                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4151



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANIEL BANKS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (5:05-cr-0030-FPS)


Submitted:   December 6, 2006             Decided:   January 11, 2007


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellant.
Rita R. Valdrini, Acting United States Attorney, David J. Perri,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Wheeling, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.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

     This case arises out of an ongoing feud between rival groups

in Wheeling, West Virginia.    As a result of a May 2005 shooting

incident, defendant Daniel Banks was convicted of one count of

“Felon in Possession of a Firearm” in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2), and sentenced to 92 months.   We affirm

the defendant’s conviction and sentence.



                                 I.

     On May 28, 2005, James Harris, Lorenzo Clark, and Chris Waitts

were talking in an East Wheeling alley.         A man whom Harris

immediately recognized as the defendant, Daniel Banks, appeared at

the corner adjoining an intersecting alley.   He yelled obscenities

and pointed a gun in their direction.   Clark ran one way and Harris

and Waitts scaled a nearby chainlink fence.       They heard shots

behind them.

     Toni Reynolds, a software consultant who lives in an East

Wheeling apartment overlooking the intersecting alley, testified

that she heard the gunshots, looked out the window, and saw two men

sprinting down the street.    She described the men as black males,

wearing white shirts, and light colored pants. One man was wearing

a black jacket and the second man was carrying a black jacket.    As

Reynolds watched, one of the men turned up the alley located behind

the Scottish Rite Temple.    He reappeared a few seconds later.


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       A second witness, Ernest Stewart, was parked beside the

Scottish Rite Temple when he heard pistol shots.                He called 911.

While he was on the phone, a man in a white tank top and light

pants ran around the corner of the alley.            He was trying to wrap up

a pistol in what appeared to be a black sweatshirt.                          The man

pointed the gun at Stewart, turned, and ran back down the alley.

Later that day, Stewart identified Banks at the Wheeling Police

Department.

       Wheeling   police   officers    found        two   pistols       --   a   nine

millimeter Smith & Wesson and a .45 caliber pistol -- hidden in a

nearby vacant lot behind a gymnasium.          The pistols were wrapped up

in a black jacket.     Defendant and a cohort were arrested nearby.

Their clothing matched the description provided by the witnesses.

They   were   sweating,    agitated,   and    jacketless.           A    ballistics

examination revealed that the nine millimeter Smith & Wesson pistol

recovered from the vacant lot had fired the three shell casings

found at the shooting scene.      Swabs taken of the defendant’s right

hand revealed gun shot residue.

       During pre-trial proceedings, the prosecution requested and

the court granted a jury view, which gives jurors an opportunity to

view the scene of a crime.      According to the United States, a view

would aid the juror’s understanding of East Wheeling, an unfamiliar

area that was not readily susceptible to verbal description.                      The

United   States   Marshals   Service       voiced    security   concerns         over


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allowing the defendant -- judged a flight risk by the magistrate

judge -- to return to his home turf unrestrained.                    The court

nevertheless allowed Banks to participate in the view.               The court

determined that the defendant could follow along with the jury

view, unseen by the jurors, in an unmarked van.                The court also

invited defense counsel to ride in the bus with the jurors, but

counsel elected instead to accompany the defendant.

      At trial, Banks was convicted on one count of “Felon in

Possession of a Firearm” in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and sentenced to 92 months.             Defendant now appeals his

conviction and sentence arguing that the district court erred (1)

by excluding him from the jury view; (2) by admitting into evidence

the   .45   caliber   pistol;   and   (3)    by    imposing   an   unreasonable

sentence.



                                      II.

      The defendant first argues that he was “effectively deprived

of the ‘indicia of innocence’” because he was not permitted to

attend the jury view unshackled.           He thus chose to follow the jury

bus on its tour of East Wheeling in an unmarked van.               He contends

this caused the jury to conclude from his absence that he was in

custody and a “bad man.”

      This argument misses the mark.              To begin with, there is no

absolute constitutional right for a criminal defendant to be


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present    during   a   jury    view   of    a   crime   scene.   Snyder   v.

Massachusetts, 291 U.S. 97, 107-08 (1934), overruled on other

grounds by Malloy v. Hogan, 378 U.S. 1 (1964); Arnold v. Evatt, 113

F.3d 1352, 1359 (4th Cir. 1997);           Devin v. DeTella, 101 F.3d 1206,

1209 (7th Cir. 1996).          In this case, the trial judge made every

effort to accommodate the defendant’s desire to participate in the

view and his desire to avoid being seen in shackles by the jury.

Accordingly, because the exclusion of the defendant from the jury

view would not necessarily amount to a constitutional violation,

see Snyder, 291 U.S. at 110, his participation in the view by means

of an unmarked van certainly does not, see Arnold, 113 F.3d at

1359-60.

     Finally, any error in the way that a jury view is conducted is

subject to harmless error review.            Id. at 1361.    Here, the trial

court mitigated any possibility of prejudice to the defendant.             To

begin with, the trial judge himself conducted the view.             See id.

The view itself was nonprejudicial; the judge simply pointed out,

without comment, four previously determined sites. See Snyder, 291

U.S. at 110. Finally, defense counsel was given the opportunity to

participate in the view, to walk through each portion of the view

with the jurors, and to point out other sites that the defendant

wished identified.




