                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-4518



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERMAINE ANTONIO ARMSTRONG,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Beaufort.   Terry L. Wooten, District Judge.
(CR-04-634)


Submitted:   November 28, 2007          Decided:    December 13, 2007


Before WILLIAMS, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Wm. Reynolds Williams, WILLCOX, BUYCK & WILLIAMS, PA, Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Jermaine Antonio Armstrong was convicted of possession

with intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841 (a)(1), (b)(1)(B)(2000) (Count One);

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

in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2000) (Count

Two); possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1), 924(e) (2000) (Count Three); and use or

possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A) (2000) (Count Four).   He

was sentenced to 425 months’ imprisonment.    Armstrong’s attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), stating that in his opinion there are no meritorious

issues for appeal, but raising as potential issues whether (1)

Armstrong received a speedy trial; (2) there is proof Armstrong

waived his Miranda rights; and (3) the Government’s notices of its

intention to use Fed. R. Evid. 404(b) evidence and to seek an

enhancement under 21 U.S.C. § 851 (2000) were timely.    Armstrong

filed two pro se supplemental briefs and we grant him leave to

amend his supplemental brief.     Finding no reversible error, we

affirm.




                                - 2 -
I.     Speedy Trial

            Counsel’s and Armstrong’s contention that the Speedy

Trial Act was violated is without merit.           Under the Speedy Trial

Act, an indictment must be filed within thirty days from the date

on which a defendant is arrested, 18 U.S.C. § 3161(b) (2000), and

the trial must commence within seventy days of the filing date of

the indictment or the date of a defendant’s initial appearance,

whichever is later. 18 U.S.C. § 3161(c)(1) (2000). Certain delays

are excludable when computing the time within which a defendant

must   be   indicted   or   his   trial   must   commence.     18   U.S.C.   §

3161(h)(1)-(9) (2000).      Because Armstrong did not object under the

Speedy Trial Act, review is for plain error.          See United States v.

Olano, 507 U.S. 725, 732 (1993).

            Armstrong was arrested on July 30, 2004, and was indicted

on August 24, 2004, within the thirty-day period.            The seventy-day

period commenced on August 24, 2004, the date the indictment was

returned.    Five days are excluded for the time between Armstrong’s

counsel’s motion to withdraw, filed October 25, 2004, and the date

it was disposed of, October 30, 2004.        See § 3161(h)(1)(F) (2000).

Thus, the seventieth day under the Speedy Trial Act, was November

8, 2004.    The pretrial conference was held on November 2, 2004, and

the jury was impaneled on November 3, 2004, just days after new

counsel was appointed for Armstrong and before the seventy-day

period expired.        Because Armstrong’s new counsel had not had


                                    - 3 -
sufficient time to prepare for trial, the district court scheduled

trial for December 6, 2004, with Armstrong’s consent.     Even though

the trial began on December 6, 2004--outside the seventy-day

period--the court properly continued the trial to allow Armstrong’s

newly appointed counsel to adequately prepare.       See 18 U.S.C. §

3161(h)(8)(B)(iv) (2000) (providing that a factor to consider in

determining whether to grant a trial continuance sua sponte or on

a party’s motion is whether failing to do so “would deny counsel

for the defendant or attorney for the Government the reasonable

time necessary for effective preparation.”).

            To the extent Armstrong claims his Sixth Amendment right

to a speedy trial was violated, this claim is without merit.       In

determining whether a pretrial delay violated a defendant’s Sixth

Amendment right, a court must balance four considerations: (1) the

length of the delay; (2) the reason for the delay; (3) the

defendant’s assertion of his right to a speedy trial; and (4) the

extent of prejudice to the defendant.       Barker v. Wingo, 407 U.S.

514, 530 (1972).    The Supreme Court has explained that the first

factor actually involves two inquiries.     Doggett v. United States,

505 U.S. 647, 651-52 (1992).     The first question is whether the

delay is sufficient to trigger a speedy trial inquiry.      The Court

has answered this question affirmatively when the delay approaches

one year.    Id. at 651-52 & n.1.       Second, courts must consider,

together with other relevant factors, “the extent to which the


                                - 4 -
delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim.”      Id. at 652.

           The delay between the return of Armstrong’s indictment

and his trial was 99 days.       Under the reasoning in Doggett, even

the combined delay of a little more than three months was not

sufficient to trigger examination of the remaining Barker factors.



II.   Miranda

           Counsel next argues that Armstrong’s statements to police

officers should not have been admitted because there is no proof

Armstrong waived his Miranda1 rights before police questioned him.

