                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4121



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


LEOBARDO SOLIS MARTINEZ,

                                            Defendant - Appellant.



                            No. 05-4193



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


PHILLIP TYRONE MORRISON,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-03-4)


Submitted:   May 19, 2006                  Decided:   July 19, 2006
Before WILKINS, Chief Judge, WILLIAMS, Circuit Judge, and HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


William E. Loose, Asheville, North Carolina, for Appellant Phillip
Tyrone Morrison; William C. Bunting, Jr., SHUMAKE, LOOP & KENDRICK,
Charlotte, North Carolina, for Appellant Leobardo Solis Martinez.
Gretchen C. F. Shappert, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Defendants-appellants, Phillip Morrison and Leobardo Martinez,

were convicted in federal district court of conspiracy to possess

with the intent to distribute at least five kilograms of cocaine

and at least fifty grams of cocaine base (crack), 21 U.S.C. §§ 841

and 846.    Morrison was also convicted of possession with intent to

distribute at least 500 grams of cocaine, id. § 841, and using and

carrying a firearm during and in relation to a drug trafficking

offense, 18 U.S.C. § 924(c).             Martinez was also convicted of

possession with intent to distribute at least five kilograms of

cocaine, 21 U.S.C. § 841.             Morrison received concurrent life

sentences    on   the   drug    counts   plus       a    consecutive      sixty-month

sentence for the firearm count, while Martinez was sentenced to

concurrent     terms    of     151   months’        imprisonment       on    his   two

convictions.      Each appellant noted a timely appeal and, for the

reasons that follow, we affirm the district court’s judgments.

     Martinez challenges the district court’s admission of two

photographs depicting him holding firearms.                        In one of these

photographs, Martinez is nude. However, as a condition to the nude

photograph’s admission, the court ordered the government to cover

the lower half of Martinez’s nude body, which the government did.

According to Martinez, because his counsel conceded in his opening

statement    that   Martinez     possessed      a       firearm,   this     concession

rendered the photographs inadmissible.                     We review evidentiary


                                      - 3 -
rulings by the court for an abuse of discretion.                      Old Chief v.

United States, 519 U.S. 172, 174 n.1 (1997).

     Rule 402 of the Federal Rules of Evidence provides that “[a]ll

relevant evidence is admissible . . . .                  Evidence which is not

relevant is not admissible.”         Fed. R. Evid. 402.          Rule 401 defines

relevant    evidence   as    that    “having      any   tendency      to    make   the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”       Fed. R. Evid. 401.           The Supreme Court and

this court have both held that a stipulation does not render

evidence tending to prove the underlying stipulation irrelevant

under Rules 401 or 402.       See Old Chief, 519 U.S. at 178-79; United

States     v.   Dunford,    148   F.3d    385,     394-95      (4th   Cir.     1998).

Therefore, if the photographic evidence is inadmissible, it is not

inadmissible     because    the     concession      rendered     it    irrelevant.

Rather, “its exclusion must rest . . . on its character as unfairly

prejudicial, cumulative or the like” under Rule 403.                       Old Chief,

519 U.S. at 179.

     The    question   of   whether      Rule    403    bars   the    admission     of

evidence offered to prove stipulated facts was examined in Old

Chief.     The defendant in Old Chief was charged with possession of

a firearm by a convicted felon, 18 U.S.C. § 922(g).                   The defendant

stipulated, for purposes of trial, that he was a convicted felon

within the meaning of § 922(g).                 Despite the stipulation, the


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government sought to introduce court records indicating that the

defendant’s prior offense involved assault causing serious bodily

harm.     The defendant argued that, in light of the stipulation to

the prior conviction, the arrest records were overly prejudicial

under Rule 403.     The Supreme Court held that, as a general matter,

“a criminal defendant may not stipulate or admit his way out of the

full evidentiary force of the case as the Government chooses to

present it.”     Old Chief, 519 U.S. at 186-87.             The Court reasoned

that “the prosecution[,] with its burden of persuasion[,] needs

evidentiary depth to tell a continuous story.”              Id. at 190.   In Old

Chief, however, the Court invoked an exception to that general

rule.     It concluded that the general rule of admissibility had

“virtually no application when the point at issue is a defendant’s

legal     status,   dependent     on     some    judgment    rendered     wholly

independently of the concrete events of later criminal behavior

charged against him.”     Id.

      Our circuit has interpreted Old Chief to apply only in cases

where the disputed evidence “relate[s] . . . to facts far removed

in time from the underlying [crimes] with which [the defendant] was

charged.”    Dunford, 148 F.3d at 396.          Martinez’s case does not fall

within this exception. Unquestionably, the challenged photographic

evidence was “a relevant part of the very transactions leading to

[Martinez’s] arrest and indictment in this case.”               Id.   Moreover,

the     photographic   evidence    buttressed       the   government’s     other


                                       - 5 -
evidence suggesting that Martinez possessed firearms during drug

transactions.

