                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4406


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MEEHWAN RO,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cr-00356-RWT-1)


Argued:   October 27, 2011                 Decided:   January 10, 2012


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Niemeyer and Judge Diaz concurred.


ARGUED:    Marc Gregory Hall, HALL & CHO, P.C., Rockville,
Maryland, for Appellant.   Deborah A. Johnston, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.   ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland,   Mara  Zusman Greenberg,   Assistant United   States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

       Defendant Meehwan Ro appeals from convictions and sentences

for being a felon in possession of a firearm, possession of a

firearm with an obliterated serial number, and possession with

intent to distribute marijuana.                  After a careful review of the

record, we conclude that Defendant received a fair trial and

that     the     sentence      imposed           was     both        procedurally        and

substantively reasonable.



                                            I.

       On    June   11,    2009,     a     search       warrant       was    executed     on

Defendant’s home while Defendant, his girlfriend, and his father

were present.          Law enforcement officers had been investigating

suspected drug activity at the home and nine days before the

execution      of   the    search        warrant       had    found     suspected       drug

paraphernalia and marijuana residue in trash bags recovered from

the house.

       During their search of Defendant’s home pursuant to the

search      warrant,    law   enforcement         officers          recovered   what     was

later determined to be approximately 135 grams of marijuana,

digital scales, a grinding tool, and other drug paraphernalia

from   the     master     bedroom.         Officers          also    found    Defendant’s

wallet, .45-caliber cartridges, nine-millimeter bullets, and a

firearm magazine in the master bedroom, as well as a gun holster

                                            2
in the kitchen and a .45-caliber handgun in the top drawer of a

filing cabinet in the garage.

      Defendant was indicted on October 28, 2009 on one count

each of being a felon in possession of a firearm, possession of

a firearm with an obliterated serial number, and possession with

intent    to     distribute      marijuana.              At    trial,     both    Defendant’s

father and girlfriend testified that the firearm, ammunition,

and   marijuana         did    not    belong       to    them.         Defendant’s        sister

testified that          their    other    brother         had       purchased     the    gun    in

response to a robbery of the family’s liquor store and that

Defendant’s brother had regular access to the house.                                    However,

that brother testified that he owned neither the gun nor the

ammunition       recovered       during      the        search.        Defendant        did    not

contest that the marijuana belonged to him but instead argued

that the drugs were for personal use rather than distribution.

      The   jury        also   heard    evidence          of    Defendant’s       prior       drug

conviction       and    possession      of     a   firearm.           After      the    district

court denied Defendant’s pretrial motion to exclude evidence of

the 1999 conviction and again overruled the motion during trial,

Defendant stipulated to his 1999 conviction for possession with

intent    to     distribute      marijuana.              In    addition,      the      arresting

officer     in    that    case       testified      that       in    1998    a   firearm       was

recovered        from    Defendant’s         bedroom          when    a     search      warrant,

incident to the 1999 conviction, was executed on Defendant’s

                                               3
home.        Defendant’s testimony from his 1999 trial that he had

purchased a handgun and kept it in his bedroom closet, was also

read     into        evidence.          The    district           court      gave    a     limiting

instruction concerning that evidence.                              However, Defendant was

barred       from      introducing          evidence           that     he    was        ultimately

acquitted       of     the     possession-of-a-firearm                charge        at    his    1999

trial.

        At   the      conclusion       of     the       two-day    trial,     the        jury   found

Defendant guilty on all three charges.                             During sentencing, the

district        court        found     that    Defendant’s            1999     conviction          for

possession with intent to distribute marijuana occurred within

ten years of the relevant conduct at issue here.                                    Accordingly,

the     district        court        started    Defendant          at     level      twenty       for

purposes        of     the     United       States        Sentencing         Guidelines.           In

addition, the district court enhanced Defendant’s offense level

by another eight levels because Defendant possessed the firearm—

which    had     an    obliterated          serial        number—in       “sufficient           nexus”

with another felony offense, i.e., possession with intent to

distribute.           The district court sentenced Defendant to a total

of     ninety        months’     imprisonment             on   all      counts.           Defendant

challenges his conviction and sentence.




