                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-4404
DON VINCENT SIMMONS,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
          for the District of South Carolina, at Charleston.
                Patrick Michael Duffy, District Judge.
                             (CR-98-601)

                        Argued: June 6, 2002

                      Decided: August 16, 2002

         Before MOTZ and TRAXLER, Circuit Judges, and
      Claude M. HILTON, Chief United States District Judge
     for the Eastern District of Virginia, sitting by designation.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: John Robert Haley, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Sean Kittrell, Assistant
United States Attorney, Charleston, South Carolina, for Appellee. ON
BRIEF: J. Strom Thurmond, Jr., United States Attorney, Charleston,
South Carolina, for Appellee.
2                     UNITED STATES v. SIMMONS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Don Vincent Simmons was convicted by a jury of possession of a
firearm by a convicted felon, possession with intent to distribute an
unspecified amount of cocaine base, use of a firearm in relation to a
drug trafficking crime, and aiding and abetting the making of a false
statement in connection with the purchase of a firearm. Simmons’ pri-
mary contention on appeal is that the district court erroneously denied
his motion to suppress the firearm and other evidence seized pursuant
to a search warrant that Simmons argues was invalid. We affirm.

                                  I.

   The police department in Charleston, South Carolina, was informed
that an apartment building at 67 Nunan Street was being used to sell
drugs. The police used an undercover confidential informant to make
a drug purchase inside the apartment building on April 2, 1997. Dur-
ing the undercover buy, the confidential informant saw firearms
inside the building and heard people there indicate they were prepared
to use violence against officers.

  After the buy, police continued surveillance on the building and
observed activity that was consistent with drug trafficking. On April
22, a second undercover buy was made.

   On April 24, police obtained a search warrant for 67B Nunan
Street. It was based on the following affidavit:

    [D]uring the past seventy-two hours, a Confidential Infor-
    mant (CI) for Charleston Police Department has been inside
    the residence at 67B Nunan Street which is in the city and
    County of Charleston S.C. and purchased a quantity of a
    white rock like substance weighing approximately .2 grams
                      UNITED STATES v. SIMMONS                      3
    and having a street value of $20.00. The white rock like sub-
    stance was field tested positive as crack cocaine by Investi-
    gator Sanders. The purchase of the crack cocaine was made
    inside the residence from an unidentified black male subject.
    The Confidential Informant was searched prior to and after
    the transaction for illegal contraband with negative results
    by Officer Landess. The Confidential Informant was
    observed entering and leaving the residence by Investigators
    Sanders and Durham who had a clear and unobstructed
    view. Based on the above facts, there is probable cause to
    believe that there is crack cocaine stored inside the resi-
    dence at 67 Nunan Street.

   The search warrant, dated April 24, 1997, was issued by a state
magistrate judge and was valid for ten days from the date of issuance.
Before executing the search warrant, officers continued to observe
activity at the apartment building that appeared to be consistent with
drug trafficking. The officers also decided that there was a high risk
of danger because of the possibility that firearms would be present,
and waited to serve the warrant until the SWAT team could assist
them. The search warrant was executed on May 2, eight days after it
was issued. Just before executing the search warrant, the officers
again watched the apartment building and believed that the amount of
people coming and going was consistent with a crack house opera-
tion.

  The search warrant described the premises to be searched as fol-
lows:

    The residence known as 67-B Nunan Street is located in the
    city and county of Charleston S.C. The residence known as
    67 Nunan Street is a two story wooden dwelling white in
    color with blue trim around the doors and windows. . . .
    Apartment B will be located on the second floor of the resi-
    dence. . . .

   Actually, Apartment B was on the bottom floor. There were 4 units
— apartments A and B on the bottom and apartments C and D on the
top. Apartments C and D have a common landing. Only apartment B
was rented at the time of the raid. Apartments C and D upstairs had
4                     UNITED STATES v. SIMMONS
no legal occupants at the time. SWAT teams entered both of the
upstairs units during the raid despite the fact that apartment B, the
only apartment specified in the warrant, was downstairs.

