                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5119


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KELVIN GERARD MOSS, a/k/a Kelvin Girard Moss,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:08-cr-00097-FDW-1)


Submitted:   August 25, 2011                 Decided:   September 7, 2011


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rena G. Berry, Roanoke, Virginia, for Appellant.         Anne M.
Tompkins, United States Attorney, Richard Lee Edwards, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kelvin Gerard Moss appeals his convictions and multi-

life sentences.          A jury found Moss guilty of bank robbery in

violation of 18 U.S.C. § 2113(a) (2006) (Count 1), use and carry

of a firearm in furtherance of a crime of violence in violation

of 18 U.S.C. § 924(c) (2006) (Count 2), possession of a firearm

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

924(e)(1) (2006) (Count 3), and escape from custody in violation

of 18 U.S.C. §§ 751(a), 4082 (2006) (Count 4).                      As punishment

for    these     offenses,   the       district   court      imposed     concurrent

custodial sentences of life, life, and sixty months on Counts 1,

3, and 4, and a consecutive sentence of life on Count 2.                            We

affirm.

            Moss     first    challenges        the    admission       of    certain

testimony during his trial as hearsay and unfairly prejudicial.

This     Court     “review[s]      a    trial     court’s      rulings       on    the

admissibility of evidence for abuse of discretion, and [] will

only   overturn     an    evidentiary      ruling     that     is   arbitrary      and

irrational.”       United States v. Cole, 631 F.3d 146, 153 (4th Cir.

2011) (internal quotation marks omitted).                 But when evidence is

admitted    without      objection,     the   standard    of    review      is    plain

error.     See Fed. R. Evid. 103(d); see also United States v.

Chin, 83 F.3d 83, 87 (4th Cir. 1996).



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              Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”                                        Fed. R.

Evid. 801(c).            Hearsay is generally inadmissible.                       Fed. R. Evid.

802.      However,         a    statement         offered    against        a    party         is    not

hearsay    if       it    is    a   party’s       own    statement.             Fed.      R.    Evid.

801(d)(2).          Here,       the     challenged       statements         were     uttered          by

Moss; thus, the statements were not hearsay.

              Relevant evidence “may be excluded if its probative

value    is     substantially            outweighed        by   the     danger         of      unfair

prejudice, confusion of the issues, or misleading the jury, or

by considerations of undue delay, waste of time, or needless

presentation         of       cumulative         evidence.”          Fed.       R.   Evid.          403.

However, “Rule 403 is a rule of inclusion, generally favoring

admissibility.”            United States v. Udeozor, 515 F.3d 260, 264-65

(4th Cir. 2008) (internal quotation marks and brackets omitted).

When    assessing         a     Rule    403      challenge      on    appeal,        this       Court

“look[s]      at    the        evidence     in     a    light   most    favorable              to    its

proponent,      maximizing            its   probative       value     and       minimizing           its

prejudicial effect.”                  United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990) (internal quotation marks omitted).                                             The

challenged testimony demonstrated Moss’s willingness and intent

to   commit     a    robbery;          we   do    not    find   it     to    be      so     unfairly

prejudicial as to warrant exclusion under Fed. R. Evid. 403.

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               Moss next raises a double jeopardy challenge to his

sentence for escape, claiming that he has already been punished

by the Bureau of Prisons.               We review double jeopardy claims de

novo.     United States v. Studifin, 240 F.3d 415, 418 (4th Cir.

2001).    “Where the issue is solely that of multiple punishment,

as opposed to multiple prosecutions, the Double Jeopardy Clause

does no more than prevent the sentencing court from prescribing

greater    punishment         than     the       legislature         intended.”            Id.

(internal quotation marks omitted).

               It has long been accepted that disciplinary changes in

prison conditions do not preclude criminal punishment for the

same conduct.         See, e.g., Patterson v. United States, 183 F.2d

327, 328 (4th Cir. 1950) (per curiam).                       Moss fails to convince

us otherwise and thus we find no double jeopardy violation on

this record.

