                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4496



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LENDRO MICHAEL THOMAS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
03-189)


Submitted:   June 1, 2006                  Decided:   July 11, 2006


Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Martin H. Schreiber, II, BROWN, GOLDSTEIN & LEVY, L.L.P.,
Baltimore, Maryland, for Appellant.  Rod J. Rosenstein, United
States Attorney, John F. Purcell, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIUM

     Lendro Michael Thomas appeals his convictions and 204 month

sentence for various drug and gun crimes.                 Thomas argues that the

district    court    erred     at   trial       in   excluding   expert    testimony

concerning narcotic trafficking methods, admitting evidence that

Thomas sold drugs on a previous occasion, and refusing to allow

Thomas to call a Government investigator to testify about certain

statements    made    by   a   deceased         co-defendant.      Thomas    further

contends that the district court erred in sentencing him as a

career offender under the U.S. Sentencing Guidelines.                     Because we

find Thomas’s arguments unpersuasive, we affirm his convictions and

sentence.



                                        I.

     On February 10, 2003, Edwin Matthews and Thomas were arrested

on the 3400 block of Spelman Avenue, near the Cherry Hill public

housing project in Baltimore, Maryland. Minutes before his arrest,

Thomas was involved in the sale of two $10 gel caps, or doses, of

heroin to an undercover Baltimore police detective, John Calpin.

Calpin testified that he and his partner, Chris O’Ree, drove onto

the 3400 block of Spelman Avenue, knowing that Cherry Hill was an

“open air drug market.”         (J.A. at 105.)

     Upon arriving, Calpin noticed a black male, who was later

determined to be Matthews, dressed in a black knit hat and a dark


                                            2
jacket over a hooded sweatshirt or jacket.            The police detectives

slowed down their vehicle, and Matthews approached in order to

initiate a drug sale, offering the detectives “dope, coke, ready,

and weed,” (J.A. at 108), which are street names for heroin,

cocaine, crack cocaine, and marijuana, respectively.            Calpin asked

for “two dope,” at which point Matthews asked Calpin to follow him

into an alleyway between two buildings.            There, Calpin saw another

black male dressed in dark blue, whom he identified at trial as

Thomas.    Calpin then gave the men a $20 bill, and Thomas gave

Calpin two gel caps of heroin.

     After the drug transaction, Calpin and O’Ree drove away and

reported what had occurred, along with descriptions of Thomas and

Matthews, to a waiting arrest team.          A few minutes later, Sargent

Mark Janicki and his enforcement team arrived on the scene.            Upon

arriving, Janicki saw Thomas leaning against a car on the 3400

block of Spelman.      Janicki, in plainclothes, approached Thomas and

identified himself as a police officer.               Thomas then suddenly

placed    both   of   his   hands   inside   his   coat   pockets.   Janicki

immediately grabbed Thomas’s hands because he was concerned Thomas

was reaching for a gun.       Janicki then secured Thomas and removed a

gun from Thomas’s right coat pocket. Janicki also recovered from

Thomas’s coat pockets 51 gel caps of heroin and 30 vials of

cocaine, all together amounting to an estimated total worth of

$900.     Janicki also recovered a $20 bill from Thomas’s pants


                                       3
pocket, the same $20 bill that Calpin had traded for drugs shortly

before Thomas’s arrest.   Matthews was also arrested, and Calpin

positively identified the two men as the ones who sold him heroin.

     On April 17, 2003, Thomas was indicted on four counts by a

grand jury in the District of Maryland.    Count 1 charged Thomas

with possession with intent to distribute a mixture of cocaine and

heroin, in violation of 21 U.S.C. § 841.    Count 2 charged Thomas

with distribution of heroin, in violation of 21 U.S.C. § 841.

Count 3 charged Thomas with possession of a firearm in furtherance

of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

Count 4 charged Thomas with possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g).      Matthews was also

charged with respect to Counts 1 and 2, but he died prior to trial.

     On June 16, 2004, a jury returned verdicts convicting Thomas

on all four counts of the indictment.      On April 29, 2005, the

district court sentenced Thomas to concurrent terms of 144 months

of imprisonment on Counts 1, 2, and 4 and to a consecutive term of

60 months on Count 3, for a total sentence of 204 months.   Thomas

timely appealed, challenging both his convictions and sentence.



                               II.

     Thomas argues that the district court erred by excluding his

expert’s testimony about narcotics trafficking methods in Baltimore

after the court allowed the Government to present such evidence.