                                                    4
                                             II.

       On appeal, Defendant argues that the trial court erred by:

(1)    admitting    into        evidence     Defendant’s        1999      conviction    for

possession    with        intent        to     distribute       marijuana       and     1998

possession of a firearm under Federal Rule of Evidence 404(b);

(2)    improperly     denying       Defendant         the    ability      to   admit   into

evidence that he was acquitted of the firearm possession charge

in 1999; (3) considering the 1999 conviction as a prior offense

committed    within       the    last    ten       years    under   the    United     States

Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A); and

(4)    applying     the     enhancement            under    U.S.S.G.      §    2K2.1(b)(6)

because there was not a sufficient nexus between the gun and the

marijuana.    We consider each argument in turn.



                                             A.

       First, Defendant contends that the trial court erred by

admitting into evidence Defendant’s 1999 possession with intent

to    distribute    marijuana       conviction         and    1998     possession      of   a

firearm.     Specifically, Defendant maintains that this evidence

was irrelevant and unnecessary to the Government’s case against

him.    We disagree.

       At the time of Defendant’s trial, Federal Rule of Evidence

404(b) provided that evidence of prior crimes, wrongs, or bad

acts may be admissible for purposes other than to establish a

                                               5
propensity for criminal activity “to prove the character of a

person in order to show action in conformity therewith.” 1                              Such

purposes      include        “proof     of       motive,        opportunity,      intent,

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

accident.”           Id.     Further,        evidence      of    prior    bad    acts    is

admissible so long as it is relevant to an issue other than the

defendant’s character, necessary, and reliable.                           United States

v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).                             If evidence of

prior crimes, wrongs, or bad acts meets these criteria and its

probative       value      is     not    substantially           outweighed      by     its

prejudicial effect, it may be admitted.                    Id.     This Court reviews

a    district    court’s        admission     of    evidence       for    an    abuse    of

discretion.      United States v. Hodge, 354 F.3d 305, 312 (4th Cir.

2004).

      Significantly, “[w]e have long treated Rule 404(b) as an

inclusionary         rule,      permitting       introduction       of    all    evidence

except that which proves only criminal disposition.”                               United

States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997).                           Likewise,

in   Queen,     an    opinion     in    which     this   Court      conducted     a   full

examination of our Rule 404(b) jurisprudence, we emphasized that

“[t]he more similar the extrinsic act or state of mind is to the

      1
       Effective December 1, 2011, the precise wording of Rule
404(b) was slightly amended; however, its substantive meaning
remains the same.



                                             6
act    involved   in    committing      the    charged    offense,   the   more

relevance it acquires toward proving the element of intent.”

132 F.3d at 996.        Moreover, we noted that the term “necessary”

does not require absolute necessity but instead only that the

evidence be “probative of an essential claim or an element of

the offense.”     Id. at 997.

       Here, Defendant asserts that the passage of time since the

1998   possession      charges    and   1999   conviction   diminishes     their

relevance to this prosecution.                He further contends that his

prior bad acts were not evidence necessary to prove an element

of the charges against him in this case.                   In support of his

arguments, Defendant cites to United States v. Davis, in which

this Court found evidence of prior drug sales to be “so remote

in time and so possessed of a propensity to prejudice” that the

district court had erred by admitting that evidence to prove the

defendant’s intent to commit the offenses in question.                657 F.2d

637, 639 (4th Cir. 1981).

       We find Davis to be distinguishable, however, since even

though “the prior acts [in Davis]. . . began eleven years and

ended six years before,” “[n]o cautionary instruction was asked

or given” at trial.         Id.     Further, the illegal drug sales in

question were made to children under the age of thirteen and

thus highly prejudicial.          Id. at 639-40.         This Court also held

in Davis that any such error was harmless given the “conclusive”

                                         7
evidence of the defendant’s guilt, including testimony from co-

conspirators who witnessed him cutting and repackaging heroine

for distribution.        Id. at 640.

       At trial in this case, Defendant did not contest that the

marijuana at issue was his; rather, he maintained that it was

for personal use, not for distribution.                      As such, the Government

argued that the 1999 conviction was relevant and necessary to

show intent.         In addition, because knowledge is an element of

the offense of felon in possession of a firearm, United States

v.    Moye,    454    F.3d   390,     395     (4th     Cir.    2006)    (reciting     the

elements required for conviction under 18 U.S.C. § 922(g)(1)),

the Government maintained that the 1998 possession of a firearm

was   likewise       relevant   and    necessary        to    establish    Defendant’s

knowing possession of the handgun in this case.

