                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4815


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

ROBERT DAWAYNE SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      Andre M. Davis, District Judge.
(1:07-cr-00580-AMD-1)


Submitted:    June 23, 2009                 Decided:   July 10, 2009


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher Flohr, BLACKFORD & FLOHR, LLC, Severna Park,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Cheryl L. Crumpton, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Robert Dawayne Smith was convicted of possession of a

firearm      by    a   convicted      felon     and       sentenced     to    the      statutory

mandatory         minimum   sentence       of       180    months      imprisonment.         On

appeal, Smith challenges both his conviction and sentence.                                   We

affirm.



                                              I.

              Smith first asserts that the district court erred in

denying      his       motion   for    a   mistrial            based    on    the      untimely

disclosure of a police report.                      According to Smith, his theory

of    the    defense      was   that    the     police         did   not     do    a    thorough

investigation to determine the owner of the firearm at issue,

and counsel spoke in his opening argument about that fact that,

of all the police officers involved, only Officer Mezan created

a report.          Smith’s counsel highlighted this fact in attempting

to create a picture of lackadaisical police procedure.                                    Thus,

Smith       asserts      that   counsel’s           credibility         was       “irreparably

damaged” when a second police report authored by Mezan surfaced.

              We review the denial of a motion for a mistrial for

abuse of discretion.            United States v. Dorlouis, 107 F.3d 248,

257   (4th     Cir.     1997)   (stating        that       a   district      court’s     ruling

denying a motion for a mistrial “will be disturbed only under

the most extraordinary of circumstances”).                             “In order for the

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trial court’s ruling to constitute such an abuse of discretion,

the defendant must show prejudice.”                      United States v. Dorsey, 45

F.3d 809, 817 (4th Cir. 1995).                         Reversal is required only if

there    is      a    clear       abuse     of       discretion    and     a    “reasonable

possibility          that   the     jury’s       verdict    was    influenced”      by    the

error.    United States v. Seeright, 978 F.2d 842, 849 (4th Cir.

1992).     Because our review of the record clearly shows that

Smith cannot show any prejudice from the untimely production of

the second police report, his claim fails.



                                              II.

              Smith        asserts    that       the    court’s    requirement      that   a

United States Marshal escort Smith to the bench during voir dire

was prejudicial, especially in the absence of a finding that

Smith was dangerous.                Because Smith did not object below, the

issue is reviewed for plain error.                         To establish plain error,

the defendant must show that an error occurred, that the error

was     plain,       and     that     the     error       affected       the    defendant’s

substantial          rights.        United    States       v.    Olano,   507    U.S.    725,

732-34 (1993); United States v. Massenburg, 564 F.3d 337, 342-43

(4th Cir. 2009) (stating defendant bears burden of establishing

each of the plain error requirements).

              A court’s decision with regard to a security measure

is    subject    to     limited      review       for    abuse    of   discretion.        See

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United States v. Samuel, 431 F.2d 610, 615 (4th Cir. 1970).

Here, the court’s requirement was apparently standard practice.

Moreover, the court offered Smith an accommodation, whereby he

could still participate in voir dire while remaining seated at

counsel table.         Smith voluntarily chose to approach the bench,

ostensibly so that the jurors could view him at close range,

knowing that a Marshal would escort him.                         Especially given that

Smith had a lengthy criminal record and was in custody on a

firearm    charge,       we       find   no    error       in    the   district   court’s

requirement,      even       in    the   absence      of    an    explicit     finding    of

dangerousness.         Further, even if the court’s decision was error,

due to the overwhelming evidence against Smith, he cannot show

that the error affected his substantial rights.                              Accordingly,

this claim is without merit.



                                              III.

            Smith      asserts        that     evidence         that   the   firearm     was

manufactured      in     a    different        state       and    then    transported     to

Maryland   was    insufficient           to     establish        the     interstate    nexus

element of the charge against him.                     However, as Smith concedes,

our   precedent     holds         that   such      evidence      is    sufficient.       See

United States v. Gallimore, 247 F.3d 134, 138 (4th Cir. 2001);

United States v. Crump, 120 F.3d 462, 466 (4th Cir. 1997).