Rule 12(b)(3) of the Federal Rules of Criminal Procedure requires

motions   to    suppress   evidence   be   made   before   trial.   United

States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997).          Failure to

make a motion to suppress before trial constitutes waiver unless

the trial court grants relief from the waiver under Rule 12(e) for

cause shown.     Fed. R. Crim. P. 12(e); United States v. Ricco, 52

F.3d 58, 62 (4th Cir. 1995).      Armstrong therefore must show cause

for his failure to file a pretrial motion to suppress.              Because

Armstrong failed to raise the issue of suppression based on alleged

Miranda violations prior to or during trial and he does not allege

cause for his failure to do so, we find he has waived the issue.




      1
       Miranda v. Arizona, 384 U.S. 436 (1966).

                                  - 5 -
III. Rule 404(b) Evidence

           Counsel next contends the Government’s notice of its

intent to introduce Rule 404(b) evidence of other crimes or acts

was   untimely   because       Armstrong    had    requested   a   notice    on

September 13, 2004, the Government knew of the evidence prior to

the indictment, and the Government did not file its notice until

November 30, 2004, just days before trial.             We review a district

court’s determination of the admissibility of evidence under Rule

404(b) for abuse of discretion, applying a four-factor analysis.

United States v. Queen, 132 F.3d 991, 995, 997 (4th Cir. 1997).               A

district court will not be found to have abused its discretion

unless   its   decision   to    admit   evidence    under   Rule   404(b)   was

arbitrary or irrational. United States v. Haney, 914 F.2d 602, 607

(4th Cir. 1990). In order to introduce evidence under Rule 404(b):

“the prosecution in a criminal case shall provide reasonable notice

in advance of trial, or during trial if the court excuses pretrial

notice on good cause shown, of the general nature of any such

evidence it intends to introduce at trial.”           Fed. R. Evid. 404(b).

We find the Government’s notice given a week in advance of trial

was not untimely.

           Armstrong also contends in his pro se brief that the

district court erred in admitting the Rule 404(b) evidence because

it failed to identify the specific purpose for which the evidence




                                    - 6 -
was admitted.2   Rule 404(b) is an inclusive rule, allowing evidence

of other crimes or acts except that which tends to prove only

criminal propensity.    Queen, 132 F.3d at 994-95; United States v.

Rawle, 845 F.2d 1244, 1247 (4th Cir. 1988).    Such evidence of other

crimes or acts is admissible to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”     Id.   Evidence of prior acts is admissible if the

evidence is:     (1) relevant to an issue other than the general

character of the defendant, (2) necessary, (3) reliable, and (4) if

the probative value of the evidence is not substantially outweighed

by its prejudicial effect.    Queen, 132 F.3d at 997.

          In allowing the evidence, the district court analyzed the

criteria set forth in Queen and found the evidence had probative

value, was reliable, and was not unfairly prejudicial.     The court

noted the evidence was “offered to show motive, intent, I presume

plan, common plan and knowledge of the drugs,” and gave the jury an

appropriate limiting instruction.       We find the record shows the

district court adequately identified the purposes for which the

Rule 404(b) evidence was admitted.




     2
      Armstrong does not argue that the evidence itself was
inadmissible, only that the district court did not state the
specific purpose for which the evidence was admitted.

                                - 7 -
IV.    Timeliness of § 851 Notice

             Counsel’s final argument is that the Government’s 21

U.S.C.   §   851       (2000)    notice   was     untimely.     To   seek   enhanced

penalties under 21 U.S.C. § 841(b)(1)(A), the Government must file

an information giving its notice to seek such penalties prior to

trial or the entry of a plea.             See 21 U.S.C. § 851.       The purpose of

§ 851 is to provide pretrial notice to a defendant that he faces an

increased punishment if convicted of a qualifying offense so he has

the opportunity to contest the accuracy of the information and

sufficient time to understand the full consequences of a guilty

plea or verdict.          United States v. Williams, 59 F.3d 1180, 1185

(11th Cir. 1995).               Here, the Government filed its notice on

November 3, 2004, the day the jury was impaneled and one month

before the trial.           We find the notice was timely.              See United

States v. Beasley, 495 F.3d 142, 148-50 (4th Cir. 2007), petition

for cert. filed, 76 U.S.L.W. 3226 (U.S. Oct. 23, 2007)(No. 07-548).



V.     Confrontation Rights

             Armstrong argues in his pro se supplemental brief that

the district court erred in allowing the Government to present

testimony about information received from a confidential informant,

in    violation    of     his    Sixth    Amendment    confrontation     rights   as

articulated       in    Crawford    v.    Washington,     541   U.S.   36    (2004).

Armstrong did not object to the testimony concerning the informant


                                          - 8 -
at trial, therefore we review for plain error.                See Olano, 507 U.S.

at 732-34.    We may notice an error that was not preserved by timely

objection only if the defendant can demonstrate:                    (1) an error

occurred, (2) the error was plain, and (3) the error was material

or affected the defendant’s substantial rights.                   Id. at 732-37.

