                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4547



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JAMES ARNESS ERBY, a/k/a Rasta, a/k/a Fife,
a/k/a Antwa Amala, a/k/a Antwa Damala,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:05-cr-00151-CMH-AL)


Submitted:   July 31, 2007                 Decided:   August 24, 2007


Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul P. Vangellow, PAUL P. VANGELLOW, P.C., Falls Church, Virginia,
for Appellant.   Chuck Rosenberg, United States Attorney, Martha
Pacold, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a jury trial, James Arness Erby was convicted

of being a felon in possession of a firearm and ammunition on or

about October 16, 2004, in violation of 18 U.S.C. § 922(g)(1)

(2000) (“Count One”); being a felon in possession of a firearm and

ammunition on or about December 30, 2004, also in violation of 18

U.S.C. § 922(g)(1) (“Count Two”); conspiracy to distribute MDMA, a

Schedule I controlled substance more commonly known as ecstasy, in

violation of 21 U.S.C. § 841(a)(1) (2000) (“Count Three”); and use

of   a   firearm   in   relation   to   a   drug   trafficking   offense,    in

violation of 18 U.S.C. § 924(c)(1) (2000) (“Count Four"). Erby was

sentenced to 120 months’ imprisonment on both Counts One and Two

and 240 months on Count Three, to be served concurrently, and life

imprisonment on Count Four, to be served consecutively.                 For the

reasons set forth below, we reject Erby’s arguments on appeal and

affirm his convictions and sentence.

            Taken in the light most favorable to the Government,

Evans v. United States, 504 U.S. 255, 257 (1992), the evidence

presented     at   trial   established      the    following   facts.      Erby

frequently brought marijuana and ecstasy to Spotsylvania, Virginia,

for distribution within that community.            Erby also provided drugs

to his associate, Belinda Alsop, for her to sell on his behalf.              On




                                    - 2 -
or about October 16, 2004,1 Jessica Sheets asked Erby and Alsop to

escort Sheets to her apartment.    At the apartment, Sheets argued

with Lantz Day, her boyfriend; the argument quickly escalated,

resulting in Day slapping Sheets.      Erby proceeded to shoot Day

twice in the leg.

           On December 30, 2004,2 Erby arranged to meet James Ridley

at the Springfield Mall.   April Latimore, Erby’s then-girlfriend,

accompanied him; Ridley was accompanied by his girlfriend, Jasmine

Raynor.   Ridley had approximately $850 cash on his person.   Ridley

and Erby parked their vehicles near one another, and Erby exited

his vehicle.   As Raynor exited Ridley’s car, she observed someone

getting in the backseat of the car.    However, Raynor could not see

this person’s face.     When Raynor returned to Ridley’s vehicle

several minutes later, she found Ridley leaning against the door,

not moving.    Raynor immediately called for help, but Ridley was

pronounced dead on the scene.      Two bullets were removed from

Ridley’s body during an autopsy.

           Later that evening, Erby told Latimore that he shot

Ridley after he refused to submit to Erby’s attempt to rob him.   In

addition to detailing his murder of Ridley, Erby also told Latimore

that he shot Lantz Day.      Erby also admitted shooting Day to




     1
      The following facts form the predicate for Count One.
     2
      Count Two was based on the following facts.

                               - 3 -
Harneisha Courtney and Charles Davis.            All three — Latimore,

Courtney, and Davis — testified against Erby at trial.

           Julian Mason, the Government’s forensic expert, testified

that there was no facility in Virginia that manufactured the

bullets removed from Day’s leg and Ridley’s body, and that these

bullets were likely fired from the same firearm because the bullets

were the same type, with “the same physical characteristics of

manufacturing.”    Mason further testified that none of the firearms

that would have caused the distinct markings found on the recovered

bullets were manufactured in Virginia.         The parties stipulated to

Erby’s prior felony conviction.

           After the district court denied Erby’s motion for a

mistrial, Erby moved, pursuant to Fed. R. Crim. P. 29, for a

judgment of acquittal, arguing that the Government failed to

present sufficient evidence to convict him on both Count One and

Count Two because it did not prove Erby’s possession of the firearm

was interrupted between the time of the first and second offenses.

The   Government   responded   that   Erby’s    argument   was   really   a

challenge to the indictment as multiplicitous, and that Erby had

waived any argument on that basis by failing to raise it prior to

trial.   The court denied the motion.     After resting, Erby renewed

his Rule 29 motion, which the court again denied.                The jury

convicted Erby on all four counts.




