                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4357


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DANIEL MCINTOSH, a/k/a Barfly, a/k/a B-Fly,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:10-cr-00777-RWT-14)


Argued:   January 28, 2016                 Decided:   August 23, 2016


Before WILKINSON, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ,
Highland, Maryland, for Appellant.     Sonja M. Ralston, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Appellate
Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF
THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             A    jury    convicted      Daniel    McIntosh       (“Appellant”)      of

conspiracy       to   possess    with     intent       to    distribute     marijuana,

conspiracy to launder money, and aiding and abetting interstate

travel in furtherance of drug trafficking.                       The district court

sentenced Appellant to 120 months of imprisonment and ordered

him   to   forfeit       over   $6.3    million.        He     timely     appealed   and

alleges several errors arising from his trial and sentencing.

             We have reviewed the record and find no reversible

error.     Therefore, for the reasons that follow, we affirm.

                                          I.

             During        a     decade-long,               multi-state      marijuana

trafficking       conspiracy     beginning        in    2001,    Appellant     and   15

co-conspirators directed thousands of pounds of marijuana into

Baltimore,        Maryland,       from         California        and       Canada    by

tractor-trailer and airplane. 1           Appellant was heavily involved in

the conspiracy:          he arranged for drivers as well as deliveries

of marijuana, assisted in unloading trucks containing up to 100

pounds of marijuana at a time, collected and counted proceeds,

and helped in dividing up the marijuana for distribution.




      1We recite the facts in the light most favorable to the
Government, as the prevailing party at trial. See United States
v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015).



                                           2
             In    2007,       Appellant       took       over   a     Baltimore      bar/music

venue called Sonar, which he utilized as a cover for the illicit

marijuana        operation.            Sonar    struggled        with        its   operational

expenses, yet the infusion of cash from the marijuana operation

that was commingled with Sonar’s proceeds helped Appellant pay

Sonar’s bills, including payroll, outstanding checks, and tax

obligations.          Moreover, Appellant used Sonar and its employees

to coordinate the marijuana distribution network.                              For instance,

Sonar was used as a drop-off and pick-up location for the cash

that supported the conspiracy, Appellant paid a co-conspirator

through    Sonar’s          payroll,     and    Appellant        had     a    Sonar    employee

deliver marijuana to an off-premises location.

             In May 2012 in the District of Maryland, Appellant was

charged    by     a    second     superseding             indictment,        which    was   then

amended     on     September       11,    2012,       with       the    following      crimes:

conspiracy to distribute and possess with intent to distribute

1,000 kilograms or more of marijuana, in violation of 21 U.S.C.

§ 846 (“Count One”); conspiracy to launder money, in violation

of    18   U.S.C.          § 1956(h)     (“Count      Two”);         money     laundering     by

concealment,          in     violation      of       18     U.S.C.      § 1956(a)(1)(B)(i)

(“Count     Three”);          knowingly        maintaining        a     premises      for     the

purpose of distributing marijuana, in violation of 21 U.S.C.

§ 856(a)(1) (“Count Four”); managing and controlling a place for

the   purpose         of    unlawfully     storing,          distributing,           and    using

                                                 3
marijuana, in violation of 21 U.S.C. § 856(a)(2) (“Count Five”);

and aiding and abetting interstate commerce in furtherance of

drug trafficking, in violation of 18 U.S.C. §§ 1952, 2 (“Count

Six”).

            On the first day of trial, September 11, 2012, the

Government filed an information pursuant to 21 U.S.C. § 851 (the

“Information”),          seeking    to    enhance            Appellant’s    sentence        and

citing four prior felony drug offenses.                        Appellant was convicted

of three of the offenses in Pennsylvania in 1998: possession

with     intent    to     deliver      marijuana,            attempted     possession        of

marijuana, and attempted possession of marijuana with intent to

deliver.          He    was    convicted          of    the     remaining        offense     --

possession with intent to distribute marijuana -- in Maryland in

2005.     As a result, the Government submitted that if the jury

convicted Appellant of conspiracy to distribute less than 1,000

kilograms but more than 100 kilograms, he would be subject to a

mandatory minimum term of ten years in prison.                              See 21 U.S.C.

§ 841(b)(1)(B).

