UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5630

ANTOINE HAYES,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

T. S. Ellis, III, District Judge.

(CR-95-65)

Submitted: June 18, 1996

Decided: July 8, 1996

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

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COUNSEL

Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for

Appellant. Helen F. Fahey, United States Attorney, Patrick DeConcini, Special Assistant United States Attorney, Alexandria, 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Unpublished opinions are not binding precedent in this circuit.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:

Antoine Hayes appeals his convictions of assault resulting in serious bodily injury, 18 U.S.C.A. § 113(f) (West 1969 & Supp. 1994);

assault with a dangerous weapon, 18 U.S.C.A. § 113(c) (West 1969

& Supp. 1994);* and prisoner possession of a shank, 18 U.S.C.A.

§ 13 (West Supp. 1996), assim. Va. Code Ann.§ 53.1-203(4) (Michie

1994). Hayes also appeals the sentence imposed pursuant to the possession conviction. While we affirm the convictions, we vacate the

sentence imposed for prisoner possession of a shank and remand for

resentencing.

I

The evidence at trial revealed that Hayes, a Lorton Reformatory

inmate, stabbed fellow inmate Clarence Lindsey in the back with a

shank. The assault related to the theft of Hayes's tennis shoes. Hayes

claimed self-defense. The jury convicted Hayes on all three counts of

the indictment. Hayes was sentenced to seventy-two months on each

count, to run concurrently with one another and consecutively to any

sentence he was then serving.

II

Hayes first claims that the district court erred when it did not permit his attorney to ask Corporal McCalla, the prosecution's first witness, about Lindsey's reputation for violence. The prosecutor objected

on two grounds: lack of foundation and lack of a good faith basis for

the inquiry. Following a bench conference, the district court sustained

the objection.

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*In 1994, § 113 was redesignated. Section 113(f) now is designated

§ 113(a)(6); § 113(c) now is § 113(a)(3).

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During his testimony, Hayes testified that he feared Lindsey and

had stabbed him in self-defense. The prosecutor did not object to

Hayes's testimony that Lindsey had a violent reputation. During his

cross-examination of Lindsey, defense counsel inquired whether

Lindsey considered himself to be a violent person. The defense did

not recall Corporal McCalla to testify as to Lindsey's reputation.

Absent an abuse of discretion, a district court's evidentiary rulings

will not be overturned. United States v. Francisco, 35 F.3d 116, 118

(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3563 (U.S.

Jan. 23, 1995) (No. 94-7258). We find no abuse of discretion in this

case. When Corporal McCalla was questioned about Lindsey's reputation, there had been no testimony that Hayes was in any danger

from Lindsey. Hayes subsequently testified that he acted in selfdefense and cross-examined Lindsey about his reputation. Further,

Hayes could have recalled Corporal McCalla and inquired about

Lindsey's propensity for violence. Under these circumstances, there

was no error.

III

Defense counsel objected when the prosecutor, in closing, stated

that Hayes had admitted to having discussed with other inmates his

intention to seek revenge for the theft of his sneakers. The court overruled the objection but admonished the jury that it was their recollection of the evidence, and not what the prosecutor or defense counsel

said, that controlled. Hayes contends that the prosecutor's comment

was outrageous and prejudicial.

To reverse a conviction for prosecutorial misconduct, there must

first be a showing of an improper remark by the prosecutor. Second,

the remark must have so prejudiced the defendant's substantial rights

as to have deprived him of a fair trial. United States v. Mitchell, 1

F.3d 235, 240 (4th Cir. 1993).

A prosecutor's remark is not improper if it is reasonably based on

the testimony at trial. United States v. Chastain, ___ F.3d ___, 1996

WL 257604, at *___ (9th Cir. 1996). In the subject case, there was

no misstatement of Hayes's testimony. He admitted to discussing the

theft of his sneakers with fellow inmates, who asked him what he was

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going to do about the theft. One inmate offered him a shank, which

Hayes accepted. On cross-examination, Hayes admitted that he had

not reported the theft to authorities and had not requested placement

in protective custody. A fair reading of Hayes's testimony is that

Hayes accepted the weapon because he wished to seek revenge, not,

as he claimed, because he feared for his safety and wished to defend

against further robberies. Because the prosecutor's remark was a reasonable interpretation of Hayes's testimony, the remark was proper.

IV

Finally, both parties agree that Hayes's sentence for prisoner possession of a shank must be vacated because it exceeds the statutory

maximum for the offense. "[A] term of imprisonment imposed for an

assimilated crime may not exceed the maximum term established by

state law." United States v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996).

Under Va. Code Ann. § 53.1-203(4), assimilated by 18 U.S.C. § 13,

prisoner possession of a shank is a Class 6 felony. Under Va. Code

Ann. § 18.2-10(f) (Michie 1988 & Supp. 1995), the maximum punishment for a Class 6 felony is five years. Hayes received a sentence of

seventy-two months for this offense.

We review this issue, which Hayes did not raise below, for plain

error. See United States v. Olano, 507 U.S. 725 (1993). Imposing a

sentence in excess of the statutory maximum is plain error. United

States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir.), cert. denied,

___ U.S. ___, 63 U.S.L.W. 3348 (U.S. Oct. 31, 1994) (No. 94-6135).

In the subject case, the sentence imposed on the possession count was

plain error. We accordingly vacate the sentence imposed on that

count.

IV

We affirm Hayes's convictions. The sentence for prisoner possession of a shank is vacated, and the matter remanded for resentencing

on that count. We dispense with oral argument because our review of

the materials before us reveals that it would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED 

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