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                                               IV.

              Smith      raises     several         conclusory       challenges          to    the

predicate offenses used to establish his Armed Career Criminal

status.       A    defendant       is    an     armed      career        criminal       when    he

violates     18    U.S.C.     §   922(g)(1)           (2006)       and    has    three        prior

convictions for violent felonies or serious drug offenses.                                      18

U.S.C. § 924(e)(1) (2006).                   Smith’s predicate convictions listed

in    the    presentence      report          (“PSR”)        are    as    follows:       (1)      a

conviction for Conspiracy to Commit Robbery with Deadly Weapon,

(2)    a    conviction      for     Second          Degree     Assault,         and    (3)      two

convictions for Manufacture, Distribution, or Dispensation of a

Controlled Dangerous Substance.

              Smith first asserts that the two prior drug felonies

should      not   have     been     counted         separately       because          they    were

consolidated.            However,       it    is     undisputed      that       the     offenses

occurred on different dates and were separated by an intervening

arrest.      See U.S. Sentencing Guidelines Manual § 4A1.2 comment.

(n.3) (2007) (prior sentences are not related if offenses were

separated by intervening arrest).                     Further, the PSR provides no

indication        that    Smith’s        convictions          were       consolidated          for

sentencing,       and     Smith    provides          no    evidence       in    this     regard.

Absent formal consolidation, a single sentencing proceeding and

concurrent        sentences       do     not        make    convictions         related         for



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criminal history purposes.           United States v. Allen, 50 F.3d 294,

296-98 (4th Cir. 1995).

             Next,    Smith      asserts        that,     because     the        two       drug

offenses involved small amounts of drugs and money, they should

not have been considered “serious drug offenses” as defined by

the Armed Career Criminal Act (“ACCA”).                    A serious drug offense

under    the   ACCA     is   “an    offense       under    State     law,        involving

manufacturing,        distributing,        or     possessing        with        intent       to

manufacture     or    distribute,     a    controlled       substance       .    .     .   for

which a maximum term of imprisonment of ten years or more is

prescribed by law.”          18 U.S.C. § 924(e)(2)(A)(ii) (2006).                      It is

undisputed     that    Smith’s     predicate      drug     offenses      satisfy           this

definition; thus, the quantity of drugs or currency involved in

each offense is irrelevant.

             Finally,    Smith     asserts       that   his   misdemeanor            assault

was not a “violent felony” because it resulted in a suspended

sentence.      Smith is incorrect.             The PSR shows that, rather than

a   suspended     sentence,        Smith    was     sentenced       to      a     year      of

probation.      Further, the relevant inquiry under the ACCA is the

maximum penalty to which the defendant was subject.                             Because it

is undisputed that Smith faced a maximum ten-year sentence on

the assault charge, it was properly characterized as a violent

felony.     See United States v. Thomas, 2 F.3d 79, 81 (4th Cir.

1993).

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                                              V.

               Smith     contends      that   the    statutory         mandatory     minimum

was cruel and unusual punishment given that he had never been

given       drug   treatment       and   that       his    previous        sentences     were

significantly          shorter.        However,       Smith       recognizes      that    his

argument      is   not      legally    cognizable.          “The       Supreme   Court    has

never held that a sentence to a specific term of years, even if

it might turn out to be more than the reasonable life expectancy

of    the    defendant,       constitutes      cruel       and    unusual     punishment.”

United       States    v.    Khan,     461    F.3d   477,        495   (4th   Cir.     2006).

Though “[s]evere, mandatory penalties may be cruel, . . . they

are    not    unusual       in   the   constitutional            sense.”      Harmelin     v.

Michigan, 501 U.S. 957, 994 (1991).

               Based on the foregoing, we affirm Smith’s conviction

and sentence.          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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