                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4266


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

BRYAN KENDALL MORRISON, a/k/a Drake,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:08-cr-00024-jpj-pms-15)


Submitted:    December 29, 2009             Decided:   February 5, 2010


Before MOTZ, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles Y. Sipe, GOODMAN, WEST & FILETTI, PLLC, Charlottesville,
Virginia, for Appellant.       Julia C. Dudley, United States
Attorney,   Jennifer  R. Bockhorst,    Assistant United   States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Bryan Kendall Morrison was found guilty by a jury of

one   count    of     conspiracy        to   distribute      and      possess   with   the

intent to distribute fifty grams or more of cocaine base and

five hundred grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) (2006) and 21 U.S.C. § 846 (2006).                          Prior to trial,

the    Government         filed    a    Sentencing         Enhancement     Information,

charging that Morrison had four prior convictions for felony

drug offenses that had become final prior to the offense charged

in the indictment, and notifying Morrison that upon conviction

for the offense in the indictment he would be sentenced to a

mandatory      term       of    life    imprisonment.            At    sentencing,     the

district court denied Morrison’s objection to his presentence

report (“PSR”), and sentenced him to life imprisonment pursuant

to    21   U.S.C.        § 841(b)(1)(A)         (2006).         On    appeal,    Morrison

contends that: (1) the district court erred in sentencing him to

life in prison; (2) the evidence was insufficient to sustain his

conviction;        and    (3)     the    district       court    erred    in    admitting

evidence      of    his    prior       felony       drug   convictions     pursuant     to

Federal Rule of Evidence 404(b).                     For the reasons that follow,

we affirm.

              Morrison first asserts that he should not have been

sentenced to life in prison.                 Morrison argues that “to count as

a prior conviction [under § 841(b)], a career offender felony

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predicate must also score criminal history points under [U.S.

Sentencing       Guidelines        Manual]         § 4A1.2,”          and    cites       to        this

court’s     decision         in   United       States v.         Mason,          284    F.3d           555

(4th Cir. 2002), for support.                      Under this analysis, Morrison

claims that the first conviction relied upon by the Government

cannot count as a predicate conviction because he was a minor at

the     time    of     conviction,        and        that       his    second          and        third

convictions      should       count    as     only        one    qualifying            conviction.

Because    the       district     court       concluded         that    Morrison’s            fourth

prior conviction could not be counted for the purposes of the

statutory mandatory minimum under § 841, Morrison’s argument, if

accepted,       would    leave      only       one        conviction        to     count          as     a

predicate offense.

               Under    21    U.S.C.      §    841(b)(1)(A),            “[i]f          any    person

commits a violation of this subparagraph . . . after two or more

prior convictions for a felony drug offense have become final,

such    person    shall      be   sentenced          to    a    mandatory        term        of    life

imprisonment without release and fined in accordance with the

preceding       sentence.”            Whether         a     district         court           properly

interpreted      the    term      “felony      drug        offense”     in       § 841(b)(1)(A)

“involves a pure question of law,” which this court reviews de

novo.     United States v. Burgess, 478 F.3d 658, 661 (4th Cir.

2007), aff’d, 553 U.S. 124 (2008).



                                               3
             Section      841     does   not    define     the    term    “felony     drug

offense,” but 21 U.S.C. § 802(44) (2006) does, “in plain and

unambiguous terms.”             Burgess, 478 F.3d at 662.               Section 802(44)

defines a felony drug offense as “an offense that is punishable

by imprisonment for more than one year under any law of the

United States or of a State or foreign country that prohibits or

restricts     conduct        relating      to     narcotic       drugs,      marihuana,

anabolic     steroids,       or    depressant       or     stimulant       substances.”

21 U.S.C. § 802(44).             As we have previously held, “because the

term ‘felony drug offense’ is specifically defined in § 802(44),

and § 841(b)(1)(A) makes use of that precise term, the logical,

commonsense        way     to     interpret       ‘felony        drug     offense’      in

§ 841(b)(1)(A) is by reference to the definition in § 802(44).”

Burgess,     478    F.3d     at    662         (internal     quotation       marks    and

alternations omitted).

             Despite Morrison’s assertions, this court’s holding in

Mason and the requirements of the U.S. Sentencing Guidelines

Manual for designation as a career offender pursuant to § 4B1.1

are inapposite to his sentence.                 Rather, the district court made

clear   at    the        sentencing      hearing     that    Morrison       was      being

sentenced     under        the     mandatory       minimum       sentence     provision

contained within § 841(b) for defendants with two or more prior

felony drug convictions.



                                            4
            The district court relied on three convictions in the

Superior Court of Alamance County, North Carolina in sentencing

Morrison: (1) an April 26, 2000 conviction for possession with

the intent to sell or deliver marijuana, in violation of N.C.

