UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5630

ANTOINE HAYES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-95-65)

Submitted: June 18, 1996

Decided: July 8, 1996

Before MURNAGHAN, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

_________________________________________________________________

COUNSEL

Gregory B. English, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Patrick DeCon-
cini, Special Assistant United States Attorney, Alexandria, Virginia,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Antoine Hayes appeals his convictions of assault resulting in seri-
ous bodily injury, 18 U.S.C.A. § 113(f) (West 1969 & Supp. 1994);
assault with a dangerous weapon, 18 U.S.C.A. § 113(c) (West 1969
& Supp. 1994);* and prisoner possession of a shank, 18 U.S.C.A.
§ 13 (West Supp. 1996), assim. Va. Code Ann.§ 53.1-203(4) (Michie
1994). Hayes also appeals the sentence imposed pursuant to the pos-
session conviction. While we affirm the convictions, we vacate the
sentence imposed for prisoner possession of a shank and remand for
resentencing.

I

The evidence at trial revealed that Hayes, a Lorton Reformatory
inmate, stabbed fellow inmate Clarence Lindsey in the back with a
shank. The assault related to the theft of Hayes's tennis shoes. Hayes
claimed self-defense. The jury convicted Hayes on all three counts of
the indictment. Hayes was sentenced to seventy-two months on each
count, to run concurrently with one another and consecutively to any
sentence he was then serving.

II

Hayes first claims that the district court erred when it did not per-
mit his attorney to ask Corporal McCalla, the prosecution's first wit-
ness, about Lindsey's reputation for violence. The prosecutor objected
on two grounds: lack of foundation and lack of a good faith basis for
the inquiry. Following a bench conference, the district court sustained
the objection.
_________________________________________________________________
*In 1994, § 113 was redesignated. Section 113(f) now is designated
§ 113(a)(6); § 113(c) now is § 113(a)(3).

                    2
During his testimony, Hayes testified that he feared Lindsey and
had stabbed him in self-defense. The prosecutor did not object to
Hayes's testimony that Lindsey had a violent reputation. During his
cross-examination of Lindsey, defense counsel inquired whether
Lindsey considered himself to be a violent person. The defense did
not recall Corporal McCalla to testify as to Lindsey's reputation.

Absent an abuse of discretion, a district court's evidentiary rulings
will not be overturned. United States v. Francisco, 35 F.3d 116, 118
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3563 (U.S.
Jan. 23, 1995) (No. 94-7258). We find no abuse of discretion in this
case. When Corporal McCalla was questioned about Lindsey's repu-
tation, there had been no testimony that Hayes was in any danger
from Lindsey. Hayes subsequently testified that he acted in self-
defense and cross-examined Lindsey about his reputation. Further,
Hayes could have recalled Corporal McCalla and inquired about
Lindsey's propensity for violence. Under these circumstances, there
was no error.

III

Defense counsel objected when the prosecutor, in closing, stated
that Hayes had admitted to having discussed with other inmates his
intention to seek revenge for the theft of his sneakers. The court over-
ruled the objection but admonished the jury that it was their recollec-
tion of the evidence, and not what the prosecutor or defense counsel
said, that controlled. Hayes contends that the prosecutor's comment
was outrageous and prejudicial.

To reverse a conviction for prosecutorial misconduct, there must
first be a showing of an improper remark by the prosecutor. Second,
the remark must have so prejudiced the defendant's substantial rights
as to have deprived him of a fair trial. United States v. Mitchell, 1
F.3d 235, 240 (4th Cir. 1993).

A prosecutor's remark is not improper if it is reasonably based on
the testimony at trial. United States v. Chastain, ___ F.3d ___, 1996
WL 257604, at *___ (9th Cir. 1996). In the subject case, there was
no misstatement of Hayes's testimony. He admitted to discussing the
theft of his sneakers with fellow inmates, who asked him what he was

                    3
going to do about the theft. One inmate offered him a shank, which
Hayes accepted. On cross-examination, Hayes admitted that he had
not reported the theft to authorities and had not requested placement
in protective custody. A fair reading of Hayes's testimony is that
Hayes accepted the weapon because he wished to seek revenge, not,
as he claimed, because he feared for his safety and wished to defend
against further robberies. Because the prosecutor's remark was a rea-
sonable interpretation of Hayes's testimony, the remark was proper.

IV

Finally, both parties agree that Hayes's sentence for prisoner pos-
session of a shank must be vacated because it exceeds the statutory
maximum for the offense. "[A] term of imprisonment imposed for an
assimilated crime may not exceed the maximum term established by
state law." United States v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996).
Under Va. Code Ann. § 53.1-203(4), assimilated by 18 U.S.C. § 13,
prisoner possession of a shank is a Class 6 felony. Under Va. Code
Ann. § 18.2-10(f) (Michie 1988 & Supp. 1995), the maximum punish-
ment for a Class 6 felony is five years. Hayes received a sentence of
seventy-two months for this offense.

We review this issue, which Hayes did not raise below, for plain
error. See United States v. Olano, 507 U.S. 725 (1993). Imposing a
sentence in excess of the statutory maximum is plain error. United
States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir.), cert. denied,
___ U.S. ___, 63 U.S.L.W. 3348 (U.S. Oct. 31, 1994) (No. 94-6135).
In the subject case, the sentence imposed on the possession count was
plain error. We accordingly vacate the sentence imposed on that
count.

IV

We affirm Hayes's convictions. The sentence for prisoner posses-
sion of a shank is vacated, and the matter remanded for resentencing
on that count. We dispense with oral argument because our review of
the materials before us reveals that it would not aid the decisional pro-
cess.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

                    4
