                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4579


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RASHAWN RAKI WALLACE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.   Joseph F. Anderson Jr., District
Judge. (3:07-cr-00155-JFA-17)


Submitted:   July 29, 2010                  Decided:      August 12, 2010


Before TRAXLER,   Chief   Judge,   and   NIEMEYER   and    AGEE,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant.    William N. Nettles, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Rashawn      Wallace     was     convicted    of        eight   counts      of

distribution       and    possession   with    intent    to    distribute      crack

cocaine, see 21 U.S.C. § 841, and was sentenced to 400 months’

imprisonment.        Wallace appeals, challenging his conviction and

sentence.     We affirm.

      Wallace first contends the district court erred by allowing

the government to introduce in its case-in-chief evidence of

Wallace’s 2004 state-court conviction for possession with intent

to distribute crack cocaine.           We find no error.

      “Evidence      of     other    crimes,    wrongs,       or   acts   is    not

admissible to prove the character of a person in order to show

action in conformity therewith.”               Fed. R. Evid. 404(b).            Such

evidence, however, may “be admissible for other purposes, such

as   proof    of   motive,    opportunity,      intent,   preparation,         plan,

knowledge, identity, or absence of mistake or accident.”                         Id.

By pleading not guilty, Wallace placed his intent at issue, and

we   cannot    say   the    district    court    abused   its      discretion    by

admitting the conviction as evidence of Wallace’s knowledge and

intent to distribute.          See, e.g., United States v. Hodge, 354

F.3d 305, 312 (4th Cir. 2004); United States v. Sanchez, 118

F.3d 192, 195-96 (4th Cir. 1997).               Similarly, we find no error

in the district court’s determination that the probative value

of the evidence was not substantially outweighed by the danger

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of unfair prejudice.             See United States v. Williams, 445 F.3d

724, 732 (4th Cir. 2006) (“A district court’s decision to admit

evidence over a Rule 403 objection will not be overturned except

under     the   most        extraordinary       of   circumstances,      where       that

discretion has been plainly abused.                    Such an abuse occurs only

when it can be said that the trial court acted arbitrarily or

irrationally      in    admitting    evidence.”          (citation      and   internal

quotation marks omitted)).

      We likewise reject Wallace’s constitutional challenges to

the admission of the 2004 conviction.                     To the extent Wallace

contends    his     Sixth      Amendment     rights     were   violated       when   the

government      read    the     conviction      into    the    record   rather       than

calling a witness to establish the conviction, Wallace waived

any     complaint      in    that   regard      when    counsel    agreed      to     the

procedure at trial.            See, e.g., United States v. David, 83 F.3d

638, 641 n.5 (4th Cir. 1996) (explaining that “waiver, unlike

forfeiture, may extinguish an error under Rule 52(b)” (internal

quotation marks omitted)).            Wallace also contends the government

violated his Fifth Amendment rights by informing the jury that

he pleaded guilty to the charge instead of informing the jury

that he was convicted of the charge.                     Because Wallace did not

raise this issue below, we review for plain error only, and

Wallace thus bears the burden of establishing that a plain error

occurred and that his substantial rights were affected by the

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error.     See United States v. Knight, 606 F.3d 171, 177 (4th Cir.

2010).      Even    if    we   assume    that     the    other     elements    can    be

established,       Wallace     cannot    show,    given     the    strength    of    the

government’s evidence against him, that his substantial rights

were affected by any error in this regard.                        See, e.g., United

States v. Olano, 507 U.S. 725, 734 (1993) (explaining that an

error affected a defendant’s substantial rights if it “affected

the outcome of the district court proceedings”).

      Wallace      also   contends      that    the     district    court    erred    by

relying on the 2004 conviction to sentence Wallace as a career

offender.     See U.S.S.G. § 4B1.1(a)(3).                  According to Wallace,

the 2004 conviction is part of the relevant conduct for the

offenses    of     conviction     and    therefore        should    not     have    been

considered a predicate conviction for career-offender purposes.

See   U.S.S.G.      §    4A1.2,   cmt.    n.1    (“‘Prior     sentence’       means    a

sentence imposed prior to sentencing on the instant offense,

other than a sentence for conduct that is part of the instant

offense. . . .            Conduct that is part of the instant offense

means conduct that is relevant conduct to the instant offense

under the provisions of § 1B1.3.”); U.S.S.G. § 4B1.2 cmt. n.3

(“The provisions of § 4A1.2 . . . are applicable to the counting

of convictions under § 4B1.1.”).                Because Wallace did not object

to his designation as a career offender, we review this claim

for plain error only.

                                          4
      Wallace pleaded guilty to the state charge in 2004, but the

PSR   shows   that   he   was   arrested   for   the   underlying   crime   in

December 2001.       Although the indictment alleged a conspiracy

beginning in 1999, the conspiracy count was dropped and Wallace

was tried only on the substantive drug counts, all of which

occurred in 2006.         Wallace has not established that the 2001

crime underlying the 2004 guilty plea was related in any way to

the substantive distribution crimes involved in this case, and

Wallace cannot show that it was error to use the 2004 conviction

as a predicate conviction for career-offender purposes.              Wallace

therefore has not carried his burden of showing the existence of

an error, plain or otherwise.

      Accordingly, we affirm.         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




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