United States v. Flowers, 4th Cir. (2007)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 06-4618
UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
TRAVIS D. FLOWERS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, District
Judge. (3:05-cr-00408-REP)
Submitted:
April 30, 2007
Decided:
May 24, 2007
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Nachman, NACHMAN & SQUIRES, L.L.P., Richmond, Virginia,

for Appellant. Chuck Rosenberg, United States Attorney, Peter S.
Duffey, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Travis Flowers of possession of a
firearm by a convicted felon, in violation of 18 U.S.C. 922(g)(1)
(2000).
The district court sentenced Flowers to fifty-one months
imprisonment, and Flowers appealed. Counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious issues for appeal but contending the district court
abused its discretion in admitting testimony of three Government
experts and in allowing the Governments trial representative to
testify as a rebuttal witness when the representative had not
previously been excluded from the courtroom with other witnesses.
Flowers did not file a pro se supplemental brief, despite being
notified of his right to do so.
The Government filed a responding
brief in which it countered the district court did not err.

Finding no error, we affirm.
We review the admission of expert testimony for an abuse
of discretion.
See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139
(1997); United States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir.

1995).
Expert testimony is admissible under Fed. R. Evid. 702 if
it concerns:
(1) scientific, technical, or other specialized
knowledge that (2) will aid the jury or other trier of fact to
understand or resolve a fact at issue.
See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 592 (1993); see also Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 141 (1999) (extending Dauberts two-prong
- 2 -
gatekeeping test to all expert testimony). The first prong of this

inquiry examines whether the reasoning and methodology underlying
the experts proffered opinion is reliable.
at 593-95.
See Daubert, 509 U.S.
The second prong of the inquiry requires an analysis of
whether the opinion is relevant to the fact at issue.

591-92, 595.
See id. at
Thus, an experts testimony is admissible under Rule
702 if it rests on a reliable foundation and is relevant, Kumho

Tire Co., 526 U.S. at 141 (internal quotation marks and citation
omitted), and falls outside the common knowledge of the jury.
See
United States v. Dorsey, 45 F.3d 809, 814-15 (4th Cir. 1995).

Counsel contends the district court improperly permitted
the testimony of an expert in the interstate transportation of
firearms and ammunition.
The expert testified, based on his
analysis of the firearms stampings,1 that the weapon had traveled

in interstate commerce.
The district courts admission of this
expert testimony was proper. See, e.g., United States v. Williams,

445 F.3d 724, 740 (4th Cir.), cert. denied, 127 S. Ct. 314 (2006).
Counsel
permitted
the
fingerprints
also
contends
testimony
and
gunshot
of
the
experts
residue
district
in
the
(GSR).
court
improperly
areas
of
The
latent
experts
used
Counsel contends the experts reference to the stampings was

inadmissible hearsay. We conclude the expert did not testify as to
the specific markings on the firearm but instead explained that the
markings formed a basis for his evaluation, which is customary in
the experts field of analysis. Thus, these facts and data need
not be admissible in evidence. Fed. R. Evid. 703.
- 3 -
percentages in their testimony to explain the likelihood of finding

evidence on a firearm.
Counsel objected to the use of the
percentages; in the Anders brief, counsel contends this form of

testimony was confusing, misleading, and prejudicial.
provides no support for this contention, however.
Counsel
The decision to
admit the testimony was neither arbitrary nor irrational, see

United States v. Moore, 27 F.3d 969, 975 (4th Cir. 1994), and
therefore not an abuse of discretion.
Flowers did not object to the alleged failure to exclude
the Governments representative and rebuttal witness.
Therefore,
this contention is reviewed for plain error.
See Fed. R. Crim. P.
52(b).
Flowers
Under
the
plain
error
standard,
must
show:
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights.
725, 732-34 (1993).
United States v. Olano, 507 U.S.
Even when these conditions are satisfied, we
may exercise our discretion to notice the error only if the error
seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.
omitted).
rebuttal
Id. at 736 (internal quotation marks
The Governments in-court representative may offer

testimony
despite
having
heard
the
other
witnesses.
United States v. Frazier, 417 F.2d 1138, 1139 (4th Cir. 1969).
Thus, the district court did not err in failing to exclude the
witness.
- 4 -
In accordance with Anders, we have reviewed the record

and have found no meritorious issues for appeal.
affirm Flowerss conviction and sentence.2
We therefore
This court requires
that counsel inform Flowers, in writing, of the right to petition

the Supreme Court of the United States for further review.
If
Flowers requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation.
Counsels
motion must state that a copy thereof was served on Flowers.

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
Pursuant to United States v. Booker, 543 U.S. 220 (2005), the

district court treated the guidelines as advisory and consulted the
18 U.S.C.A. 3553(a) (West 2000 & Supp. 2006) sentencing factors
prior to imposing sentence. The sentence was within the statutory
prescribed range, see 18 U.S.C. 924(a)(2) (2000) (providing
maximum punishment for 922(g) violation is ten years
imprisonment), and was reasonable. See United States v. Green, 436
F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006)
(holding sentence within properly calculated advisory guidelines
range is presumptively reasonable).
- 5 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

April 30, 2007

May 24, 2007

Before WILKINSON, WILLIAMS, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James M. Nachman, NACHMAN & SQUIRES, L.L.P., Richmond, Virginia,

Unpublished opinions are not binding precedent in this circuit.

The district court sentenced Flowers to fifty-one months

imprisonment, and Flowers appealed. Counsel filed a brief pursuant

The Government filed a responding

brief in which it countered the district court did not err.

See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 139

(1997); United States v. Powers, 59 F.3d 1460, 1470-71 (4th Cir.

Expert testimony is admissible under Fed. R. Evid. 702 if

(1) scientific, technical, or other specialized

See Daubert v. Merrell Dow

gatekeeping test to all expert testimony). The first prong of this

See Daubert, 509 U.S.

The second prong of the inquiry requires an analysis of

whether the opinion is relevant to the fact at issue.

Thus, an experts testimony is admissible under Rule

702 if it rests on a reliable foundation and is relevant, Kumho

United States v. Dorsey, 45 F.3d 809, 814-15 (4th Cir. 1995).

The expert testified, based on his

analysis of the firearms stampings,1 that the weapon had traveled

The district courts admission of this

expert testimony was proper. See, e.g., United States v. Williams,

Counsel contends the experts reference to the stampings was

percentages in their testimony to explain the likelihood of finding

Counsel objected to the use of the

percentages; in the Anders brief, counsel contends this form of

admit the testimony was neither arbitrary nor irrational, see

this contention is reviewed for plain error.

See Fed. R. Crim. P.

United States v. Olano, 507 U.S.

Even when these conditions are satisfied, we

Id. at 736 (internal quotation marks

The Governments in-court representative may offer

In accordance with Anders, we have reviewed the record

This court requires

that counsel inform Flowers, in writing, of the right to petition

Flowers requests that a petition be filed, but counsel believes

motion must state that a copy thereof was served on Flowers.

Pursuant to United States v. Booker, 543 U.S. 220 (2005), the

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