                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5116


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROOSEVELT SIMMONS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:07-cr-00040-FPS-JES-1)


Submitted:   April 21, 2010                 Decided:   May 27, 2010


Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER,
Morgantown, West Virginia, for Appellant.     Sharon L. Potter,
United States Attorney, David J. Perri, Robert H. McWilliams,
Jr., Assistant United States Attorneys, Wheeling, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Roosevelt Simmons appeals his conviction and sentence

on one count of being a felon in possession of ammunition, in

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).                         He contends

that the district court committed reversible error in conducting

a   jury    view     of      the   crime      scene,    permitting     identification

testimony of Simmons, denying a motion to suppress the result of

a   gun-shot    residue        test    (GSR    test),     admitting     evidence      that

Simmons    used      a    firearm     while    possessing       the   ammunition,     and

enhancing his sentence.              For the foregoing reasons, we affirm.



                                              I.

             Early on the morning on November 4, 2007, Roosevelt

Simmons called 911 after returning home from work to report that

his apartment at the Eagle Court Apartments in Wheeling, West

Virginia, had been burglarized.                     Simmons told the responding

officers that he believed his neighbors had committed the crime

as retaliation for Simmons’s reporting them to the police for

loud    music     several      nights      earlier.        Simmons    then    left    his

apartment and drove to stay with his girlfriend, Nina Speights.

The next morning, Simmons and Speights’s cousin, Cameron Sealey,

drove to Steubenville, Ohio, to place a wager on a football

game.      The two then drove back to the Eagle Court Apartments.

Proceeding      at       a    high    rate     of      speed,   Simmons      pulled     up

                                               2
haphazardly in front of his apartment building and entered the

building along with Sealey.                Simmons approached apartments 322

and 323, his direct neighbors, and began banging on their doors,

yelling       that    someone     must    have      known    about    the     burglary     on

November 4.          Sarah Ruthers and her boyfriend Richard Gooch were

in apartment 322 at the time.                  Both noticed Simmons’s car as it

entered      the     lot   and   parked.           Both    recognized      Simmons    as   he

exited       the     car   and    recognized         his    voice     in    the     hallway.

Although neither Ruthers nor Gooch considered themselves friends

with       Simmons,    Gooch     shared    a   cigarette       with     him    on    several

occasions and the pair often saw Simmons coming and going from

the apartment.

               Gooch did not open the apartment door, but a person in

apartment 323, Jaime Conley, 1 did.                        Simmons began yelling at

Conley about his apartment break-in, “getting in her face,” and

telling her that whoever had robbed him had “f***ed with the

wrong n*****r.”            Conley noticed another man, who she did not

recognize, standing in the hallway.                        Conley told Simmons that

she knew nothing about the burglary and, frightened, slammed the

door in his face.            Conley did not know Simmons’s name, but she

recognized him as the man that had come over several nights

earlier to complain about loud music in the apartment.

       1
       Conley was not a resident of the Eagle Court Apartments
but was staying with friends in the complex at the time.


                                               3
              Gooch    began    watching          the    events      unfold      through     the

peephole in Ruthers’s apartment.                    Gooch heard Simmons verbally

abusing Conley and also saw a man he did not recognize standing

further down the hallway.              After Conley slammed the door, Gooch

saw   Simmons    pull     a    handgun     from         a    brown    paper      bag   he   was

holding.      Gooch told Ruthers to call 911 and retreated back into

the apartment.         Moments later the residents heard gunfire and

the sound of breaking dishware and glass.                                 Gooch heard four

shots    in   quick    succession       followed            by   a   fifth      shot   seconds

later.     One of the occupants of apartment 323 called 911, as did

Ruthers.       Ruthers,       who    had   been         seated       in   her   living      room

looking out over the parking lot, saw the unidentified man exit

the   building    into    the       parking       lot       prior    to   the    shots   being

fired.     Gooch and Ruthers then watched together as Simmons and

the unidentified male entered the car and left the parking lot

at a high rate of speed with Simmons driving.                             Sealey testified

that he was the man standing down the hallway and that, when he

saw Simmons pull a gun, he tried to dissuade him from using it.

Unable to do so, Sealey fled the apartment building and heard

multiple gunshots as he reached the parking lot.

