UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 96-4303

TARQUI DARNELL MATTOX,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-94-129-MU)

Argued: September 22, 1998

Decided: November 23, 1998

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge, and
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Patrick McLoughlin, Jr., MOORE &
VAN ALLEN, P.L.L.C., Charlotte, North Carolina, for Appellant.
Kenneth Davis Bell, First Assistant United States Attorney, Charlotte,
North Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United
States Attorney, Brian L. Whisler, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

After he stole a car at gunpoint in a convenience store parking lot,
Tarqui Darnell Mattox was convicted of carjacking and of using a
firearm during a crime of violence. He appeals his conviction, charg-
ing that his victim identified him at a suggestive out-of-court show-
up, that the show-up tainted his victim's later in-court identification,
and that his victim selected Mattox' handgun out of an improper pho-
tographic array. Mattox also contends that the carjacking statute
exceeds Congress' commerce power and that his simultaneous con-
victions under the carjacking and firearms statutes violate the Double
Jeopardy Clause. Finally, Mattox contests the assessment of one crim-
inal history point in the calculation of his sentence. Finding his argu-
ments without merit, we affirm the judgment of the district court.

I.

At around 10:00 p.m. on Friday, August 19, 1994, a pizza delivery-
man named Mohamad Rabih Dana stopped to use the pay phone out-
side a convenience store in Charlotte, North Carolina. After a brief
exchange with a young man standing at the telephones, Dana began
to place his call. The young man then placed a small-caliber pistol to
Dana's face and demanded his car keys and money. Dana handed
over the keys and about seventy dollars, and his assailant left the
parking lot behind the wheel of Dana's Nissan Sentra. Dana immedi-
ately notified the Charlotte-Mecklenburg police who, along with FBI
Special Agent Erik Blowers, came to the scene and interviewed him
about the crime.

Around two hours later a police officer spied the stolen Nissan
driving along Interstate 85. The vehicle left the highway and led the
officer on a high-speed chase through a residential area. The Nissan's
driver, Tarqui Darnell Mattox, then stopped the car and fled on foot.

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Within about five minutes the police apprehended Mattox, handcuffed
him, returned him to the vehicles, and placed him in the back seat of
a police cruiser.

A police officer picked up Dana at around midnight and drove him
to the scene of the arrest. The police removed the handcuffed Mattox
from the back seat of the cruiser, illuminated him with a spotlight, and
asked Dana if he could identify him. Dana instantly identified Mattox
as his parking-lot assailant.

Upon his arrest Mattox told Agent Blowers that he lived with his
uncle. That same night Blowers visited the uncle, who informed the
agent that he kept a pistol in the house and that Mattox had access to
the gun. Blowers seized the weapon. Three days later he prepared for
Dana a photographic array of four handguns. Within seconds Dana
identified Mattox' gun as the weapon used in the carjacking.

A federal grand jury indicted Mattox for carjacking, 18 U.S.C.
§ 2119, and for using a firearm during a crime of violence, 18 U.S.C.
§ 924(c). A magistrate judge denied Mattox' pretrial motions to sup-
press the on-scene identification and the photographic array and to
dismiss the indictment on the grounds that the carjacking statute vio-
lated the Commerce Clause and that the two charges violated the
Double Jeopardy Clause.

At trial the prosecutor presented evidence of the on-scene show-up
and of the photo array. Dana also identified Mattox in court. A jury
convicted Mattox on both counts.

On appeal Mattox claims that the district court should have granted
his suppression motions, that Dana's in-court identification was
improper, and that the court erred in denying his motions to dismiss
the indictment. He also challenges his sentence on the ground that the
district court improperly considered a prior conviction for what he
characterizes as minor misconduct. We affirm the judgment of the
district court on each issue, and therefore affirm Mattox' conviction
and sentence.

II.

Mattox argues that his conviction resulted from three unconstitu-
tionally suggestive identifications. First, he contends that the on-scene

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show-up was impermissibly suggestive. Second, he claims that the
show-up tainted Dana's in-court identification. Third, he maintains
that the photographic array was improperly suggestive.

A.