       The    district    court      agreed     with    the    Government      that   the

evidence was admissible to show Defendant’s intent and knowledge

with respect to the offenses charged.                    Thus, the district court

denied Defendant’s motion in limine to exclude evidence of his

1999 conviction and possession of a firearm.                      Moreover, when the

evidence      was    admitted   at    trial,     the    district       court   gave   the

jurors a limiting instruction that they were not to consider the

evidence as “somebody did something on a prior occasion and then

infer, therefore, that they did it again,” but rather, only for

one of the allowable purposes under Rule 404(b).

                                            8
       We observe that although ten years is a relatively lengthy

time       between       Defendant’s       prior    bad    acts       and    the     charged

offenses,        the     similarities       are     overwhelming.            Indeed,       the

circumstances are essentially exactly the same, with the only

difference the amount of the marijuana seized—greater in this

case than in 1999—which strengthens the relevance of the prior

bad acts and makes their relative remoteness less important.                                In

light      of    Defendant’s         argument      that    the    marijuana         was    for

personal use and not for distribution, the issue of intent was

of   critical        importance      at    trial.     As    such,      the   Rule     404(b)

evidence of Defendant’s prior bad acts was both relevant and

necessary to show Defendant’s intent to distribute marijuana and

his knowing possession of a firearm.

       We further agree with the district court that its probative

value      was    not     substantially         outweighed       by    its       prejudicial

effect.          Under    the    circumstances      of    this    case,      the    district

court’s         admission       of   the    evidence       was    not       an     abuse    of

discretion. 2


       2
       In addition, the transcript of the motions hearing reveals
that the district court thoughtfully and carefully considered—
and ultimately excluded—several of Defendant’s other potentially
relevant prior bad acts, such as two earlier simple possession
charges.    Allowing some Rule 404(b) evidence while excluding
other supports our finding that the district court did not act
either “arbitrarily or irrationally” in reaching its decision to
admit this evidence.    United States v. Simpson, 910 F.2d 154,
157 (4th Cir. 1990) (noting that an abuse of discretion “occurs
(Continued)
                                              9
                                     B.

       Next, Defendant argues that the district court erred by

allowing the Government to admit evidence of his 1998 possession

of a firearm while denying Defendant the ability to show that he

was ultimately acquitted of that charge.             Our standard of review

is again for an abuse of discretion.          Hodge, 354 F.3d at 312.

       At trial, the police officer who conducted the 1998 search

of Defendant’s residence testified that a handgun was recovered

from Defendant’s bedroom.      In addition, the Government read into

evidence Defendant’s own testimony from his 1999 trial, in which

Defendant stated that he had purchased a handgun and kept it in

his bedroom closet.      Defense counsel then objected, renewing his

pre-trial     request   that   the    jury    hear    that    Defendant   was

ultimately acquitted of the firearm possession charge stemming

from    the   1998   search.    The       district    court   overruled   the

objection, stating that it “f[ou]nd no basis for requiring the

admission of the acquittal, especially since the charge was not

the same charge in this case, but rather the acquittal was for

possession of a firearm in connection with a drug trafficking

crime.”




only when it can be said that the trial court acted arbitrarily
or irrationally in admitting evidence” (internal quotation marks
and citations omitted)).



                                     10
       Defendant has failed to show an abuse of discretion in this

evidentiary      ruling,         which     was        consistent             with        case    law

precedent.      See, e.g., Prince v. Lockhart, 971 F.2d 118, 122

(8th   Cir.   1992)       (describing      “general             rule”    why       judgments      of

acquittal are “not generally admissible,” as they are hearsay

and “not generally relevant,” and citing cases to that effect);

United States v. Smith, 981 F.2d 1252, 1992 WL 369904, *2 (4th

Cir. 1992) (unpublished) (“Evidence of a prior acquittal is not

relevant because it does not prove innocence but rather merely

indicates that the prior prosecution failed to meet its burden

of proving beyond a reasonable doubt at least one element of the

crime.”    (internal         quotation     marks,          alteration,             and    citation

omitted)).

       As noted by the district court, Defendant was acquitted of

a   charge    different          from    the     one       at    issue       in     this        case.

