UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4288

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

THOMAS NEIL PICKETT,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. James C. Fox, Senior

District Judge. (CR-04-47-F)

Submitted: February 15, 2006 Decided: March 9, 2006

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

Sofie W. Hosford, HOSFORD & HOSFORD, 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Unpublished opinions are not binding precedent in this circuit.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:

In September 2004, a jury found Thomas Pickett guilty of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924 (2000); use of a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2000); and distribution of cocaine base, in violation of

21 U.S.C. § 841(a)(1) (2000). Additionally, the jury found Pickett

not guilty on a fourth charge, conspiracy to distribute more than

fifty grams of cocaine base, in violation of 21 U.S.C. § 846

(2000); however, it convicted Pickett on the lesser included

offense of conspiracy to distribute five or more grams of cocaine

base. In February 2005, the district court sentenced Pickett to a

total of 352 months’ imprisonment. Pickett appeals his conviction

and sentence.

First, Pickett asserts that in-court and out-of-court

identifications of him by three witnesses were impermissibly

suggestive and unreliable. The Due Process Clause protects against

identification procedures that are unnecessarily suggestive and

conducive to mistaken identifications. See Neil v. Biggers, 409

U.S. 188, 198 (1972). Findings of fact made by a district court in

ruling on a motion to suppress are reviewed for clear error, but

the ultimate suppression decision is reviewed de novo. See United

States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). A court must

engage in a two-step inquiry in determining whether identification
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testimony is admissible. See United States v. Wilkerson, 84 F.3d

692, 695 (4th Cir. 1996). First, the defendant must establish that

the identification procedure was impermissibly suggestive. See

Manson v. Brathwaite, 432 U.S. 98, 109 (1977). Second, even if the

procedure is found to be unduly suggestive, the identification is

valid if it was reliable. See id. at 114.

We may proceed directly to the reliability of the

identification without determining whether the defendant has met

the threshold requirement of suggestiveness, see Holdren v.

Legursky, 16 F.3d 57, 61 (4th Cir. 1994), and we find that the

identifications were sufficiently reliable. One witness had known

Pickett for several months. The other two witnesses engaged in

transactions with Pickett under circumstances sufficient to observe

his appearance reliably, either outside in the sunlight or inside

with the aid of adequate artificial light. Furthermore, all three

witnesses readily selected Pickett’s photo from a proper

photographic array.

Second, Pickett argues the district court admitted, and

subsequently provided no jury instruction for, evidence of bad acts

prior to the dates alleged in the indictment--evidence that was

intended to demonstrate his criminal disposition. See Fed. R.

Evid. 404(b). The alleged prior bad acts evidence was testimony

that Pickett possessed a firearm in January 2003. However, the

second superseding indictment alleged a drug trafficking conspiracy
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beginning in January 2001. The district court admitted the

testimony as probative of Pickett’s participation in the

conspiracy. Therefore, because the testimony related to events

within the charged time frame of the conspiracy, its admission into

evidence did not implicate Rule 404(b).

Finally, Pickett argues that the district court committed

clear error by sentencing him based upon a quantity of cocaine base

greater than the amount for which the jury convicted him in its

special verdict, in violation of United States v. Booker, 543 U.S.

220 (2005). “Consistent with the remedial scheme set forth in

Booker, a district court shall first calculate (after making the

appropriate findings of fact) the range prescribed by the

guidelines.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). Because Pickett was sentenced post-Booker under the

advisory sentencing guidelines, the district court first calculated

his guideline range, including the amount of drugs the court found

reasonably attributable to him. In calculating drug amounts, the

court may consider any relevant information, provided that the

information has sufficient indicia of reliability to support its

accuracy. United States v. Uwaeme, 975 F.2d 1016, 1021 (4th Cir.

1992). Because the district court applied the correct standards in

considering evidence regarding the drug amount attributable to

Pickett, and because the court did not consider itself bound by the

guidelines, we find no error.
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Accordingly, we affirm Pickett’s conviction 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