                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4648


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MICHAEL MANDEL TRENT,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:08-cr-00202-MR-1)


Argued:   January 25, 2011                 Decided:   August 22, 2011


Before MOTZ and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Affirmed in part and vacated and remanded in part by unpublished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


ARGUED: Andrew Brady Banzhoff, DEVEREUX & BANZHOFF, PLLC,
Asheville, North Carolina, for Appellant. Kurt William Meyers,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.     ON BRIEF: Anne M. Tompkins, United States
Attorney, Adam Morris, Assistant United States Attorney, Kelli
Ferry, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            After a jury convicted Michael Mandel Trent of being a

felon in possession of a firearm, the district court sentenced

him to 235 months of imprisonment.                 The court held that Trent’s

two previous state convictions for fleeing to elude arrest, in

violation of North Carolina law, qualified as predicate offenses

permitting the application of a sentencing enhancement pursuant

to   the   Armed    Career    Criminal      Act    (ACCA).        On   appeal,   Trent

challenges both his conviction and sentence.                       For the reasons

that follow, we affirm his conviction, vacate his sentence, and

remand for further proceedings consistent with this opinion.



                                         I.

            On     January    16,    2008,    a    police       officer    on   routine

highway patrol witnessed a green Ford Taurus traveling at a rate

of speed below the posted limit.              Neither Trent (the driver) nor

Kimshon    Bennett     (the    passenger)         made    eye    contact     with   the

officer.    After a subsequent check of the license plate led the

officer    to      believe    that    the     vehicle       carried       insufficient

insurance, the officer activated his blue lights and attempted

to initiate a traffic stop.

            Trent did not stop.          Instead, he “immediately sped up”

and made a U-turn through a grassy field, running a stop sign

and turning onto a two-lane highway.                     At one point during the

                                         2
ensuing chase, Trent drove faster than 100 miles per hour into

oncoming traffic.              He eventually lost control of the Taurus and

crashed into a commercial storefront.

               After     the    crash,     Trent     attempted      to     leave    the    car

through the driver’s side door, but an officer positioned his

patrol       car   across      that   door     and    obstructed         Trent’s     escape.

Trent then slid across the car and, along with Bennett, escaped

through the passenger’s side door.                     During Trent’s escape from

the Taurus, an officer witnessed him fumble and drop an object

“about the size of his hand.”                      Trent and Bennett attempted to

flee    on    foot,      but    the   police       quickly      apprehended        them.     A

subsequent search of the Taurus revealed a handgun lying on the

passenger’s seat, along with some drug paraphernalia.

               Trent     and     Bennett     were    charged       with    violations      of

state    law,      and   Bennett      pled    guilty       to    those     state    charges.

Trent’s state charges were eventually dismissed in light of this

federal prosecution, in which Trent was charged with possession

of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).

               At trial, police officers described the car chase and

their    subsequent            discovery      of     the        handgun,     and     Bennett

identified the recovered handgun as one that she had briefly

held for Trent the night before.                    According to Bennett, the gun

rested on Trent’s lap during the police pursuit, and she refused

his request that she “throw it out the window.”                            The Government

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also introduced evidence relating to two prior instances –- one

in 2004 and one in 2005 –- in which Trent threw away firearms

while     fleeing    apprehension      for      speeding      and     other     traffic

violations.

            The     jury     convicted        Trent    of     being     a     felon    in

possession.         Trent’s Presentencing Investigation Report (PSR)

concluded    that     Trent    had    been     convicted       of     three    previous

“violent felon[ies],” which mandated an enhanced sentence under

the Armed Career Criminal Act (ACCA).                  Trent conceded that the

first conviction,          for federal carjacking, qualified as an ACCA

predicate.     He objected, however, to the conclusion in the PSR

that the other two convictions –- the 2004 and 2005 convictions

described above for felony speeding to elude arrest in violation

of state law --could serve as predicate offenses.                       The district

court overruled his objection and applied the enhancement, which

raised Trent’s guidelines range from 120-150 months to 235-293

months.      The     court    then   sentenced        Trent    to     235     months   of

imprisonment.

            Trent appeals both his conviction and his sentence.



                                         II.

    We first address Trent’s conviction.                      Trent contends that

the district court erred             in admitting       evidence of his prior



                                          4
firearm possession and in denying a motion for psychological

evaluation.       Both arguments lack merit.



                                         A.

            Federal      Rule     of    Evidence      404(b)      prohibits      the

admission of evidence of a defendant’s prior or subsequent acts

“to prove the character of a person in order to show action in

conformity therewith.”          Rule 404(b) allows, however, the use of

such   evidence     as   “proof    of    motive,     opportunity,      intent,    or

absent of mistake or accident.”               Trent argues that the district

court violated this rule by admitting testimony describing the

two previous incidents in which he possessed a firearm.

            We apply a four-factor test to Rule 404(b) evidence,

holding it admissible if it is:               (1) relevant to an issue other

than the defendant’s character; (2) probative of an essential

claim or element of the offense; (3) reliable; and provides (4)

probative value not substantially outweighed by its prejudicial

effect.    See United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997).

