UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4130

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH ANTHONY BELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. W. Earl Britt, Senior

District Judge. (CR-04-108-BR)

Submitted: January 27, 2006 Decided: February 10, 2006

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Sherri R. Alspaugh,

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Raleigh, North Carolina, for Appellant. Frank D.

Whitney, United States Attorney, Anne M. Hayes, Assistant United

States Attorney, Christine Witcover Dean, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 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Unpublished opinions are not binding precedent in this circuit.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:

Joseph Anthony Bell appeals his conviction and sentence for

being a felon in possession of a firearm after having been

convicted of a felony offense, in violation of 18 U.S.C.

§ 922(g)(1) and 924. Under United States Sentencing Guideline

(“USSG”) §2K2.1, Bell’s base offense level for the violation was

twenty, increased by two levels pursuant to USSG § 2K2.1(b)(1)(A)

because the offense involved three-to-seven firearms. With a total

offense level of twenty-two, and a criminal history category of

III, Bell’s recommended guideline range was fifty-one to sixtythree months’ imprisonment. The district court treated the

guidelines as mandatory and imposed a sentence of fifty-six months

imprisonment along with a three-year term of supervised release.

However, following our guidance in United States v. Hammoud, 381

F.3d 316, 353 (4th Cir. 2004) (en banc), judgment vacated, 125

S. Ct. 1051 (2005), the district court stated that the sentence

would be the same if the guidelines were merely advisory. Finding

no reversible error, we affirm.

Bell’s first claim is that his prior North Carolina conviction

of possession with intent to distribute marijuana, imposed pursuant

to N.C. Gen. Stat. § 15A-1340.17, cannot form the predicate for his

§ 922(g) conviction because the former was not for a crime

punishable by imprisonment for a term exceeding one year. For the

same reason, Bell argues that the district court erred in relying
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upon this conviction to increase his base offense level from

fourteen to twenty under USSG § 2K2.1(b)(1)(A). Bell’s arguments

in this regard are foreclosed by our recent decision in United

States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (holding that

United States v. Jones, 195 F.3d 205 (4th Cir. 1999), is still

viable after Blakely v. Washington, 542 U.S. 296 (2004) and United

States v. Booker, 125 S. Ct. 738 (2005), and reaffirming that “a

prior North Carolina conviction was for a crime punishable by

imprisonment for a term exceeding one year if any defendant charged

with that crime could receive a sentence of more than one year”

(internal citation and quotation marks omitted)).

Bell next claims that the district court abused its discretion

when it excluded testimony offered to impeach the character and

conduct of two witnesses called by the prosecution. The district

court ruled that the evidence was not admissible under Federal Rule

of Evidence 608 and disallowed the testimony. We have reviewed the

parties’ briefs on this issue, the joint appendix, and the district

court’s order and conclude that the district court did not abuse

its discretion in ruling that the evidence was not admissible under

Rule 608.

Bell next contends that his sentence was unreasonable because

the district court erroneously imposed a two-level enhancement for

an offense involving three-to-seven firearms pursuant to USSG

§ 2K2.1(b)(1)(A), in its guideline calculation. At the time of his
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arrest, Bell was traveling as a passenger in a car driven by Harold

Oxendine. A rifle was found in the trunk of the vehicle, which

Bell and Oxendine had earlier retrieved from a garage at his

parents’ home. Bell admitted that the rifle belonged to him, and

advised federal agents that there were three additional firearms

stored in the same garage. On appeal, Bell argues that this

evidence of mere ownership was insufficient to demonstrate that he

had actual or constructive possession of guns stored in a garage

owned by someone else. We hold that the district court’s

imposition of the two-level enhancement was not clearly erroneous.

See United States v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997)

(Constructive possession exists when “the defendant exercised, or

had the power to exercise, dominion and control over the item.”

(internal quotation marks omitted)). 

In addition to the above claims, Bell has sought leave to file

a pro se supplemental brief, raising a Booker claim, as well as a

claim that the court erred in not imposing an offense level of six

pursuant to the provisions of USSG § 2K2.1(b)(2). We find no error

in the district court’s guidelines calculation under § 2K2.1 and,

because the district court imposed an identical sentence pursuant

to our guidance in Hammoud, the asserted Booker error was harmless.

Accordingly, we grant Bell’s motion to file a supplemental

brief. We affirm Bell’s conviction and sentence. We dispense with

oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and argument

would not aid the decisional process.

 AFFIRMED