An out-of-court show-up violates the Constitution only if the pro-
cedure is "so unnecessarily suggestive and conducive to irreparable
mistaken identification that [the defendant] was denied due process of
law." Stovall v. Denno, 388 U.S. 293, 302 (1967); see also Stanley v.
Cox, 486 F.2d 48, 50 (4th Cir. 1973). "[R]eliability is the linchpin in
determining the admissibility of identification testimony . . . ."
Manson v. Brathwaite, 432 U.S. 98, 114 (1977). Although one-on-one
show-ups may in some circumstances be suggestive, both the
Supreme Court and this circuit have rejected the notion that show-ups
are so unreliable that they require a per se rule of exclusion. See Neil
v. Biggers, 409 U.S. 188, 198-99 (1972); Stanley, 486 F.2d at 53-55.
On the contrary, this court has observed that a show-up occurring
"promptly after the crime" can be more reliable than alternative meth-
ods of identification. Stanley, 486 F.2d at 50-51 & n.7. The analysis
in each case looks to the totality of the circumstances, with particular
attention to "the opportunity of the witness to view the criminal at the
time of the crime, the witness' degree of attention, the accuracy of the
witness' prior description of the criminal, the level of certainty dem-
onstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation." Biggers, 409 U.S. at 199-
200; see also Brathwaite, 432 U.S. at 114; Stanley, 486 F.2d at 51.

After examining those factors, we find that Dana's identification of
Mattox on the night of the crime was reliable. First, Dana had an ade-
quate opportunity to view his assailant. The carjacking occurred
directly under a street light in a well-lit convenience store parking lot.
Dana observed the defendant standing at the telephones and spoke
with him briefly before the crime. He concentrated fully on his assail-
ant's face while standing at gunpoint for almost a minute, and
watched the carjacker as he turned and fled in the Nissan. Second,
Dana "was no casual observer, but rather the victim" of a serious
crime. Biggers, 409 U.S. at 200. He testified that he studied his
attacker during the carjacking. He also testified that he was not fright-
ened during that period, but was able to concentrate on the assailant.

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The magistrate judge expressly found this testimony to be credible.
Third, the description Dana provided police immediately after the
crime was reasonably accurate. He described his attacker as a black
male, approximately 5'-8" tall, of heavy build, age 16-18, dressed in
blue or green pants and a white t-shirt, possibly the "Gant" brand,
with a block of colors or writing on it. Mattox is ablack male, 5'-8"
tall, 180 pounds, twenty years old, with a mustache and beard. Upon
his arrest he was dressed in tan shorts and a white t-shirt with a
"Tommy Hilfiger" logo on it in red and blue colors. Mattox makes
much of the differences between his appearance and Dana's descrip-
tion, but on the whole Dana's description was not inaccurate. Fourth,
Dana was completely certain at the show-up that Mattox was the
parking-lot assailant. Within seconds Dana identified him in unequiv-
ocal terms. Finally, this confrontation occurred only two and one-half
hours after the carjacking -- a time frame that renders Dana's identi-
fication particularly reliable.

The circumstances make clear that the show-up identification was
constitutionally reliable. To the extent that there were inconsistencies
between Dana's post-crime description and Mattox' actual appear-
ance, "such evidence is for the jury to weigh." Brathwaite, 432 U.S.
at 116; see also United States v. Hughes, 716 F.2d 234, 241 (4th Cir.
1983). We find that the evidence of the show-up was properly admit-
ted.

B.

An out-of-court show-up only taints an in-court identification if the
show-up itself is unconstitutionally suggestive. See United States v.
Johnson, 114 F.3d 435, 441 (4th Cir.), cert. denied, 118 S. Ct. 257
(1997); United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir. 1996),
cert. denied, 118 S. Ct. 341 (1997). Because the on-scene show-up
was reliable in this case, Dana's in-court identification was also per-
missible.

Even if the out-of-court show-up had been impermissibly sugges-
tive, Dana's in-court identification was proper. An in-court identifica-
tion is admissible even after an improper out-of-court procedure if the
in-court identification is itself reliable. See Wilkerson, 84 F.3d at 695.
Reliability is once again a function of the totality of the circum-

                     5
stances, including not only the five Biggers factors but also the "cor-
rupting effect of the suggestive identification itself . . . [and] other
evidence of the defendant's guilt." Id. (internal quotation marks omit-
ted).