   On the ground, Officer Charap was watching the upstairs windows
of apartment D and saw an arm with a gold bracelet holding a gun
and moving as if to target officers below. Charap fired a round toward
the person with the gun. Almost immediately, SWAT team members
saw defendant Don Simmons running out of apartment D and arrested
him as he was going down the stairs. Officers later found a 9 mm pis-
tol in a bathroom sink in apartment D. In the other upstairs apartment
— apartment C — officers recovered drug paraphernalia and a small
amount of crack cocaine.

   Evidence at trial showed that Simmons was selling crack out of the
67 Nunan Street apartment building. One of Simmons’ customers was
hiding in a bathroom in apartment D during the SWAT raid, saw Sim-
mons enter the bathroom, and heard the sound of something metal hit-
ting the sink. She had also seen Simmons with a gun earlier.

   Prior to trial, Simmons moved to suppress the evidence seized by
police officers during the raid. Simmons argued primarily that the
probable cause supporting the warrant had become stale at the time
of the search because the warrant was not executed until eight days
after it was issued and twelve days after the drug purchase alleged in
the supporting affidavit. The district court rejected the argument on
the merits but also concluded that, in any event, Simmons had no
standing to challenge the search.

   Simmons was convicted of being a felon in possession of a firearm,
see 18 U.S.C.A. § 922(g)(1) (West 2000); possession with intent to
distribute an unspecified amount of crack, see 21 U.S.C.A.
§ 841(a)(1); use of a firearm in relation to a drug trafficking crime,
see 18 U.S.C.A. § 924(c) (West 2000); and aiding and abetting the
making of a false statement in connection with the purchase of a fire-
arm, see 18 U.S.C.A. §§ 922(a)(6), 924(a)(2) (West 2000); 18
U.S.C.A. § 2 (West 2000).

                                 II.

  Simmons contends that the district court erroneously failed to sup-
press the evidence seized in the search of the 67 Nunan Street apart-
                      UNITED STATES v. SIMMONS                       5
ment building. He makes essentially the same argument he made in
district court — that the warrant was invalid because the probable
cause on which it was based had become stale at the time of the
search. We agree with the district court that Simmons lacked standing
to challenge the search.

   The Fourth Amendment "generally prohibits the warrantless entry
of a person’s home, whether to make an arrest or to search for specific
objects." Illinois v. Rodriguez, 497 U.S. 177, 181 (1990); see Katz v.
United States, 389 U.S. 347, 357 (1967) (explaining that searches
conducted without a warrant and in the absence of an exception to the
warrant requirement "are per se unreasonable"). The Fourth Amend-
ment "protects persons against unreasonable searches of ‘their per-
sons [and] houses’ and thus indicates that the Fourth Amendment is
a personal right that must be invoked by an individual." Minnesota v.
Carter, 525 U.S. 83, 88 (1998). The Supreme Court has instructed
that the "capacity to claim the protection of the Fourth Amendment
depends . . . upon whether the person who claims the protection of
the Amendment has a legitimate expectation of privacy in the invaded
place." Rakas v. Illinois, 439 U.S. 128, 143 (1978). Therefore,
"searches and seizures conducted in the absence of . . . a [valid] war-
rant are impermissible only if the officer encroaches upon a legitimate
expectation of privacy." Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.
2000); see California v. Greenwood, 486 U.S. 35, 39 (1988). Accord-
ingly, a defendant desiring to suppress evidence on the basis of an
unreasonable search bears the burden of "show[ing] that he has a
legitimate expectation of privacy in the area searched." United States
v. Kitchens, 114 F.3d 29, 31 (4th Cir. 1997). There is a legitimate
expectation of privacy "when the individual seeking Fourth Amend-
ment protection maintains a ‘subjective expectation of privacy’ in the
area searched that ‘society [is] willing to recognize . . . as reason-
able.’" Doe, 225 F.3d at 450 (quoting California v. Ciraolo, 476 U.S.
207, 211 (1986)).