            The trial lasted approximately 25 days.                               At trial,

Appellant    filed       a    motion     to   exclude          evidence     of    the     prior

Pennsylvania       and    Maryland       marijuana           convictions.        He   claimed

that including such convictions would violate Rule 404(b) of the

Federal     Rules        of   Evidence.                The     district     court       denied

Appellant’s       motion      but   cautioned            the    jury     twice     that    the

                                              4
evidence was to be used only for the limited purposes outlined

in Rule 404(b).

              During trial, the Government introduced evidence that,

as to the Pennsylvania offenses, Appellant paid $12,000 for 15

pounds of marijuana from a confidential informant, and police

then       recovered       approximately     one     ounce       of    marijuana         from

Appellant’s car.            About one month later, Appellant arranged for

a courier to pay $2,400 for five pounds of marijuana.                                    At a

consolidated         proceeding,      Appellant      pled       guilty      to    attempted

possession of marijuana and possession with intent to distribute

marijuana with regard to the 15-pound purchase.                            When he denied

involvement      with      the   five-pound      purchase,       he    was       allowed   to

enter an Alford plea 2 to the charges of attempted possession of

marijuana      and     conspiracy     to    possess       with    intent         to   deliver

marijuana.           The    Government      also    introduced         a    court      record

reflecting Appellant’s Maryland conviction for possession with

intent to distribute marijuana, but no additional facts were

provided to the jury with regard to this conviction.

              Ultimately,        in   the    instant      case,       the    District      of

Maryland      jury     found     Appellant       guilty    of     a    lesser         included



       2See North Carolina v. Alford, 400 U.S. 25 (1970)
(authorizing a defendant to waive trial and to consent to
punishment   without   admitting participation in the acts
constituting the crime).



                                             5
offense in Count One, that is, conspiracy to distribute more

than 100 but less than 1,000 kilograms of marijuana; Count Two,

conspiracy to launder money; and Count Six, interstate travel in

furtherance     of     drug    trafficking.            He    was   acquitted       of    the

remaining counts.

             At sentencing on March 20, 2014, the district court

established that Appellant was a career offender, and thus, his

advisory     Sentencing       Guidelines       range    was     360    months   to      life

imprisonment.        The district court also determined that Appellant

was subject to a mandatory minimum sentence of ten years based

on the Government’s § 851 Information.                      Ultimately, the district

court varied downward and sentenced Appellant to the mandatory

minimum of 120 months for the drug conspiracy, a concurrent 120

months for the money laundering conspiracy, and a concurrent 60

months for the conviction of interstate travel in furtherance of

unlawful activity.        The district court also ordered Appellant to

forfeit over $6.3 million, representing the gross proceeds from

his criminal activity.

             In this appeal, Appellant claims the district court

erred   in    five     ways:    (1)   admitting             evidence    of   his     prior

marijuana convictions in violation of Rule 404(b) (the “Rule

404(b) argument”); (2) imposing the mandatory minimum sentence

of   120     months    based     on   the       Information         (the     “sentencing

argument”);      (3)     imposing     a        forfeiture          order     without       a

                                           6
constitutional,         factual,      or    statutory       basis;       (4)    preventing

Appellant from presenting a defense and confronting witnesses;

and (5) denying his motion for acquittal based on insufficiency

of the evidence.            While we reject each of these arguments, we

focus    on    the    first    two:    the       Rule    404(b)    argument       and    the

sentencing argument.

                                            II.

                               Rule 404(b) Argument

                                             A.

               We review a district court’s Rule 404(b) evidentiary

determinations for abuse of discretion.                         See United States v.

Briley,    770      F.3d    267,   275-76    (4th       Cir.    2014).         “Under   this

standard, a district court abuses its discretion when it acts

arbitrarily or irrationally” in admitting the evidence.                                  Id.

(internal quotation marks omitted).                     Even if the district court

abused     its      discretion,       Appellant         must    still     surmount       the

harmless error hurdle.              See United States v. Madden, 38 F.3d

747,    753    (4th    Cir.    1994).        “Where       error    is     founded       on   a

violation of Rule 404(b), the test for harmlessness is whether

we   can      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.”

Id. (internal quotation marks omitted).



                                             7
                                           B.

            The     district       court     denied         Appellant’s     motion       to

exclude his prior convictions because it concluded these prior

convictions were relevant, necessary, reliable, and not unduly

prejudicial.        On appeal, Appellant (1) contends the Government

did   not   timely     provide      notice      of    its    intended     use    of    this

evidence;     and      (2)   challenges         the    relevancy     of     the        prior

convictions.        We conclude that the district court did not abuse

its discretion.

