                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4278



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CRAIG DUSHAW HINES,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge. (CR-
03-280-RDB)


Submitted:   June 10, 2005                 Decided:    July 13, 2005


Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Timothy J. Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland,
for Appellant. Thomas M. DiBiagio, United States Attorney, Chan
Park, Barbara S. Skalla, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Craig Dushaw Hines (“Hines”) appeals his conviction and

sentence, following the district court’s denial of a motion to

suppress, for conspiracy to commit bank robbery, in violation of 18

U.S.C. § 371 (2000); attempted bank robbery, in violation of 18

U.S.C. § 2113(a), (d), (f) (2000); possession of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c) (2000); and for being a felon in possession of a firearm

with an obliterated serial number, in violation of 18 U.S.C.

§ 922(g)(1) (2000).

          Hines first appeals the denial of his motion to suppress

evidence obtained as a result of his arrest, asserting that his

arrest occurred without lawful authority since it was made by

Montgomery County detectives operating in Prince George’s County,

acting alone, without a warrant, and in absence of an emergency.

This Court reviews the district court’s factual findings underlying

a motion to suppress for clear error, and the district court’s

legal determinations de novo.   Ornelas v. United States, 517 U.S.

690, 699 (1996); United States v. Perkins, 363 F.3d 317, 320 (4th

Cir. 2004).   When a suppression motion has been denied, this Court

reviews the evidence in the light most favorable to the government.

United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

          Maryland law provides that a police officer may make

arrests and conduct investigations in a foreign jurisdiction in


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Maryland only when the officer is (1) participating in a joint

investigation with at least one officer who has local jurisdiction,

(2) rendering assistance to another officer, (3) acting at the

request of a state police officer, or (4) if an emergency exists.

See Md. Crim. Pro. Code Ann. § 2-102(b)(3) (2004 Supp.).   Based on

the applicable law, and construing the evidence in the light most

favorable to the Government, we find that the district court did

not err when it denied Hines’ motion to suppress.

          Hines next argues that the evidence was insufficient to

support the “substantial step” element required for an attempted

bank robbery conviction.    To determine if there was sufficient

evidence to support a conviction, this Court considers whether,

taking the evidence in the light most favorable to the Government,

substantial evidence supports the jury’s verdict. United States v.

Wills, 346 F.3d 476, 495 (4th Cir. 2003), cert. denied, 124 S. Ct.

2906 (2004).   Substantial evidence is defined as “that evidence

which ‘a reasonable finder of fact could accept as adequate and

sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.’”   United States v. Newsome, 322 F.3d 328, 333

(4th Cir. 2003) (quoting United States v. Burgos, 94 F.3d 849, 862-

63 (4th Cir. 1996) (en banc)).    The Court reviews both direct and

circumstantial evidence and permits “the [G]overnment the benefit

of all reasonable inferences from the facts proven to those sought




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to be established.” United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982).

          Furthermore,    this   Court   applies   a   two-part   test   to

determine if a person is guilty of attempting to commit a crime.

United States v. McFadden, 739 F.2d 149, 152 (1980).           First, the

defendant must have acted with the kind of culpability otherwise

required for the commission of a crime.     Id.    Second, the defendant

must have engaged in the kind of conduct that constitutes a

substantial step toward committing that crime.             Based on our

careful review of the record, we find that the evidence was

sufficient to prove that Hines intended to commit bank robbery,

that he had taken a “substantial step” in furtherance of his plan,

and, in fact, was executing the plan at the time of his arrest.

