254 F.3d 1098 (D.C. Cir. 2001)
United States of America, Appelleev.Kelo L. King, Appellant
No. 00-3023
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2001Decided July 3, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 99cr00311-01)
Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant.  With her on the briefs was A.  J. Kramer, Federal Public Defender.  Sandra G. Roland and  Valencia R. Rainey, Assistant Federal Public Defenders,  entered appearances.
Roy W. McLeese, III, Assistant U.S. Attorney, argued the  cause for appellee.  With him on the briefs were Wilma A. Lewis, U.S. Attorney at the time the briefs were filed, John  R. Fisher, Marian L. Borum and Jacqueline BussiereBurke, Assistant U.S. Attorneys.
Before:  Ginsburg, Sentelle and Henderson, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Concurring opinion filed by Circuit Judge Henderson.
Ginsburg, Circuit Judge:


1
Kelo King challenges his conviction and sentence for possession of a firearm by a convicted  felon.  See 18 U.S.C. § 922(g)(1).  King argues that (1) his  conviction was based upon evidence improperly admitted at  trial and (2) his sentence was unlawful in light of Apprendi v.  New Jersey, 530 U.S. 466 (2000).  We affirm King's conviction  because, although the district court erred in admitting some  of the challenged evidence, the errors were harmless.  We  also affirm King's sentence because it is fully consistent with  Apprendi.

I. Background

2
While driving in the District of Columbia, King had the  misfortune of being spotted by two officers of the United  States Park Police who both recognized him and noticed that  the BMW he was driving bore Virginia license plates but did  not have the inspection sticker required by Virginia law.  See  Va. Code Ann. § 46.2-1163;  Russell v. United States, 687 A.2d  213, 215 (D.C. 1997) (unlawful to operate Virginia vehicle in  District of Columbia without valid Virginia inspection sticker,  per D.C. Mun. Regs. tit. 18, § 602.7).  After stopping King  the officers determined that his Virginia tags had been issued  for a Ford registered to one Johnny Boston, which was the  name on the license and registration that King produced at  the officers' request.  Subsequently, while one of the officers  was speaking with King, the other, looking through the  passenger window, noticed a gun wedged into the back of the  sunroof.


3
King was arrested and charged with being a felon in  possession of a firearm.  See 18 U.S.C. § 922(g)(1).  He was also cited for four motor vehicle violations:  driving an unregistered vehicle, proffering a false driver's license, driving  without a valid license, and lacking an inspection sticker.  In  securing King's vehicle following his arrest, police found in  the trunk a sheathed knife with a nine-inch notched blade.


4
The district court denied King's motions in limine to exclude from evidence the knife, the license and registration  King had produced during the traffic stop, and the Virginia  tags.  At trial, King called as his only witness Lakiesha  Boulware, who testified that she and an acquaintance called  "D" had borrowed the BMW from King earlier on the day he  was arrested, and that "D" had placed his gun in the sunroof  of the car and forgotten it there.  The jury convicted King  and the district court sentenced him to ten years in prison. In calculating his sentence, the court enhanced the base  offense level under the Sentencing Guidelines because King  had two prior convictions and because the firearm was stolen.

II. Analysis

5
King appeals both the denial of his motions in limine and  the enhancement of his sentence.

A. Admission of evidence

6
Rule 404(b) of the Federal Rules of Evidence prohibits the  admission of evidence regarding "crimes, wrongs, or acts,"  other than those charged, for the sole purpose of impugning  the character of the accused.  See United States v. Bowie, 232  F.3d 923, 927, 930 (D.C. Cir. 2000).  Such evidence may be  admitted under Rule 404(b), however, to "pro[ve] ... motive,  opportunity, intent, preparation, plan, knowledge, identity, or  absence of mistake or accident."  See also Bowie, 232 F.3d at  930.  Evidence that is admissible under Rule 404 may nonetheless be excluded under Rule 403 "if its probative value is  substantially outweighed by the danger of unfair prejudice,  confusion of the issues, or misleading the jury."  We review  the district court's application of these Rules for abuse of  discretion.  See, e.g., United States v. Mathis, 216 F.3d 18,  25-26 (D.C. Cir. 2000).


7
King argues that having a legal, albeit vicious-looking, knife  in one's trunk is relevant to one's knowledge of an illegal gun  in the passenger compartment only if a person who owns such  a knife might be thought the sort of person who would also  have a gun;  the knife is therefore inadmissible under Rule  404(b), or in the alternative, unduly prejudicial and therefore  inadmissible under Rule 403.  The district court disagreed  and admitted the knife into evidence because it thought the  knife "tends to prove knowing unlawful possession [of the  gun]."  Upon appeal the Government maintains the knife is  relevant to King's "knowledge and intent" regarding the  firearm.