Gen.   Stat.        § 90-95(a)    (2007),         manufacturing      marijuana,      in

violation      of     N.C.    Gen.      Stat.      § 90-95(a)(1),        and   felony

possession of cocaine, in violation of N.C. Gen. Stat. § 90-

95(d)(2) (2007); (2) a May 30, 2003 conviction for conspiracy to

sell cocaine, in violation of N.C. Gen. Stat. § 90-98 (2007),

with   an   offense       date    of     September         6,    2002;   and   (3)    a

May 30, 2003        conviction    for    conspiracy         to   sell    cocaine,    in

violation of N.C. Gen. Stat. § 90-98, with an offense date of

September 24, 2002.          Morrison did not dispute these convictions.

            All three of Morrison’s convictions qualify as prior

felony drug offenses under § 802(44).                      First, although two of

the convictions occurred on the same day, because they resulted

from two separate “episodes of criminality,” they constitute two

separate    convictions        for     the       purpose    of    sentencing    under

§ 841(b)(1)(a).        United States v. Ford, 88 F.3d 1350, 1366 (4th

Cir. 1996).         Second, all three convictions were under the laws

of North Carolina that prohibit “conduct relating to narcotic

drugs, marihuana, anabolic steroids, or depressant or stimulant

substances.”         21 U.S.C. § 802(44).            Finally, although Morrison

himself was not sentenced to a term of imprisonment for more

                                             5
than    one     year,       all     of   the     convictions        were       punishable       by

imprisonment        for     more     than      one    year.       See        N.C.    Gen.     Stat.

§ 15A-1340.17(c), (d) (2007); United States v. Harp, 406 F.3d

242, 246 (4th Cir. 2005) (explaining that, for the purpose of

determining “whether a conviction is for a crime punishable by a

prison    term      exceeding        one    year,”     a    court    must      consider       “the

maximum aggravated sentence that could be imposed for that crime

upon a defendant with the worst possible criminal history”).                                    As

a result, Morrison had a sufficient number of prior felony drug

offenses to qualify him for the statutorily prescribed mandatory

minimum,      and    the     district       court      did    not       err    in     sentencing

Morrison to life imprisonment.

              Morrison            also     argues          that     the        evidence        was

insufficient         to     sustain        his       conviction         of     conspiracy        to

distribute and to possess with intent to distribute cocaine base

and cocaine.         In reviewing a challenge to the sufficiency of the

evidence, we review the evidence in the light most favorable to

the Government, and ask whether “‘any rational trier of facts

could    have       found     the     defendant        guilty      beyond        a    reasonable

doubt.’”        United States v. Harvey, 532 F.3d 326, 333 (4th Cir.

2008) (quoting United States v. Tresvant, 677 F.2d 1018, 1021

(4th     Cir.    1982)).            This    court      considers          both       direct     and

circumstantial         evidence,         and     “allow[s]        the     [G]overnment         all

reasonable inferences that could be drawn in its favor.”                                       Id.

                                                 6
Conflicts in testimony are weighed by the jury, and this court

will not weigh the evidence or judge the credibility of the

witnesses.      Id.

               To prove conspiracy to distribute and to possess with

intent to distribute a controlled substance, the Government must

have    established         “beyond          a    reasonable       doubt           that:    ‘(1)     an

agreement’ to distribute and ‘possess cocaine with intent to

distribute       existed          between        two    or       more        persons;       (2)     the

defendant       knew    of        the     conspiracy;            and        (3)     the     defendant

knowingly and voluntarily became a part of this conspiracy.’”

United    States       v.    Yearwood,           518   F.3d      220,       225-26        (4th    Cir.)

(quoting United States v. Burgos, 94 F.3d 849, 857 (4th Cir.

1996)    (en     banc)),          cert.      denied,         129       S.     Ct.     137     (2008).

Nonetheless, because a conspiracy is, “by its very nature . . .

clandestine and covert,” proving its existence is often done

through circumstantial evidence “and the context in which the

circumstantial evidence is adduced.”                             Burgos, 94 F.3d at 857.

Accordingly, the Government “need not prove that the defendant

knew     the    particulars             of       the   conspiracy             or     all     of     his

coconspirators” or that his connection to the conspiracy was

anything       more     than       “slight.”               Id.     at        858,     861.          The

“[c]ircumstantial           evidence         sufficient       to       support       a     conspiracy

conviction      need        not    exclude         every      reasonable            hypothesis       of



                                                   7
innocence,     provided     the   summation         of   the   evidence   permits    a

conclusion of guilt beyond a reasonable doubt.”                     Id. at 858.

             With these standards in mind, the evidence presented

at trial established that during the time in question, Morrison

and numerous other individuals were involved in selling cocaine

in    Bristol,       Virginia.         Derrick       Evans,     a   co-conspirator,

testified     that    he,   Kerry   Lee,      and    Oedipus    Mumphrey    came    to

Bristol in 2006 and began selling cocaine there, explaining that

Lee and Mumphrey would make trips to various locations to obtain

large quantities of cocaine, and then return to Bristol where

they provided Evans with cocaine to sell and sold cocaine on

their own.     Mumphrey confirmed Evans’s account of the activities

of the three men, stating that the purpose of coming to Bristol

was to sell cocaine.         Mumphrey testified that Morrison and five

other individuals came with him in 2006 to Bristol to help sell

the    cocaine   faster.          He    detailed         the   structure    of     the

conspiracy, explaining that the cocaine was purchased, cooked up

in hotel rooms by those assisting him, and then distributed to

two individuals who were responsible for distributing the drugs

to    the   sellers,    including      Morrison.          Mumphrey     unequivocally

stated that Morrison “sold a couple of ounces” for him, and that

after he did not properly return money from the drug sales,

Morrison dealt with Mumphrey directly for the purposes of the

sales.

