UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4952

MOSES KING,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-96-488)

Submitted: November 18, 1997

Decided: December 29, 1997

Before HALL and NIEMEYER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Langdon D. Long, Assistant Federal Public Defender, Columbia,

South Carolina, for Appellant. J. Rene Josey, United States Attorney,

Marshall Prince, Assistant United States Attorney, Columbia, South

Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Moses King appeals his convictions on two counts of possession

of a firearm by a convicted felon, 18 U.S.C.A. §§ 922(g)(1), 924(e)

(West 1994 & Supp. 1997). King's wife, who witnessed the two incidents, refused to testify at trial, invoking the spousal privilege. However, statements she made to investigating officers were admitted

through the officers' testimony. King now raises various challenges

to the introduction of the officers' testimony about his wife's statements. He also claims that the introduction into evidence of a gun

seized during the second incident violated the Fourth Amendment.

Finally, he challenges the determination that he was subject to sentencing as an armed career criminal. We affirm.

I

The first incident occurred on January 28, 1995. Officers in Columbia, South Carolina, responded to a 911 call from the King residence.

Mrs. King told the dispatcher that her husband had held her at gunpoint. The officers who responded to the call found Mrs. King to be

very agitated. King appeared, holding a shotgun. Mrs. King informed

the officers that her husband, who had a previous felony conviction

for murder, had pointed the gun at her.

On November 15, 1995, officers responded to another 911 call

from Mrs. King concerning a domestic dispute. When officers arrived

at the King home, Mrs. King was at the back of the house, waving

excitedly at the officers and saying, "he's back here . . . he's got a

gun." She told the officers that King had a gun in a bag he was carrying and that she feared he would kill her. The officers seized the bag

from King. They felt the outside of the bag, touched a hard object that

might have been a weapon, looked inside the bag, and retrieved a

loaded pistol.

 2
The officers who responded to Mrs. King's calls testified at trial as

to what happened both times. They recounted Mrs. King's statements

to them. Mrs. King refused to testify, asserting her privilege against

adverse spousal testimony. Over King's objections, the district court

allowed the officers to testify about Mrs. King's statements, finding

that they either were not hearsay or were admissible as exceptions to

the general rule against hearsay.

II

King contends that admission of his wife's statements to the police

violated the privilege against adverse spousal testimony, as that privilege is embodied in Fed. R. Evid. 501. However, Mrs. King's assertion of the privilege only permitted her to refuse to testify against her

husband. The rule does not extend so far as to permit King to exclude

the officers' testimony about out-of-court statements made to them by

Mrs. King. See United States v. Archer, 733 F.2d 354, 359 (5th Cir.

1984).

III

King maintains that the officers' testimony about his wife's statements to them constituted inadmissible hearsay. First, it is doubtful

that the statements were hearsay because the testimony arguably was

offered to show why the officers took the actions they did on each

occasion. See United States v. Love, 767 F.2d 1052, 1063 (4th Cir.

1985). To the extent that the statements were hearsay, they were

admissible as present sense impressions, see Fed. R. Evid. 803(1), or

as excited utterances, see Fed. R. Evid. 803(2). And, because the

statements were admissible under these firmly established hearsay

exceptions, their admission did not violate the Confrontation Clause.

See United States v. Shaw, 69 F.3d 1249, 1253 (4th Cir. 1995).

Finally, because the testimony was admissible, there was no error in

the prosecutor's mentioning Mrs. King's statements during opening

argument.

IV

King moves for leave to file a pro se supplemental brief. While we

grant the motion, we find that the contentions raised in the brief are

 3
without merit. King first asserts that officers violated the Fourth

Amendment when they retrieved the loaded gun from the bag he was

carrying during the November incident. However, Mrs. King had told

officers that her husband had threatened her and that the bag contained a gun. This gave rise to a reasonable articulable suspicion that

criminal activity might be afoot. Under Terry v. Ohio, 392 U.S. 1

(1968), the police acted appropriately when they stopped King, patted

him down, felt the bag, and opened it when they detected a hard

object that might have been--and indeed proved to be--a weapon.

See United States v. Williams, 962 F.2d 1218, 1223 (6th Cir. 1992).

The district court sentenced King as an armed career criminal, 18

U.S.C. § 924(e), because he had three prior convictions for violent

felonies. King's presentence report states that he was convicted in

1991 of the assault and battery of his wife. King maintains that he

actually was convicted of disorderly conduct, a misdemeanor. The

presentence report reveals that King was convicted in 1968 of murder

and in 1969 of kidnapping. These clearly constitute violent felonies.

In 1963, King broke into a business at night and stole some tools. He

was convicted of housebreaking and larceny. Under Taylor v. United

States, 495 U.S. 575, 599 (1990), this offense--generic burglary--is

also a violent felony for purposes of the § 924(e) enhancement.

Because King had three prior convictions for crimes of violence, any

error in the presentence report concerning the assault and battery conviction was harmless.

King argues that his prior kidnapping conviction is too old to qualify him for treatment as an armed career offender. All three prior convictions may be used because there is no time restriction on

consideration of prior convictions under the Armed Career Criminal

Act. See United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995).

King also argues that his criminal history category was improperly

calculated. He contests the assault and battery conviction and challenges the use of an old conviction for kidnapping. His argument is

unavailing because the Sentencing Guidelines set an armed career

criminal's offense level at 34 and set his criminal history category at

level VI when "the defendant used or possessed the firearm . . . in

connection with a crime of violence." U.S. Sentencing Guidelines

Manual § 4B1.4(b)(3)(A) and (c)(2). King's conduct qualifies under

 4
these sections. His wife told officers that King threatened her and

pointed a loaded gun at her on January 28, 1995.

V

We accordingly affirm the convictions 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

 5