                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4791



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JEREMY MOUZON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (CR-03-896)


Submitted:   March 15, 2006                 Decided:   April 25, 2006


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Alston C. Badger, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Jeremy Mouzon was convicted by a jury of carjacking, 18

U.S.C. § 2119 (2000) (Count One); using and carrying a firearm

during and in relation to a crime of violence, 18 U.S.C.A. § 924(c)

(West 2000 & Supp. 2005) (Count Two); and possession of a firearm

by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count Three).

He   appeals   his    conviction     and    the     sentence   of    360   months

imprisonment he received.        We affirm.

           Mouzon     was     involved     in   a   minor   car     accident   in

Charleston, South Carolina, just after midnight on June 16, 2003,

while driving a stolen vehicle.             Mouzon drove away, striking a

police officer slightly, and was pursued by Charleston Police

Officer Jeffrey Soniak. Mouzon forced a white Buick off the street

under a streetlight and, in view of Officer Soniak, pulled the

driver, Akilah Robertson, out of the car at gunpoint.                      Terrion

Smith, one of the passengers in the Buick, also got out of the car,

but a second passenger, Cereta Jackson, could not release her seat

belt and remained in the front seat while Mouzon drove the Buick

north until he failed to negotiate a turn and ran into a fence.                 He

then fled on foot and was quickly apprehended by North Charleston

Police Officer Timothy Ramsey.             Mouzon was brought back to the

carjacked vehicle, where Jackson saw him.

           After     Mouzon    was   in   custody,    Robertson,     Smith,    and

Jackson were transported to the police station, where they each


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separately gave a statement about the incident.         Robertson and

Smith described the carjacker as a black male with an afro, wearing

a white T-shirt.    Smith added that he was wearing dark pants.

Jackson did not described the carjacker in her statement.      Mouzon

told the police his name was Ferris Earl Green, and gave a false

address; however, he was later identified by his fingerprints as

Jeremy Mouzon.

          When Robertson met with the prosecutor before trial, she

told him that, while she was at the police station, she saw the

incident report and commented to the officer present that she did

not think the carjacker’s name was Green.    Robertson thought she

had seen him before.   After they left the station, she and Jackson

realized that they had grown up in the same neighborhood as the

carjacker, knew his family, and thus knew who he was.    Their belief

was confirmed by news reports that identified the carjacker as

Jeremy Mouzon.   Robertson advised the prosecutor of this when he

met with her before trial.    In consequence, the victims were not

asked to identify Mouzon from a lineup or photographic array.

Officers Soniak and Ramsey and the three victims testified at

trial.   Soniak described the carjacker as a heavyset black male

wearing a white T-shirt and dark pants, and having bushy hair.

Ramsey gave the same description of the man he apprehended, except

that he did not remember the man’s pants.    Robertson, Smith, and

Jackson all positively identified Mouzon as the carjacker.


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              Mouzon contends on appeal that the district court erred

in denying his pre-trial motion in limine for an evidentiary

hearing on the trustworthiness of the expected identification

testimony.        We review rulings on the admissibility of evidence for

abuse of discretion.          United States v. Bostian, 59 F.3d 474, 480

(4th Cir. 1995).          Because deciding on the reliability of evidence

is a function of the jury, the Constitution does not mandate a per

se   rule    that    an   evidentiary      hearing     on   the   admissibility    of

identification evidence is needed.                Watkins v. Sowders, 449 U.S.

341,   347-49       (1981).     If    a    defendant    challenges     a   pre-trial

identification procedure, courts engage in a two-step analysis to

determine     the     admissibility        of   the   identification       testimony.

First,      the   defendant    must       establish    that    the   identification

procedure was impermissibly suggestive, i.e., that “a positive

identification is likely to result from factors other than the

witness’s own recollection of the crime.”                   Satcher v. Pruett, 126

F.3d 561, 566 (4th Cir. 1997).                    If the defendant makes this

showing, the court then must determine whether the identification

was nevertheless reliable under the totality of the circumstances.”

Id..   The Supreme Court has set out five factors to be considered

in deciding the reliability of identification testimony. They are:

“[1] the opportunity of the witness to view the criminal at the

time of the crime, [2] the witness’ degree of attention, [3] the

accuracy of his prior description of the criminal, [4] the level of


                                          - 4 -
certainty demonstrated at the confrontation, and [5] the time

between the crime and the confrontation.”         Manson v. Brathwaite,

432 U.S. 98, 114 (1977).     If, however, the court concludes that the

confrontation    procedure   was   not   impermissibly   suggestive,   the

inquiry ends.    United States v. Bagley, 772 F.2d 482, 492 (9th Cir.

1985); cf. Harker v. Maryland, 800 F.2d 437, 444 (4th Cir. 1986)

(ending analysis after finding photographic array and show-up not

impermissibly suggestive).1

          In this case, the district court determined that there

was no impermissibly suggestive pre-trial identification procedure

and denied the motion for an evidentiary hearing on that basis.

Nonetheless, the court reviewed the five factors set out in Manson

and decided that the witness testimony met the reliability test.