              Officers from the Wheeling Police Department responded

to the scene.         Gooch and Ruthers both identified “Rosie” Simmons

as the shooter and provided a description of him and his car.



                                              4
Conley      also    provided       a     description    of     the   suspect     and    told

officers that he lived in the building.

               After leaving Eagle Court, Simmons and Sealey returned

to Speight’s home, where Sealey witnessed Simmons hide the gun

in a laundry detergent box on top of the refrigerator.                             Twenty

minutes later Officer Ben Heslep with the Bellaire, Ohio, Police

Department 2        spotted        and     stopped      a     vehicle    matching       the

description         provided       by     Gooch   and       Ruthers.      With     Simmons

stopped, officers from the Wheeling Police Department escorted

Gooch to the scene to see if he could identify Simmons.                                Apart

from Simmons, only police officers in uniform were present at

the    scene       when   Gooch        arrived.      While     Gooch    stayed     in    his

vehicle, Simmons was asked to stand up out of the police vehicle

where he was being detained; Gooch identified Simmons as the

shooter and Simmons was placed back in the car.                            Simmons was

then       transported     to      the     Bellaire     Police       Department,       where

officers       conducted       a       gun-shot   residue       test    (GSR   test)     on

Simmons’s hands.           At the time the officers conducted the GSR

test, Simmons had been requesting to use the restroom.

               At the Eagle Court Apartments, officers recovered five

spent 9 mm. caliber shell casings in the hallway.                              Four were

clustered together outside of doors 322 and 323 and the fifth

       2
       Bellaire, Ohio, is located directly across the Ohio River
from Wheeling, West Virginia.


                                              5
was fifteen feet down the hall.                      Three bullet holes were found

in the door to apartment 322 and two holes were found in the

door   to    apartment          323.      One       of    the        bullets       shattered      the

dishware in Ruthers’s apartment.                         Officers never recovered the

firearm used in the shooting.

             Based       upon      the    foregoing,             a        federal    grand       jury

indicted Simmons on December 4, 2007, on one count of being a

felon in possession of ammunition, in violation of 18 U.S.C.

§ 922(g)(1)        and       924(a)(2).             During           the       pretrial     period,

investigators with the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”),     obtained        letters      and       jail    phone          recordings       between

Simmons and Speights.              In these conversations, Simmons informed

Speights     that       he   had    hidden       the       gun       in    a    laundry     box    in

Speights’s apartment and arranged for his sister to remove the

gun.       Simmons       also     suggested         how    Speights            should     make    her

statements        to    investigators.              In    addition,            a   prison    inmate

approached        the    Government       with       information            that     Simmons      had

discussed the possibility of attempting to kill or seriously

injure the federal prosecutor in his case.                                  Simmons apparently

hoped that removing the prosecutor would delay his trial and

provide him grounds to move for dismissal under the Speedy Trial

Act.

             Prior to trial, Simmons moved to exclude the results

of   the    GSR    test      as    well   as     both      out-of-court             and   in-court

                                                6
identification         testimony     from        Gooch.       The    district      court,

adopting the recommendation of the magistrate judge assigned to

the case, denied both motions.                   A jury trial was conducted from

August 26 to August 28, 2008.                    During the trial, the district

court      conducted    a   jury   view     of     the    crime   scene      outside    the

presence of Simmons, who was detained in a van in the parking

lot.       The jury ultimately convicted Simmons on the ammunition

possession charge.           The district court conducted a sentencing

hearing on November 3, 2008, and sentenced Simmons to 120 months

imprisonment.      Simmons noted a timely appeal.



                                            II.

              On appeal, Simmons contends that the district court

committed     reversible      error    in    conducting       a     jury    view   of   the

Eagle      Court   Apartments,        permitting           Gooch’s         identification

testimony,     denying      the    motion    to     suppress      the   GSR    test,    and

admitting evidence of the shooting. 3                    We address each contention

in turn.


       3
       Simmons also contends that the district court committed
reversible error in sentencing him.       Specifically, Simmons
argues that it violates the Sixth Amendment to impose sentencing
enhancements even under an advisory Guidelines scheme and even
if the resulting sentence is below the statutory maximum.
Simmons concedes that his argument is foreclosed by Booker v.
United States, 543 U.S. 220 (2005), but contends that Booker was
wrongly decided.   Booker remains binding law, however, and we
thus reject Simmons’s argument.