As noted above, Dana had ample opportunity to view his assailant
during the crime, and did so with great attention. His description of
the perpetrator immediately after the attack was reasonably accurate.
Moreover, Dana made his courtroom identification with complete cer-
tainty. There is no evidence that the show-up "corrupted" Dana's
identification at trial -- his description of his attacker did not improve
after the show-up. Finally, other evidence from trial suggests that
Mattox was the assailant. He was arrested while driving the stolen
Nissan, he fled from the police, and Dana's pager was recovered
along Mattox' path of flight. All of these factors support a finding that
the in-court identification was reliable. We therefore hold that its
admission was not error.

C.

Evidence of an out-of-court photographic array is assessed in much
the same way as other out-of-court identifications-- whether, in light
of the totality of the circumstances, the evidence is reliable. See
Brathwaite, 432 U.S. at 114; Biggers, 409 U.S. at 198; Simmons v.
United States, 390 U.S. 377, 383-84 (1968). Mattox suggests that the
photographic array was unnecessarily suggestive because it included
only four weapons and because only one of the four -- his handgun
-- had a white handle.

Although the array may have been less than ideal, the circum-
stances demonstrate that it was not unnecessarily suggestive. Dana
had an opportunity to observe the gun while his assailant held it one
foot in front his face during the crime. His description of the weapon,
although brief, was accurate. Dana told Agent Blowers that it was a
small handgun, possibly .22 caliber, dark in color. Notably, he did not
mention at that time that the gun had a white handle -- he told Blow-
ers after the photo array that he could not see the handle because it
was covered by his assailant's hand. Moreover, Dana was completely
certain of his identification -- he picked the weapon out of the photo-
graph in seconds based on its aged look and the length of its barrel.

                     6
The photo array occurred only three days after the crime. Further-
more, Blowers made efforts to ensure the array was no more sugges-
tive than necessary. He searched through over two hundred handguns
in the police department's inventory to find similar weapons, and
selected the four handguns that were most comparable to Mattox'.
Given the sum of these circumstances, we hold that the photo array
was not constitutionally infirm.

III.

Mattox' next two arguments are foreclosed by circuit precedent.
First, citing United States v. Lopez, 514 U.S. 549 (1995), Mattox
argues that Congress' commerce power does not support the carjack-
ing statute. That argument, however, is directly barred by United
States v. Cobb, 144 F.3d 319 (4th Cir. 1998) (holding that both sec-
tion 2119's jurisdictional element and its regulation of an instrumen-
tality of interstate commerce distinguish it from the statute rejected in
Lopez).

Second, Mattox contends that his consecutive sentences under sec-
tion 2119 and section 924(c) violate the Double Jeopardy Clause.
Here again, this court has squarely held to the contrary. See United
States v. Johnson, 32 F.3d 82 (4th Cir. 1994); see also United States
v. Terry, 86 F.3d 353, 357 (4th Cir. 1996), cert. denied, 118 S. Ct.
2348 (1998) ("[T]he text of § 924(c) plainly authorizes consecutive
punishment.").

IV.

Finally, Mattox challenges the assessment in his sentencing calcu-
lation of one criminal history point for his conviction on four related
offenses arising out of a 1993 high-speed chase in Atlanta: reckless
driving, fleeing or attempting to elude police, obstructing an officer,
and damage to property and speeding. Mattox argues that the district
court should have excluded these convictions under the Sentencing
Guidelines, which except certain offenses from the prior history cal-
culation unless "the sentence was a term of probation of at least one
year," U.S.S.G. § 4A1.2(c)(1)(A), or unless"the prior offense was
similar to an instant offense," id. § 4A1.2(c)(1)(B). His contention is
without merit. Because the penalties for Mattox' offenses included a

                     7
sentence of twelve months' probation, section 4A1.2(c)(1)(A) pre-
vents their exclusion. Although Mattox argues that this was a "minor
traffic infraction" of the type that is "never counted" in criminal his-
tory calculations, id. § 4A1.2(c)(2), the charge itself -- "damage to
property and speeding" arising out of a high-speed chase -- makes
clear that the offense was more than minor. The district court did not
err in assessing a criminal history point for these offenses.

V.

Because we find that the show-up identification, the in-court identi-
fication, and the photographic array were constitutionally reliable, and
because Mattox' Commerce Clause and Double Jeopardy Clause
arguments are foreclosed by circuit precedent, we affirm Mattox' con-
viction on the carjacking and firearms counts. Furthermore, we affirm
the district court's assessment of one criminal history point for the
convictions arising out of Mattox' prior high speed chase.

AFFIRMED

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