                                4
We review for abuse of discretion the district court’s decision to

admit or exclude evidence, see United States v. Hodge, 354 F.3d

305, 312 (4th Cir. 2004); see also United States v. Hopkins, 310

F.3d 145, 151 (4th Cir. 2002) (including expert testimony).

     Prior to trial, both Thomas and the Government indicated their

intent to call expert witnesses to testify about how the drug trade

operates in Baltimore.    Thomas wanted to present as an expert a

former buyer and seller of narcotics in Baltimore.         Thomas’s

“expert” would testify that street-level dealers divide possession

of the drugs, the purchase money, and a firearm among separate

individuals so that no one individual is in possession of all three

items.   The Government intended to introduce an expert who would

testify that a dealer “[p]retty much can’t do the [drug] business

without a firearm around.”   (J.A. at 21.)

     The district court made a preliminary ruling refusing to allow

either side to present such testimony.    The court noted that this

was “a case about eyewitness identification and whether the jury

believes it or not.”   (J.A. at 22.)   Accordingly, the court wished

to keep the testimony simple and prevent Thomas’s “expert,” who was

not present at the scene of the crime, from testifying that “[w]hat

the [G]overnment says happened didn’t happen.”    (J.A. at 18.)   The

court, however, in making its ruling noted that the Government

would be able to argue about the obvious “connection between guns

and drugs, about who carries guns.”    (J.A. at 22.)


                                  5
     During Janicki’s testimony at trial, the Government attempted

to ask Janicki why he worried about guns during his undercover drug

operations.        Thomas objected based on the court’s preliminary

ruling disallowing expert testimony.                 A brief bench conference

ensued, where the Government argued that it was not attempting to

qualify Janicki as an expert; rather, it sought to ask only about

one of the tools of the drug trade in order to prove Count 3 of the

indictment,     which     charged   Thomas    with    knowingly   possessing   a

firearm in furtherance of a drug trafficking crime.

     The district court allowed the Government to proceed on this

point, while also explaining to Thomas that he would still not be

allowed to call his “expert.”               The Government then questioned

Janicki as follows:

     Q.   Detective, I think I asked you if it was unusual for

     you, based on your experience and this quantity of drugs,

     to find a firearm with a person, on a person carrying

     this amount of drugs?

     A.   No.

     Q.   Why not?

     A.   Over my years in my experience I’ve arrested many

     people with handguns that were selling drugs just for the

     fact that it’s a dangerous business, one.               You hear, I

     see it, people getting killed every day. They’re selling

     drugs    on    the   street    corners.     People     robbing   drug


                                        6
      dealers, it happens every day.           It’s been my experience

      that drug dealers that are selling carry weapons. (J.A.

      at 61-62.)

This was the full extent of Janicki’s testimony on the question.

      Thomas contends that by allowing Janicki’s testimony, the

district court was required to allow the testimony of Thomas’s

expert as well.     We disagree.

      The purpose of Janicki’s testimony was to establish that, in

his experience, firearms are common tools of the drug trade.                This

testimony was germane to Count 3 of the indictment, in which the

Government had to prove that Thomas knowingly possessed a firearm

in furtherance of a drug trafficking crime.             See United States v.

Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are tools of the

drug trade and are commonly recognized articles of narcotics

paraphernalia.”); United States v. Kennedy, 32 F.3d 876, 882 (4th

Cir. 1994) (noting that “the law has uniformly recognized that

substantial    dealers   in    narcotics      possess   firearms”)   (internal

quotation marks omitted); United States v. Grogins, 163 F.3d 795,

799   (4th   Cir.   1998)     (noting   the    “background   fact    that   the

connection between illegal drug operations and guns in our society

is a tight one”).

      The theory of Thomas’s defense, however, was one of mistaken

identity.     His theory was based on an argument that Thomas had

neither drugs nor a firearm in his possession when he was arrested


                                        7
and that the police were “mixed up” in their identification of

Thomas.   (J.A. at 199.)       Thomas was not attempting to rebut the §

924(c) point that drugs and firearms go hand in hand.          Rather, the

purpose of the expert’s testimony was to impeach the identification

of Thomas via an expert who was not at the scene of the crime.           In

other words, Thomas sought to prove -- through an expert who was

not at the scene -- that the police were “mixed up” because it was

impossible for the same man to possess drugs, purchase money, and

a   firearm.    The   common    practices   of   Baltimore   drug   dealers,

however, were irrelevant to whether the jury believed Janicki’s

testimony that he seized drugs and a firearm from Thomas’s person.