          Hines    next   asserts    that   the     evidence   was   also

insufficient to support the element of “in furtherance of a crime

of violence” that was required for his § 924(c) conviction.              In

reviewing claims of sufficiency of the evidence, “[t]he relevant

question is not whether the appellate court is convinced of guilt

beyond a reasonable doubt, but rather whether, viewing the evidence

in the light most favorable to the government, any rational trier

of facts could have found the defendant guilty beyond a reasonable

doubt.”   Tresvant, 677 F.2d        at 1021.      Hines argues that the

evidence was insufficient to demonstrate that he “actively used or

carried” a firearm “in furtherance of” a crime of violence. Hines’


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conviction, however, was under the “possessed in furtherance” prong

and not the “use” or “carry” prongs of § 924(c), thus, whether

Hines used or carried the firearm is irrelevant.      Nevertheless,

even assessing Hines’ actions under the “possessed in furtherance

prong,” his argument is without merit. See United States v. Lomax,

293 F.3d 701, 705 (4th Cir. 2002) (construing the “in furtherance

of” provision of § 924(c) to require “the government to present

evidence indicating that the possession of a firearm furthered,

advanced, or helped forward a drug trafficking crime”).

          Hines also contends that the district court erred as a

matter of law in concluding that he was a career offender.       In

1994, Hines was convicted of two separate bank robberies that he

committed in 1993.   Based on these convictions, the district court

found that Hines was a career offender pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 4B1.1 (2002).    The sole issue before

the Court in connection with Hines’ career offender status is

whether the district court erred in finding that the two bank

robberies were separate offenses for sentencing purposes, and not

part of a common scheme or plan.    See USSG § 4A1.2, cmt. (n.3).

          The defendant has the burden of proving the existence of

a common scheme.   United States v. Joy, 192 F.3d 761, 771 (7th Cir.

1999); United States v. Cowart, 90 F.3d 154, 159 (6th Cir. 1996).

The relevant factors in deciding whether offenses are part of a

single common scheme or plan are whether the crimes:       (1) were


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committed within a short period of time; (2) were committed in

close geographic proximity; (3) involved the same substantive

offense; (4) were directed at a common victim; (5) were solved

during the course of a single criminal investigation; (6) shared a

similar modus operandi; (7) were animated by the same motive; and

(8) were tried and sentenced separately only because of an accident

of geography. United States v. Breckenridge, 93 F.3d 132, 138 (4th

Cir. 1996) (citations omitted).   Not all of these factors must be

present for there to be a common scheme or plan, nor does the

presence of a few of them require that finding.    Id.   We find that

Hines has failed to meet his burden.

          Finally, Hines asserts that under the Supreme Court’s

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), the

district court imposed an unconstitutional sentence by finding that

he was a career offender predicated on prior convictions that were

not alleged in the indictment or found by the jury.   In Almendarez-

Torres v. United States, 523 U.S. 224 (1998), the Supreme Court

held that “the government need not allege in its indictment and

need not prove beyond reasonable doubt that a defendant had prior

convictions for a district court to use those convictions for

purposes of enhancing a sentence.”    In Apprendi v. New Jersey, 530

U.S. 466, 490 (2000), the Supreme Court held “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory minimum must be submitted to


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a jury, and proved beyond a reasonable doubt.”         In United States v.

Booker, 125 S. Ct. 738 (2005), the Supreme Court reaffirmed its

holding in Apprendi.     See Booker, 125 S. Ct. at 756 (“[a]ny fact

(other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established

by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt”).

          However,    this   Court    has   stated   that    not   all   facts

relating to prior convictions fall within the Apprendi exception

framework.    In United States v. Washington, 404 F.3d 834, 842 (4th

Cir. 2005), this Court, applying the Supreme Court’s decision in

Shepard v. United States, 125 S. Ct. 1254 (2005), held that relying

on facts outside the indictment in order to conclude a prior

conviction for burglary was a crime of violence that enhanced the

defendant’s   offense   level   was   plain   error.        Hines’   case   is

distinguishable, however, because the court’s determination was

based on the plea agreement and statement of facts relative to

those convictions.      We therefore find that the district court’s

findings were not improper in light of Shepard, 125 S. Ct. at 1263

(holding that a court’s inquiry as to disputed facts in connection

with a prior conviction is limited to the terms of the charging

document, a plea agreement, a transcript of the plea colloquy, or

a comparable judicial record) or Washington, 404 F.3d at 842 n.10




                                 - 7 -
(noting that the Government’s representations as to the disputed

facts were not specified in the charging and plea documents).

           Accordingly, we affirm Hines’ 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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