                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4329


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHELTON DEMOND KETTER,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:09-cr-00851-TLW-1)


Submitted:   September 28, 2011           Decided:   December 2, 2011


Before GREGORY, AGEE, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Derek Joseph Enderlin, ROSS AND ENDERLIN, PA, Greenville, South
Carolina, for Appellant.     Carrie Fisher Sherard, Assistant
United   States  Attorney,  Greenville,  South   Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A federal grand jury indicted Shelton Demond Ketter on

two    counts    of      possession         of   a    firearm       and   ammunition      after

having been convicted of a crime punishable by imprisonment for

a     term     exceeding        one     year,         in   violation       of     18     U.S.C.

§§ 922(g)(1), 924(a)(2), and 924(e) (2006).                            After a jury trial,

Ketter was acquitted of Count One and convicted of Count Two.

The court sentenced Ketter to 192 months’ imprisonment.                                  Ketter

timely appealed.

               Ketter’s counsel has filed a brief pursuant to Anders

v.    California,        386    U.S.    738      (1967),       asserting       there     are   no

meritorious arguments for appeal, but questioning whether the

district court erred by failing to sever Counts One and Two for

trial, failing to suppress evidence and statements relevant to

Count One, and permitting the collection of a second DNA sample.

Ketter       filed   a   pro    se     supplemental           brief    reiterating       claims

raised in the Anders brief.

               Turning     first       to    Ketter’s         claim    that     the    district

court erred by refusing to sever Counts One and Two for trial,

Rule 8(a) of the Federal Rules of Criminal Procedure provides

that two or more offenses may be charged in the same indictment

when the offenses “are of the same or similar character, or are

based on the same act or transaction, or are connected with or

constitute       parts     of    a    common         scheme    or     plan.”      This    court

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reviews de novo whether the initial joinder of the offenses was

proper under Rule 8(a).             United States v. Mackins, 315 F.3d 399,

412 (4th Cir. 2003).               If joinder was proper, review of the

denial of a motion to sever is for abuse of discretion under

Fed. R. Crim. P. 14.              Id.     If joinder was improper, the court

“review[s]      this   nonconstitutional          error     for    harmlessness,        and

reverse[s]        unless    the     misjoinder        resulted       in    no        ‘actual

prejudice’ to the defendants ‘because it had [no] substantial

and    injurious     effect    or       influence    in   determining          the    jury’s

verdict.’”        Id. (emphasis in original).             Because of the prospect

of duplicating witness testimony, impaneling additional jurors

or    wasting     limited     judicial      resources,      joinder       is    the    rule

rather than the exception.                United States v. Hawkins, 589 F.3d

694,    700–01     (4th    Cir.     2009).        Joinder     of   multiple          charges

involving the same statute is “unremarkable.”                         Id. at 702-03

(citing United States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995)

(courts routinely allow joinder of bank robbery charges against

the same defendant)).

             We conclude that joinder of the counts was proper.

Both     counts     charged    similar       conduct,       namely    possession          of

firearms and ammunition by a convicted felon, and occurred only

months    apart.       Accordingly,         the     charges    stemming        from    each

arrest involved conduct of the same or similar character.                               See

United States v. Quilling, 261 F.3d 707, 714 (7th Cir. 2001)

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(finding joinder proper where counts were temporally related and

charged under the same statute).

                  Since joinder of the counts was proper, Ketter must

show       that    he    was     clearly   prejudiced        by    the    district    court’s

denial of his motion to sever.                       See Acker, 52 F.3d at 514.            The

evidence presented at trial in support of Count Two showed that

on   July     29,        2009,    Ketter    was       shot   several      times. ∗      Police

officers found Ketter lying on the ground bleeding, wearing a

shirt and boxer shorts, but no pants.                         A pair of bloody shorts

or pants was found nearby.                  A revolver was sticking out of the

shorts or pants, and officers found Ketter’s identification and

four bullets in the pocket.                  Ketter admitted that the pants or

shorts were his but denied ever owning or possessing the pistol.

However, DNA samples taken from the garment and the gun matched

Ketter’s          DNA.     Moreover,       the    district        court   gave    a   limiting

instruction, informing the jury that it must consider each count

separately.              The   jury   apparently        followed      these      instructions

because Ketter was found not guilty on Count One and guilty on

Count Two.           Under these circumstances, we conclude that Ketter

cannot show prejudice and that the district court did not abuse

its discretion in denying the motion to sever the counts.


       ∗
       The parties stipulated that Ketter had a prior conviction
punishable by more than a year in prison and that he could not
lawfully possess a firearm or ammunition.


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            Next, Ketter argues that the district court erred by

refusing     to        suppress        evidence             seized        and     incriminating

statements he made pertaining to Count One.                                 However, because

Ketter was acquitted on Count One, his claims are moot.                                            Cf.

United States v. Moussaoui, 591 F.3d 263, 303 (4th Cir. 2010)

(holding that jury’s rejection of death penalty rendered moot

claim     that        district      court     erroneously                denied       motion      for

acquittal    on       death     eligibility).               To   the     extent       that   Ketter

argues     that       the     evidence       he       sought       to     suppress       unfairly

prejudiced the jury in regard to Count Two, in light of the

overwhelming evidence of guilt as to Count Two, any error was

harmless.        See Fed. R. Crim. P. 52(a) (“Any error . . . that

does not affect substantial rights must be disregarded.”).

            Over        Ketter’s       objections,           the     court      permitted         the

Government       to    obtain      a   second         DNA    sample       via     a   cheek       swab

because    there       was    no    clear     chain         of   custody        for    the     first

sample.      On       appeal,      counsel    questions            the    collection         of    the

second cheek swab.              It is well established that collection of

DNA evidence is not testimonial and therefore does not implicate

the Fifth Amendment.                Schmerber v. California, 384 U.S. 757,

761-65 (1966).              We discern no basis for concluding that the

taking of the second sample calls into question the validity of

Ketter’s conviction.



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            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We   therefore    affirm   the   district   court’s     judgment.

This court requires that counsel inform Ketter, in writing, of

the right to petition the Supreme Court of the United States for

further review.      If Ketter requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.      Counsel’s motion must state that a copy thereof

was served on Ketter.         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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