                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4048


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM ELDRIDGE ASKEW, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:14-cr-00023-D-2)


Submitted:   November 29, 2016            Decided:   December 20, 2016


Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul K. Sun, Jr., Kelly Margolis Dagger, ELLIS & WINTERS LLP,
Raleigh, North Carolina, for Appellant.    John Stuart Bruce,
Acting United States Attorney, Jennifer P. May-Parker, Phillip
A. Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted William Eldridge Askew, III, of conspiring

to   possess    with     intent    to     distribute         100    grams     or       more   of

heroin,    21     U.S.C.     § 846      (2012),       and     aiding        and        abetting

possession      with     intent      to     distribute             heroin,        21    U.S.C.

§ 841(a)(1) (2012).         On appeal, Askew challenges the sufficiency

of the evidence, two evidentiary rulings, and his designation as

a career offender.         Finding no reversible error, we affirm.

                                                I.

       “[W]e review de novo a district court’s denial of a motion

for judgment of acquittal.”               United States v. Fuertes, 805 F.3d

485,   501-02     (4th   Cir.     2015),    cert.      denied,        136    S.    Ct.    1220

(2016).      In    assessing      evidentiary         sufficiency,           we    determine

whether substantial evidence supports the conviction when viewed

in the light most favorable to the Government.                        United States v.

Engle, 676 F.3d 405, 419 (4th Cir. 2012).                      “Substantial evidence

is evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of guilt beyond

a    reasonable    doubt.”        Id.      “To       prove    [a     21     U.S.C.      § 846]

conspiracy, the government must demonstrate beyond a reasonable

doubt (1) an agreement between two or more persons to engage in

conduct that violates a federal drug law, (2) the defendant’s

knowledge of the conspiracy, and (3) the defendant’s knowing and



                                            2
voluntary participation in the conspiracy.”                           United States v.

Gomez-Jimenez, 750 F.3d 370, 378 (4th Cir. 2014).

     Askew contends that the Government failed to establish that

Askew knowingly and voluntarily conspired to distribute heroin

or that 100 grams or more of heroin were attributable to Askew,

highlighting his codefendant’s trial testimony that Askew had no

“say-so” in the drug deal and that the Government failed to

introduce    100    grams     of   heroin         into   evidence.          We    conclude,

however,    that    sufficient      evidence        supports     Askew’s         conspiracy

conviction.        Askew’s     codefendant,           who   pled      guilty      prior     to

trial,     testified     that      Askew          participated         in    the        heroin

distribution by allowing heroin to be hidden in Askew’s hotel

room and occasionally delivering the heroin to the codefendant.

While the codefendant did testify that Askew had no “say-so”

regarding    the    heroin    deal    in      Detroit,      Askew     admitted      to     law

enforcement      that   his    role      in    that      deal   was    to   package        the

heroin.     Furthermore, while less than 100 grams of heroin was

purchased     in    Detroit,       the     codefendant          testified        that     the

agreement was to receive 100 grams of heroin.                         See United States

v. Shabani, 513 U.S. 10, 16 (1994) (noting that overt act is not

required    to     establish       drug       conspiracy,        as     “the       criminal

agreement itself is the actus reus”).

     Askew’s       possession      conviction            required      proof       of     “(1)

possession of a narcotic controlled substance; (2) knowledge of

                                              3
the    possession;       and    (3)    the    intent         to   distribute.”          United

States       v.   Collins,       412     F.3d         515,    519    (4th      Cir.    2005).

Possession        may    be     actual       or       constructive;      “[c]onstructive

possession may be proved by demonstrating that the defendant

exercised, or had the power to exercise, dominion and control

over the item.”          United States v. Burgos, 94 F.3d 849, 873 (4th

Cir.    1996)      (en   banc).        “The        same      evidence    establishing       a

defendant’s        participation         in       a     conspiracy       may    support     a

conclusion        that   a    defendant       participated          in   the    principal’s

unlawful intent to possess and distribute drugs, thereby proving

guilt of aiding and abetting as well.”                        Gomez-Jimenez, 750 F.3d

at 378 (internal quotation marks omitted).

       Askew      argues       that    insufficient           evidence      supports      his

possession conviction because the Government failed to prove he

knowingly possessed the heroin and offered an inadequate chain

of custody to establish that the heroin introduced into evidence

was    the    heroin     recovered       by       law   enforcement.           We     conclude

otherwise.         Askew’s statement to law enforcement demonstrates

that he knew the vehicle contained heroin and he was planning to

assist his codefendant in packaging that heroin for sale.                               Askew

was driving the vehicle at the time of the traffic stop and his

codefendant testified that Askew placed the heroin in the bag

where law enforcement found it.                    Accordingly, we find sufficient

evidence supports Askew’s convictions.

                                              4
                                         II.

       Askew next contends that two evidentiary rulings require a

new trial.      We review a district court’s evidentiary rulings for

abuse of discretion.         United States v. Faulls, 821 F.3d 502, 508

(4th Cir. 2016).           Reversal is warranted only if the district

court’s     determination        “was    arbitrary          or     irrational.”           Id.

(internal      quotation      marks     omitted).               Moreover,      we     review

evidentiary rulings for harmless error, which requires us to

determine      “with      fair   assurance,          after       pondering      all      that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.”