            In    conducting    this     inquiry,    we    review    the    district

court’s determination for an abuse of discretion.                      See United

States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003).                         We afford

the    district    court   “wide       discretion”    in    its     assessment    of

“whether evidence is unduly prejudicial,” and we will overturn

                                          5
its   decision      to   admit      evidence        only    “under      the      most

extraordinary of circumstances.”             United States v. Aramony, 88

F.3d 1369, 1377 (4th Cir. 1996).

            The district court        admitted the         challenged evidence

because it found the evidence relevant to Trent’s knowledge of

the   handgun    discovered   in    the    Taurus.         We   agree     with    the

district court’s assessment.          The challenged evidence pertained

to prior incidents closely resembling the Concord car chase.

Indeed, in all three incidents, Trent drove recklessly, wrecked

his vehicle, fled on foot from police, and then attempted to

dispose of his firearm.            Given these similarities, the prior

incidents    shed    significant     light     on    the    issue    of    Trent’s

knowledge of the firearm ultimately found in the Taurus.

            The disputed evidence was also “necessary in the sense

that it is probative of an essential claim or an element of an

offense.”    Queen, 132 F.3d at 997 (internal quotation omitted).

Trent could not dispute at trial that he drove the Taurus in

question or that the police discovered a handgun inside.                          But

Trent did contend that Bennett, not he, bore responsibility for

that firearm.       Resolution of this issue turned on Trent’s state

of mind with respect to that firearm, of which the evidence

describing Trent’s previous acts proved particularly probative.

See Huddleston v. United States, 485 U.S. 681, 685 (1988).



                                       6
               Trent does not dispute that the prior incidents bear

striking similarities to the Concord chase.                            Nor does he contest

the       reliability        of    the   evidence         describing        those       previous

incidents.          He does, however, insist that our previous decision

in    United        States    v.    Tate,      715       F.2d    864    (4th     Cir.    1983),

foreclosed the admission of the challenged evidence.                                    In that

case, the police stopped Tate, who was driving his wife’s car,

and discovered two pistols in the trunk.                          Tate was charged with

receipt of a firearm by a convicted felon.                               Id. at 865.          At

trial, the district court allowed the Government to introduce

evidence that witnesses had previously seen Tate in possession

of    a    different     pistol.         Id.        We    vacated      Tate’s     conviction,

observing that the “possession by the defendant of a different

gun on a previous occasion has no relevance to the issue of

whether the defendant knew on the day he was stopped that the

two pistols were in the trunk of his wife’s car.”                              Id. at 866.

               Trent’s reliance on Tate is misplaced.                            This is so

because       the    Rule     404(b)     evidence        we     rejected    in    Tate    bears

little resemblance to the evidence that Trent challenges here.

In    Tate,    the     challenged        evidence        concerned      a   prior   incident

unlike the one for which Tate was convicted.                            Here, by contrast,

the prior incidents closely resemble the offense of conviction.

Accordingly, they illuminate the critical issue of whether Trent



                                                7
knowingly       possessed     the     firearm       in    the     Taurus.          See    United

States v. Oaks, 606 F.3d 530, 539 (8th Cir. 2010).

            Nor        did    the         challenged       evidence          create      unfair

prejudice that “substantially outweighed” its probative value.

Queen,    132    F.3d    at    997.         Trent   contends          that    this      evidence

prejudiced him because it “had the effect of corroborating Ms.

Bennett’s otherwise impeached testimony.”                             Appellant’s Br. at

10.      Such     an    effect,       however,      does        not    amount      to    unfair

prejudice, which does not include any “damage to a defendant’s

case that results from the legitimate probative force of the

evidence.”        Mohr,       318    F.3d     at    619    (internal         quotation      and

emphasis omitted).            Here, the evidence of the prior incidents

damaged Trent’s case            only       in that it        suggested a           legitimate

inference that Trent knowingly possessed the firearm inside the

Taurus.         Moreover,       the       district       court,        by    properly      (and

repeatedly)        issuing      an         agreed-upon          limiting        instruction,

ameliorated the risk that the jury would extract a forbidden

propensity inference from the challenged evidence.                                 See Queen,

132 F.3d at 997.

            Accordingly,            the    district       court       did    not   abuse    its

discretion by admitting the evidence of Trent’s prior firearm

possession.




                                               8
                                            B.

             Trent also argues that the district court erroneously

denied his motion for a psychological examination.                           A court may

order    a   psychological         examination         pursuant    to   a     competency

hearing, 18 U.S.C. § 4241(b), which it must conduct “if there is

reasonable cause to believe that the defendant may presently be

suffering from a mental disease or defect rendering him mentally

incompetent.”          Id. §      4241(a).        We review a district court’s

denial of a competency hearing for an abuse of discretion.                             See

United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

             In       determining       whether     there     existed        “reasonable

cause”   sufficient          to   trigger      Trent’s    right    to    a    competency

hearing, “we look to all of the record evidence pertaining to

the   defendant’s        competence,       including:        (1)    any      history   of

irrational behavior; (2) the defendant’s demeanor [during the

legal    proceedings];            and    (3)      prior     medical       opinions     on

competency.”          United States v. General, 278 F.3d 389, 397 (4th

Cir. 2002).           A review of these factors here demonstrates that

the denial of Trent’s motion did not constitute an abuse of

discretion.