                                             7
                                                A.

             Simmons           first   contends       that     the       district    court

committed    reversible          error     in    conducting    a   jury     view    of   the

Eagle Court Apartments during the trial.                          “The federal courts

recognize their inherent power to permit a jury view of places

or objects outside the courtroom.                    The decision to permit a view

is    entrusted     to     the     sound    discretion       of    the    trial     court.”

United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.

1990) (citations omitted).                 See also United States v. Woolfolk,

197   F.3d   900,        905    (7th   Cir.      1999)   (noting     that    a     district

court’s ruling on a motion for a jury view is reviewed for abuse

of discretion).

             Three months prior to trial, the Government moved for

a    jury   view    of     the     Eagle    Court     Apartments     and     included      a

proposed list of sites.                The district court granted the motion

as to the sites described by the Government and also offered

Simmons the opportunity to suggest additional sites.

             On the first day of the trial, the district court,

accompanied         by     counsel,         the      Defendant,      and      the        lead

investigator, Agent James E. Sirbaugh of the ATF, took the jury

to view the Eagle Court Apartments.                      The Defendant stayed in a

van with U.S. Marshals during the view.                           Before entering the

apartments,        Agent       Sirbaugh    suggested      to   the   district       court,

outside the presence of the jury, that the jurors look at the

                                                8
bullet holes in the apartment doors from both sides, a request

the   district     court       granted.         Once       inside    the     apartment,        and

again outside the jury’s presence, Agent Sirbaugh suggested that

the jurors see the holes in Ruthers’s refrigerator.                                    Simmons’s

counsel    objected       to     that     view       because        it    was    not    on    the

Government’s       pretrial       list    of     sites,       and    the     district        court

sustained    the    objection.           The        jurors       completed      the    view    and

returned to court.

            On appeal, Simmons does not contest the conducting of

a   jury   view,     but       rather     argues       that,        given    Special         Agent

Sirbaugh’s       comments,       the     jury       view     was     transformed        from    a

permissible       crime       scene     inspection          into     an    unconstitutional

opportunity       for     Agent       Sirbaugh        to     testify       outside      of    the

Defendant’s presence.             Simmons also argues that he was unable to

communicate with counsel during the jury view, and that this

failure kept Simmons from having his counsel point out several

important features of the scene.

            We     do      not     believe          either        situation       constituted

reversible    error       in     this    case.          The       presence      of     Simmons’s

counsel    during       the     view     resolves          any    constitutional         issues

arising from Simmons’s inability to take part in the view.                                     See

Snyder v. Massachusetts, 291 U.S. 97 (1934), (holding that a

jury view with counsel present is constitutional).                               In addition,

Agent Sirbaugh’s comments were not made in front of the jury,

                                                9
and, even if they were, he was simply assisting the district

court in finding the sites already supplied by the Government.

               Moreover, even assuming the district court erred in

conducting the view, Simmons cannot show that such error was

harmful.       This court has held that jury views of crime scenes,

both    court-ordered          and    unsupervised,         are   subject     to    harmless

error review.           See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th

Cir. 1997) (court-ordered jury view subject to harmless error

review); Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996)

(en    banc)    (unsupervised          jury    view    of    crime    scene      subject    to

harmless error review).               In determining the possible harm of any

error, this court should “look to the nature and extent of the

[jury’s]       activity      and     assess    how    that    activity      fit    into    the

context of the evidence presented at trial.”                           Sherman, 89 F.3d

at 1138.        “The level of conjecture inherent in this inquiry is

reduced,       making     it    even    more    appropriate          for   harmless-error

analysis, when the jury view is personally supervised by the

judge.”     Arnold, 113 F.3d at 1361.                  An error is harmless “if a

reviewing      court    is     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.’”                United States v. Basham, 561 F.3d 302,

327 (4th Cir. 2009) (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)).

