                             UNPUBLISHED ORDER
                        Not to be cited per Circuit Rule 53




           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                             Submitted July 14, 2006
                              Decided July 18, 2006

                                      Before

                   Hon. RICHARD D. CUDAHY, Circuit Judge

                    Hon. MICHAEL S. KANNE, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 05-4114

UNITED STATES OF AMERICA,                Appeal from the United States District
         Plaintiff-Appellee,             Court for the Southern District of Indiana,
                                         Indianapolis Division
      v.
                                         No. 1:05CR0005-001
HENRY BEATTY,
         Defendant-Appellant.            John Daniel Tinder,
                                         Judge.

                                    ORDER

       Police officers stopped a van driven by Henry Beatty for failing to signal a
turn and discovered two shotgun shells inside. Beatty, a convicted felon, confessed
to the officers that he had two shotguns at his home, and the police recovered them
during a search. A jury convicted Beatty of possession of firearms and ammunition
by a felon, 18 U.S.C. § 922(g)(1), and the court sentenced him to two concurrent
sentences of 62 months’ imprisonment and three years’ supervised release. Beatty
filed a notice of appeal, but his appointed counsel now seeks to withdraw under
Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a
nonfrivolous issue to pursue. Counsel’s Anders brief is facially adequate, and
Beatty has not responded to our invitation under Circuit Rule 51(b) to comment on
No. 05-4114                                                                     Page 2

counsel’s submission. Thus, we limit our review to those potential issues identified
in counsel’s brief. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997).

       Counsel first considers whether Beatty could challenge the district court’s
decision to admit a container filled with shotgun shells that police discovered in his
home. Prior to trial Beatty argued under Federal Rule of Evidence 403 that the
admission of the shells would be unfairly prejudicial. Though he was not charged
with possessing the shells, the court determined that they would link Beatty to the
shotguns found in his home. We would review the district court’s decision to admit
the shells for abuse of discretion. United States v. Hale, 448 F.3d 971, 985 (7th Cir.
2006). Beatty acknowledged the guns were at his home, and the shells were
evidence that he had guns in his possession. We agree with counsel that it would be
frivolous to argue the court erred by admitting them at trial.

       Counsel next considers whether Beatty could argue the district court erred by
allowing one of the police officers who stopped his van to testify that he arrested
Beatty pursuant to an outstanding warrant. Beatty argued prior to trial that
knowledge of the outstanding warrant would prejudice the jury. We would review
this decision for abuse of discretion as well. Federal Rule of Evidence 404(b)
prohibits the use of “evidence of a defendant’s history of illegal or unethical acts to
prove that he is a person of bad character.” United States v. Paladino, 401 F.3d
471, 474-75 (7th Cir. 2005); see Fed. R. Evid. 404(b). The rule does not “bar the
admission of evidence of acts so inextricably intertwined with, or intricately related
to, charged conduct that it helps the factfinder form a more complete picture of the
criminal activity.” Hale, 448 F.3d at 984 (quotation marks and citation omitted); see
Fed. R. Evid. 401. Even relevant evidence, though, will be excluded if it is unfairly
prejudicial. See Fed. R. Evid. 403. Here, we agree with counsel that Beatty’s
outstanding arrest warrant was relevant to the officer’s basis for arresting Beatty
after the stop. The resulting prejudice to Beatty, if any, was not outweighed by its
probative value.

       Third, counsel considers whether Beatty could argue that the government’s
use of Keyona Ervin’s grand jury testimony to impeach her testimony at trial
violated the right to confrontation described in Crawford v. Washington, 541 U.S. 36
(2004). Ervin, a government witness, testified that she bought one of the shotguns
found at Beatty’s home and later saw him handle that gun but did not remember
whether he also handled the second shotgun. When she previously appeared before
the grand jury, however, Ervin had testified that she witnessed Beatty handle “long
guns” other than the one she purchased. The prosecutor, over Beatty’s objection,
introduced Ervin’s grand jury testimony.

      In Crawford the Supreme Court held that the admission of testimonial
hearsay evidence at trial violates the Sixth Amendment when the witness is
No. 05-4114                                                                  Page 3

unavailable and cannot be cross-examined by the defendant. See id. at 68; see also
United States v. Price, 418 F.3d 771, 780-81 (7th Cir. 2005). Beatty’s argument that
Crawford should be extended to prohibit the use of a witness’s grand jury testimony
to impeach her at trial would be frivolous. Ervin testified at Beatty’s trial,
obviating the concern expressed in Crawford regarding an unavailable witness. See
United States v. Garcia, 447 F.3d 1327, 1335-36 (11th Cir. 2006). Moreover, her
prior inconsistent statement before the grand jury was not hearsay under Federal
Rule of Evidence 801(d)(1)(A). See United States v. Young, 316 F.3d 649, 659 (7th
Cir. 2002) (noting prior grand jury testimony admitted to show inconsistent trial
testimony not hearsay) .

      Finally, counsel considers whether Beatty could challenge his overall
sentence as unreasonable. But counsel is unable to construct an argument that
Beatty’s concurrent prison and supervised release terms should have been lower.
Beatty did not object to the presentence report, and he received sentences within
his advisory guidelines range that are presumptively reasonable, see United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). We agree with counsel that any
argument that Beatty’s sentences are unreasonable would be frivolous.

      Accordingly, we GRANT the motion to withdraw and DISMISS the appeal.
