                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4415


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARK XAVIER WALLACE, a/k/a Mark Xavier Grinage, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Rebecca Beach Smith,
District Judge. (4:10-cr-00116-RBS-DEM-1)


Submitted:   April 26, 2012                   Decided:   May 22, 2012


Before MOTZ, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew A. Protogyrou, PROTOGYROU & RIGNEY, P.L.C., Norfolk,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Howard J. Zlotnick, Assistant United States Attorney,
Michelle Sudano, Second Year Law Student, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Mark Xavier Wallace was convicted of possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2006).                    He

was sentenced to 120 months in prison.             (J.A. 278).      Wallace now

appeals, raising three issues.         We affirm.



                                       I

           Wallace      first     claims    that     the      district      court

erroneously denied his Fed. R. Crim. P. 29 motion for judgment

of acquittal.        Specifically, he contends that, although three

witnesses testified that they saw Wallace holding the firearm,

the evidence was insufficient to establish that he possessed the

gun.

           “We review de novo the district court’s ruling on a

motion for judgment of acquittal and . . . will uphold the

verdict if, viewing the evidence in the light most favorable to

the    government,    it   is   supported    by     substantial       evidence.”

United States v. Reid, 523 F.3d 310, 317 (4th Cir. 2008); see

Glasser v. United States, 315 U.S. 60, 80 (1942).                   “Substantial

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 doubt.”              Reid, 523 F.3d at

317 (internal quotation marks omitted).



                                       2
               “[W]e    can     reverse    a    conviction     on    insufficiency

grounds only when the prosecution’s failure is clear.”                        United

States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc)

(internal quotation marks omitted). “[I]t is the province of the

jury     to     weigh     the     credibility     of    competing         witnesses.”

Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009).

               “[T]o prove a violation of § 922(g)(1), the government

must prove, beyond a reasonable doubt, 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 commerce.”            United States v. Langley, 62 F.3d 602, 606

(4th Cir. 1995) (en banc).                Wallace stipulated that he was a

convicted felon and that the gun in question had traveled in

interstate commerce.

               Three Newport News police officers testified that on

the night of June 4-5, 2010, they were assisting in another

matter    when    they    heard    eight   to   ten    gunshots     coming    from   a

nearby shopping center.            Officers Seaborne and Townsend and Sgt.

Shull rushed to the scene.              They observed Wallace running toward

them.     Each officer testified that he saw Wallace holding a

black handgun; Sgt. Shull recognized the gun as a Glock 19.

Wallace       initially    ignored      directions     to   drop    the    gun.   When

Wallace raised his arm as if to shoot, Officer Townsend fired at

                                           3
him.    Wallace then fell to the ground.                         Both Officer Seaborne

and    Sgt.    Shull        witnessed     Wallace         move   his     right    arm   in   a

sweeping motion, flinging the gun against a curb.                               Once Wallace

was subdued, officers recovered the gun, a Glock 19, from the

area where Wallace had flung it.

               Officers recovered nine 9 mm. shell casings from the

parking       lot     of    the      shopping        center.        A   forensic     analyst

testified with scientific certainty that the shells were fired

from the Glock that was recovered.

               Each        officer     testified          that     he    saw     Wallace     in

possession of the gun.                 In light of this eyewitness testimony,

we hold that evidence of possession was established and that the

district court correctly denied the Rule 29 motion.



                                                II

               Officer Townsend testified that he fired at Wallace

after Wallace raised his gun, pointing it at Townsend, and that

Wallace       was     arrested       at   the    scene.          On     cross-examination,

defense counsel asked what state offenses Wallace was charged

with    and    what        the    disposition        of    those      charges    was.      The

district court sustained the Government’s objections to these

questions, finding them irrelevant to the federal charge.

               Wallace claims that the district court’s ruling was

erroneous.          He argues that the information sought was intrinsic

                                                4
to the federal offense and tended to show Officer Townsend’s

bias.       We     review     this    evidentiary          ruling    for   abuse      of

discretion.       See United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997).       Evidentiary rulings “are subject to harmless error

review.”       Id.; see Fed. R. Crim. P. 52.                 “In order to find a

district court’s error harmless, we need only be able to say

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.”                   Brooks, 111 F.3d at

371 (internal quotation marks omitted).