                                 - 4 -
          Prior to sentencing, Erby’s attorney received an e-mail,

ostensibly from Day, in which Day explained that he had recently

met Erby in jail and learned that Erby had been convicted of a

crime related to his shooting.     Day asserted that Erby was not the

person who shot him.    Erby moved for a new trial, arguing that this

information constituted newly discovered, exculpatory evidence.

Day testified as to this matter at Erby’s sentencing hearing.           On

cross-examination, Day conceded that he never actually gave a

description of his shooter and that, when approached by police

officers regarding the e-mail, he refused to discuss it with them.

          The district court denied Erby’s motion for a new trial.

In addition to finding Day’s testimony generally incredible, the

district court noted that, when considered against the weight of

the Government’s evidence, Day’s testimony would not have resulted

in an acquittal.    After considering and rejecting Erby’s other

sentencing arguments, the district court sentenced Erby to 120

months on Counts One and Two and 240 months on Count Three, to be

served concurrently, and life imprisonment on Count Four, to be

served consecutively.    Erby timely noted his appeal.

          Erby first argues that the evidence regarding Ridley’s

murder should have been excluded under Fed. R. Evid. 403 because

its prejudicial nature outweighed its probative value.            Rule 403

excludes otherwise relevant evidence “if its probative value is

substantially   outweighed   by   the     danger   of   unfair   prejudice,


                                  - 5 -
confusion of the issues, or misleading the jury.”                    Fed. R. Evid.

403.    “The mere fact that the evidence will damage the defendant’s

case is not enough — the evidence must be unfairly prejudicial, and

the unfair prejudice must substantially outweigh the probative

value of the evidence.”           United States v. Hammoud, 381 F.3d 316,

341    (4th    Cir.    2004)    (en   banc)      (internal    quotation    marks   and

citations omitted), vacated on other grounds, 543 U.S. 1097 (2005).

The district court’s ruling is overturned only under extraordinary

circumstances, where the district court’s discretion has been

plainly abused, and it acted arbitrarily or irrationally.                     United

States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990).                 The evidence

is    reviewed    in    the    “light     most    favorable    to   its   proponent,

maximizing its probative value and minimizing its prejudicial

effect.”       Id. (internal quotation marks and citations omitted).

               In United States v. Williams, 445 F.3d 724 (4th Cir.

2006), we upheld the use of evidence of a murder to prove a felon-

in-possession charge in factual circumstances very similar to those

presented here.          As Erby does here, the defendant in Williams

argued that the district court erred in admitting evidence of the

murder underlying the felon-in-possession charge.                     In rejecting

this argument, we emphasized that the evidence of the victim’s

murder was highly relevant because “[a] determination that Williams

shot    [the    victim]       obviously    would     demonstrate    that    Williams

possessed a firearm, and the evidence of the [victim’s] murder


                                          - 6 -
would     also     establish   that     the     firearm    that     Williams

possessed . . . satisfied the statutory definition of ‘firearm.’”

Williams, 445 F.3d at 732.        Thus, while Williams was certainly

prejudiced by the evidence of the murder, we opined that no unfair

prejudice resulted from the admission of this evidence.             Id. 732-

33.

           Williams controls the disposition of this issue.           As was

the case in Williams, the Government’s evidence of Ridley’s murder

was probative and relevant to the felon-in-possession charge.

Although    Erby    was   prejudiced   by    this   evidence   in   that   it

established his criminal culpability, it was certainly not unfair

prejudice because the probative value of the evidence plainly

outweighed the prejudicial affect.          Because the district court did

not abuse its discretion in admitting evidence of Ridley’s murder,

this claim fails.

            Erby next asserts that his Rule 29 motion should have

been granted because the indictment, which charged two felon-in-

possession counts related to Erby’s possession of a single firearm,

was multiplicitious.3


      3
      Erby further argues that, because the Government’s evidence
did not establish that Erby’s possession of the firearm was
interrupted or otherwise broken, the Government’s evidence was
insufficient as a matter of law to prove two separate charges. In
his brief, Erby cites several cases from other circuits that
support Erby’s contention that, in order to sustain two felon-in-
possession convictions for possession of the same firearm, the
Government must prove that the defendant’s possession of that
firearm was interrupted and that the defendant subsequently

                                   - 7 -
            Pursuant     to   Fed.    R.   Crim.    P.   12(b)(3),    any    motion

alleging a defect in the indictment must be made prior to trial

commencing.   A defendant’s failure to raise such a challenge prior

to trial results in the waiver of the challenge, save for those

instances in which the waiver is excused for good cause.                    Fed. R.

Crim. P. 12(e); United States v. Colton, 231 F.3d 890, 909 (4th

Cir. 2000). “Relief from the waiver of an objection is appropriate

only if the moving party demonstrates cause for the failure to

object and actual prejudice resulting from the defect.”                     Colton,

231 F.3d at 909.

            Erby raised this issue for the first time after the

Government closed its case-in-chief.           Erby’s failure to raise this

objection   prior   to    trial      waives   his    objection   to    it.      Id.