Accordingly, the district court did not abuse its broad discretion

in disallowing the testimony as irrelevant because this was a

“simple case”    concerning “eyewitness identification and whether

the jury believes it or not.”       (J.A. at 22.)    Furthermore, we hold

that the district court also did not abuse its discretion in

refusing to allow the expert testimony simply because a Government

witness testified to the commonly recognized fact that people who

sell drugs often carry firearms.



                                    III.

      Thomas next argues that the district court violated Federal

Rule of Evidence 404(b) by admitting evidence that he had sold

drugs nine days prior to the sale at issue here.         We conclude that


                                      8
the district court did not abuse its discretion in admitting this

evidence.

      During trial, the Government called Detective Floyd Jones, who

was prepared to testify that he made an undercover purchase of

heroin from Thomas on February 1, 2003.             Thomas objected, arguing

that Jones’s testimony was barred by Rule 404(b), which states:

      Evidence of other crimes, wrongs, or acts is not
      admissible to prove the character of a person in order to
      show action in conformity therewith. It may, however, be
      admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .


Fed. R. Evid. 404(b).         The district court overruled the objection

and allowed the testimony, basing its decision on Fourth Circuit

precedent and its opinion that the testimony “goes both to intent

and to identity.”         (J.A. at 203.)

      Rule 404(b) is an “inclusionary rule.” United States v. Mark,

943   F.2d   444,   447     (4th   Cir.   1991)   (internal   quotation   marks

omitted).    The rule acts as a bar on evidence that “tends to prove

only criminal disposition.”          United States v. Higgs, 353 F.3d 281,

311 (4th Cir. 2003) (internal quotation marks omitted and emphasis

in original).       Thus,

      evidence is admissible if (1) it is relevant to an issue,
      such as an element of an offense, and is not offered to
      establish the general character of the defendant; (2) it
      is necessary in the sense that it is probative of an
      essential claim or an element of the offense; (3) it is
      reliable;   and   (4)  its   probative    value  is   not
      substantially outweighed by confusion or unfair prejudice


                                          9
      in the sense that it tends to subordinate reason to
      emotion in the factfinding process.


Id. (internal quotation marks and alterations omitted).

      The evidence was relevant and necessary here because it went

toward identity and intent, two issues that Thomas contested at

trial and the Government was required to prove.             See Mark, 943 F.2d

at   448   (“[T]he   relevance   of    the    evidence      derives   from    the

defendant’s    having    possessed    the    same   state    of   mind   in   the

commission of both the extrinsic act and the charged offense.”

(internal    quotation   marks   omitted));     Hodge,      354   F.3d   at   312

(holding that evidence of defendant’s previous drug transaction

“was relevant and necessary in that it tended to show the existence

of a continuing narcotics business” as well as the defendant’s

“knowledge of the drug trade and his intent to distribute”); see

also United States v. Cassell, 292 F.3d 788, 793 (D.C. Cir. 2002)

(noting that “in cases where a defendant is charged with unlawful

possession of something, evidence that he possessed the same or

similar things at other times is often quite relevant to this

knowledge and intent with regard to the crime charged” (internal

quotation marks omitted)). The evidence was also reliable, in that

Jones’s testimony was sufficient to allow the jury to “reasonably

conclude that the act occurred and that the defendant was the

actor.”     Huddleston v. United States, 485 U.S. 681, 689 (1988).

Finally, the evidence’s probative value was not outweighed by


                                      10
confusion or unfair prejudice because the evidence “did not involve

conduct any more sensational or disturbing than the crimes with

which [Thomas] was charged.”   United States v. Boyd, 53 F.3d 631,

637 (4th Cir. 1995).   In sum, the district court did not abuse its

discretion in allowing the testimony under Rule 404(b).



                                IV.

     Thomas next argues that the district court erred in refusing

to admit statements made by Matthews after his arrest. We conclude

that any error the district court made in excluding the statements

was harmless.

     The Government interviewed co-defendant Matthews after his and

Thomas’s arrest.   During that interview, Matthews claimed he was

innocent of the charges and had been on the street in order to

purchase drugs as opposed to selling.    His statement attempted to

implicate Thomas and another man, whom Matthews had identified

prior to his death as “Fry,” or “High Fry.”

     During trial, the defense called Antionette Bolden, who stated

she was with Thomas on the day of his arrest.     Bolden testified

that the police also detained a man named High Fry that day before

releasing him shortly thereafter.       Bolden’s testimony further

implied that the police agreed to release High Fry in exchange for

information about people in possession of guns or drugs.         In

response to Government questioning on cross-examination, Bolden


                                 11
stated that she never attempted to report the existence of High Fry

to the authorities.