                                           1.

            We      first    address       Appellant’s         argument         that     the

Government did not provide timely notice of its intent to use

Rule 404(b) evidence.          Rule 404(b)(2) provides that upon request

by the defendant, the Government must, before trial, “provide

reasonable notice of the general nature of any such evidence

that the prosecutor intends to offer at trial.”                         Fed. R. Evid.

404(b)(2)(A).       Such a notice “is intended to reduce surprise and

promote early resolution on the issue of admissibility.”                                Fed.

R. Evid. 404(b) advisory committee’s note to 1991 amendments.

Accordingly, if the Government does not comply with the notice

requirement       of    Rule       404(b),      the     proffered       evidence          is

inadmissible.          See   id.   (“[T]he      notice       requirement    serves        as

condition precedent to admissibility of 404(b) evidence.”).



                                           8
              Contrary        to     Appellant’s       argument,        the    Government

satisfied      the    notice        requirement.       Appellant’s       trial       counsel

herself acknowledged that August 1, 2012, was “the first time

[the     Government]          set    out     in    some    specificity         what     [the

Government was] hoping to submit to the court.”                               J.A. 1700. 3

This was 41 days prior to trial.                   Then, on August 26, 2012, the

Government         again   informed        Appellant      that   it     “may    introduce

evidence      of    [Appellant’s]          prior   drug    arrests      and    convictions

under [R]ule 404(b).”                G.S.A. 30. 4         These notices were given

several weeks before the trial was set to begin on September 11.

And, although the content of the notice was broad in scope, the

Government         nonetheless       met    the    requirement     by    providing       the

“general nature” of the type of evidence it was planning to

introduce.         Fed. R. Evid. 404(b)(2).

              Moreover, Appellant cannot claim that he was surprised

at trial because on September 11, 2012, he conceded in a motion

in limine “the [G]overnment has informed the defense that it may

introduce [Rule 404(b)] evidence.”                    G.S.A. 40; see United States

v. Basham, 561 F.3d 302, 327 n.12 (4th Cir. 2009) (sufficient

notice    when       record    indicates       that    the   defendant         had    actual


          3
          Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
          4
          Citations to the “G.S.A.” refer to the Government’s
Supplemental Appendix filed in this appeal.



                                              9
notice); United States v. Queen, 132 F.3d 991, 997 (4th Cir.

1997)    (“[I]n     cases      where     the    prosecution         has   notified    the

defendant      of      its     intent     to     use     particular       Rule    404(b)

evidence[,] . . . the fear of a ‘trial by ambush’ recedes.”).

Indeed, it was nearly a month into trial, on October 9, 2012,

when    the    prior-act       evidence        was   ultimately       introduced,     and

Appellant has provided no support for the notion that he lacked

time to prepare a sufficient defense.

              Under these circumstances, we conclude the Government

provided reasonable notice to Appellant under Rule 404(b).

                                           2.

              Appellant        next     challenges       the     relevancy       of   the

Pennsylvania and Maryland convictions.                        Rule 404(b)(1) of the

Federal Rules of Evidence states, “Evidence of a crime, wrong,

or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

accordance      with     the    character.”            Fed.    R.    Evid.    404(b)(1).

However, such evidence “may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2).                Moreover, “Rule 404(b) is a rule of

inclusion,” and relevant evidence will be admitted except “that

which tends to prove only criminal disposition.”                             Briley, 770

F.3d at 275 (internal quotation marks omitted).

                                           10
              In   assessing   admissibility     of    Rule   404(b)    evidence,

this court has set forth the following requirements:

              (1) the prior-act evidence must be relevant
              to an issue other than character, such as
              intent; (2) it must be necessary to prove an
              element of the crime charged; (3) it must be
              reliable; and (4) its probative value must
              not be substantially outweighed by its
              prejudicial nature.

United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013)

(alteration        omitted)    (internal       quotation      marks     omitted).

Appellant contends the prior-act evidence in this case was “not

relevant or necessary,” Appellant’s Br. 16, but his brief only

makes a sufficient argument on the relevancy issue.                    Therefore,

our review is restricted to that issue.                 See Fed. R. App. P.

