                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4503


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEREK LEON HINTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00434-WO-1)


Submitted:   October 6, 2016                 Decided:   November 14, 2016


Before SHEDD, AGEE, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


J. Blake Norman, THE LAW OFFICE OF J. BLAKE NORMAN, Durham,
North Carolina, for Appellant.     Ripley Rand, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Following a jury trial, Derek Leon Hinton was convicted on

three   counts      of     distribution      of        cocaine     base     (“crack”),      in

violation      of   21     U.S.C.     §   841(a)(1),          (b)(1)(C)      (2012).         On

appeal,    Hinton        contends     that       the    district       court     improperly

permitted the Government to introduce evidence pursuant to Fed.

R.   Evid.     404(b)      of   Defendant’s        two        recent    convictions         for

distribution of crack.            For the reasons that follow, we affirm.

      “To be admissible under Rule 404(b), evidence must be (1)

relevant to an issue other than character; (2) necessary; and

(3) reliable.”         United States v. Siegel, 536 F.3d 306, 317 (4th

Cir. 2008) (internal quotation marks omitted).                               The evidence

also must satisfy the mandate of Fed. R. Evid. 403 that “the

probative      value      of    the   evidence         must     not    be   substantially

outweighed by its prejudicial effect.”                        United States v. Byers,

649 F.3d 197, 206 (4th Cir. 2011) (internal quotation marks

omitted).      We review the admission of Rule 404(b) evidence for

abuse     of    discretion        and      “will        not     vacate      a    conviction

unless . . .        the    district       court     judge       acted     arbitrarily       or

irrationally.”         United States v. Cabrera-Beltran, 660 F.3d 742,

755 (4th Cir. 2011) (internal quotation marks omitted).

      Generally,          evidence    of     a    crime       or   other        bad   act    is

inadmissible “to prove a person’s character in order to show

that on a particular occasion the person acted in accordance

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with the character.”     Fed. R. Evid. 404(b)(1).       However, such

evidence may be admissible for other purposes, “such as proving

motive,   opportunity,   intent,   preparation,      plan,   knowledge,

identity, absence of mistake, or lack of accident.”            Fed. R.

Evid. 404(b)(2).    As “a rule of inclusion,” Rule 404(b) allows

admission of “all evidence of other crimes or acts except that

which tends to prove only criminal disposition.”         United States

v. Briley, 770 F.3d 267, 275 (4th Cir.) (internal quotation

marks omitted), cert. denied, 135 S. Ct. 1844 (2015).

    “In drug cases, evidence of a defendant’s prior, similar

drug transactions is generally admissible under Rule 404(b) as

evidence of the defendant’s knowledge and intent.”            Cabrera-

Beltran, 660 F.3d at 755.    However, to be admissible, the prior

narcotics activity must have a sufficient nexus to the charged

offenses, i.e., the acts should be “related in time, manner,

place, or pattern of conduct.”          United States v. Johnson, 617

F.3d 286, 297 (4th Cir. 2010).         Here, Hinton had been convicted

of selling crack in hand-to-hand sales in Burlington, North

Carolina, on two occasions only a matter of months before the

charged offenses.    We therefore conclude that the evidence of

Hinton’s prior drug distribution was admissible to demonstrate

knowledge and intent.

    Hinton contends that knowledge and intent were not issues

in this case because he did not claim that he unknowingly sold

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crack    to    the    confidential       human      source,     but     rather   denied

selling anything to the source.                   By pleading not guilty to the

charges of distributing crack, however, Hinton necessarily put

his knowledge and intent--elements of the prosecution’s case--

directly at issue.           See United States v. Mark, 943 F.2d 444,

448 (4th Cir. 1991).           “[T]he government, which has the burden

of proving every element of the crime charged, must have the

freedom to decide how to discharge that burden.”                        United States

v.    Queen,   132    F.3d   991,      997       (4th   Cir.    1997)    (finding   the

defendant’s      intent      at     issue,         notwithstanding        defendant’s

conditional offer to stipulate to intent).

       Thus,    we    conclude    that       the    evidence     was     relevant   and

necessary.      See Byers, 649 F.3d at 208 (noting that evidence is

relevant as long as it has “any tendency to make the existence

of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without

the     evidence”     (internal        quotation        marks    omitted));      United

States v. McBride, 676 F.3d 385, 398 (4th Cir. 2012) (finding

that evidence is necessary when it “is an essential part of the

crimes on trial” or “furnishes part of the context of the

crime” (internal quotation marks omitted)).

       We further conclude that any prejudicial effect did not

substantially outweigh the probative value of                           the evidence,

especially       in    light      of     the       district      court’s      limiting

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instructions      to    the   jury   explaining   that     the   jury    was   to

consider the acts only as evidence of intent or knowledge, and

not as evidence of bad character or propensity.                    See United

States v. White, 405 F.3d 208, 213 (4th Cir. 2005) (“[A]ny risk

of such prejudice was mitigated by a limiting instruction from

the district court clarifying the issues for which the jury

could properly consider [the Rule 404(b)] evidence.”).

          For these reasons, we conclude that the district court did

not   abuse     its    discretion    in   admitting   evidence   of     Hinton’s

previous       crack    sales.       Accordingly,     we    affirm      Hinton’s

convictions. *

                                                                        AFFIRMED




      *We dispensed with oral argument because the facts and
legal conclusions are adequately presented in the materials
before this court and argument would not aid in the decisional
process.



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