8
Although the Government did not at trial justify admission  of the knife on the grounds of knowledge and intent, we  reject King's claim that the Government is barred from  asserting those justifications here.  The district court admitted the evidence upon those very grounds, and the Government has the right to defend its ruling.  Cf. Blum v. Bacon,  457 U.S. 132, 137 n.5 (1982) ("It is well accepted ... [that] an  appellee may rely upon any matter appearing in the record in  support of the judgment below").


9
On the merits, however, we find the district court's admission of the knife to be an abuse of its discretion.  To be sure,  in cases where a defendant is charged with unlawful possession of something, evidence that he possessed the same or  similar things at other times is often quite relevant to his  knowledge and intent with regard to the crime charged.  See  Huddleston v. United States, 485 U.S. 681, 689 (1988) ("In the  Rule 404(b) context, similar act evidence is relevant only if  the jury can reasonably conclude that the act occurred and  that the defendant was the actor").  For example, the courts  of appeals have upheld the district court's exercise of discretion to admit evidence that a defendant charged with unlawful  possession of firearms had previously possessed the same  weapons, United States v. Mills, 29 F.3d 545, 549 (10th Cir.  1994);  United States v. Davis, 792 F.2d 1299, 1305 (5th Cir.  1986), or that the defendant simultaneously possessed other  firearms for which he was not charged, United States v.  Brown, 961 F.2d 1039, 1042 (2d Cir. 1992).  The courts of appeals have also held it within the discretion of the district  court to admit evidence regarding similar acts of possession  that suggest "repetitive involvement in the same kind of  criminal activity" even if they do not involve the same objects. United States v. Lego, 855 F.2d 542, 546 (8th Cir. 1988)  (evidence of subsequent possession of firearms relevant to  earlier possession of same);  see also Bowie, 232 F.3d at 930  (evidence of earlier possession of counterfeit notes relevant to  later possession of similar notes);  United States v. Gomez,  927 F.2d 1530, 1534 (11th Cir. 1991) (evidence of earlier  conviction for possession of firearms relevant to new charge  of same because it tends to rebut defense that possession was  "mere accident or coincidence");  cf. United States v. Brooks,  670 F.2d 625, 629 (5th Cir. 1982) (marijuana found with  cocaine relevant to defendant's knowledge and intent in possessing the cocaine).


10
The Government, citing several of these precedents, argues  that whether King possessed a knife, which may after all be  used as a weapon, is therefore probative of whether he  knowingly possessed the gun in the same vehicle.  We disagree.  Unlike a gun, possession of which is unlawful for  innocents and felons alike in the District of Columbia, even a  felon may lawfully possess a knife;  a knife with a notched  blade has licit and nonviolent uses, as in hunting and fishing; and stored in the locked trunk of King's car, the knife was out  of his reach while he was in passenger compartment where  the gun was found.  We do not think learning that there was  a knife locked in the defendant's trunk could have affected  the jury's view of whether he knew about the gun in the  sunroof unless the jurors reasoned that someone who has one  object that could be used as a weapon is more likely to have  another that is an undoubted weapon, the gun -which is  precisely the sort of reasoning that Rule 404(b) is meant to  obviate.*  Compare, e.g., People of Territory of Guam v. Shymanovitz, 157 F.3d 1154, 1158-59 (9th Cir. 1998) (possession of lawful erotic literature inadmissible under Rule 404(b)  because irrelevant to whether defendant engaged in unlawful  sexual conduct with minors).


11
Nonetheless, we do not disturb King's conviction because  admission of the knife into evidence was a harmless error. See, e.g., United States v. Johnson, 216 F.3d 1162, 1166 n.4  (D.C. Cir. 2000) ("[N]onconstitutional error is harmless if it  did not have 'substantial and injurious effect or influence in  determining the jury's verdict' ") (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).  The knife was at most  tangential to the Government's case -that King had stashed  a gun within easy reach in the passenger compartment of his  car -and the prosecution treated it accordingly.  Although  the prosecutor asked both arresting officers to describe and  identify the knife for the jury, and to recount its placement  into the chain of custody, she made at most one substantive  reference to the knife, an ambiguous comment in her closing  statement that King claims, and we will assume, related to  the knife.  In these circumstances we are fully confident that  the jury's assessment of the basic facts was not "substantial[ly] and injurious[ly]" affected by its knowledge of the  knife in the trunk.  Nor could the knife have had a substantial effect upon the jury's refusal to credit the testimony of  King's friend, Ms. Boulware.  Knife or no, a reasonable jury  could not seriously entertain the tale of the elusive "D,"  whose first and last names Boulware denied knowing.  According to Boulware, this D had driven his own fully functional automobile to meet King, borrowed King's car to run an  errand, and stashed in its sunroof a stolen and loaded firearm  which, his errand accomplished, he then absentmindedly left  behind.