       Turning to the question of whether the probative value of

these photographs was outweighed by the danger of unfair prejudice,

Martinez posits that the admission of the nude photograph, which

was partially covered at the district court’s direction, was

unfairly prejudicial. We reject this argument. The photograph was

prejudicial because it established that Martinez was so comfortable

with possessing firearms that he was willing to be photographed

with the firearms.      Cf. United States v. Mohr, 318 F.3d 613, 619-20

(4th Cir. 2003) (“Rule 403 only requires suppression of evidence

that    results   in    unfair   prejudice--prejudice      that    damages   an

opponent for reasons other than its probative value.”).              Moreover,

in light of the steps taken by the district court to ensure that

Martinez was not depicted nude, there is nothing unfair about the

prejudicial impact of the photograph.

       Under these circumstances, it was not an abuse of discretion

for    the   district   court    to   admit   the   challenged    photographic

evidence despite counsel for Martinez’s concession.

       Martinez next contends that the district court erred when it

refused to suppress statements he made to law enforcement officers.

We review de novo the court’s legal conclusions on a motion to

suppress, but review the court’s factual findings underlying those




                                      - 6 -
conclusions for clear error.      United States v. Guay, 108 F.3d 545,

549 (4th Cir. 1997).

      Statements     obtained   from   a    defendant       during    custodial

interrogation are presumptively compelled in violation of the Fifth

Amendment’s    Self-Incrimination          Clause     and     are     therefore

inadmissible   in    the   government’s     case-in-chief.           Miranda   v.

Arizona, 384 U.S. 436, 457-58 (1966).         The government can overcome

this presumption of coercion by showing that law enforcement

officers (1) adequately informed the defendant of his Miranda

rights and (2) obtained a waiver of those rights.              Id. at 444.

      A defendant may waive his Miranda rights only if he does so

“knowingly and voluntarily.”       North Carolina v. Butler, 441 U.S.

369, 373 (1979).      Waiver need not be express, but may be implied

from the defendant’s actions and words.         Id.    To determine whether

a defendant has waived his Miranda rights, we look to the “totality

of the circumstances.”      Moran v. Burbine, 475 U.S. 412, 421 (1986)

(internal quotation marks omitted).         In assessing knowingness, we

ask whether the defendant had “full awareness of both the nature of

the right being abandoned and the consequences of the decision to

abandon it.”   Id.    In assessing voluntariness, we ask whether the

defendant’s statement was “the product of a free and deliberate

choice [or the result of] intimidation, coercion, or deception.”

Id.




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     Although Martinez testified that he did not recall being

advised that he had the right to have an attorney present during

his interrogation, Officer Manuel Ascencio of the Statesville,

North Carolina Police Department testified that he twice advised

Martinez of his right to counsel, the first time reading in Spanish

from a card he kept with him for the purpose of reading Miranda

rights to suspects being arrested and the second time reading from

a waiver of rights form employed by the Hickory, North Carolina

Police Department to advise and request the waiver of Miranda

rights.   According to Officer Ascencio, Martinez stated that he

understood each of his Miranda rights and that he wished to talk

with the officers, after which he signed the waiver of rights form

prior to questioning.   Detective Brian Adams of the Hickory Police

Department testified that, although he did not understand Spanish,

it appeared to him that Officer Ascencio advised Martinez of his

rights and that Martinez understood his rights when he decided to

sign the waiver of rights form.   In light of this evidence, we hold

that the district court did not err when it concluded that Martinez

was, in fact, properly advised of his Miranda rights and that

Martinez knowingly and voluntarily waived those rights.

     Morrison challenges two pieces of evidence admitted by the

district court pursuant to Rule 404(b). Rule 404(b) of the Federal

Rules of Evidence provides, in pertinent part, that “[e]vidence of

other crimes, wrongs, or acts is not admissible to prove the


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character of a person in order to show action in conformity

therewith” but may be admissible “for other purposes, such as proof

of   motive,    opportunity,    intent,   preparation,    plan,      knowledge,

identity, or absence of mistake or accident.”                 Fed. R. Evid.

404(b).    Rule 404(b) is an inclusive rule, allowing evidence of

other crimes or acts except that which tends to prove only criminal

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

Cir. 1997). Evidence of prior acts is admissible under Rule 404(b)

and Rule 403 if the evidence is: (1) relevant to an issue other

than the general character of the defendant; (2) necessary; (3)

reliable; and (4) if the probative value of the evidence is not

substantially outweighed by its prejudicial effect.                 Id. at 997.