Mouzon argues that the district court erred in so finding.             The

thrust of Mouzon’s argument is that he was arrested because he

happened to fit the general description of the carjacker and

happened to run from the police who were looking for the carjacker,

and that, once he was in custody, Jackson and Officer Soniak

believed him to be the carjacker.          Mouzon contends that neither

Smith nor Jackson testified that they saw his face during the

carjacking.     In fact, Smith testified that she could see him as he


     1
      Some circuits allow pretrial hearings on the reliability of
identifications. See e.g., United States v. Davenport, 753 F.2d
1460, 1462 (9th Cir. 1985) (although hearing on admissibility of
identification evidence often advisable, no abuse of discretion in
denying motion for such a hearing).

                                   - 5 -
approached the car.       Jackson testified that she saw his face while

she was in the car with him.        Mouzon’s argument that Jackson’s view

of him in custody tainted the identifications of Robertson and

Smith    also   ignores   the    evidence      that    Robertson   independently

recognized Mouzon as someone she had seen before and that she was

correct about his identity.         Robertson could only have recognized

Mouzon from her own view of him during the carjacking, before the

he was taken into custody.

             We conclude that the district court correctly determined

that    no   impermissibly     suggestive      identification      procedure   was

employed by the government before trial; indeed no identification

procedure was used at all.          Therefore, there was no need for an

evidentiary hearing to determine the reliability of the witnesses’

identification of Mouzon.         Instead, the weight and trustworthiness

of the witnesses’ in-court identification testimony properly was

left to the jury, and the district court did not abuse its

discretion      by   denying    Mouzon   an    evidentiary    hearing    on    the

reliability of their identifications.             See Davenport, 753 F.2d at

1462 (reviewing court’s decision not to hold hearing on reliability

of identification under abuse of discretion standard).

             Mouzon next contends that the district court abused its

discretion in admitting the eyewitness identifications because they

were “the product of an unnecessarily suggestive encounter between

Officer      Soniak,   Ms.     Jackson   and     the    defendant,    which    was


                                     - 6 -
transmitted to Ms. Robertson and Ms. Smith,” and did not meet the

reliability test set out in Manson.         At the hearing on Mouzon’s

motion in limine, the district court considered each of the five

factors prescribed in Manson and decided that Robertson and Jackson

had a good opportunity to view the carjacker with a high degree of

attention, that their descriptions were accurate, that the level of

certainty was high, and that the time interval between the crime

and the confrontation (for Jackson, the only one of the victims who

saw Mouzon after his arrest) was minimal.

          The exclusion of identification evidence is “a drastic

sanction, one that is limited to identification testimony which is

manifestly suspect.”    Harker, 800 F.2d at 443.     In this case, the

three victims and Officer Soniak all had an opportunity to get a

good look at the carjacker in a well-lighted place and their

subsequent descriptions of him were very similar.         Officer Soniak

did not see the carjacker’s face, but could identify the man taken

into custody by Officer Ramsey as the same man he saw commit the

carjacking by his body type, his hair style, and his clothes.        We

are satisfied that the district court did not abuse its discretion

in admitting the eyewitness identifications of Mouzon as the

carjacker.     For the same reasons, we conclude that the district

court did not abuse its discretion in denying Mouzon’s motion for

a   mistrial    based   on   Robertson’s,    Jackson’s,    and   Smith’s

identification of him as the carjacker.


                                 - 7 -
              Finally, appellate counsel maintains that Mouzon’s armed

career criminal2 and career offender sentence violated the Sixth

Amendment, raising the issue under Anders v. California, 386 U.S.

738 (1967), but conceding that the argument is foreclosed by United

States v. Cheek, 415 F.3d 349 (4th Cir.) (Sixth Amendment does not

require      that    predicate    convictions     for   armed    career   criminal

sentence be charged in indictment or admitted by defendant), cert.

denied, 126 S. Ct. 640 (2005).           See also United States v. Thompson,

421   F.3d    278,    282-83     (4th   Cir.    2005)   (armed   career   criminal

sentence based on prior convictions neither charged nor admitted

does not violate Sixth Amendment if facts necessary to support

enhanced sentence are inherent in fact of convictions and no

additional fact finding is required), cert. denied, 126 S. Ct. 1463

(2006).       Because    Mouzon’s       career   offender   offense   level    was

determined by his prior convictions, and the qualifying nature of

the predicate convictions was clear from his criminal record, no

Sixth Amendment error occurred in his sentencing.

              We therefore affirm Mouzon’s conviction and the sentence

imposed by the district court.                 We dispense with oral argument

because the facts and legal contentions are adequately presented in



      2
      Mouzon qualified for sentencing as an armed career criminal
under 18 U.S.C.A. § 924(e) (West 2000 & Supp. 2005), and USSG
§ 4B1.4. However, because Mouzon had a § 924(c) conviction, his
sentence was determined by the career offender table for
§ 924(c)offenders rather than by USSG § 4B1.4. See §§ 4B1.1(c)(3),
4B1.4, comment. (n.2).

                                         - 8 -
the materials before the court and argument would not aid the

decisional process.



                                                     AFFIRMED




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