Moreover, Erby fails to show cause and resulting prejudice to

relieve him from the impact of this waiver.                    Accordingly, we

decline to consider the merits of this issue.

            Erby also argues that he should have been awarded a new

trial on the basis of Day’s testimony, as proffered at sentencing,

that Erby was not the person who shot him.                  According to Erby,

Day’s testimony constituted new, previously undiscoverable evidence

that would have resulted in an acquittal.



reacquired possession thereof. See, e.g., United States v. Conley,
291 F.3d 464, 470-71 (7th Cir. 2002); United States v. Rivera, 77
F.3d 1348, 1351 (11th Cir. 1996). However, we have never adopted
this position.

                                      - 8 -
            Federal Rule of Criminal Procedure 33(a) permits the

trial court to grant a motion for a new trial “if the interest of

justice so requires.”          To warrant a new trial under Fed. R. Crim.

P. 33 based on newly discovered evidence, the defendant must show

that: (1) the evidence is newly discovered; (2) the defendant used

due   diligence;     (3)    the    evidence      is   not    merely   cumulative   or

impeaching; (4) the evidence is material; and (5) the evidence

would probably result in an acquittal at a new trial.                           United

States v. Lofton, 233 F.3d 313 (4th Cir. 2000).                          Unless the

defendant can satisfy all five of these factors, the motion should

be denied.       United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989).   We review a district court’s order denying a motion for new

trial for abuse of discretion.             United States v. Lentz, 383 F.3d

191, 219 (4th Cir. 2004).

            In    denying      Erby’s    motion,      the    district   court   first

concluded     that      Day’s      testimony      was       generally    incredible.

Considering      that    Day      was   largely       uncooperative     with    police

officials, most significantly with regard to his outright refusal

to ever provide a description of the shooter, it is reasonable that

the district court would question the veracity of Day’s post-trial

revelations.      Moreover, Day was extremely intoxicated the night of

the shooting, thus inhibiting his ability to accurately recall the

shooter’s identity.         The district court further opined that, if

presented at a new trial, Day’s testimony would not have resulted


                                         - 9 -
in an acquittal, given the overwhelming nature of the Government’s

evidence of Erby’s involvement in both Day’s shooting and Ridley’s

murder.   We conclude that the district court did not abuse its

discretion in reaching this conclusion or in denying Erby’s motion

for a new trial.

          Erby’s last claim is that the district court violated his

Fifth Amendment rights in enhancing his sentence based on uncharged

and unadmitted facts, determined by the court at sentencing by a

preponderance of the evidence.     Erby emphasizes that this is not a

claim pursuant to United States v. Booker, 543 U.S. 220 (2005),

because Booker involved a Sixth Amendment challenge, and this claim

is based on the Due Process Clause of the Fifth Amendment.

          Our decisions have never suggested that the established

practice of using the preponderance standard for making sentencing

findings should be revisited.4        Our sister circuits have all

approved the use of the preponderance standard in determining a

defendant’s   sentencing   range   under   the   advisory   Sentencing

Guidelines,5 and we see no reason to proceed otherwise.            The


     4
      See generally United States v. Hughes, 401 F.3d 540, 546 (4th
Cir. 2005) (“Consistent with the remedial scheme set forth in
Booker, a district court shall first calculate (after making the
appropriate findings of fact) the range prescribed by the
guidelines.”).
     5
      See, e.g., United States v. Pacheco, __ F.3d __, 2007 WL
1559572, *4 (1st Cir. 2007); United States v. Hall, 473 F.3d 1295,
1312 (10th Cir. 2007); United States v. Kosinski, 480 F.3d 769, 775
(6th Cir. 2007); United States v. Dean, __ F.3d __, 2007 WL
1516144, *11 (11th Cir. 1007); United States v. Bras, 483 F.3d 103,

                               - 10 -
district court committed no error in applying the preponderance

standard.

            We affirm Erby’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




107-08 (2007); United States v. Cooper, 437 F.3d 324, 330 (3d Cir.
2006); United States v. Tabor, 439 F.3d 826, 830 (8th Cir. 2006);
United States v. Kilby, 443 F.3d 1135, 1140-41 (9th Cir. 2006);
United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005); United
States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S.
Ct. 43 (2005); McReynolds v. United States, 397 F.3d 479, 481 (7th
Cir.), cert. denied, 545 U.S. 1110 (2005); United States v. Dean,
414 F.3d 725, 730 (7th Cir. 2005).

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