                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4903



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHRISTOPHER LARONN BROWN,

                                              Defendant - Appellant.


                            No. 04-7191



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CHRISTOPHER LARONN BROWN,

                                              Defendant - Appellant.


Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-04-95)


Submitted:   September 14, 2005           Decided:   October 27, 2005


Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

              In these consolidated appeals, Christopher Laronn Brown

challenges his conviction and sentence.              A jury found Brown guilty

of one count of possession of a firearm by a convicted felon in

violation     of   18    U.S.C.   §§    922(g)(1),    924(e)    (2000).     Brown

challenges the sufficiency of the evidence and the district court’s

decision to permit evidence of Brown’s prior possession of the same

firearm at issue in the conviction.                 Brown also challenges his

sentence under the rules announced in United States v. Booker, 543

U.S.        , 125 S. Ct. 738 (2005).               Brown also filed a pro se

supplemental brief in Appeal No. 04-7191, in which he filed a pro

se notice of appeal from a district court order denying his pro se

motion   to    have     his   counsel    withdraw.      While    we    affirm   the

conviction, we vacate the sentence and remand for resentencing.

              Brown contends the evidence was insufficient to support

his    conviction       because   both    main     witnesses    were   unreliable

witnesses having given different versions of the events to other

law enforcement authorities and prosecutors.                   When reviewing a

sufficiency-of-the-evidence claim, the verdict will be sustained

“if there is substantial evidence, taking the view most favorable

to the Government, to support it.”               Glasser v. United States, 315

U.S. 60, 80 (1942).           “[S]ubstantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable


                                         - 3 -
doubt.”      United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc). In resolving issues of substantial evidence, this court

does not weigh evidence or review witness credibility.                The court

assumes the jury resolved all contradictions in testimony in favor

of the Government.        United States v. Romer, 148 F.3d 359, 364 (4th

Cir. 1998).     In addition, on review, the evidence must be viewed in

a way as to be most favorable to the Government.

              The elements of a violation of § 922(g)(1) are that:

“(1)   the    defendant    previously   had   been   convicted   of    a   crime

punishable by a term of imprisonment exceeding one year; (2) the

defendant knowingly possessed . . . the firearm; and (3) the

possession was in or affecting interstate commerce, because the

firearm had travelled [sic] in interstate or foreign commerce.”

United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en

banc).

              Brown only challenges the element concerning knowing

possession.      We find the evidence is more than substantial to show

Brown possessed the firearm.        Witnesses testified to seeing Brown

with the gun on the date in question.           Any contradictions in the

testimony are assumed to be resolved in favor of the Government.

Moreover, the evidence is reviewed most favorably toward the

Government.      Brown’s challenge to the credibility of the witnesses

is without merit.




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             Brown    contends     the       district     court    erred       admitting

evidence that he was observed shooting the same firearm a week

before the incident in question. Brown was informed prior to trial

that the Government intended to present this evidence.                          Because

Brown did not object, review is for plain error.                          In order to

demonstrate plain error, Brown must show an error occurred, the

error was plain, and the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993).                     Correction of

the error remains within the court’s discretion, which the court

“should not exercise . . . unless the error ‘seriously affect[s]

the    fairness,      integrity        or     public    reputation    of       judicial

proceedings.’” Id. at 732 (second alteration in original) (quoting

United States v. Young, 470 U.S. 1, 15 (1985) (internal quotation

marks omitted)).

             Under Rule 404(b) of the Federal Rules of Evidence,

evidence of other bad acts may be admissible if it is “probative of

a material issue other than character.”                     Huddleston v. United

States,   485   U.S.    681,     686    (1988).     Such   evidence       is    properly

admitted when it is “(1) relevant to an issue other than character,

(2) necessary, and (3) reliable.”               United States v. Mark, 943 F.2d

444,   447   (4th     Cir.   1991)     (internal       citations    and    quotations

omitted).     In addition, the evidence must be more probative than

prejudicial.     United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997).       Review    of    a   district       court’s    determination         of   the


                                            - 5 -
admissibility    of    evidence   under     Rule   404(b)   is   for   abuse   of

discretion.    Queen, 132 F.3d at 995.        A district court will not be

found to have abused its discretion unless its decision to admit

evidence under Rule 404(b) was arbitrary or irrational.                   United

States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).                Evidentiary

rulings are also subject to review for harmless error under Federal

Rule of Criminal Procedure 52, and will be found harmless if the

reviewing court can conclude “without stripping the erroneous

action from the whole, that the judgment was not substantially

swayed by the error.”     United States v. Nyman, 649 F.2d 208, 211-12

(4th Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750,

765 (1946)).

          We find the evidence was relevant to the issue of whether

Brown possessed the gun in question. The evidence was reliable and

necessary to prove the contested issue in this trial: whether Brown

possessed the firearm.         With respect to the fourth factor, under

Rule 403, “[p]rejudice . . . refers to evidence that has an ‘undue

tendency to suggest decision on an improper basis, commonly, though

not necessarily, an emotional one.’”                Queen, 132 F.3d at 994

(quoting Fed. R. Evid. 403 advisory committee’s note); see United

States   v.    Van    Metre,   150   F.3d    339,    351    (4th   Cir.    1998)

(interpreting Rule 403 to require exclusion of evidence only in

those instances where the trial judge believes “‘that there is a

genuine risk that the emotions of the jury will be excited to


                                     - 6 -
irrational behavior, and that this risk is disproportionate to the

probative     value    of   the   offered        evidence’”)   (quoting     United

States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)).                Here, the

probative value of the evidence was high because it went to a

highly contested issue at trial.            Given the high probative value,

we find evidence of prior possession and use of the firearm did not

substantially outweigh the probative value.               Even if it was error

to admit the evidence, given the substantial evidence supporting

the conviction, the error was harmless.

