UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4537

DEWITT HARVEY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-96-973)

Submitted: May 11, 1999

Decided: May 28, 1999

Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Herman Laurence Moore, Summerville, South Carolina, for Appel-
lant. J. Rene Josey, United States Attorney, Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Dewitt Harvey appeals his conviction for being a convicted felon
in possession of a firearm in violation of 18 U.S.C.§ 922(g) (1994).
We affirm.

Harvey's argument that his prosecution and conviction violated the
Fifth Amendment Double Jeopardy Clause is without merit. The State
of South Carolina dismissed the charges stemming from Harvey's
conduct for which he was indicted and convicted in federal court.
Therefore, Harvey fails to show that he was prosecuted or punished
twice for the same offense. That Harvey's probation from an unre-
lated state conviction may have been revoked as a result of his arrest
does not constitute multiple punishment for the same offense as con-
templated by the Double Jeopardy Clause.

On a motion to suppress evidence this court reviews the factual
findings underlying the legal conclusions subject to the clearly erro-
neous standard and reviews the legal conclusions de novo. See United
States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992). In this case, the
sheriff's department received a call that someone was firing shots
from a purple Buick. Officers subsequently found a brown Pontiac
parked on the side of a rural road in an area not far from where the
shots were allegedly fired. The officers had not seen any other cars
in the area. Because the Pontiac looked similar to the Buick described
in the police dispatch and was parked in the general vicinity of where
the shots were allegedly fired, the officers approached the car. In
plain view the officers observed a gun on the front car seat in viola-
tion of South Carolina law. Hence, the officers were entitled to seize
the gun and cartridges found in and around Harvey's car and the dis-
trict court correctly denied his motion to suppress this evidence.

The evidence adduced at trial was that the officers read Harvey his
Miranda rights at the time of his arrest and that the statements he
alleges should have been suppressed were not made in response to
police questioning. Therefore, Harvey fails to show that these state-
ments were obtained in violation of his Fifth Amendment rights.

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Whether to allow the jury to view evidence outside the courtroom
is a matter for the discretion of the trial court. See United States v.
Gallagher, 620 F.2d 797, 801 (10th Cir. 1980). Here, the government
presented photographs and diagrams depicting the site where the
police encountered Harvey, and the location of his arrest was not rele-
vant to the charged offense. Therefore, the district court's decision not
to permit the jury to view the arrest site did not constitute an abuse
of discretion.

We reject Harvey's claim that the government violated its obliga-
tions under Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, a
defendant's constitutional right to due process is violated when the
prosecutor withholds material, exculpatory evidence from the
defense. Harvey fails to allege how the government's failure to affir-
matively disclose in advance of trial that there were no fingerprints
on the gun prejudiced him. Moreover, he fails to show that the iden-
tity of the citizen who called the police was material to his defense.
Therefore, Harvey fails to show a Brady violation.

A district court's evidentiary rulings are reviewed for a clear abuse
of discretion. See United States v. Hassan El , 5 F.3d 726, 731 (4th
Cir. 1993). In light of the evidence adduced at trial showing that the
gun was in plain view on the car seat at the time the officers
approached Harvey, whether Harvey owned the car or knew the gun
was in the car earlier in the day was not relevant to the issue of
whether he knowingly possessed the gun in violation of § 922(g).
Similarly, testimony that Harvey's probationary status was affected
by his arrest had no relevance at trial.

Harvey's claim of prosecutorial misconduct provides no basis for
relief. Defense counsel invited the prosecutor's comment when he
argued to the jury that Harvey's crime was a victimless crime. More-
over, even if the prosecutor's statements were improper, they did not
undermine the fairness of the trial and lead to a fundamental miscar-
riage of justice. See United States v. Francisco , 35 F.3d 116, 120 (4th
Cir. 1994).

We reject Harvey's contention that because he and the government
stipulated at trial that he had committed one prior felony offense, the
district court was foreclosed from finding that he had more than one

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prior felony conviction for sentencing purposes. The parties stipulated
that Harvey had a prior felony conviction to eliminate the need for the
government to present prejudicial evidence of Harvey's past criminal
acts. The stipulation had no bearing on Harvey's sentencing and did
not preclude the district court from considering Harvey's prior felony
convictions for sentencing purposes.

Harvey's contention that the district court erred in sentencing him
as an armed career offender because the offense of conviction was not
a "crime of violence" as defined by the sentencing guidelines is also
without merit. "[T]he armed career criminal provision does not
require that the instant offense be a `crime of violence.'" United
States v. Samuels, 970 F.2d 1312, 1315 (4th Cir. 1992). The provision
applies so long as the defendant possesses a firearm in violation of 18
U.S.C. § 922(g) and has three previous convictions "for a violent fel-
ony or a serious drug offense, or both." Id. (citing § 924(e)(1)).
Because Harvey's possession of a firearm violated§ 922(g) and he
had three prior violent felony convictions, the district court correctly
sentenced him as an armed career criminal.

The record reveals that the district court recognized its authority to
depart but found Harvey ineligible for the requested departures.
Therefore, this court lacks jurisdiction to review the district court's
decision not to depart. See United States v. Hyppolite, 65 F.3d 1151,
1159 (4th Cir. 1995).

Finally, we reject Harvey's claim that the government obtained his
conviction in violation of 18 U.S.C. § 201(c)(2) (1994). See United
States v. Lowery, 166 F.3d 1119, 1122-23 (11th Cir. 1999).

We therefore affirm Harvey's conviction and sentence. We dis-
pense 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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