Accordingly, his acquittal did not have “any tendency to make a

fact   more    or     less    probable         than    it        would       be     without      the

evidence,” that is, the acquittal was not relevant.                                        Fed. R.

Evid. 401.     Further, even if relevant, evidence of the acquittal

arguably      could       have     confused          the        issues       between        simple

possession     of     a    firearm       and        possession          of     a    firearm       in

furtherance of drug trafficking, thereby misleading the jury.

See Fed. R. Evid. 403 (“The court may exclude relevant evidence

if its probative value is substantially outweighed by a danger

                                               11
of   .    .     .    confusing       the    issues      [or]      misleading      the    jury.”).

Defendant has failed to establish that this ruling was an abuse

of discretion.



                                                   C.

         With       his     next     argument,          Defendant         contends      that   the

district        court       erred    in     considering        his    1999      conviction      for

possession           with     intent       to     distribute         as     a   prior     offense

committed            within    the         last     ten      years        under    U.S.S.G.      §

2K2.1(a)(4)(A).               Specifically,             Defendant     maintains         that    the

district        court       should    not       have    agreed     with     the    Government’s

position that the offenses at issue here dated back to July

2008.         The difference between the two base offense levels is

significant:           With the determination, Defendant’s base level was

twenty; without it, Defendant’s base level would have been only

fourteen.

         We will affirm a sentence imposed by the district court as

long     as     it     is    within       the     statutorily        prescribed      range      and

reasonable.           United States v. Hughes, 401 F.3d 540, 546-47 (4th

Cir. 2005); United States v. Booker, 543 U.S. 220, 261-62 (2005)

(stating            that    sentencing          determinations            are     reviewed      for

reasonableness).               A     sentence          may   be    unreasonable         for    both

substantive and procedural reasons.                            United States v. Herder,

594 F.3d 352, 361 (4th Cir.) (quoting and citing United States

                                                   12
v.   Montes-Pineda,         445   F.3d    375,     378     (4th   Cir.       2006)),    cert.

denied, 130 S. Ct. 3440 (2010).                     An error of law or fact can

render a sentence unreasonable, but a sentence within a properly

calculated range is presumptively reasonable.                           United States v.

Green, 436 F.3d 449, 456-57 (4th Cir. 2006).                                 In considering

whether the sentence is unreasonable, we review the district

court’s     factual      findings        for       clear       error     and     its    legal

conclusions de novo.              United States v. Hampton, 441 F.3d 284,

287 (4th Cir. 2006).

       A    district        court’s      “relevant         conduct”          finding    under

U.S.S.G. § 1B1.3(a)(2) is reviewed for clear error.                              Hodge, 354

F.3d   at   313.       At    sentencing,       a    district      court        properly    may

consider     offenses       for   which    the      defendant          has    neither     been

charged     nor     convicted,        provided          they    constitute        “relevant

conduct.”      United States v. Bowman, 926 F.2d 380, 381–82 (4th

Cir. 1991).        A district court may look beyond the dates in the

indictment     if    a      preponderance          of    the    evidence        supports    a

determination that the “relevant conduct” began earlier.                                  See,

e.g., United States v. Kennedy, 32 F.3d 876, 890-91 (4th Cir.

1994) (holding that when determining the starting point of the

conspiracy, the district court had the authority to look beyond

the date alleged in the indictment for a drug offense to “any

relevant conduct”).



                                            13
     The Sentencing Guidelines provide that “relevant conduct”

is defined as “all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by

the defendant . . . that occurred during the commission of the

offense of conviction, in preparation for that offense, or in

the course of attempting to avoid detection or responsibility

for that offense.”         U.S.S.G. § 1B1.3; see also United States v.

McAllister, 272 F.3d 228, 233-34 (4th Cir. 2001) (noting that

“relevant conduct” includes “activity that was part of the same

course of conduct or common scheme as the offense of conviction”

(internal quotation marks and citation omitted)).