12
King also argues that the evidence of his motor vehicle  violations admitted by the district court is irrelevant to his  knowledge or intent under Rule 404 and prejudicial under  Rule 403.  This claim is somewhat broader than the one King  made at trial, where he limited his objection to admission of  "the Virginia driver's license in the name of Johnny Boston,  Virginia vehicle registration for a BMW, [and] Virginia tags."


13
As to the narrower objection, the Government correctly  argues that the license, registration, and tags are admissible  under Rule 404(b) because they "ma[ke] a material contribution to the strength of the inference that appellant had a  possessory interest in the car and knowingly possessed its  contents":  the license, which bears King's photograph, connects him to the name "Johnny Boston," and the registration  and tags in turn connect Johnny Boston to the BMW.  King  points out that the registration in the name of Boston rather  than King might "contradict, rather than confirm" the Government's theory that King owned the car;  but, again as the  Government notes, evidence may be both relevant and susceptible to conflicting interpretations.  We also reject King's  contention that the license, registration, and tags are irrelevant because the Government "relied exclusively on Mr.  King's statement that the car was his";  as we have recently  had occasion to point out, "evidence of other ... [bad] acts is  admissible to corroborate evidence that itself has a legitimate  non-propensity purpose."  Bowie, 232 F.3d at 933.  Finally,  we reject King's claim that the probative value of the three  items was "substantially outweighed by the danger of unfair  prejudice," Fed. R. Evid. 403.  The likelihood that a jury  would conclude from King's noncompliance with the motor  vehicle code that he has a general propensity to commit bad  acts, much less a propensity to carry a gun, is, to say the  least, remote.


14
King's broader objection before this court embraces the  admission into evidence of his traffic citations for lacking a  valid driver's license and a Virginia vehicle inspection sticker. Because King did not object to the admission of this evidence  at trial, we review its admission only for plain error;  and  because neither citation could possibly have led the jury  materially to change its view of the firearms charge against  him, we conclude that their admission did not affect King's  "substantial rights."  See, e.g., United States v. Breedlove, 204  F.3d 267, 271 (D.C. Cir. 2000) (no plain error if defendant's  "substantial rights" unaffected).

B. Calculation of sentence

15
In calculating King's sentence, the district court enhanced  the applicable Guidelines range based upon facts it found by a  preponderance of the evidence to be true but that had not  been submitted to the jury.  It then imposed a sentence of  120 months in prison, the maximum allowable for a violation  of 18 U.S.C. § 922(g). See id. § 924(a)(2).  We reject King's  argument that the district court's reliance upon facts not  found beyond a reasonable doubt by the jury violates Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).  As we recently  held, Apprendi does not constrain the district court's adherence to the Guidelines "when the resulting sentence," as in  this case, "remains within the statutory maximum."  In re  Sealed Case, 246 F.3d 696, 698 (2001);  accord United States  v. Fields, 251 F.3d 1041, 1043-44 (D.C.Cir.2001).

III. Conclusion

16
For the foregoing reasons, King's conviction and sentence  are


17
Affirmed.



Notes:


*
 Our concurring colleague suggests that whether the knife is a  weapon is a question of fact properly left to the jury.  See Concurring Op. at 2 n.*.  So to hold would eviscerate Rule 404(b) by  making evidence of other crimes, wrongs, and acts generally admissible as long as the jury was instructed to disregard the evidence if  it determines the evidence is relevant only to the defendant's  character.  Rule 404(b) takes a different approach:  it requires the  judge to screen evidence in order to avoid exposing the jury to  matters that bear only upon the defendant's character.  Contrary to  our colleague's suggestion, the protection of Rule 404(b) supplements the promise of Rule 403 that evidence the "probative value  [of which] is substantially outweighed by the danger of unfair  prejudice [or] confusion of the issues" will be excluded.



18
Karen LeCraft Henderson, Circuit Judge, concurring:


19
While I concur in the affirmance of King's conviction and  sentence, I do not agree the district court committed any  error, harmless or otherwise, in admitting the knife.


