UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4248

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AL JAMES SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Louise W. Flanagan,

District Judge. (CR-03-195-1)

Submitted: September 30, 2005 Decided: November 3, 2005

Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilmington, North

Carolina, for Appellant. Frank D. Whitney, United States Attorney,

Anne M. Hayes, Christine Witcover Dean, Assistant United States

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Al James Smith appeals from his conviction and sentence

imposed for making a false statement in acquisition of a firearm,

in violation of 18 U.S.C. § 922(a)(6) (2000), being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)

(2000), engaging in the business of dealing in firearms without a

license, in violation of 18 U.S.C. § 922(a)(1)(A) (2000), and

conspiracy to engage in the business of dealing in firearms without

a license, in violation of 18 U.S.C. §§ 371, 922(a)(1)(A) (2000).

Finding no error, we affirm.

I

Smith challenges the district court’s decision to admit

the testimony of an expert on handwriting comparison analysis. The

Government presented Carl McClary, a questioned document examiner

with the ATF, to give his opinion on whether Smith’s known

handwriting samples matched the signatures on the completed ATF

4473 forms used to purchase the handguns at Cumberland Pawn Shop.

The district court’s decision to admit expert testimony

is reviewed for abuse of discretion. Gen. Elec. Co. v. Joiner, 522

U.S. 136, 139 (1997); United States v. Powers, 59 F.3d 1460, 1470-

71 (4th Cir. 1995). The introduction of expert opinion testimony

is governed by Federal Rule of Evidence 702, which provides that

“[i]f scientific, technical, or other specialized knowledge will
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assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert . . . may testify

thereto in the form of an opinion or otherwise.” Fed. R. Evid.

702. Expert testimony is admissible under Rule 702, then, if it

concerns (1) scientific, technical, or other specialized knowledge,

(2) that will aid the jury or other trier of fact to understand or

resolve a fact at issue. Daubert v. Merrill Dow Pharms., Inc., 509

U.S. 579, 592 (1993); see also Kumho Tire Co., Ltd. v. Carmichael,

526 U.S. 137, 141 (1999) (extending Daubert’s two-part gatekeeping

test to all expert testimony).

This court has held in a challenge to handwriting

comparison analysis that such evidence is admissible. United

States v. Crisp, 324 F.3d 261, 270-71 (4th Cir.), cert. denied, 540

U.S. 888 (2003). We found that “every circuit to have addressed

the issue has concluded . . . that such evidence is properly

admissible.” Crisp, 324 F.3d at 270. We noted “[t]he fact that

handwriting comparison analysis has achieved widespread and lasting

acceptance in the expert community gives [it] the assurance of

reliability that Daubert requires.” Id. at 271. In addition,

because the role of the handwriting expert “is primarily to draw

the jury’s attention to similarities between a known exemplar and

a contested sample,” a jury is left to decide for itself whether to

agree with the expert. Id. We also stated that the defendant had

not presented any reason to doubt the reliability of handwriting
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analysis evidence. Id. Lastly, cross-examination is available to

show any shortcomings in the testimony. Id.; see Daubert, 509 U.S.

at 588-89.

Here, as in Crisp, the defendant did not present any

evidence that handwriting analysis was unreliable. There was no

challenge to McClary’s testimony that, during the ten years that he

has testified, handwriting comparison has been generally accepted.

Further, McClary testified that he helped develop standards for

examination of questioned documents. He was certified by a nongovernmental agency. 

Under Daubert, the district court need not:

expend scarce judicial resources reexamining a familiar

form of expertise every time opinion evidence is offered.

In fact, if a given theory or technique is ‘so firmly

established as to have attained the status of scientific

law,’ then it need not be examined at all, but instead

may properly be subject to judicial notice.

Crisp, 324 F.3d at 268 (quoting Daubert, 509 U.S. at 592 n.11). In

Crisp, this court found that handwriting analysis has the

reliability that Daubert requires even if it does not have the

status of scientific law. Crisp, 324 F.3d at 271. Finally, crossexamination was available to show any shortcomings in the

testimony. Id.; see Daubert, 509 U.S. at 588-89. We therefore

conclude that the district court did not abuse its discretion in

admitting McClary’s testimony.
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II

ATF Agent Don Baucom’s testimony was introduced to show

that the firearms had previously traveled in interstate commerce,

in order to fulfill the “interstate nexus” of the firearm

possession charge. 18 U.S.C. § 922(g) (2000). Smith argues that

Agent Baucom had insufficient training and experience to qualify as

an expert.

We hold that the trial court did not abuse its discretion

by allowing a specially trained agent to testify that the firearms

in question were manufactured outside North Carolina and had

traveled in interstate commerce. The agent had sufficient

experience and knowledge to qualify him to testify about the origin

of the firearms in question.

