control") (citing

United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995)); United

States v. Kimberlin, 18 F.3d 1156, 1159-60 (4th Cir. 1994); United

States v. Nelson, 6 F.3d 1049, 1054-55 (4th Cir. 1993) (overruled on

other grounds by Bailey v. United States, 516 U.S. 137 (1995)). See

also United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001)

(reasoning that actual, constructive, or joint possession is sufficient to

prove violation of 18 U.S.C. § 922(g)(1) beyond a reasonable doubt).

We thus find the district court did not clearly err in applying USSG

§ 2D1.1(b)(1)’s two-level enhancement to Poindexter’s base offense

level and reject Poindexter’s final claim. 

Accordingly, we affirm Hatches’s and Poindexter’s convictions

and sentences. 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

6 UNITED STATES v. HATCHES