             The      magistrate        judge,    in     denying    Trent’s      initial

motion   for      a    psychological       examination,      observed        that   Trent

presented      only      a     “self-report”        of    general       “psychological

issues.”       The judge also noted that the Government presented

                                            9
specific evidence -- in the form of Trent’s phone calls from

jail –- that revealed his comprehension of the charges facing

him.        The   magistrate     judge     further      observed      that   Trent’s

behavior in court “evidenced an understanding of the proceedings

against     him.”      See    General,    278    F.3d    at   298     (noting    that

defendant’s “demeanor” undermined his “claim of incompetency”).

Moreover, the district court later agreed that “Trent was able

to converse with counsel such as to assist in his defense” and

that he consequently had received “a very good defense.”                         Given

these uncontested findings, and that no formal medical reports

supportive of Trent’s claims appear in the record, cf. Mason, 52

F.3d   at    1290,     we    cannot   hold      that    the   court     abused    its

discretion        by   rejecting      Trent’s     motion      for     psychological

examination.



                                         III.

             We turn finally to Trent’s challenge to his sentence.

He argues that the district court, in enhancing his sentence

under ACCA, improperly relied on two predicate convictions that

were not for “crime[s] punishable by imprisonment for a term

exceeding one year.”           18 U.S.C. § 924(e)(2)(B).              We review de

novo the question of whether Trent’s prior convictions qualify




                                          10
as ACCA predicates.              See United States v. White, 571 F.3d 365,

367 (4th Cir. 2009).

                 Our recent decision in United States v. Simmons, --

F.3d       –-   (4th    Cir.   2011)     (en   banc),      requires    that   we   vacate

Trent’s sentence.              There we considered this precise question,

i.e. whether a defendant’s North Carolina prior conviction was

for an “‘offense that is punishable by imprisonment for more

than one year.’”               Id. (slip op. at 4) (quoting 21 U.S.C. §

802(44)).         In that case, a North Carolina judge had imposed a

sentence of six-to-eight months of community punishment, which

was the maximum sentence the defendant could have received under

North Carolina Structured Sentencing Act.                           Nevertheless, this

offense         would   have    triggered      a    sentencing      enhancement    under

prior Fourth Circuit precedent, which had held that a conviction

was for “a crime punishable by imprisonment exceeding one year

if   any        defendant      charged    with      that    crime     could   receive   a

sentence of more than one year.”                      United States v. Harp, 406

F.3d 242, 246 (4th Cir. 2005) (internal quotation and citation

omitted).




       
        Alternatively,   Trent  contends that   the  same  two
convictions do not qualify as “violent” felonies under the
principles articulated in Begay v. United States, 553 U.S. 137
(2008). We need not reach this argument. But see United States
v. Sykes, --- S. Ct. ---- (2011).


                                               11
               We    held    in     Simmons        that      the     Supreme        Court’s

intervening ruling in Carachuri-Rosendo v. Holder, 130 S. Ct.

2581 (2010) foreclosed us from following our old approach.                              In

light of Carachuri, we concluded that, under the North Carolina

Structured Sentencing Act, a defendant is convicted of a crime

“punishable”        by     more    than    a      year    only     if   some   offender

possessing the same prior record level and convicted of similar

aggravating factors could have received a sentence exceeding one

year.        Id. (slip op. at 14-19).                We also held that federal

courts       must   make    this    determination          relying      only   on    facts

contained in the offender’s “state record of conviction.”                              Id.

(slip op. at 27).           In Simmons, we examined the defendant’s state

record of conviction and observed that it contained no findings

exposing him to the elevated state sentence necessary to trigger

the disputed federal enhancement.                    Id.      Accordingly, we held

that the defendant was not subject to the federal enhancement

and so vacated his sentence.               Id.

               Applying the Simmons holding here, we conclude that

Trent’s two previous convictions were “punishable” by a maximum

of twelve months of imprisonment.                        Both convictions were for

speeding      to    elude   arrest,       which    North     Carolina     designates     a

Class    H    felony.        See   N.C.     Gen.     Stat.    §    20-141.5(b).          In

addition, Trent’s judgments of conviction reveal that in both

cases he possessed a “prior record level” of III and was charged

                                            12
with no aggravating factors.     Given these facts, the Structured

Sentencing Act allowed the sentencing judge to impose a maximum

possible sentence of twelve months of imprisonment in each case.

Id. § 15A-1340.17(c)-(d).      Accordingly, neither conviction for

speeding to elude arrest qualifies as a predicate permitting the

application of a sentencing enhancement under ACCA.



                                 IV.

         For the foregoing reasons, we vacate Trent’s sentence

and remand for proceedings consistent with this opinion.         We

affirm his conviction.



                                       AFFIRMED IN PART AND VACATED
                                               AND REMANDED IN PART




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