UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4537

DEWITT HARVEY,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

Patrick Michael Duffy, District Judge.

(CR-96-973)

Submitted: May 11, 1999

Decided: May 28, 1999

Before ERVIN and MOTZ, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Herman Laurence Moore, Summerville, South Carolina, for Appellant. J. Rene Josey, United States Attorney, Sean Kittrell, Assistant

United States Attorney, Charleston, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Dewitt Harvey appeals his conviction for being a convicted felon

in possession of a firearm in violation of 18 U.S.C.§ 922(g) (1994).

We affirm.

Harvey's argument that his prosecution and conviction violated the

Fifth Amendment Double Jeopardy Clause is without merit. The State

of South Carolina dismissed the charges stemming from Harvey's

conduct for which he was indicted and convicted in federal court.

Therefore, Harvey fails to show that he was prosecuted or punished

twice for the same offense. That Harvey's probation from an unrelated state conviction may have been revoked as a result of his arrest

does not constitute multiple punishment for the same offense as contemplated by the Double Jeopardy Clause.

On a motion to suppress evidence this court reviews the factual

findings underlying the legal conclusions subject to the clearly erroneous standard and reviews the legal conclusions de novo. See United

States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In this case, the

sheriff's department received a call that someone was firing shots

from a purple Buick. Officers subsequently found a brown Pontiac

parked on the side of a rural road in an area not far from where the

shots were allegedly fired. The officers had not seen any other cars

in the area. Because the Pontiac looked similar to the Buick described

in the police dispatch and was parked in the general vicinity of where

the shots were allegedly fired, the officers approached the car. In

plain view the officers observed a gun on the front car seat in violation of South Carolina law. Hence, the officers were entitled to seize

the gun and cartridges found in and around Harvey's car and the district court correctly denied his motion to suppress this evidence.

The evidence adduced at trial was that the officers read Harvey his

Miranda rights at the time of his arrest and that the statements he

alleges should have been suppressed were not made in response to

police questioning. Therefore, Harvey fails to show that these statements were obtained in violation of his Fifth Amendment rights.

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Whether to allow the jury to view evidence outside the courtroom

is a matter for the discretion of the trial court. See United States v.

Gallagher, 620 F.2d 797, 801 (10th Cir. 1980). Here, the government

presented photographs and diagrams depicting the site where the

police encountered Harvey, and the location of his arrest was not relevant to the charged offense. Therefore, the district court's decision not

to permit the jury to view the arrest site did not constitute an abuse

of discretion.

We reject Harvey's claim that the government violated its obligations under Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, a

defendant's constitutional right to due process is violated when the

prosecutor withholds material, exculpatory evidence from the

defense. Harvey fails to allege how the government's failure to affirmatively disclose in advance of trial that there were no fingerprints

on the gun prejudiced him. Moreover, he fails to show that the identity of the citizen who called the police was material to his defense.

Therefore, Harvey fails to show a Brady violation.

A district court's evidentiary rulings are reviewed for a clear abuse

of discretion. See United States v. Hassan El , 5 F.3d 726, 731 (4th

Cir. 1993). In light of the evidence adduced at trial showing that the

gun was in plain view on the car seat at the time the officers

approached Harvey, whether Harvey owned the car or knew the gun

was in the car earlier in the day was not relevant to the issue of

whether he knowingly possessed the gun in violation of § 922(g).

Similarly, testimony that Harvey's probationary status was affected

by his arrest had no relevance at trial.

Harvey's claim of prosecutorial misconduct provides no basis for

relief. Defense counsel invited the prosecutor's comment when he

argued to the jury that Harvey's crime was a victimless crime. Moreover, even if the prosecutor's statements were improper, they did not

undermine the fairness of the trial and lead to a fundamental miscarriage of justice. See United States v. Francisco , 35 F.3d 116, 120 (4th

Cir. 1994).

We reject Harvey's contention that because he and the government

stipulated at trial that he had committed one prior felony offense, the

district court was foreclosed from finding that he had more than one

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prior felony conviction for sentencing purposes. The parties stipulated

that Harvey had a prior felony conviction to eliminate the need for the

government to present prejudicial evidence of Harvey's past criminal

acts. The stipulation had no bearing on Harvey's sentencing and did

not preclude the district court from considering Harvey's prior felony

convictions for sentencing purposes.

Harvey's contention that the district court erred in sentencing him

as an armed career offender because the offense of conviction was not

a "crime of violence" as defined by the sentencing guidelines is also

without merit. "[T]he armed career criminal provision does not

require that the instant offense be a `crime of violence.'" United

States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992). The provision

applies so long as the defendant possesses a firearm in violation of 18

U.S.C. § 922(g) and has three previous convictions "for a violent felony or a serious drug offense, or both." Id. (citing § 924(e)(1)).

Because Harvey's possession of a firearm violated§ 922(g) and he

had three prior violent felony convictions, the district court correctly

sentenced him as an armed career criminal.

The record reveals that the district court recognized its authority to

depart but found Harvey ineligible for the requested departures.

Therefore, this court lacks jurisdiction to review the district court's

decision not to depart. See United States v. Hyppolite, 65 F.3d 1151,

1159 (4th Cir. 1995).

Finally, we reject Harvey's claim that the government obtained his

conviction in violation of 18 U.S.C. § 201(c)(2) (1994). See United

States v. Lowery, 166 F.3d 1119, 1122-23 (11th Cir. 1999).

We therefore affirm Harvey's conviction 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

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