United    States     v.   Cloud,   680     F.3d      396,        401   (4th    Cir.    2012)

(internal quotation marks omitted).

       Askew    first     claims    that       the    district         court     erred    in

allowing       law   enforcement        officers           to     testify      that      when

individuals exit a vehicle during a traffic stop they are trying

to separate themselves from the contents of the vehicle, that

the packaging material found in the vehicle is commonly used to

package heroin, and that people who spend 11 hours in a vehicle

together would discuss the purpose of their trip.                             Askew argues

that   this    testimony     was   based       on    the    officers’       training      and

experience, and thus was not lay opinion testimony under Fed. R.

Evid. 701, but rather expert testimony under Fed. R. Evid. 702.

The Government responds that any error was harmless.

                                           5
      We    agree       with    the   Government.             Askew’s     codefendants

testified that the materials found in the vehicle were to be

used to package the heroin.             A jury could have inferred, without

the   disputed      testimony,        that       passengers      would    discuss     the

purpose     of    their     trip.       Moreover,        Askew     admitted     in    his

statement to law enforcement that he knew heroin was in the

vehicle, a fact further supported by the Government’s witnesses.

Therefore, any error in admitting the officers’ testimony was

harmless.

      Askew      next     alleges     that       the   district     court     erred   in

admitting evidence that he met his codefendant while both were

incarcerated.           Askew    contends         that   the     evidence     was     not

intrinsic to the conspiracy, that its sole purpose was to paint

him as a criminal, and thus, that the evidence was unfairly

prejudicial.        “Evidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the

character.”       Fed. R. Evid. 404(b)(1).               But such evidence may be

admitted for other reasons.            Id. 404(b)(2).

      Rule 404(b) is not implicated if the evidence in question

“concerns acts intrinsic to the alleged crime.”                          United States

v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013) (internal quotation

marks omitted).          “[E]vidence of other bad acts is intrinsic if,

among other things, it involves the same series of transactions

                                             6
as the charged offense, which is to say that both acts are part

of    a    single      criminal          episode.”        Id.   (citation     and     internal

quotation marks omitted).                      Similarly, the evidence is intrinsic

“if   it       is    necessary          to   complete   the     story   of    the    crime    on

trial.”         United States v. Kennedy, 32 F.3d 876, 885 (4th Cir.

1994) (alteration and internal quotation marks omitted).                                     The

evidence        is     not       extrinsic       merely    because      it    occurs    at     a

different time than the conspiracy.                       Id.

          We   conclude          that    the    district    court    did     not    abuse    its

discretion in admitting this evidence because it was evidence

intrinsic to the alleged crime of conspiracy.                           The central issue

in the trial concerned Askew’s knowledge of, and participation

in, his codefendant’s heroin distribution.                          Askew’s relationship

with his codefendant was thus important for the Government to

establish.          Accordingly, we affirm Askew’s convictions.

                                                 III.

          Finally, Askew argues that the district court erroneously

designated          him      a    career       offender    under     the     United    States

Sentencing Guidelines.                   The Government contends that even if the

district court erred in sentencing Askew as a career offender,

that error was harmless.

          Rather than reviewing the merits of Askew’s challenge to

his career offender designation, “we may proceed directly to an

assumed error harmlessness inquiry.”                       Gomez-Jimenez, 750 F.3d at

                                                  7
382 (internal quotation marks omitted).                      “A Guidelines error is

considered harmless if . . . (1) the district court would have

reached the same result even if it had decided the [G]uidelines

issue the other way, and (2) the sentence would be reasonable

even    if     the      [G]uidelines      issue        had   been      decided    in     the

defendant’s favor.”            Id. (internal quotation marks omitted).                     We

must be “certain that the result at sentencing would have been

the same,” absent the enhancement.                       United States v. Montes-

Flores, 736 F.3d 357, 370 (4th Cir. 2013) (internal quotation

marks omitted).           Here, the district court clearly stated that it

would have imposed the same sentence had it not designated Askew

a career offender, and thus we may proceed to review Askew’s

sentence for substantive reasonableness.                     See Gomez-Jimenez, 750

F.3d at 383.

       “When       reviewing      the    substantive           reasonableness       of     a

sentence, we examine the totality of the circumstances to see

whether the sentencing court abused its discretion in concluding

that the sentence it chose satisfied the standards set forth in

§ 3553(a).”             Id.    (alteration       and    internal       quotation        marks

omitted).          We conclude that Askew’s sentence is substantively

reasonable,        as    the    district     court      recognized       the     § 3553(a)

factors      and     specifically       relied     on    the    seriousness        of    the

offense and Askew’s lengthy criminal history in imposing the

180-month      imprisonment.            Moreover,       while    the    district        court

                                             8
recognized    Askew’s       argument    that   older     defendants     are    less

likely to recidivate, it noted that Askew’s previous history

indicated he might not follow that trend.


                                        IV.

     Accordingly, we affirm the district court’s judgment.                       We

dispense     with    oral    argument     because       the    facts   and    legal

contentions    are   adequately        presented   in    the   materials      before

this court and argument would not aid the decisional process.



                                                                         AFFIRMED




                                         9