                                               10
            Applying this standard, any error in this case was

harmless.     Two witnesses who knew Simmons, Gooch and Ruthers,

testified that he was the person in the hallway, and Gooch and

Conley both testified that Simmons drew a gun.                           Simmons’s own

companion that day, Cameron Sealey, testified that Simmons drew

a gun and that, in response, Sealey fled the apartment building

and     subsequently        heard    gunshots.          Conley     and      Gooch    both

testified    that    they      heard      gunfire      almost    immediately        after

Simmons drew the gun.               During pretrial incarceration, Simmons

told his girlfriend Speights that he had hidden the gun and that

his sister was disposing of it.                  Sealey further testified that

he watched Simmons hide the gun in Speight’s home.                          Given this

wealth of testimony, it is difficult to see how Agent Sirbaugh’s

suggestion    or    Simmons’s       exclusion     were    prejudicial.          Simmons

suggests    that    he   would      have    asked   for    different        site    views

regarding     the    ability        to     see   the     parking      lot    from     the

apartments,    but     he    had    the    opportunity     to    do   so    during    the

pretrial period and also had ample opportunity to cross-examine

Ruthers and Gooch on that point.

                                            B.

             Next, Simmons argues that the district court erred in

permitting    Gooch’s        identification       testimony      at   trial.         “Due

process principles prohibit the admission at trial of an out-of-

court      identification           obtained        through        procedures         ‘so

                                            11
impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.’”                            United States v.

Saunders, 501 F.3d 384, 389 (4th Cir. 2007) (quoting Simmons v.

United    States,        390    U.S.    377,       384   (1968)).         No     due    process

violation       occurs         if   the      “identification          was      sufficiently

reliable        to         preclude         the        substantial        likelihood          of

misidentification.”             United States v. Johnson, 114 F.3d 435, 442

(4th Cir. 1997); see also Manson v. Brathwaite, 432 U.S. 98, 106

(1977) (stating that the central question is “whether under the

totality of the circumstances the identification was reliable

even     though      the     [identification]            procedure    was      suggestive”)

(internal quotations omitted).

               We    consider         the     admissibility          of     identification

testimony in two steps:

       First, the defendant must show that the photo
       identification procedure was impermissibly suggestive.
       Second, if the defendant meets this burden, a court
       considers whether the identification was nevertheless
       reliable in the context of all of the circumstances.

Saunders, 501 F.3d at 389-90.

               If    a   witness’s     out-of-court         photo    identification           is

unreliable           and       therefore           inadmissible,           any         in-court

identification is also inadmissible.                       Simmons, 390 U.S. at 383-

84.       On    appeal,        we     may    assume       the   suggestiveness           of    a

identification procedure and move directly to the second step.

Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994).

                                                  12
              The    magistrate       judge       denied     Simmons’s    motion       to

exclude     identification          testimony       after    a    hearing,     and    the

district court adopted that recommendation.                       The district court

assumed       that     the        photo       identification         procedure        was

impermissibly suggestive but concluded that the identification

was still reliable because Gooch knew Simmons personally and

made    the    identification             roughly    one     half-hour    after       the

shooting.

              We agree with the district court that, even assuming

the    initial      procedure       was    impermissibly         suggestive,    Gooch’s

identification        was    reliable       and     thus    admissible.        We    have

explained that five factors should be considered in assessing

the    reliability     of    an     out-of-court      identification:          (1)    the

witness’s opportunity to view the suspect at the time of the

crime; (2) the witness’s degree of attention at the time of the

crime; (3) the accuracy of the witness’s initial description of

the suspect; (4) the witness’s level of certainty in making the

identification; and (5) the length of time between the crime and

the identification.          Saunders, 501 F.3d at 391.                “In addition,

courts may consider other evidence of the defendant’s guilt when

assessing the reliability of the identification.”                      Id. (internal

quotation marks and alterations omitted).

              Applying      these     factors,       Gooch’s      identification      was

reliable.      First, Gooch was certain that Simmons was the person

                                             13
in the hallway, and Gooch was personally familiar with Simmons

because they lived in the same apartment complex.                                While Gooch

and Simmons lived on different floors, Gooch’s girlfriend, whom

Gooch was visiting that day, lived next to Simmons.                                   After the

shooting, Gooch had Ruthers immediately dial 911 and identify,

by name, Simmons as the perpetrator.                        The actual identification

was made one half-hour after the shooting.                               Gooch had a good

opportunity       to     view    Simmons’s          approach       and        exit    from    the

apartment      complex     and       recognized      his    car.         In    addition,      two

other    witnesses,       Ruthers       and    Sealey,       placed       Simmons       in    the

apartment building.             Likewise, Conley also identified Simmons at

trial as the man that she spoke with that day.