                                          8
               Other      co-conspirators,           including       Candace       Maynard,

Jessica       Rodriquez,       and    Emmanuel       Morton,       all   testified        that

Morrison came to Bristol to sell cocaine with other members of

the conspiracy and was present in the hotel rooms where the

conspirators        gathered     to    sell    and    obtain       the   drugs.      Morton

testified that he witnessed Mumphrey give cocaine to Morrison.

Construing      the    testimony       in    the    light    most    favorable      to     the

Government,         and     allowing         the     Government          all   reasonable

inferences that could be drawn in its favor, the evidence showed

that Morrison was involved in an agreement between two or more

persons to possess with intent to distribute cocaine, that he

was    aware     of     the     conspiracy,         and     that    he    knowingly        and

voluntarily became a part of it.                    Accordingly, the evidence was

sufficient to support the jury’s verdict.

               Lastly, Morrison argues that the district court erred

when it permitted the jury to hear evidence of his prior felony

drug   convictions,           asserting      that    this    evidence      was     unfairly

prejudicial.           Under     Rule       404(b)    of     the    Federal       Rules    of

Evidence, “[e]vidence of other crimes, wrongs, or acts is not

admissible” if that evidence is used to prove the character of

the defendant “in order to show action in conformity therewith.”

However, such evidence is admissible for other purposes, “such

as    proof    of     motive,    opportunity,         intent,       preparation,      plan,

knowledge, identity, or absence of mistake or accident.”                                  Fed.

                                              9
R.   Evid.    404(b).        As    it    “is      understood     to    be    a   rule   of

inclusion,” the list provided in Rule 404(b) is not exhaustive.

United States v. Queen, 132 F.3d 991, 994-95 (4th Cir. 1997).

Evidence under Rule 404(b) is admissible if four conditions are

satisfied:

      First, “the evidence must be relevant to an issue,
      such as an element of an offense, and must not be
      offered to establish the general character of the
      defendant. In this regard, the more similar the prior
      act is (in terms of physical similarity or mental
      state) to the act being proved, the more relevant it
      becomes.”  Second, “the act must be necessary in the
      sense that it is probative of an essential claim or an
      element of the offense.” Third, “the evidence must be
      reliable.”   Finally, “the evidence’s probative value
      must not be substantially outweighed by confusion or
      unfair prejudice in the sense that it tends to
      subordinate reason to emotion in the factfinding
      process.”

United   States       v.   Gray,    405      F.3d   227,   239    (4th       Cir.   2005)

(quoting     Queen,    132   F.3d       at   997)    (citations       and    alterations

omitted).      Whether a district court properly admitted evidence

under Rule 404(b) is an evidentiary ruling that is reviewed for

abuse of discretion.         Id. at 238.

             All four conditions are satisfied here.                         First, the

evidence     was   not     admitted       for     the   purpose       of    establishing

Morrison’s character.             Morrison was charged with conspiracy to

distribute and to possess with intent to distribute cocaine.

The prior convictions that the Government sought to introduce

were delivering and sale of cocaine, possession with intent to


                                             10
sell and deliver cocaine, maintaining a vehicle or dwelling or

place to sell cocaine, and possession of drug paraphernalia,

which the Government argued demonstrated Morrison’s knowledge,

intent, and absence of mistake with regard to the conspiracy

charge.     To prove the conspiracy charge against Morrison, the

Government    was     required     to    show    that        Morrison       knew     of   the

conspiracy and knowingly and voluntarily became a part of it.

Morrison’s     prior     convictions           for     numerous           cocaine-related

offenses,    including       possession        and   sale,         were    relevant       and

necessary     to     demonstrate        that    he     had     knowledge        of     these

activities, he had the intent to engage in the same activities

during the life of the conspiracy, and his engagement in these

activities was not accidental or mistaken.                           The evidence was

reliable, having been introduced during the testimony of Special

Agent Todd Brewer, who obtained a certified copy of Morrison’s

convictions.        Finally, the probative value of the evidence was

not substantially outweighed by confusion or unfair prejudice.

Although this information was damaging to Morrison, it was not

unfairly prejudicial, nor did it “subordinate reason to emotion

in   the   factfinding       process.”         Gray,    405        F.3d    at   239.       No

additional         details     were       provided           regarding          Morrison’s

convictions    that     could    have      inflamed          the     jury’s     emotions.

Despite Morrison’s claims that there was a paucity of physical

evidence against him, the testimony of his co-conspirators was

                                          11
sufficient      to   demonstrate    his   active    involvement     in     the

conspiracy, such that the prior conviction evidence cannot be

said to be responsible for his conviction.            Thus, the district

court did not abuse its discretion in admitting the evidence

regarding Morrison’s prior convictions under Rule 404(b).

           Accordingly, we affirm the district court’s judgment.

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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