UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4372

ANTHONY L. OLVIS, a/k/a Tony,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Robert G. Doumar, Senior District Judge.

(CR-95-38)

Submitted: April 30, 1998

Decided: May 20, 1998

Before ERVIN, NIEMEYER, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James S. Ellenson, Newport News, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Robert E. Bradenham, II, Assistant

United States Attorney, Norfolk, Virginia, 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Unpublished opinions are not binding precedent in this circuit.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:

Anthony L. Olvis appeals his conviction for his role in a large-scale

conspiracy to distribute crack cocaine including related firearm and

money laundering charges. See 18 U.S.C.§§ 924(c) &

1956(a)(1)(B)(i) (1994); 21 U.S.C. §§ 841(a)(1) & 846 (1994). Olvis

was convicted by a jury following a three-day trial after this court

reversed the district court's previous order dismissing the indictment

against Olvis. See United States v. Olvis, 97 F.3d 739 (4th Cir. 1996).

In challenging his conviction, Olvis makes two related assignments of

error. He claims that the district court abused its discretion in admitting evidence of Olvis's activities in relation to the conspiracy which

occurred before his eighteenth birthday. Because the Federal Juvenile

Delinquency Act specifically circumscribes the instances in which a

juvenile may be tried as an adult, see 18 U.S.C. § 5032 (1994), Olvis

argues that the admission of evidence of his pre-majority criminal

activities violated Fed. R. Evid. 404(b). Olvis also advances a conclusory suggestion that the district court erred in its instruction to the

jury regarding that evidence. For those reasons, he urges this court to

vacate his conviction.

Even assuming that Olvis properly preserved the district court's

evidentiary rulings for review on appeal, see Fed. R. Crim. P. 51, this

court generally reviews the district court's decision to admit evidence

of bad acts under Rule 404(b) for abuse of discretion. See Cook v.

American S.S. Co., 53 F.3d 733, 742 (6th Cir. 1995); United States

v. Mark, 943 F.2d 444, 447 (4th Cir. 1991). In order to abuse its discretion, a district court must either fail or refuse to exercise its discretion, or rely on an erroneous legal or factual premise in the exercise

of its discretionary authority. See James v. Jacobson, 6 F.3d 233, 239

(4th Cir. 1993). Stated more succinctly, Rule 404(b) decisions are not

reversed unless they are "arbitrary and irrational." United States v.

Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).

There is no evidence of an abuse of discretion in this case. Olvis

has identified no erroneous legal or factual premises tainting the district court's exercise of its discretion regarding the evidence of

Olvis's pre-majority activities in furtherance of the conspiracy. Olvis

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relies entirely on United States v. Spoone, 741 F.2d 680, 687 (4th Cir.

1984), to support his claim of error. Our decision in that case affirmed

the conspiracy conviction of a defendant who committed only one

overt act in furtherance of the conspiracy after his eighteenth birthday. See id. The evidence at trial and the charges in the indictment

identify nearly thirty overt acts in furtherance of the conspiracy after

Olvis reached the age of majority. Consequently, we find no abuse of

discretion in the district court's admission of evidence of acts in furtherance of the conspiracy prior to Olvis's eighteenth birthday.

In addition, the district court properly and repeatedly instructed the

jury not to consider Olvis's acts before he turned eighteen as evidence

of his guilt of the conspiracy charge. See id. As a result, we find

Olvis's assignments of error on appeal to be without merit and affirm

the conviction. 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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