28(a)(8)(A); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d

366, 376 (4th Cir. 2013) (argument is waived when a party fails

to support its contentions “with citations to the authorities

and parts of the record on which it relies” (alteration omitted)

(internal quotation marks omitted)).

              Evidence is relevant when it is “sufficiently related

to the charged offense,” and “[t]he more closely that the prior

act is related to the charged conduct in time, pattern, or state

of mind, the greater the potential relevance of the prior act.”

United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012)

(internal quotation marks omitted).             However, when time, manner,

place,   or    pattern   of    conduct    of   the    prior   activity    is   not

                                         11
related to the offense, past drug activity, in and of itself, is

not a sufficient nexus.            See United States v. Johnson, 617 F.3d

286, 297 (4th Cir. 2010).

              Applying     these      principles        here,      the      fact        that

Appellant’s     prior     convictions       were     strikingly      similar       to    the

charged conduct weighs in favor of admission.                      Considering that

Appellant      faced     charges      of     conspiracy       to     distribute         and

possession with intent to distribute marijuana and engaging in

interstate      travel        in     furtherance        of      drug       distribution

activities,      the     district         court    admitted      the       evidence      of

Appellant’s prior marijuana convictions because the evidence was

“some indication of distributive intent.”                 J.A. 1728.

              Further, inclusion of this evidence goes well beyond a

mere showing of Appellant’s criminal disposition.                           Rather, the

convictions     are    relevant      to    show     Appellant’s      state    of    mind,

intent, pattern of conduct of ongoing involvement, and knowledge

of the drug distribution trade.                   See McBride, 676 F.3d at 397;

Johnson, 617 F.3d at 297; see also United States v. Rooks, 596

F.3d   204,    211     (4th   Cir.    2010)       (holding    that     a    14-year-old

conviction      was      relevant     to     show      “familiarity         with        drug

distribution business”).

              In fact, for his Pennsylvania convictions, Appellant

first paid $12,000 to obtain 15 pounds of marijuana and then

utilized a courier to pick up several more pounds of marijuana

                                            12
on his behalf -- quite similar to his conduct in this case.

Additionally,      the       Government      introduced      Appellant’s           2005

Baltimore     County     conviction     for    possession        with     intent     to

distribute marijuana, which took place at the same time, same

place, and consisted of the same conduct as that charged in the

instant case.      As in Rooks, the prior convictions in this case

were offered for permissible purposes under Rule 404(b), that

is,   to    show   Appellant’s     familiarity       with    drug       distribution

practices and intent to distribute marijuana in the Baltimore

area.      And as set forth in McBride, the prior acts in this case

“closely . . . relate[] to the charged conduct in time, pattern,

or state of mind.”       676 F.3d at 397.

             Significantly,       the     district       court      prefaced       the

introduction of each of these convictions with an instruction

explaining their limited evidentiary purpose.                    See United States

v. Williams, 461 F.3d 441, 451 (4th Cir. 2006) (explaining that

limiting     instructions      mitigate      any    possibility      of    prejudice

because we “presum[e] that the jury obeyed [them]” (internal

quotation marks omitted)).          As a result, we have no difficulty

concluding     that    the     prior-act      evidence      in    this    case     was

relevant.     Appellant’s Rule 404(b) arguments, therefore, fail.

             Even if we assume the district court erred in this

regard, the admission of such evidence was not harmful error.

The   evidence     against     Appellant      was   overwhelming         during    the

                                        13
multi-week   trial,     including      the    Government’s           introduction      of

testimony    from     numerous      witnesses        and    co-conspirators.           We

conclude that excluding the prior convictions would not have

altered the jury’s decision, and thus any perceived error is

harmless.     See Madden, 38 F.3d at 753. 5

                                       III.

                              Sentencing Argument

                                        A.

            Appellant        also   challenges         the     propriety        of    the

district    court’s    imposition      of    a   mandatory          minimum    sentence

based on the Government’s Information.                      In addressing such a

challenge,   we     review    the   court’s      findings      of    fact     for    clear

error and its legal conclusions de novo.                     See United States v.

Kellam, 568 F.3d 125, 143 (4th Cir. 2009).

                                        B.