Limiting jury instructions explaining the purpose for admitting

evidence   of    prior   acts   and   advance   notice   of   the    intent   to

introduce prior act evidence provide additional protection to

defendants.     Id.

      In this case, Morrison objected to evidence of a 1993 drug

transaction he was involved in, as well as a 1999 automobile stop,

during which Morrison provided an alias and a firearm and more than

$40,000 in cash were seized.          With respect to the 1993 incident,

while it occurred prior to the time of the conspiracy as alleged in

the indictment, this evidence was admitted pursuant to a limiting

instruction, and by involving the same type of conduct alleged in

the indictment, was relevant to issues other than character, for


                                      - 9 -
example,    Morrison’s    state     of       mind     and    absence      of    mistake.

Moreover, the evidence was necessary to the government’s efforts to

prove   a   hotly     contested     issue        at   trial:       whether      Martinez

participated in the charged conspiracy.                     Finally, the probative

value of the 1993 incident was high because it related to a hotly

contested issue at trial, and any unfair prejudice certainly was

negated by the district court’s limiting instruction.

      The   1999    incident      was     clearly      relevant      to      Morrison’s

participation in the charged conspiracy.                The evidence concerning

the 1999 transaction related to events within the charged time

frame of the conspiracy and its admission into evidence, therefore,

did not implicate Rule 404(b).                 Moreover, the failure of the

officers to find drugs during the 1999 traffic stop is of no

consequence because one would expect only a large amount of cash

and firearms to be present in a car being used to acquire (as

opposed to deliver) a large quantity of drugs.

      Morrison also raises two issues concerning his sentence.                          The

Probation    Office     completed        a    presentence       report         (PSR)     in

preparation for Morrison’s sentencing.                 Based on a determination

that Morrison was responsible for more than 1.5 kilograms of crack,

the PSR calculated a total offense level of 38.                        This offense

level, when combined with Morrison’s criminal history category of

VI, yielded a sentencing range under the Guidelines of 360 months

to   life   imprisonment.      Because        Morrison       had    previously         been


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convicted of two drug felony offenses, the PSR noted that 21 U.S.C.

§ 841(b)(1)(A) dictated a term of imprisonment of life, while 18

U.S.C. § 924(c)(1)(A)(i) required a mandatory consecutive sentence

of not less than five years be added to Morrison’s life term of

imprisonment.

        Morrison claims that the enhancement of his sentence with a

prior conviction that was committed during the course of the

conspiracy violated both 21 U.S.C. § 841 and his rights guaranteed

by the Double Jeopardy Clause. Morrison’s double jeopardy argument

has been rejected by this court.             See United States v. Ambers, 85

F.3d 173, 178 (4th Cir. 1996) (“Enhancing [a defendant’s] sentence

for conspiracy because of a prior conviction, where one of the

overt    acts       supporting    the   conspiracy     resulted     in   the   prior

conviction      .    .   .   presents   no   double    jeopardy    problem.      The

enhancement         increases    the    sentence    for   the     current   offense

(conspiracy), not the sentence for the distinct, prior offense.”).

     Morrison fairs no better with his § 841 argument.                      Section

841(b)(1)(A) provides that, if a person commits a violation of that

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.”                 21 U.S.C. § 841(b)(1)(A).

According       to    Morrison,    because    the     instant     drug   conspiracy

allegedly began in January 1995 and continued until July 2003, his

drug conviction in August 1995 is not really a “prior” felony for


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purposes of § 841 because it postdated the onset of the drug

conspiracy.     Morrison’s argument is unpersuasive.         “Conspiracy is

a continuing offense, constantly renewing itself.”           United States

v. Carter, 300 F.3d 415, 427 (4th Cir. 2002).                  Accordingly,

Morrison’s     1995   conviction   “both    preceded   and   postdated   the

‘beginning’ of the conspiracy, because conspiracies, by their very

nature, do not have a ‘beginning’ in the conventional sense of the

word.”   Id.

     For the reasons stated herein, the judgments of the district

court are affirmed.*

                                                                   AFFIRMED




     *
      During the pendency of his appeal, Morrison filed a motion
for appointment of substitute counsel, a motion to hold the appeal
in abeyance pending a ruling on the motion for appointment of
substitute counsel, and a motion to file a pro se supplemental
brief. We deny the motion for appointment of substitute counsel
and dismiss as moot the motion to hold the appeal in abeyance. We
grant the motion to file a pro se supplemental brief.      We have
reviewed the arguments raised in the pro se supplemental brief and
conclude that they have no merit.

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