                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4454


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RYAN CHRISTOPHER FULTZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:13-cr-00026-HCM-DEM-1)


Submitted:   January 30, 2015              Decided:   February 4, 2015


Before WILKINSON and      THACKER,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Edwin S. Booth, SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK,
PC, Virginia Beach, Virginia, for Appellant.    Dana J. Boente,
United States Attorney, Robert E. Bradenham, II, Assistant
United States Attorney, Newport News, Virginia; Lindsay C.
Sfekas, Second Year Law Student, William & Mary Law School,
Williamsburg, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ryan     Christopher    Fultz     appeals    his    convictions      for

possession of a firearm by a convicted felon, in violation of

18 U.S.C.      § 922(g)(1)     (2012);     possession    with    the   intent     to

distribute a quantity of a mixture and substance containing a

detectable amount of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1) (2012); possessing, brandishing, and discharging a

firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1) (2012); and aiding and abetting the

latter   two    offenses,    18    U.S.C.    § 2     (2012).     At    trial,    the

district court excluded a portion of the testimony of Fultz’

proffered    expert    witness,     Carl     Rone.      Rone    was   prepared    to

testify that Fultz could not have been the shooter of the AR-15

Bushmaster because of where the .223 caliber shell casings were

discovered at the crime scene.             On appeal, Fultz argues that the

district     court    abused      its    discretion     by     excluding   Rone’s

testimony and by failing to grant a new trial on the ground that

Rone’s testimony was wrongfully excluded.                See Fed. R. Crim. P.

33.   We affirm.

            We review for abuse of discretion a district court’s

decisions to exclude expert testimony, United States v. Garcia,

752 F.3d 382, 390 (4th Cir. 2014), and to deny a motion for a

new trial.      United States v. Bartko, 728 F.3d 327, 334 (4th Cir.

2013), cert. denied, 134 S. Ct. 1043 (2014).                    “Federal Rule of

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Evidence 702 serves as [a] guidepost” for district courts when

determining     the    admissibility       of       an    expert     opinion.         United

States v. Wilson, 484 F.3d 267, 274 (4th Cir. 2007).                            Under the

Rule, the district court serves as a gatekeeper, “ensuring that

an expert’s testimony both rests on a reliable foundation and is

relevant” to the fact at issue.                 Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 597 (1993).

             The primary issue in the district court and on appeal

is    whether    Rone’s      opinion     was        reliable.         Because     “expert

witnesses    have     the    potential     to       be    both     powerful     and    quite

misleading,” it is crucial that the district court conduct a

careful analysis into the reliability of the expert’s proposed

opinion.     Cooper v. Smith & Nephew, Inc., 259 F.3d 194, 199 (4th

Cir. 2001) (internal quotation marks omitted).                         In Daubert, the

Supreme Court provided a list of five factors a district court

may   consider      when    evaluating     the           reliability      of    scientific

expert testimony.           See United States v. Hassan, 742 F.3d 104,

130 (4th Cir.) (listing Daubert factors), cert. denied, 135 S.

Ct.   157    (2014).         This   list       of     factors,       however,     is     not

“definitive or exhaustive,” United States v. Crisp, 324 F.3d

261, 266 (4th Cir. 2003), as “the law grants a district court

the   same    broad    latitude     when       it        decides    how    to    determine

reliability as it enjoys in respect to its ultimate reliability

determination.”       Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142

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(1999).        Thus,     “the     particular         factors      [bearing        on    the

reliability      of     the    opinion]       will     depend      upon     the    unique

circumstances of the expert testimony involved.”                          Westberry v.

Gislaved      Gummi     AB,     178   F.3d      257,       261    (4th    Cir.      1999).

Ultimately, “[t]he proponent of the testimony” bears the burden

of proving that it is reliable.               Cooper, 259 F.3d at 199.

              After reviewing the record, we conclude that Fultz did

not meet his burden to prove that Rone’s opinion was reliable.

First, Fultz did not provide support for the validity of Rone’s

method — that the position of the shooter could be determined by

examining     only    the     location   of    the     shell     casings.         Although

Fultz   provided       additional     support        for    Rone’s   method        in   his

motion for a new trial, there is no reason why that support

could   not    have    been    provided    at    or    before     trial,     especially

considering      that    the     Daubert       factors      are    well-established.

Second, even if Rone’s method of determining the location of the

shooter is accepted in the relevant scientific community, the

crime scene in this case was so compromised that any opinion on

the location of the shooter based on the physical evidence would

be pure guesswork.

              In sum, we conclude that, because Rone’s testimony had

“a greater potential to mislead than to enlighten,” Westberry,

178 F.3d at 261, the district court did not abuse its discretion

by excluding it.            Accordingly, we affirm the district court’s

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judgment.    We dispense with oral argument because the facts and

legal    contentions    are   adequately   presented    in   the   materials

before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                     AFFIRMED




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