               Because     Gooch’s       identification            was        reliable,       the

district court correctly permitted his in-court testimony and

identification.

                                              C.

               Simmons    asserts       that       the     district       court       erred       in

denying    his     motion       to    suppress       the    GSR    test        taken    at    the

Bellaire       Police    Department.           In    addressing          the    denial       of    a

motion    to    suppress       evidence,      we     review       the    district       court’s

findings of historical fact for clear error, “giving due weight

to   inferences        drawn    from    those       facts    by    resident          judges   and

local law enforcement officers.”                    Ornelas v. United States, 517

U.S. 690, 699 (1996).                 We review de novo the ultimate legal

                                              14
conclusion.       Id.         And, “[b]ecause the district court denied the

motion to suppress, we construe the evidence in the light most

favorable to the Government.”                            United States v. Perkins, 363

F.3d 317, 320 (4th Cir. 2004).

               The Fourth Amendment provides that “[t]he right of the

people    to    be       secure         in    their      persons,     houses,    papers,        and

effects, against unreasonable searches and seizures, shall not

be    violated.      .    .     .”           U.S.   Const.     amend.    IV.         Warrantless

searches “are per se unreasonable under the Fourth Amendment-

subject    only      to        a     few      specifically       established         and     well-

delineated exceptions.”                      United States v. Bush, 404 F.3d 263,

275 (4th Cir. 2005) (quoting Mincey v. Arizona, 437 U.S. 385,

390   (1978)).           One       of    the    well-recognized         exceptions         to    the

warrant requirement is a search incident to a lawful arrest.

See   United     States        v.       Currence,        446   F.3d   554,     556    (4th      Cir.

2006).     Pursuant to this exception, law enforcement officers

following a lawful arrest may search “the arrestee’s person and

the area ‘within his immediate control.’”                              Id. (quoting Chimel

v.    California,         395        U.S.      752,      763   (1969)).         Another         such

exception is when exigent circumstances exist, situations “where

police officers (1) have probable cause to believe that evidence

of illegal activity is present and (2) reasonably believe that

evidence may be destroyed or removed before they could obtain a



                                                    15
warrant.”       United States v. Cephas, 254 F.3d 488, 494-95 (4th

Cir. 2001).

              The magistrate judge, after conducting an evidentiary

hearing, concluded that Simmons was lawfully arrested and that,

given the inherent destructibility of gun-shot residue evidence,

the police were permitted to run the GSR test without a warrant.

The district court adopted that recommendation, and we conclude

that the district court correctly denied the motion to suppress.

              Recently, the Fifth Circuit concluded that a GSR test

is a reasonable search incident to arrest.                            United States v.

Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006).                               As the court

explained, “[b]ecause the presence of gun powder on his hands

was    relevant    evidence       that        [the      defendant]    (or    merely    time)

could have eventually removed or destroyed, if his arrest was

valid,    the     performance          of    the       gun   powder   residue    test    was

lawful, and the admission of the results at trial was proper.”

Id. at 795-96.       Such a result is dictated by Cupp v. Murphy, 412

U.S.    291    (1973),     in    which        the      Supreme   Court   concluded      that

police,       consistent        with        the     Fourth     Amendment,      could    take

fingernail samples incident to a lawful arrest.                             Id. at 295-96.

In Cupp, the Court explained the basis for the search incident

to arrest doctrine was the belief that “it is reasonable for a

police officer to expect the arrestee to use any weapons he may

have and to attempt to destroy any incriminating evidence then

                                                  16
in his possession.        Id. at 295.      Applying that rationale, the

Court concluded that the police were justified in performing a

“very limited search necessary to preserve the highly evanescent

evidence they found under his fingernails.”            Id.