   In appropriate circumstances, an overnight guest may maintain a
legitimate privacy interest in another person’s residence:

       To hold that an overnight guest has a legitimate expecta-
    tion of privacy in his host’s home merely recognizes the
    everyday expectations of privacy that we all share. . . .
6                     UNITED STATES v. SIMMONS
       From the overnight guest’s perspective, he seeks shelter
    in another’s home precisely because it provides him with
    privacy, a place where he and his possessions will not be
    disturbed by anyone but his host and those his host allows
    inside. We are at our most vulnerable when we are asleep
    because we cannot monitor our own safety or the security
    of our belongings. It is for this reason that, although we may
    spend all day in public places, when we cannot sleep in our
    own home we seek out another private place to sleep,
    whether it be a hotel room, or the home of a friend.

Minnesota v. Olson, 495 U.S. 91, 98-99 (1990).

   According to Simmons, he was staying in the upstairs apartment
with the permission of his former girlfriend Leslie Bolton, who was
renting the apartment at his direction. In essence, Simmons claims
that he may challenge the search because he was living in the apart-
ment with the permission of the lessor. See id.; see also Carter, 525
U.S. at 90 ("[A]n overnight guest in a home may claim the protection
of the Fourth Amendment, but one who is merely present with the
consent of the householder may not."). The district court, however,
concluded that to the extent that Simmons was living in the apartment
searched by police, he was living there illegally. We review the fac-
tual determinations of the district court for clear error. See Kitchens,
114 F.3d at 31.

   The apartment identified in the search warrant, 67B Nunan Street,
was part of the four-unit apartment building located at 67 Nunan
Street. Apartments A and B were located on the bottom floor, and
apartments C and D were located on the upper floor. According to the
lease agreement, a person named Shenita Whitfield leased the down-
stairs apartment B. Leslie Bolton testified that, at the urging of Sim-
mons, she had entered into the lease agreement under the name
Shenita Whitfield. Leslie Bolton indicated that Simmons instructed
her to rent the same apartment that her mother, Emily Bolton, had
previously rented at 67 Nunan Street, and Bolton recalled that it was
an upstairs apartment. Simmons gave the money to Bolton to pay the
rent.

  Simmons contends that the apartment number listed on the lease
agreement, 67B Nunan Street, was a typo and that the landlord had
                      UNITED STATES v. SIMMONS                        7
intended to rent 67D Nunan Street — one of the upstairs units that the
police entered. To support his argument that Bolton actually rented
apartment D, Simmons points to the fact that the government
acknowledged that apartment D was the only apartment that appeared
to be occupied at the time of the raid and that Bolton remembered
renting an upstairs apartment.

   The district court rejected the theory that the lease contained a
typo. The conclusion of the district court that apartment B, not apart-
ment D, had indeed been rented by Bolton was consistent with
records maintained by South Carolina Electric & Gas Company
(SCE&G) showing that only apartment B on the bottom floor was
supplied with electrical power. SCE&G listed Emily Bolton, Leslie’s
mother, as its customer. Also, during the suppression hearing, counsel
for Simmons acknowledged that Simmons "may [have] be[en] ripping
off SCE&G for electricity." J.A. 206. Ultimately, the district court
agreed with the government’s contention that apartment B was origi-
nally rented by Emily Bolton and later by her daughter Leslie under
the name Shenita Whitfield. The court agreed that "at some point, Mr.
Simmons move[d] upstairs . . . to sell [crack] . . . in a more secure
location." J.A. 208. The court observed that "obviously the [upstairs]
apartments were not being rented. Whenever they ceased being
rented, [Simmons] just expanded into it for illegal activity." J.A. 212.
The district court concluded that Simmons’ girlfriend had not rented
either of the upstairs apartments and, therefore, that Simmons was
occupying those premises illegally. Because this factual determination
was not clearly erroneous, we affirm the district court’s ruling that
Simmons did not have a sufficiently legitimate expectation of privacy
in the premises to contest the search of the two upstairs apartments
or exclude what was recovered in the search.

                                  III.