               Moss   also    claims    that      the   district          court    erred    by

finding that he was subject to mandatory life sentences under 18

U.S.C. § 3559(c)(1) (2006).                 A person convicted by a federal

court of a serious violent felony shall be sentenced to life

imprisonment if that person has previously been convicted of at

least    two    serious      violent    felonies        or    at    least    one    serious

violent   felony      plus    at   least      one   serious         drug    offense.        18

U.S.C.    § 3559(c)(1)(A).             To    qualify,        each    of    the    predicate

offenses (other than the first) must be “committed after the

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defendant’s conviction of the preceding serious violent felony

or   serious     drug   offense.”        18   U.S.C.   § 3559(c)(1)(B).      The

district court found that mandatory life sentences applied to

Counts 1 and 2.

            The district court carefully noted on the record which

documents it relied upon in finding each of Moss’s predicate

offenses for the purposes of 18 U.S.C. § 3559(c)(1).                  We find no

error in its use of the records before it.                     In finding the

nature of the prior convictions, the sentencing court properly

confined itself to documents inherent in the prior convictions

in accord with applicable precedent.

            Likewise, we find no merit in Moss’s contention that

his 1992 breaking and entering conviction was not a “serious

violent    felony”      because   that    crime   is   now    punishable   by   a

maximum term of less than ten years.              As reflected by the state

court judgment, the maximum term of incarceration at the time of

Moss’s conviction was ten years.              We do not find that the plain

language    of    18    U.S.C.    § 3559(c)(2)(F)(ii)        (2006)   directs   a

sentencing court to analyze the maximum punishment at the time

of the federal sentencing hearing rather than at the time of the

prior conviction.

            Moreover, to focus on the punishment available at the

time of federal sentencing would transform the predicate status

of a prior conviction into a moving target.                  Indeed, a state’s

                                          5
reformulation of its sentencing scheme could cause whole classes

of prior convictions to disappear from predicate status and the

application of 18 U.S.C. § 3559(c)(1) could depend in large part

on    the     fortuitous      timing     of     the    sentencing     hearing.              Cf.

McNeil v. United States, 131 S. Ct. 2218 (2011) (rejecting an

analogous argument with respect to the Armed Career Criminal

Act).       In light of the plain language of the statute and the

absurd      results       that       would      result       from   adopting           Moss’s

interpretation,         the     district      court      properly    found    that          his

previous       breaking       and     entering        conviction    qualified          as    a

“serious violent felony” under the definition set forth in 18

U.S.C. § 3559(c)(2)(F)(ii).

               Moss’s      final       appellate         challenge     is         to        the

reasonableness of his sentence.                   We review a sentence under a

deferential       abuse    of       discretion     standard.         Gall    v.        United

States, 552 U.S. 38, 51 (2007).                   The first step in this review

requires us to inspect for procedural reasonableness by ensuring

that    the    district       court    committed        no   significant     procedural

errors, such as failing to calculate or improperly calculating

the     Guidelines      range,        failing     to     consider    the     18        U.S.C.

§ 3553(a) (2006) factors, or failing to adequately explain the

sentence.       United States v. Boulware, 604 F.3d 832, 837-38 (4th

Cir. 2010).       We then consider the substantive reasonableness of



                                              6
the sentence imposed, taking into account the totality of the

circumstances.      Gall, 552 U.S. at 51.

               We find Moss’s arguments as to the order in which the

district   court     conducted        his   sentencing      hearing      unconvincing.

Because    a    statutory       minimum     or    maximum      sentence       limits     the

Guidelines      range,     a    district     court      must    always       determine     a

defendant’s      statutory       sentence        in   calculating       his   Guidelines

range.     Both     Moss       and    his   attorney     were        afforded      adequate

opportunity to speak and argue for a different sentence.                              Nor do

we detect any infirmity in the length of the sentences imposed.

We   therefore      do     not       find   Moss’s      sentence        to    be      either

procedurally or substantively unreasonable.

               We accordingly 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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