      Thomas contends that he should have been allowed to call a

Government investigator as a witness in order to testify about

Matthews’s statement concerning the existence of High Fry because

such “testimony would have corroborated Bolden’s testimony and

corrected the false impression that Bolden had invented Fry.”

(Appellant’s Br. at 20.)            We conclude, however, that the district

court     did   not    abuse    its    discretion       in    excluding     testimony

concerning Matthews’s statement.

      To the extent Thomas was offering Matthews’s statement to

prove the truth of the matter asserted, it was hearsay,                     see Fed.

R. Evid. 801, and did not qualify under any exception based on the

declarant’s unavailability.            See Fed. R. Evid. 804.        To the extent

the   statement       was   being     sought     in   order   to   prove    that   the

Government failed adequately to investigate other leads, any error

in excluding the statement was harmless.                The motive of Matthews’s

statement was to explain his innocence by inculpating Thomas and an

unknown third man, High Fry.                Thomas offers no theory for how

Matthews’s      statement      --   which    essentially      replaced     Matthews’s

alleged role with High Fry and incriminated Thomas just the same --

could have possibly created reasonable doubt sufficient to acquit

Thomas.    Accordingly, we hold that any error was harmless.




                                            12
                                     V.

      Thomas also challenges his sentence, arguing that the district

court erred in sentencing him as a career offender pursuant to U.S.

Sentencing Guidelines Manual § 4B1.1 after a Maryland court found

one of his prior convictions to be unconstitutional.           We review de

novo the district court’s legal interpretations and its factual

findings for clear error.        United States v. Caplinger, 339 F.3d

226, 235-36 (4th Cir. 2003).

      Prior to sentencing, Thomas petitioned the Maryland courts to

vacate two 1992 armed robbery convictions to which he had pleaded

guilty in the same proceeding on December 15, 1992.*                 Thomas’s

Petition for Writ of Error Coram Nobis contended, inter alia, that

the convictions were constitutionally invalid because he was never

informed of and did not understand the charges to which he pleaded

guilty.    The Circuit Court for Baltimore City recognized its

agreement with Thomas’s argument, noting that it did not believe

that a court “could make a determination that petitioner understood

the   nature   of    the   charges   against   him.”      (J.A.     at   311.)

Nonetheless,   the    court   held   that   Thomas   waived   his   right   to

challenge the conviction and failed to show that the waiver was not


      *
     In addition to the 1992 convictions, Thomas had also been
convicted of armed robbery in 1983. Thomas did not contest the
validity of this 1983 conviction. Thus, even if Thomas’s two 1992
convictions -- to which he pleaded guilty in the same proceeding
-- were counted as a single offense, he would remain properly
classified as a career offender under U.S. Sentencing Guidelines
Manual § 4B1.1.

                                     13
intelligent    and       knowing.       Accordingly,   the   court     denied     the

Petition.

      At the outset, Thomas concedes that the district court would

have erred had it allowed him collaterally to attack his prior

Maryland conviction during his federal sentencing proceeding.                     See

Custis v. United States, 511 U.S. 485, 496 (1994) (holding that a

defendant may only collaterally attack a prior conviction used for

sentence enhancement if that attack is based on a conviction

obtained in violation of his right to counsel).                Thomas, however,

contends    that    he    was   not     seeking   collaterally    to   attack     his

conviction at sentencing.             Rather, he argues that he had already

successfully attacked the conviction in Maryland court and the

district court erred in not recognizing that successful attack.

      Thomas’s argument cannot prevail.             “[A] sentencing court must

count a predicate conviction that has not been reversed, vacated,

or   invalidated     in    a    prior    case,    unless   federal     law   or   the

Constitution       secures      the   defendant’s    right   to   challenge       the

conviction in the current sentencing proceeding . . . .”                     United

States v. Bacon, 94 F.3d 158, 161 (4th Cir. 1996) (emphases added).

The Maryland court did not reverse, vacate, or invalidate any of

Thomas’s prior convictions. Rather, the court denied his petition,

thus allowing the convictions to stand.              Whether the state court’s

denial of the petition was based on substantive or procedural

grounds is immaterial in this case.                Here, Thomas’s convictions


                                           14
remained valid in the state of Maryland and the district court had

no discretion to ignore those convictions.       Accordingly, the

district court did not err in sentencing Thomas as a career

offender.



                               VI.

     In sum, we affirm Thomas’s convictions and sentence.       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




                                15