It was established at trial that Baucom was an ATF agent

who had extensive training in firearms, had handled 2000 firearms

since his first interstate nexus training, and had previously

testified in court regarding the interstate nexus of firearms after

having received advanced specialized training on the subject in

2002. We therefore conclude that the trial court did not abuse its

discretion by admitting Agent Baucom’s testimony. See Powers, 59

F.3d at 1470-71.
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III

Smith assigns error to the district court’s denial of his

motion for judgment of acquittal on the felon in possession of a

firearm counts. He focuses his argument on possession of the gun

found under the car seat during his arrest on February 13, 2003,

and then states that there is even less evidence supporting

possession on the dates charged: February 11, 2003, April 9, 2003,

and May 5, 2003. The Government notes, however, that the felon in

possession counts stem from the pawn shop purchases and not the

firearm in his presence on the date of arrest.

A defendant challenging the sufficiency of the evidence

faces a heavy burden. See United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997). In reviewing a sufficiency challenge, “[t]he

verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).

This court “ha[s] defined ‘substantial evidence,’ in the context of

a criminal action, as that evidence which ‘a reasonable finder of

fact could accept as adequate and sufficient to support a

conclusion of a defendant’s guilt beyond a reasonable doubt.’”

United States v. Newsome, 322 F.3d 328, 333 (4th Cir. 2003)

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1996)). 
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We find that there was substantial evidence to support

the verdict that Smith possessed the firearms. Employees of

Cumberland Pawn Shop identified Smith as the person to whom they

sold the firearms, and the employees testified that they gave him

the firearms at the time of sale. The driver’s licenses used in

connection with the sales were found at Smith’s residence and had

Smith’s photograph on them. Reginald Currie, Smith’s coconspirator, testified that he and Smith took firearms to New York

where a friend, Flowers, sold them. Smith, Currie, and Flowers

were arrested together in New York in a car co-owned by Smith and

his girlfriend, two days after Smith purchased the firearms in

North Carolina. At the time of his arrest, Smith had $1,800 and a

small amount of cocaine on his person. The possession of the drugs

and money was consistent with Currie’s testimony that Smith sold

the guns at an approximate value of $700 each in cash and drugs.

We therefore conclude that viewing the evidence in the light most

favorable to the Government, the district court did not err in

denying the motion for acquittal.

IV

Last, Smith contends that his sentence was increased

based upon facts that were not found by a jury beyond a reasonable

doubt. He did not raise this issue in the district court,
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therefore it is reviewed for plain error. United States v. Hughes,

401 F.3d 540 (4th Cir. 2005).

Smith’s base offense level was increased based on the

number of firearms involved in the offense. However, these

enhancements did not affect the final sentence. It was not plain

error for the district court to apply the Sentencing Guidelines in

light of United States v. Booker, 125 S. Ct. 738 (2005), because

Smith was sentenced under the Armed Career Criminal Act, which

determined his Guideline range. Smith’s claim is foreclosed by

circuit precedent. See United States v. Thompson, 421 F.3d 278,

284-86 (4th Cir. 2005) (holding that prior convictions could not be

severed from their essential components, and these components

include integral facts such as the statutory violation and date of

offense, therefore these facts were inherent to convictions not

extraneous to them); United States v. Cheek, 415 F.3d 349, 350 (4th

Cir. 2005) (holding that defendant’s Sixth Amendment right to trial

by a jury was not violated by district court’s reliance on his

prior convictions for purposes of sentencing under the Armed Career

Criminal Act). 

Moreover, on appeal, Smith does not challenge any factual

findings regarding the prior convictions, and he does not dispute

the factual basis for the district court’s conclusions that he was

an armed career criminal. Accordingly, Smith’s assertion that his

sentence violated the Sixth Amendment is without merit. See United
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States v. Collins, 412 F.3d 515, 523 (4th Cir. 2005) (holding that,

where defendant did not dispute any of the facts supporting the

career offender status in district court, there is no

constitutional violation in relying on defendant’s prior

convictions).

To the extent that Smith contests his sentence based upon

the mandatory nature of the application of the Sentencing

Guidelines, the claim is without merit. In United States v. White,

405 F.3d 208 (4th Cir. 2005), we determined that imposing a

sentence under the Guidelines as mandatory was error that was

plain. 405 F.3d at 216-17. However, we then discussed the third

prong of the plain error analysis. In determining whether an error

affected the defendant’s substantial rights, we reasoned that “the

error of sentencing a defendant under a mandatory guidelines

regime” was not an error for which prejudice would be presumed.

Id. at 219-20, 224. Rather, the defendant bears the burden of

showing that this error prejudiced him, or “‘affected the outcome

of the district court proceedings.’” Id. at 223 (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)). 

Here, Smith provides no non-speculative basis for

concluding that the treatment of the Guidelines as mandatory

affected the selection of the sentence imposed. He points to his

personal circumstances of an impoverished childhood and an adult

life addicted to drugs that under the Guidelines did not qualify
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him for a downward departure. However, the district court did not

make any statements indicating that it wished to impose a sentence

below the Guideline range. In fact, it imposed a sentence at the

high-end of the Guideline range and specifically noted that Smith

had an extensive criminal history with twenty-three prior felony

convictions and had not taken advantage of the many opportunities

to reform his behavior. We therefore conclude that Smith cannot

succeed on a claim challenging the mandatory application of the

Guidelines.

We therefore affirm the judgment. 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