United States of America v. Moye, 454 F.3d 390, 395 4th Cir. discussing elements of § 922 g offense , cert.…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALLACE ALLEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
05-50)
Submitted: March 5, 2007 Decided: March 20, 2007
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, John H. Chun, Assistant
Federal Public Defender, Baltimore, Maryland; Sherri Keene, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Harry M. Gruber, Debra
L. Dwyer, Assistant United States Attorneys, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wallace Allen appeals his conviction by a jury of
possession of a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1) (2000), and the resulting 235-month sentence as an
armed career criminal. On appeal, Allen asserts that the district
court erred in admitting certain evidence and that his sentence
violates the Sixth Amendment. We affirm.
Allen contends that the district court erred in admitting
evidence of his prior assaults and prior gun possession to show
that he knowingly possessed the firearm charged in the indictment.
See United States v. Moye, 454 F.3d 390, 395 (4th Cir.) (discussing
elements of § 922(g) offense), cert. denied, 127 S. Ct. 452 (2006).
Allen contends that the evidence of his prior bad acts was
extrinsic to the crime charged and should have been excluded
pursuant to Fed. R. Evid. 404(b), because the testimony from Sonia
Savage about his prior bad acts was uncorroborated and unreliable.
Allen also asserts that the district court should have excluded the
testimony under Fed. R. Evid. 403, as unfairly prejudicial.
We review the district court’s admission of evidence for
an abuse of discretion. See United States v. Hodge, 354 F.3d 305,
312 (4th Cir. 2004) (stating standard of review). Our review of
the record leads us to conclude that the evidence of Allen’s prior
assaults and gun possession was admissible under Rule 404(b) and
was not unfairly prejudicial. See id. at 311-12 (discussing Rules

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403 and 404(b)). To the extent that Allen asserts Savage’s
testimony is unreliable, the jury had before it her inconsistent
statements to police and other arguments challenging her
credibility and apparently rejected them. See United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002) (“[W]e do not review the
credibility of the witnesses and assume the jury resolved all
contradictions in the testimony in favor of the government.”).
Moreover, the district court reduced the risk of unfair prejudice
by explaining the proper uses of other crimes evidence at the time
Savage testified about the prior assaults and prior gun possession
and again during the jury instructions. Hodge, 354 F.3d at 312;
see United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005)
(“Ordinarily, of course, we presume that a properly instructed jury
has acted in a manner consistent with the instructions.”). Thus,
we hold that the district court did not abuse its discretion in
admitting evidence under Rule 404(b).
Allen also asserts on appeal that the district court
violated his Sixth Amendment rights by sentencing him as an armed
career criminal because his prior convictions were not submitted to
the jury, proved beyond a reasonable doubt, or admitted by him.
This court rejected the same argument in United States v. Cheek,
415 F.3d 349, 354 (4th Cir.), cert. denied, 126 S. Ct. 640 (2005);
see also United States v. Thompson, 421 F.3d 278, 283 (4th Cir.
2005), cert. denied, 126 S. Ct. 1463 (2006). Thus, we find no

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error in the district court’s classification of Allen as an armed
career criminal.
Accordingly, we affirm Allen’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

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