Even   if   the   threshold      requirements       are   satisfied,   we   retain

discretion whether to correct the error, which should be exercised

only if the “error ‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’”                Id. at 736 (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)).

             Under Crawford, the Sixth Amendment requires a witness be

unavailable       and   that     there    be    a     prior     opportunity       for

cross-examination       before    testimonial       hearsay    evidence     may    be

admitted,    regardless    of     the    inherent     trustworthiness       of    the

statement.     Crawford, 541 U.S. at 68.             Crawford applies only to

testimonial hearsay statements.           Id.   “[A]n out of court statement

is not hearsay if it is offered for the limited purpose of

explaining why a government investigation was undertaken.”                  United

States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (citations

omitted).

             Armstrong challenges the testimony of an investigating

officer as to what prompted the investigation of Armstrong’s drug

offenses.     We find the testimony concerning the informant was

introduced for the limited purpose of explaining the course of the


                                        - 9 -
police    investigation    and   thus    was   not    a    testimonial    hearsay

statement to which Crawford applies.           See Love, 767 F.2d at 1063.

Therefore, Armstrong’s claim must fail.



VI.   § 924(c) Conviction

            Armstrong argues that his conviction for possession of a

firearm in furtherance of a drug trafficking crime was invalid

because there was insufficient evidence to show that the guns were

used for drug trafficking.        To establish a violation of 18 U.S.C.

§ 924(c), the Government must prove that the firearm “furthered,

advanced, or helped forward a drug trafficking crime.”                     United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002).               Factors that

might    lead   a   reasonable   trier   of    fact   to    conclude     that   the

requisite nexus existed between the firearm and the drug offense

include: “‘the type of drug activity that is being conducted,

accessibility of the firearm, the type of weapon . . . , whether

the gun is loaded, proximity to drugs or drug profits, and the time

and circumstances under which the gun is found.’”                 Id. (quoting

United States v. Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir.

2000)).    Ultimately, the jury verdict “must be sustained if there

is substantial evidence, taking the view most favorable to the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80 (1942).      “[S]ubstantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to support


                                   - 10 -
a conclusion of a defendant’s guilt beyond a reasonable doubt.”

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)(en banc).

          In this case, the firearms were discovered in a suitcase

with a significant quantity of cocaine and clothes belonging to

Armstrong in a motel room he had rented.     Armstrong admitted to

officers that the suitcase was his and his fingerprints would be on

the firearms.   We find there was sufficient evidence for a jury to

reasonably find Armstrong guilty of violating § 924(c). See United

States v. Garner, 338 F.3d 78, 81 (1st Cir. 2003) (“When guns and

drugs are found together and a defendant has been convicted of

possession with intent to distribute, the gun whether kept for

protection from robbery of drug-sale proceeds, or to enforce

payments for drugs, may reasonably be considered to be possessed

‘in furtherance of’ an ongoing drug-trafficking crime.”).



VII. Career Offender Sentence

          Armstrong argues the district court erred in sentencing

him as a career offender because two of the predicate offenses were

related and should count as one conviction. In order for Armstrong

to be designated a career offender, the Government had to establish

(1) that he was at least 18 years old at the time of the instant

offense, (2) that the instant offense is a felony that is either a

“crime of violence” or a “controlled substance offense,” and

(3) that he had at least two prior felony convictions for either a


                                - 11 -
“crime of violence” or a “controlled substance offense.”                 USSG

§ 4B1.1(a); United States v. Harp, 406 F.3d 242, 245 (4th Cir.

2005). A controlled substance offense is “an offense under federal

or state law, punishable by imprisonment for a term exceeding one

year, that prohibits the . . . distribution, or dispensing of a

controlled substance . . . or the possession of a controlled

substance   .   .   .   with   intent   to    manufacture,   import,   export,

distribute, or dispense.”        USSG § 4B1.2(b).

            We find Armstrong’s sentence as a career offender was

proper because, even if the prior convictions Armstrong contends

are related do in fact constitute one criminal episode and thus one

predicate offense, Armstrong still has two other predicate offenses

that would qualify him as a career offender, both of which were

included in the Government’s § 851 notice.

            We find Armstrong’s remaining pro se claims meritless.

Pursuant to Anders, we have examined the entire record and find no

meritorious issues for appeal.          Accordingly, we grant Armstrong’s

motions   to    amend    his   pro   se   brief    and   affirm   Armstrong’s

convictions and sentence.        This court requires that counsel inform

his client, in writing, of his right to petition the Supreme Court

of the United States for further review.             If the client requests

that a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for leave

to withdraw from representation.          Counsel’s motion must state that


                                     - 12 -
a copy thereof was served on the client.    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




                              - 13 -