                                       5
                                  III.

     Defendant   next   argues   that    the   district   court   erred   by

admitting into evidence the .45 caliber pistol, claiming that the

admission was both irrelevant and unduly prejudicial. We disagree.

The .45 caliber pistol was relevant under Federal Rule of Evidence

401 because it tended to corroborate the testimony of eyewitnesses

and because the pistol helped furnish the context for and complete

the story of the crime.      See FED. R. EVID. 401; see also United

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

v. Masters, 622 F.2d 83, 87 (4th Cir. 1980).

     At trial, Officer Gittings testified that he found two guns

-- the disputed .45 caliber pistol and the 9 millimeter Smith &

Wesson -- wrapped inside a black jacket and hidden in a shallow

hole along the defendant’s escape route.          The fact that the .45

caliber pistol was found alongside the 9 millimeter Smith & Wesson

tended to corroborate the testimony of eyewitnesses Toni Reynolds,

Ernest Stewart, and James Harris.         It was also relevant to and

probative of the defendant’s possession of the 9 millimeter firearm

specified in the indictment.      Finally, it was within the court’s

sound discretion to admit the .45 caliber pistol since the pistol

was, quite literally, wrapped up in evidence which provided context

for and helped to complete the story of the crime.

     Nor can the defendant show a danger of unfair prejudice under

Federal Rule of Evidence 403.          See FED. R. EVID. 403.      Officer


                                   6
Gittings’ testimony regarding the discovery of the .45 caliber

pistol had already been admitted -- without objection.                    The court

also    agreed   to    give    a   cautionary       instruction    to    the    jury,

explaining that the .45 caliber pistol was not the weapon the

defendant was charged with possessing in the indictment.                           The

defendant, moreover, argued all along that he was simply in the

wrong    place   at   the     wrong   time    and    categorically      denied     any

knowledge of or involvement in the alleged shooting.                 The district

court plainly did not abuse its discretion in concluding that the

probative value of the pistol itself outweighed any possibility of

unfair prejudice to the defendant.



                                        IV.

       Finally, defendant contends that the court’s sentence is

“unreasonable” because the court failed to depart on the basis of

Banks’    “history      and     characteristics,”        namely,        poverty,     a

challenging childhood, and lack of parental guidance.                          See 18

U.S.C. § 3553(a)(1) (2000).             We note at the outset that the

district court imposed the minimum sentence within the properly

calculated advisory guidelines range, 92 months.                        The court,

moreover, took into consideration the factors listed in 18 U.S.C.

§   3553(a).     The    record     is   clear   that     the   court     considered

defendant’s “history and characteristics,” paying special attention

to Banks’ evidence regarding his disadvantaged background. Indeed,


                                         7
the court stated that this history influenced Banks’ sentence

within the guidelines range, but that the defendant’s personal

history -- which was similar to that of many other defendants --

did not justify a sentence below the advisory guidelines.                    While

finding Banks’ background unfortunate, the court wrote that it did

not excuse Banks’ criminal conduct or “wipe away the other crimes

that the defendant has committed.”

       Defendant also argues that his sentence was based on the

judge’s “personal beliefs about Banks’ father” rather than the

evidence adduced at the sentencing hearing. The district judge did

not, however, rely on personal observations, but rather on the

evidence proffered by the defense.            The court wrote that because

the    defendant’s    evidence    of   his     family   situation      was     not

“measurably    different   from    defendants     similarly    situated”       the

evidence could not “lead [the court] to vary or depart downward on

the   sentencing     range.”     Moreover,     the   court’s   stray    remarks

regarding the defendant’s father, however misguided, cannot be said

to    have   improperly   influenced       sentencing   here   because       those

comments are in general accord with defendant’s own submissions.*


       *
      The district court noted that, based on its understanding,
Banks’ father never set anyone on “a wrongful path.”       Defense
testimony was not to the contrary.     Defense counsel referenced
“reports” that Banks’ father was physically abusive, but continued
stating that Banks’ father “seemed to have the children’s interest
in mind.    And I think he wanted to, through being a strict
disciplinarian, keep the children studying in school, being good
people, being good neighbors and in the main, your Honor, I think
he was successful in that.”      According to defendant, trouble

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     Taking the sentencing proceeding as a whole, it is clear that

the defendant did not receive a variance or downward departure from

the advisory guidelines range because of defendant’s extensive

criminal history and the egregious nature of his offense -- not

because     of    any   personal   views   the   court   may   have     formed

independently as to the defendant’s background.                Indeed, the

district court’s consideration of the defendant’s background worked

in his favor.       See 18 U.S.C. 3553(a)(1).    “Because the record does

not demonstrate that the judge’s personally held ... beliefs formed

‘the basis of [the] sentencing decision,’ we conclude that [the

defendant’s] due process rights were not violated by the judge’s

... reference at sentencing.”         Arnett v. Jackson, 393 F.3d 681,

687-88 (6th Cir. 2005) (quoting United States v. Bakker, 925 F.2d

728, 741 (4th Cir. 1991)) (internal alteration modified).



                                      V.

     For the foregoing reasons, we affirm Banks’ conviction 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 in the decisional process.

                                                                      AFFIRMED




started when his mother and father separated, leaving defendant
without a father figure.

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