   Simmons also argues that the district court improperly admitted
evidence regarding prior convictions for distribution of crack cocaine,
prior drug purchases from Simmons in 1991, and previous occasions
on which Simmons directed Leslie Bolton to purchase guns on his
behalf. Simmons contends that the evidence failed to meet the
requirements for admissibility under Rule 404(b) of the Federal Rules
of Evidence. Under Rule 404(b), evidence of other bad acts may be
8                      UNITED STATES v. SIMMONS
admitted to prove "a material issue other than character." Huddleston
v. United States, 485 U.S. 681, 686 (1988). Such evidence is admissi-
ble to demonstrate "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident." Fed. R. Evid.
404(b). However, such evidence must also be necessary and reliable
to be admissible. See United States v. Mark, 943 F.2d 444, 447 (4th
Cir. 1991).

   In our view, the district court properly admitted this evidence. This
circuit "subscribe[s] to the view of [Rule 404(b)] as an inclusionary
rule which admits all evidence of other crimes relevant to an issue in
a trial except that which tends to prove only criminal disposition." Id.
(internal quotation marks omitted). This evidence was relevant to the
issues at trial and otherwise met the requirements for admission.
However, we need not reach the merits of Simmons’ argument
because any error in the admission of this evidence was harmless. See
Fed. R. Crim. P. 52(a). We will find an evidentiary ruling harmless
if we are able to conclude "without stripping the erroneous action
from the whole, that the judgment was not substantially swayed by
the error." Kotteakos v. United States, 328 U.S. 750, 765 (1946); see
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). We con-
clude that, even if the district court admitted the Rule 404(b) evidence
in error, the error did not substantially affect Simmons’ convictions
for possession of a firearm by a convicted felon, possession with
intent to distribute crack cocaine, use of a firearm in relation to a drug
trafficking crime, and aiding and abetting the making of a false state-
ment in connection with the purchase of a firearm. The government
presented testimony from Abram and Norma Reese that they had been
buying crack cocaine from Simmons for approximately one month
and that on May 2, 1997, the day police raided 67 Nunan Street and
arrested Simmons, they had purchased crack from Simmons. More-
over, the Reeses testified that on May 2, they saw Simmons in posses-
sion of a gun. Norma Reese was hiding in a bathroom in upstairs
apartment D when the police entered. She saw Simmons enter the
bathroom, and then heard a metal object fall into the sink. Officers
later recovered a handgun from the bathroom in apartment D. Also,
during the execution of the search warrant, officers watching on the
ground outside of the apartment building saw an individual with dark
clothing pointing a gun toward the street; the individual was wearing
a gold bracelet. Within minutes, Simmons was arrested as he
                      UNITED STATES v. SIMMONS                       9
attempted to run from apartment D. He was wearing dark clothing and
a gold bracelet. Simmons had in his possession a sum of money that
was divided in a manner that was consistent with the way drug dealers
divide their money. Furthermore, Leslie Bolton testified that, at Sim-
mons’ request, she purchased the gun seized from 67 Nunan Street by
police officers on May 2. She used the name Shenita Whitfield to pur-
chase the firearm for Simmons; pawn shop records introduced by the
government confirmed her testimony.

   In view of the overwhelming evidence presented by the govern-
ment, we conclude that even if the evidence of Simmons’ prior bad
acts was improperly admitted, the error was harmless.

                                 IV.

   Finally, Simmons contends that his sentence is unconstitutional
under the Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), because the district court concluded, based on sev-
eral prior convictions that were not alleged in the indictment or pres-
ented to the jury, that Simmons was subject to an enhanced sentence
as an armed career criminal, see 18 U.S.C.A. § 924(e) (West 2000);
U.S. Sentencing Guidelines Manual § 4B1.4 (2000), and a career
offender, see U.S.S.G. § 4B1.1. This argument is foreclosed by our
decision in United States v. Sterling, 283 F.3d 216, 219-20 (4th Cir.),
cert. denied, 122 S. Ct. 2606 (2002), in which we concluded that the
prior convictions used to enhance a sentence under § 924(e) were spe-
cifically excluded from the holding of Apprendi. We see no reason to
conclude that Apprendi would apply to prior convictions used to sen-
tence a defendant as a career offender when it does not apply to those
used to enhance a sentence under § 924(e). See United States v. Col-
lins, 272 F.3d 984, 987 (7th Cir. 2001), cert. denied, 122 S. Ct. 1938
(2002). Accordingly, we reject Simmons’ Apprendi argument.

                                                          AFFIRMED
