                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4210


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICKY JEROME LEWIS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00061-RLV-DCK-1)


Submitted:   August 31, 2011                 Decided:   October 12, 2011


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


D. Baker McIntyre III, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Melissa L. Rikard,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ricky      Jerome    Lewis        appeals    his       aggregate       180-month

sentence     following        his    jury          conviction      of      one     count   of

possession    with      the     intent        to    distribute       cocaine       base,    in

violation    of   21    U.S.C.      § 841(a)(1),         (b)(1)(B)         (2006)    (“Count

One”); one count of possession of a firearm in furtherance of a

drug   trafficking      crime,      in    violation          of    18     U.S.C.    § 924(c)

(2006) (“Count Two”); and one count of possession of a firearm

by a convicted felon, in violation of 18 U.S.C.                                  § 922(g)(1)

(2006)   (“Count       Three”).          On    appeal,       Lewis      argues     that    the

district court abused its discretion and violated Federal Rule

of Evidence 403 in admitting photographs of him with large sums

of cash, and plainly erred in applying an enhanced statutory

minimum on Count One.           Finding no reversible error, we affirm.

            We review evidentiary rulings for abuse of discretion.

United States v. Basham, 561 F.3d 302, 325 (4th Cir. 2009).                                  A

district court abuses its discretion when it acts arbitrarily or

irrationally in admitting evidence.                      United States v. Weaver,

282 F.3d 302, 313 (4th Cir. 2002).                           Rule 403 provides that

“relevant evidence may be excluded if its probative value is

substantially     outweighed        by    the       danger    of    unfair       prejudice.”

Under Rule 403, “damage to a defendant’s case is not a basis for

excluding probative evidence” because “[e]vidence that is highly

probative     invariably        will     be        prejudicial       to    the     defense.”

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United States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).

Evidence is unfairly prejudicial for purposes of Rule 403 “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

irrational behavior, and that this risk is disproportionate to

the probative value of the offered evidence.”                  United States v.

Powers, 59 F.3d 1460, 1467 (4th Cir. 1995) (internal quotation

marks omitted).

         Here,     as   the     district      court   noted,     the    photographs

were found on the walls of the house in which Lewis was staying

and tended to show that Lewis had a strong connection to the

house, making it more likely that the evidence found on the

property belonged to him.             Further, the photographs “could be

rationally    viewed     by     the    jury     as    evidence     of     [Lewis’s]

involvement in a drug distribution scheme.”                    United States v.

Young, 609 F.3d 348, 355 (4th Cir. 2010).                 Because we conclude

that the photographs would not excite the emotions of the jury

to irrational behavior, we hold that the district court did not

abuse its discretion in finding that their probative value was

not outweighed by the danger of unfair prejudice.

         As Lewis concedes, because he did not challenge the

application   of   the        enhanced       statutory   minimum        before   the

district court, his claim is reviewed for plain error.                       United

States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010).                            To

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establish plain error, Lewis must demonstrate that (1) there was

error; (2) the error was plain; and (3) the error affected his

substantial rights.        See United States v. Olano, 507 U.S. 725,

732 (1993).         “To demonstrate that a sentencing error affected

his substantial rights, [Lewis] would have to show that, absent

the   error,   a     different    sentence   might      have   been    imposed.”

United States v. Hernandez, 603 F.3d 267, 273 (4th Cir. 2010).

           Under 21 U.S.C. §§ 841(b)(1)(B), 851 (2006), upon an

information filed by the Government, a defendant with a prior

conviction for a felony drug offense is subject to an enhanced

statutory minimum of ten years.            A felony for purposes of § 841

is defined as a crime “punishable by imprisonment for more than

one year.”     21 U.S.C. § 802(44).

           Lewis was sentenced consistent with our decision in

United States v. Harp, 406 F.3d 242, 246-47 (4th Cir. 2005).

Thus, because under North Carolina law the maximum aggravated

sentence that could be imposed for felony possession of cocaine

upon a defendant with the worst possible history exceeded one

year, Lewis qualified as a felon for purposes of § 841.                       We

recently overruled       Harp     with our en banc decision in            United

States v. Simmons, No. 08-4475, 2011 WL 3607266, at *3 (4th Cir.

Aug. 17, 2011), holding that a North Carolina offense may not be

classified     as    a   felony    based   upon   the    maximum      aggravated

sentence that could be imposed upon a repeat offender if the

                                       4
individual defendant was not eligible for such a sentence.               Id.

at *8.

           Because    the     district     court    sentenced    Lewis    in

accordance with Harp, we hold that the district court erred and

the error was plain.*         However, although sentencing Lewis in

accordance with Simmons would have resulted in a lower statutory

mandatory minimum on Count One, it would not have changed his

aggregate sentence.      Lewis was sentenced to a concurrent 120-

month sentence on Count Three and a consecutive sixty months on

Count Two.    These sentences are wholly unaffected by Simmons.

Thus, even if the district court had applied only a five-year

statutory minimum on Count One, Lewis’s total sentence would

have remained 180 months.         Accordingly, because the error did

not affect Lewis’s substantial rights, the district court did

not commit plain error.

           We therefore affirm the district court’s judgment.            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


    *
       We of course do not fault the Government or the district
court for reliance upon, and application of, unambiguous circuit
authority at the time of Lewis’s sentencing.


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