                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 12-2740
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                           UNITED STATES OF AMERICA

                                           v.

                        WILLIAM HENRY THORNTON, JR.,

                                                Appellant

                                  ________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 1-11-cr-00253-001)
                         District Judge: Honorable Yvette Kane
                                   ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 5, 2013

            Before: RENDELL, AMBRO, and VANASKIE, Circuit Judges

                            (Opinion filed: March 12, 2013)

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                                      OPINION
                                  ________________

AMBRO, Circuit Judge

      In December 2010, police officers responded to a report that one man was pointing

a gun at another outside of the Jazzland Bar in Harrisburg, Pennsylvania. Upon arriving,

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the officers saw two men facing each other in front of the bar, but did not see a firearm.

When the officers approached and identified themselves as police, a foot chase ensued.

As they fled, one of the men, later identified as William Thornton, threw a baggie of

crack cocaine, and then a firearm, on the ground. Thornton was apprehended, and these

items were recovered by police.

       In August 2011, a grand jury returned a three-count indictment charging Thornton

with possession of cocaine base with intent to distribute, possession of a firearm with an

obliterated serial number, and being a felon in possession of a firearm. A trial took place

in December 2011. The jury acquitted Thornton of possession of cocaine base with

intent to distribute, but found him guilty of the lesser included offense of possession of

cocaine base as well as the firearm offenses.

       In its presentence report, the Probation Office calculated a Sentencing Guidelines

range of 235 to 293 months. Due to his status as an armed career criminal under 18

U.S.C. § 924(e)(1), Thornton faced a mandatory minimum sentence of 15 years. At

sentencing, the Court imposed a 235-month term of imprisonment for his conviction as a

felon in possession of a firearm.1 It imposed concurrent terms for the remaining counts.




1
  Thornton contends that this sentence was illegal because it exceeds the 15-year
mandatory minimum imposed by 18 U.S.C. § 924(e). Because this objection was raised
for the first time on appeal, it is reviewed only for plain error. United States v. Couch,
291 F.3d 251, 252–53 (3d Cir. 2002). There was no such error in this case. As Thornton
recognizes, we have previously held that Section 924(e) implicitly authorizes a maximum
term of life imprisonment. United States v. Mack, 229 F.3d 226, 229 n.4 (3d Cir. 2000).

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       On appeal,2 Thornton asserts that the District Court erred in admitting evidence of

a prior state court conviction for drug distribution under Federal Rule of Evidence 404(b).

Following the Court’s denial of his motion in limine to preclude the Government from

introducing the conviction, Thornton stipulated at trial that he had previously been

convicted of possession with the intent to deliver crack cocaine and that this was a felony

punishable by a term of imprisonment exceeding one year. The Court instructed the jury

that they were to consider this evidence only for the purposes of deciding whether

Thornton had the knowledge or intent necessary to commit the crime of possession with

intent to distribute crack cocaine and whether he had been convicted of a crime that could

support a conviction for being a felon in possession of a firearm. It repeated this limiting

instruction in its final charge to the jury.

       Federal Rule of Evidence 404(b) provides in pertinent part:

               (1) Prohibited Uses. Evidence of a crime, wrong, or other act
               is not admissible to prove a person’s character in order to
               show that on a particular occasion the person acted in
               accordance with the character.

               (2) Permitted Uses . . . . This evidence may be admissible for
               another purpose, such as proving motive, opportunity, intent,
               preparation, plan, knowledge, identity, absence of mistake, or
               lack of accident.

       To be admissible under this rule, evidence of a prior crime must “(1) have a proper

evidentiary purpose, (2) be relevant under Rule 402, (3) satisfy Rule 403 (i.e., not be


2
  The District Court had subject matter jurisdiction under 18 U.S.C.§ 3231. We have
jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.

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substantially more prejudicial than probative), and (4) be accompanied by a limiting

instruction, when requested . . . , that instructs the jury not to use the evidence for an

improper purpose.” United States v. Cross, 308 F.3d 308, 320–21 (3d Cir. 2002). We

review the Court’s admission of evidence under Rule 404(b) for abuse of discretion.

United States v. Butch, 256 F.3d 171, 175 (3d Cir. 2001).

       Thornton does not contend that the evidence was admitted without a proper

purpose, was irrelevant, or was not accompanied by an appropriate curative instruction.

Instead, he argues that admission of the evidence was unfairly prejudicial under Rule

403. We do not see any basis for holding that the Court abused its discretion in deciding

otherwise.

       First, Thornton asserts that his prior conviction was too remote to be sufficiently

probative because it was based on conduct that occurred approximately eight years prior

to the charged offense. Rule 404 does not put any express limit on the time that can

elapse between the conduct underlying a prior conviction and the conduct underlying a

charged offense, and we have not imposed a limit. It is feasible that a prior conviction

could be too distant to be sufficiently probative, but Thornton has not provided any

reason why the eight-year lapse makes this the case here. Absent such a reason, we have

little trouble agreeing with the Court that evidence of his conviction remains probative.

See, e.g., United States v. Hernandez-Guevara, 162 F.3d 863, 872–73 (5th Cir. 1998)

(holding that an 18-year old conviction was not too stale to be admitted).

       Second, Thornton argues that ambiguity in the charging document underlying his

state conviction undermines its probative value. According to Thornton,

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              [i]n this regard, there was certain documentary confusion as
              to the nature of the prior conviction, i.e., whether it was for a
              controlled substance or a counterfeit substance. While the
              criminal information filed in state court averred a crack
              cocaine offense, the District Court did not undertake any
              inquiry to ensure that there was consistency between the prior
              conviction and the current offense.

App. Br. at 14 (citations omitted). While Thornton is correct that the charging document

does not distinguish between a charge for delivering a controlled substance and a charge

for delivering a counterfeit substance, he admits that “the criminal information filed in

state court averred a crack cocaine offense.” Indeed, at trial Thornton stipulated that “in

2004 . . . [he] was convicted of possessing with the intent to deliver crack cocaine.” The

record simply does not establish that his prior conviction was for distribution of a

counterfeit substance. In these circumstances, we cannot say the Court abused its

discretion in admitting the evidence.

                                        *   *   *   *   *

       For these reasons, we affirm Thornton’s conviction and sentence.




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