               Under Fed. R. Evid. 404(b), evidence of other crimes,

wrongs,    or    acts   of    the    defendant      is   admissible     for    limited

purposes.        For Rule 404(b) evidence to be admissible, it must

be: “(1) relevant to an issue other than the general character

of   the   defendant;       (2)   necessary    to    prove    an     element   of    the

charged offense; and (3) reliable.”                 United States v. Hodge, 354

F.3d    305,    312   (4th    Cir.    2004).        Rule    404(b)    excludes      acts

extrinsic to the crime charged.                United States v. Basham, 561

F.3d 302, 326 (4th Cir. 2009).            Intrinsic acts, however, are not

subject to Rule 404(b)’s restrictions.                      Id.      “Other criminal

acts are intrinsic when they are inextricably intertwined or

both acts are part of a single criminal episode or the other

acts were necessary preliminaries to the crime charged.”                        United



                                          5
States   v.    Chin,     83    F.3d     83,       88   (4th    Cir.    1996)    (internal

quotation marks omitted).

              Evidence about state charges against Wallace and the

disposition of those charges does not qualify under the case law

as evidence intrinsic to the federal offense.                            Such evidence

simply was not “necessary to prove an element of the charged

offense. *    See Hodge, 354 F.3d at 312.



                                           III

              Finally,     Wallace         claims       that     his     sentence       was

improperly      enhanced      by    four      levels     on     the    ground    that    he

possessed the firearm in connection with another felony offense.

See U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) (2010).                             The

Guideline      provides       for   a    four-level           enhancement      “[i]f     the

defendant . . . used or possessed any firearm or ammunition in

connection with another felony offense.”                       USSG § 2K2.1(b)(6)(B).

“Another felony offense . . . means any federal, state, or local

offense, other than the . . . firearms possession . . . offense,

punishable      by   imprisonment        for       a   term     exceeding      one     year,


     *
       Nor was the evidence admissible to expose the alleged bias
of Officer Townsend.      Nothing in the record suggests the
existence of any such bias. Moreover, even if the evidence was
improperly excluded on this point, its exclusion constitutes
harmless error, given the overwhelming evidence of Wallace’s
guilt.



                                              6
regardless     of     whether     a    criminal             charge   was    brought,        or    a

conviction     obtained.”             USSG    § 2K2.1,          cmt.    n.14(C).        It       is

irrelevant whether the defendant was charged with or convicted

of the separate felony.               United States v. Perez, 585 F.3d 880,

886 (5th Cir. 2009).          “[T]he purpose of Section 2K2.1(b)(6) [is]

to   punish    more     severely       a     defendant         who   commits     a    separate

felony offense that is rendered more dangerous by the presence

of a firearm.”        United States v. Jenkins, 566 F.3d 160, 164 (4th

Cir. 2009) (internal quotation marks omitted).

              At    trial,    a   witness             testified      that     there    was       an

altercation at a nightclub located in the shopping center where

the shots were fired.                 The witness was escorted out of the

nightclub. He heard several shots, and one bullet grazed his

right leg.      He was treated for his wound at a hospital.

              Because    Wallace        did       not       raise    this     claim    in    the

district   court,       our   review         is       for   plain    error.      See    United

States v. Olano, 507 U.S. 725, 732 (1993).                             We discern no such

error.     Rather, the testimonial and forensic evidence supports

the finding that it was Wallace who fired the series of shots

outside the nightclub, wounding the witness.                           This constitutes a

felony under Virginia law, which provides:

      If any person willfully discharges or causes to                                  be
      discharged any firearm in any . . . public business                              or
      place or public gathering, and such conduct results                              in
      bodily injury to another person, he shall be guilty                              of
      a Class 6 felony.

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Va. Code Ann. § 18.2-280(A) (West 2011).        Class 6 felonies are

punishable by “imprisonment of not less than one year.”           Va.

Code Ann. § 18-2.10 (West 2011).



                               IV

          We accordingly 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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