            Likewise,     the     GSR     test    in      this    case      was

constitutional.      Simmons does not contest the lawfulness of his

arrest,    and,   given   that   concession,     the    GSR   test,   a    “very

limited search,” was appropriate as a search incident to arrest.

In   the   alternative,    exigent      circumstances    also    justify    the

search because Simmons was requesting to use the bathroom and

both parties agree that washing his hands could have removed any

gun-shot residue.       The district court did not err in denying the

motion to suppress.

                                     D.

            Simmons also challenges the district court’s decision

to permit testimony regarding the shooting in order to prove

Simmons’s possession of ammunition, arguing that the evidence

was inadmissible under Federal Rules of Evidence 404(b) and 403.

We review evidentiary rulings of the district court for abuse of

discretion.       United States v. Delfino, 510 F.3d 468, 470 (4th

Cir. 2007).       We will not “‘vacate a conviction unless we find

that the district court judge acted arbitrarily or irrationally’

in admitting evidence.”          United States v. Benkahla, 530 F.3d



                                     17
300, 309 (4th Cir. 2008) (quoting United States v. Ham, 998 F.2d

1247, 1252 (4th Cir. 1993)).

            Under      Rule     404(b),      “[e]vidence      of     other    crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.”                            Fed.

R. Evid. 404(b).        The Rule 404(b) inquiry, however, applies only

to    evidence    of   other     acts   that     are   “extrinsic      to     the   one

charged.”        United States v. Chin, 83 F.3d 83, 87 (4th Cir.

1996).    “[A]cts intrinsic to the alleged crime do not fall under

Rule 404(b)'s limitations on admissible evidence.”                         Id. at 87-

88.      “Evidence     of     uncharged     conduct    is   not    ‘other     crimes’

evidence subject to Rule 404 if the uncharged conduct ‘arose out

of the same series of transactions as the charged offense, or if

[evidence of the uncharged conduct] is necessary to complete the

story of the crime on trial.’”               Siegel, 536 F.3d at 316 (quoting

United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)).

            Rule    403     provides    a    more   limited    bar    to     otherwise

admissible evidence:

       Although relevant, evidence may be excluded if its
       probative value is substantially outweighed by the
       danger of unfair prejudice, confusion of the issues,
       or misleading the jury, or by considerations of undue
       delay, waste of time, or needless presentation of
       cumulative evidence.

Fed. R. Evid. 403.




                                            18
               Rule 403 is likewise a rule of inclusion, “generally

favor[ing] admissibility . . . .”                    United States v. Wells, 163

F.3d    889,    896    (4th   Cir.      1998).       District       judges       enjoy   wide

discretion to determine what evidence is admissible under the

Rule.    See United States v. Love, 134 F.3d 595, 603 (4th Cir.

1998).     We “review a district court’s admission of evidence over

a Rule 403 objection under a broadly deferential standard.”                               Id.

(internal quotations omitted).                   Indeed, “[a] district court's

decision to admit evidence over a Rule 403 objection will not be

overturned except under the most extraordinary of circumstances,

where that discretion has been plainly abused.”                            United States

v.   Williams,        445   F.3d     724,      732   (4th    Cir.        2006)    (internal

quotations omitted).          In reviewing the admission of evidence, we

construe       the    evidence     in    the    “light      most    favorable       to   its

proponent,      maximizing       its    probative     value        and    minimizing      its

prejudicial effect.”             United States v. Simpson, 910 F.2d 154,

157 (4th Cir. 1990).

               Applying     these    standards,       we    have    little       difficulty

concluding that the district court did not abuse its discretion

in admitting the challenged evidence.                       First, evidence of the

shooting satisfied Rule 404(b) because it was intrinsic to the

crime charged—it was part of the same series of transactions as

the offense and helped to tell the story of the crime.                                    In

addition, such testimony does not run afoul of Rule 403 because,

                                            19
as intrinsic evidence, it was highly probative.                         The evidence

that Simmons was seen with a gun immediately before a shooting

occurred was damaging to Simmons’s case, but that is not the

standard   under    Rule       403   and    such    evidence      was   not   unfairly

prejudicial.



                                           III.

           For     the   foregoing         reasons,      we    affirm   the   district

court's judgment.        Simmons’s motions to file supplemental briefs

are denied.      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




                                            20