             Brown challenges his sentence under the rules announced

in Booker.    In the Presentence Investigation Report (“PSR”), Brown

was assigned a base offense level of 20 because he committed the

offense subsequent to sustaining one felony conviction for a crime

of     violence.         See      U.S.      Sentencing     Guidelines       Manual

§ 2K2.1(a)(4)(A) (2003). Four points were added because Brown used

the gun in connection with another felony offense, felony discharge

of a weapon into occupied property and felony assault with a deadly

weapon with intent to kill inflicting serious injury.                   See USSG

§    2K2.1(b)(5).      Another    two     points   were   added   because   Brown

obstructed justice by trying to persuade one witness not to testify

against him and another to discard the gun and the magazine.                  See

USSG § 3C1.1.         The PSR further noted Brown was a armed career

criminal pursuant to § 924(e) and USSG § 4B1.4(b)(3)(A), having

three prior convictions for felony robbery with a dangerous weapon.


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Accordingly, his offense level was 34 because the firearm was used

in connection with a crime of violence.

          The statutory sentence for an armed career criminal with

a § 924(g) conviction is 15 years’ to life imprisonment.   Because

Brown was in criminal history category VI as a result of being an

armed career criminal who used the firearm in connection with a

crime of violence, he was subjected to a guideline sentence of 262

to 327 months’ imprisonment.    See USSG § 4B1.4(c)(2).

          Brown filed objections in which he claimed the offense

level was improper under Blakely v. Washington, 542 U.S. 296

(2004).   Counsel claimed the base offense level should be 14

instead of 20, because the prior felony conviction was not found by

the jury or admitted by Brown.     Counsel also argued the offense

level should not be enhanced for the alleged conduct surrounding

the possession.   In addition, counsel claimed that the enhancement

for being an armed career criminal should not apply, but if it

does, it should only be 33 instead of 34.   An offense level of 33

does not require a finding that the firearm possession was in

connection with a crime of violence.    See USSG § 4B1.4(b)(3)(B).

Counsel also claimed no criminal history points should be applied,

nor should he be placed in criminal history category VI for being

an armed career criminal.      The district court denied counsel’s

objections and sentenced Brown to 288 months’ imprisonment.




                                - 8 -
            Because Brown preserved his Sixth Amendment claim by

objecting to his armed career criminal classification based upon

Blakely, this court’s review is de novo.              See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (“If a defendant has

made a timely and sufficient Apprendi[1] sentencing objection in

the trial court, and so preserved his objection, we review de

novo.”).    When a defendant preserves a Sixth Amendment error, this

court “must reverse unless [it] find[s] this constitutional error

harmless beyond a reasonable doubt, with the Government bearing the

burden of proving harmlessness.”           Id. (citations omitted); see

United    States   v.   White,   405   F.3d   208,   223    (4th    Cir.   2005)

(discussing difference in burden of proving that error affected

substantial rights under harmless error standard in Fed. R. App. P.

52(a), and plain error standard in Fed. R. App. P. 52(b)).

            In Booker, the Supreme Court held that Blakely applied to

the federal sentencing guidelines and that the mandatory manner in

which    the   guidelines    required    courts      to    impose   sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.                  Thus, when a

defendant pleads guilty and is sentenced under the mandatory

guidelines scheme, “[a]ny fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury


     1
        Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                   - 9 -
verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.”          Booker, 543 U.S. at         , 125 S. Ct. at

756.

            In the instant appeal, the district court engaged in

judicial fact finding by imposing an offense level of 34 based on

the finding that Brown’s possession of a firearm was used in

connection with a crime of violence.               Likewise, the criminal

history category was adjusted based upon the same finding.                       In

finding Brown guilty of firearm possession, the jury did not have

to find that his possession was in connection with a crime of

violence.       Nor did Brown admit to such a allegation.2

            Because the district court engaged in judicial fact-

finding    to    determine   Brown’s    offense   level,    criminal    history

category    and    the   resulting    guideline   range    was    imposed   in    a

mandatory manner, there was a Sixth Amendment violation under

Booker.     On remand, the court must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), and impose a sentence.                    If a court

imposes a sentence outside the guideline range, the district court




       2
      Had Brown been sentenced with an offense level of 33, which
depends only on the fact of prior convictions, and with a criminal
history category of V, his guideline range would have been 210 to
262 months’ imprisonment, or less than the sentence he received.

                                      - 10 -
must state its reasons for doing so.   United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005).3   4



          Accordingly, we affirm the conviction and vacate the

sentence and remand for resentencing in light of Booker.5       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 IN PART, VACATED
                                             IN PART, AND REMANDED




     3
      Brown also challenges the use of the fact of prior
convictions to find he is an armed career criminal under § 924(e),
arguing   that Almendarez-Torres v. United States, 523 U.S. 224
(1998), must be overturned.     The use of the fact of a prior
conviction to determine a sentence does not violate the Sixth
Amendment. See United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir. 2005).
     4
      Just as we noted in United States v. Hughes, 401 F.3d 540,
545 n.4 (4th Cir. 2005), “[w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time” of Brown’s sentencing.
     5
      We have considered the issues raised in Brown’s informal
brief filed in No. 04-7191, and find them to be without merit.

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