20
The majority recognizes that "in cases where a defendant is  charged with unlawful possession of something, evidence that  he possessed the same or similar things at other times is  often quite relevant to his knowledge and intent with regard  to the crime charged."  Maj. Op. at 4.  Moreover, the majority acknowledges that "courts of appeals have ... held it  within the discretion of the district court to admit evidence regarding similar acts of possession that suggest 'repetitive  involvement in the same kind of criminal activity' even if they  do not involve the same objects."  Maj. Op. at 4-5 (quoting  United States v. Lego, 855 F.2d 542, 546 (8th Cir. 1988), and  citing cases).  Nevertheless, the majority concludes that the  district court abused its discretion in admitting the knife  because the knife was inadmissible under Rule 404(b).  The  majority emphasizes two points in finding error:  first, the  knife may or may not be a weapon and second, if a weapon, it  is a legal one.  Maj. Op. at 5.  I believe the first point is  wrong and the second irrelevant.


21
The knife found in the trunk of King's car has a nine-inch  blade, see Trial Tr. at 157, and the blade includes four large  barbs.  See Appendix to Concurring Opinion.  The dictionary  describes a knife barb as "a sharp projection extending  backwards ... preventing easy extraction from a wound." Webster's Third New International Dictionary of the English  Language Unabridged 174 (1981).  One of the arresting  officers described the knife as "kind of like something out of  prehistoric."  Trial Tr. at 129.  It is quintessentially a weapon  and, as the majority notes, a "vicious-looking" one at that. Maj. Op. at 1100.


22
The fact that a defendant is found in possession of two  weapons makes it less likely that his possession of either is  unknowing.  Introduction of the second, albeit legally possessed, weapon into evidence, therefore, allows the jury to  draw an inference that is not prohibited by Rule 404(b).  We  have consistently held that Rule 404(b) allows the admission  of "other acts" to show, inter alia, knowledge or absence of accident.  See, e.g., United States v. Bowie, 232 F.3d 923, 930  (D.C. Cir. 2000);  United States v. Crowder, 141 F.3d 1202,  1206 (D.C. Cir. 1998) (en banc), cert. denied, 525 U.S. 1149  (1999).


23
But the majority stresses that "a knife with a notched  blade has many licit and indeed nonviolent uses."  Maj. Op. at  5.  This is true but, here, irrelevant.  A gun too may have  licit and nonviolent uses-e.g., skeet or other target shooting. But this case does not turn on whether "a" knife has a use  other than as a weapon but whether the knife found in King's  possession has such a use.  In my view, the majority incorrectly characterizes the reason for the knife's inadmissibility,  stating that the jury would have had to improperly reason  that "someone who has one object that could be used as a  weapon is more likely to have another that is an undoubted  weapon."  Maj. Op. at 6 (emphasis added).  Instead, the jury  was allowed, correctly, to consider whether someone in whose  possession one "undoubted" weapon is found is more likely to  know of a second "undoubted" weapon found in his possession.*


24
Finally, it is well established that the district court's decision to admit evidence, reviewed under the abuse of discretion  standard, see Stevenson v. District of Columbia Metro. Police  Dep't, 248 F.3d 1187, 1190 (D.C. Cir. 2001) (citing United  States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994));  United  States v. Williams, 212 F.3d 1305, 1308-09 (D.C. Cir.), cert.  denied, 121 S. Ct. 666 (2000);  United States v. Smart, 98 F.3d  1379, 1386 (D.C. Cir. 1996) (citing United States v. Salamanca, 990 F.2d 629, 637 (D.C. Cir.), cert. denied, 510 U.S. 928  (1993)), cert. denied, 520 U.S. 1128 (1996), is "entitled to  'much deference' on review."  United States v. Ramsey, 165  F.3d 980, 984 n.3 (D.C. Cir.) (quoting United States v. Lewis,  693 F.2d 189, 193 (D.C. Cir. 1982)), cert. denied, 528 U.S. 894  (1999).  In view of the highly deferential standard, I cannot  agree the district court abused its discretion in admitting the  knife.

APPENDIX TO CONCURRING OPINION

25
APPENDIX for APPELLANT at A-13[Tabular or Graphical Material Omitted]



Notes:


*
 In any event, assuming arguendo the knife could reasonably be  described as something other than a weapon, the issue of the knife  qua weapon would be for the jury to decide.  In other words,  whether or not the knife is a weapon the possession of which tends  to make more probable the knowing possession of the second  weapon is a question of fact.  On the other hand, a different object  found in King's car trunk which could be used as a weapon (say, a  tire iron) might be excludible under Rule 403 (jury confusion). Allowing the jury to decide whether or not the knife is a weapon  would not, as the majority supposes, "eviscerate Rule 404(b) ... ,"  Maj. Op. at 1101 n.*, because the jury would disregard the knife not "if  it determines [it] is relevant only as to the defendant's character,"  id., but only if it determines it is not a weapon.


