                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5154


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CORY D. HARRIS, a/k/a Corey D. Harris,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:11-cr-00097-HEH-1)


Submitted:   June 18, 2012           Decided:   September 13, 2012


Before GREGORY, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant.     Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Peter S. Duffey, Assistant United States
Attorney, Jamie L. Mickelson, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      In    this     appeal,    Cory    D.     Harris    challenges      the    district

court’s     evidentiary        ruling    and      his   sentence    of   600     months’

imprisonment.         First he contends that the district court erred

in   permitting       the    Government      to    admit    evidence     that    he   was

involved with controlled substances, marijuana and heroin, that

were not charged within the superseding indictment.                            Second he

argues     that    the      district    court     applied    the    wrong      mandatory

minimum sentence.           For the following reasons, we affirm Harris’s

convictions and sentences.



                                             I.

      On June 8, 2011, a six-count superseding indictment was

filed      against     Harris     for     cocaine-base        and   firearm-related

offenses. 1       The superseding indictment alleged that from January

2010 through April 2011, Harris conspired to distribute cocaine

base.      It further alleged that on January 29, 2010, and January

24, 2011, Harris possessed with the intent to distribute cocaine

      1
       The superseding indictment charged Harris with one count
of conspiracy to possess with intent to distribute 280 grams or
more of cocaine base, in violation of 21 U.S.C. § 846; one count
of possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 841; two counts of
possessing a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c); and two counts of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1).



                                             2
base     and    possessed        several     firearms         to     further     his    drug

trafficking.         After a two-day trial, the jury returned a guilty

verdict on all six counts.              On November 23, 2011, the district

court sentenced Harris to 600 months’ imprisonment:                              240 months

on counts one and two to run concurrently; 60 months on count

three to run consecutively; 300 months on count four to run

consecutively; and 120 months on counts five and six to run

concurrently.         The    district      court       also   imposed      ten    years   of

supervised release and a special assessment of $100 per count.

Harris timely filed this appeal on November 30, 2011.



                                           II.

       Harris     first      challenges          the     district        court’s       ruling

permitting      the    Government       to       admit    evidence        that     involved

marijuana      and    heroin,     drugs      not   charged         in   the    superseding

indictment.          A week before trial, the United States filed a

notice    of    intent      to   present     evidence         that      Harris    possessed

controlled substances other than cocaine.                          In the notice, the

Government argued that the evidence was not evidence of “other

crimes,” which is generally prohibited under Federal Rule of

Evidence 404(b), but was relevant evidence “intertwined” with

the case’s charged conduct and necessary to complete the story

of Harris’s crimes.          Harris objected to the Government’s notice,

arguing that the evidence is offered to show his bad character.

                                             3
       This Court reviews the district court’s evidentiary rulings

for abuse of discretion.           United States v. Hodge, 354 F.3d 305,

312 (4th Cir. 2004).            A district court abuses its discretion

when    it    “act[s]     arbitrarily         or    irrationally      in    admitting

evidence.”      United States v. Basham, 561 F.3d 302, 326 (4th Cir.

2009) (internal quotation marks omitted).

       Generally,      evidence    that       is    relevant    to    the   case   is

admissible, FED R. EVID. 402; however, relevant evidence may be

excluded “if the probative value is substantially outweighed by

the danger of unfair prejudice,” FED R. EVID. 403.                    Additionally,

Federal      Rule   404(b)    prohibits       admitting      into    evidence   other

crimes or bad acts not charged in the indictment for the purpose

of showing that the person has a bad character.                         Rule 404(b)

does not apply, however, to uncharged conduct that is intrinsic

to the crime.          See United States v. Chin, 83 F.3d 83, 88 (4th

Cir. 1996).         Uncharged conduct is considered intrinsic to the

crime when it is “inextricably intertwined or . . . [is] part of

a   single     criminal      episode   or      .    .    .   w[as]   [a]    necessary

preliminar[y] to the crime charged.”                    Id. (quoting United States

v. Lambert, 995 F.2d 1006, 1007 (10th Cir. 1993) cert. denied,

510 U.S. 926 (1993)).           Additionally, Rule 404(b)’s prohibition

does    not    apply    if   the   uncharged        conduct     is   “necessary    to

complete the story of the crime.”                  United States v. Kennedy, 32



                                          4
F.3d     876,     885     (4th     Cir.       1994)     (internal        quotation        marks

omitted).

       In   finding       the    evidence       admissible,        the    district        court

reasoned that all the evidence submitted by the Government was

relevant to the charged conduct because it took place during the

time frame of the alleged conspiracy, occurred at the same time

that there was evidence of cocaine base, or involved cocaine.

After a review of the record, we find that the district court

did not abuse its discretion.                   The evidence that involved other

controlled substances took place during the period of January

2010     through        April    2011,     the       time    frame       charged     in    the

superseding       indictment        to    support        count     one,     and     in    each

instance,       either     the    testifying          witnesses     or    the     contraband

seized      involved       the     sale        or     presence      of    cocaine         base.

Accordingly, this evidence was “inextricably intertwined” with

the charged conduct, Chin, 83 F.3d at 88, and certainly was

required to complete the story of Harris’s conspiracy to possess

and    distribute        cocaine    base       and    his    unlawful      possession       of

firearms, see United States v. Johnson, 415 F. App’x 495, 504

(4th    Cir.     2011)     (finding       no     abuse      of    discretion       when    the

district        court     permitted       a     witness      to     testify        that    the

defendant, charged with cocaine conspiracy, had initially sold

him marijuana but later on sold him heroin and cocaine).                                  Thus,

Rule 404(b) does not apply to this evidence.