            Section    851(a)(1)      provides       that    the     Government      must

request    increased    punishment      for      a    defendant       by    filing      an

information stating that the defendant has one or more prior

     5   Appellant  also    alleges  numerous   other  erroneous
evidentiary rulings, yet fails to support his contentions with
citations to the record.      See Fed. R. App. P. 28(a)(8)(A);
Projects Mgmt., 734 F.3d at 376 ; Johnson v. United States, 734
F.3d 352, 360 (4th Cir. 2013) (determining that an appellant
waived his claim when he failed “in any meaningful way” to
comply with the dictates of Rule 28 of the Federal Rules of
Appellate Procedure).   Nonetheless, we have reviewed the record
and cannot divine any error in this regard.



                                        14
convictions           qualifying       him        for      a     sentence      enhancement.

According to 21 U.S.C. § 841(b)(1)(B)(vii) and § 846, a person

convicted of conspiracy to distribute and possess with intent to

distribute 100 kilograms or more of marijuana is subject to a

ten-year mandatory minimum if he has a prior conviction for a

felony drug offense.              See 21 U.S.C. § 841(b)(1)(B).                      In this

case, the Government cited all of the Pennsylvania convictions

and       the    Maryland        conviction           as       qualifying      convictions.

Appellant contends the convictions cannot be used to enhance his

sentence        for   three     reasons:     (1)        the    Pennsylvania     convictions

were not charged by indictment; (2) any fact that increases the

mandatory minimum sentence must be alleged in an indictment and

proved     to    the    jury     beyond      a    reasonable       doubt;      and   (3)   the

Controlled Substances Act violates the separation of powers by

giving the executive branch the power to classify marijuana as a

controlled substance and prosecute offenses as well. 6

                We    easily    dispose      of       Appellant’s     second     and   third

arguments       as    they     have   been       roundly       rejected   by   the   Supreme



      6Appellant also argues in a conclusory fashion that the
Maryland conviction “c[annot] be used to enhance the sentence
because it was not a separate prior but rather, it was part of
the instant offense.”      We need not consider this argument
because McIntosh fails to cite any authority supporting his
position.    See Fed. R. App. P. 28(a)(8)(A).    Moreover, the
Pennsylvania    convictions    are    sufficient  to    trigger
§ 841(b)(1)(B)’s 10-year mandatory minimum.



                                                 15
Court.     See Alleyne v. United States, 133 S. Ct. 2151, 2160 &

n.1 (2013) (recognizing the “general rule” that “[f]acts that

expose a defendant to a punishment greater than that otherwise

legally prescribed were by definition ‘elements’ of a separate

legal    offense,”   but    acknowledging          that   “the    fact     of    a     prior

conviction” is an “exception” to this rule (citing Almendarez–

Torres    v.    United     States,        523    U.S.     224    (1998))        (internal

quotation marks omitted)); Touby v. United States, 500 U.S. 160,

167-68 (2012) (rejecting argument that the separation of powers

is upset by the Attorney General’s dual role of scheduling drugs

and    prosecuting   those     who        manufacture      and    distribute           those

drugs, explaining that argument “has no basis in our separation-

of-powers jurisprudence”).

            Next,    we    turn      to     Appellant’s         argument        that    his

Pennsylvania convictions do not qualify because they were not

charged    by    indictment.          Section          851(a)(2)     provides,          “An

information may not be filed under this section if the increased

punishment which may be imposed is imprisonment for a term in

excess of three years unless the person either waived or was

afforded prosecution by indictment for the offense for which

such     increased   punishment           may     be    imposed.”          21        U.S.C.

§ 851(a)(2) (emphasis supplied).                  This language clearly states

that the instant offense should have been charged by indictment,

not a prior qualifying offense.                 Indeed, every other circuit has

                                           16
so held.    See United States v. Sanchez, 389 F.3d 271, 273 (1st

Cir. 2004) (collecting cases).              And because Appellant’s federal

convictions were charged by indictment, § 851(a)(2) is satisfied

in this case.      Therefore, we reject Appellant’s contentions.

                                         IV.

            We have reviewed Appellant’s remaining arguments that

the   district     court    lacked   the      constitutional,     statutory,    and

factual    bases    to     enter   the     forfeiture    order;    the    evidence

presented at trial was insufficient to support the convictions;

Appellant was unable to confront witnesses against him; he was

erroneously denied a continuance to review discovery; and he was

improperly denied CJA funds for an expert.                    Upon review of the

record and the relevant authorities, we conclude these claims

are without merit.

                                         V.

           For     the     foregoing     reasons,       the    judgment    of   the

district court is

                                                                          AFFIRMED.




                                         17