                                                5
      This Court must still consider the evidence under Rule 403,

however, “our discretion to exclude evidence under [the Rule] is

narrowly circumscribed.”           Johnson, 415 F. App’x at 504 (quoting

United States v. Norton, 867 F.2d 1354, 1361 (11th Cir.), cert

denied, 491 U.S. 907 (1989)) (internal quotation marks omitted).

Here, Harris does not indicate how he was prejudiced by the

evidence    related    to    other   controlled      substances,       other       than

asserting    generally      that   such       evidence   demonstrates        his    bad

character.        What’s more, Harris points out that the district

court gave an instruction regarding uncharged conduct, yet he

believes    the    instruction     was    too    vague   to   cure    the    alleged

prejudice.    See United States v. Whorley, 550 F.3d 326, 338 (4th

Cir. 2008) (finding that the court reduced the risk of prejudice

stemming from evidence of the defendant’s prior conviction by

giving the jury a limiting instruction).                 Regardless, Harris has

not explained why the district court’s ruling is irrational or

arbitrary in light of the fact that the evidence was within the

conspiracy    period    and    demonstrated       Harris’s    involvement          with

trafficking   cocaine       base   and    illegal    possession       of    firearms.

Accordingly, the Court finds that there was no clear error in

admitting     the     evidence       that       mentioned     other        controlled

substances.

      Harris next challenges the district court’s application of

the   240-month,      mandatory      minimum      sentence     for     count       two,

                                          6
possession with intent to distribute 50 grams or more of cocaine

base, in violation of 21 U.S.C. § 841.                  Count two arose from the

police   seizing    approximately         110    grams    of     cocaine     base   from

Harris’s residence on January 29, 2010.                        At the time of the

offense conduct, the prison sentence for possession with the

intent to distribute 50 grams or more of cocaine base was not

less than 120 months and not more than life.                      In Harris’s case,

since he had previously been convicted of a felony drug offense,

his    mandatory    minimum      sentence        for     count     two      would   have

increased to 240 months.           21 U.S.C. § 851.              Prior to Harris’s

indictment and conviction for his crimes, Congress enacted the

Fair   Sentencing   Act       (“FSA”),    which       amended    21   U.S.C.    §   841,

reducing the crime’s sentence range to a minimum of 5 years and

a maximum of 40 years.           Applying the amendment, and taking into

consideration his prior felony conviction, Harris faced a lower

mandatory minimum sentence of 120 months.

       Before trial, the Government filed a notice of enhancement

under 21 U.S.C. § 851, specifying that Harris qualified for a

sentencing enhancement for counts one and two due to his prior

felony conviction and that this enhancement would double his

mandatory   minimum      sentences       to     240    months     and    120    months,

respectively.       In    a    footnote    in    the     notice,      the    Government

stated that it had taken the position that the FSA amendments

applied to Harris even though his offense occurred prior to the

                                          7
law’s enactment.       However, at sentencing the probation officer

concluded that because the offense conduct took place prior to

the   FSA,   Harris    was   subject    to    the   pre-amendment         mandatory

minimum of 240 months’ imprisonment on count two.                   Neither party

objected to the probation officer’s conclusion and the district

court sentenced Harris to 240 months’ imprisonment for count two

to    run    concurrently      with    his     sentence      of     240    months’

imprisonment for count one.            Harris contends that the district

court erred in not sentencing him under the FSA.                  The Government

responds that even if the district court erred, the error is

harmless     because   regardless       of    whether      Harris    would    have

received a reduced sentence for count two, he nonetheless would

have to serve a 240-month sentence for his conviction on count

one, which runs concurrent with count two.

      Recently, the Supreme Court has held that the FSA applies

to a defendant who committed the offense prior to the FSA but

was sentenced after its enactment.            See Dorsey v. United States,

132 S. Ct. 2321, 2335 (2012).               We find that in this case the

district     court’s   error   is     harmless.      See    United     States    v.

Christian, 452 F. App’x 283, 288 (4th Cir. 2011) (per curiam).

In Christian, the Court determined that even if the district

court erred in not applying the FSA to the defendant’s sentence

due to his crimes being committed prior to the law’s enactment,

the error was harmless because “[r]egardless of what sentence he

                                        8
receive[d] on the drug count, [the defendant] will be required

to   serve      his   forty-year     mandatory       minimum   sentence     on   the

firearm charges.”        Id. at 288.      The Court cited United States v.

Ellis, 326 F.3d 593, 599-600 (4th Cir. 2003) in which the Court

held that a sentence on a count that exceeded the statutory

maximum      sentence    did   not   affect    the     defendant’s       substantive

rights because the error did not result in a longer term of

imprisonment given that the defendant received a life sentence

on a different concurrent count.                 Id.     Here, Harris will be

serving 240 months in prison for count one even if the FSA

applied to him and reduced his sentence for count two.                       Because

Harris’s overall time in prison remains unaffected, we find the

error is harmless in this case.



                                       III.

     For the foregoing reasons, we affirm Harris’s convictions

and sentences.        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. 2


                                                                            AFFIRMED

     2
       We have reviewed the additional issues raised in Harris’s
pro se supplemental brief and find that they lack merit.



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