     At sentencing, the district court relied on the following

facts to determine that Defendant’s offending relevant conduct

dated to July 2008:          (1) Defendant possessed a distributable

amount of marijuana and the materials with which to distribute

it; (2) one does not get into the drug distribution business

overnight;   and     (3)     Defendant     had    nearly    ninety       telephone

contacts   with    another    drug   dealer      between   July    and    November

2008, with calls continuing up to at least two months before the

execution of the search warrant in July 2009.                     The Government

offered evidence of a direct investigative link between those

phone calls and the subsequent search warrant and discovery of

the drugs and gun at Defendant’s residence.                 Specifically, the

Drug Enforcement Agency (DEA) task force officer learned from a

                                      14
confidential      informant     that        another     individual       was   selling

drugs; the officer set up controlled buys from that individual;

and    that     individual’s        phone     records       led    the    officer   to

Defendant.

       Although Defendant contends that relying on this hearsay

evidence      violates   his   rights       under     the   Confrontation      Clause,

this Court has previously held that “the traditional rules of

evidence are not applicable to sentencing proceedings” and that

“a sentencing court may give weight to any relevant information

before it, including uncorroborated hearsay, provided that the

information has sufficient indicia of reliability to support its

accuracy.”      United States v. Wilkinson, 590 F.3d 259, 269 (4th

Cir. 2010); see also United States v. Bras, 483 F.3d 103, 109

(D.C. Cir. 2007) (“Nothing in Crawford [v. Washington, 541 U.S.

36    (2004)]   suggests     that    the    Court      intended    to    overturn   its

precedents      permitting     the    use        of   hearsay     at    sentencing.”).

       Here, the challenged information came from a DEA task force

officer and explained his investigatory conduct leading to the

search of Defendant’s residence and the ultimate discovery of a

large quantity of marijuana, drug paraphernalia, and a gun.                          We

find this to be more than sufficient indicia of reliability.

       Likewise, under a preponderance of the evidence standard,

we see no clear error in the district court’s determination that

the phone calls dating back to July 2008 constituted “relevant

                                            15
conduct” within the meaning of U.S.S.G. § 1B1.3(a)(2).                            While

true that we cannot know definitively the nature of, or what was

discussed       during,      the   phone    calls    between     Defendant     and    the

other    individuals,         it   was    not    unreasonable     for    the   district

court to find that a preponderance of the evidence, including

the direct investigative links, supported the conclusion that

the   calls     were    to    further      Defendant’s    marijuana      distribution

activities.        As such, the district court did not commit clear

error    when    it    determined        that    Defendant’s     “relevant     conduct”

fell within the requisite ten-year period to make the higher

base offense level applicable.



                                            D.

      Finally, Defendant argues that the district court erred by

applying        the     sentencing         enhancement         under     U.S.S.G.      §

2K2.1(b)(6),       i.e.,      that    Defendant      possessed     the    firearm     in

connection with another felony.                  Specifically, he contends that

in light of the handgun’s location in the garage, separated from

the marijuana and drug paraphernalia in the master bedroom, and

a lack of evidence that he ever used the handgun, the Government

failed to show the requisite nexus between his drug crime and

the     handgun.        Our    review      of    this    issue    is    the    same   as

Defendant’s argument concerning the district court’s “relevant

conduct” determination.              United States v. Garnett, 243 F.3d 824,

                                            16
828 (4th Cir. 2001) (“The government bears the burden of proving

the   facts     necessary          to   establish    the   applicability        of    [the

U.S.S.G. § 2K2.1(b)(5)] enhancement by the preponderance of the

evidence, and we review the district court’s findings of fact

for clear error, giving due deference to the district court’s

application of the Guidelines to the facts.”).

      At sentencing, the district court noted that ammunition was

found in close proximity to the drugs in the master bedroom, the

gun was located in a place convenient to enter and exit from the

house, and Defendant’s father had not seen the gun in October

2008 when he cleaned out the filing cabinet, suggesting that it

was not kept there all the time.                    Moreover, the district court

found     the      obliterated           serial     number     to   be     especially

significant, as in the view of the district court, that is the

type of weapon expected to be associated with dealing drugs.

      Under a preponderance of the evidence standard, we see no

clear   error      in    the       district    court’s     determination       that    the

firearm      was   used       in     connection     with     Defendant’s       marijuana

distribution activities.                 See, e.g., United States v. Blount,

337   F.3d    404,      411    (4th     Cir.   2003)   (“[A]    weapon    is    used    or

possessed ‘in connection with’ another offense if the weapon

facilitates or has a tendency to facilitate the other offense.”

(internal     quotation        marks     and    citation     omitted));    U.S.S.G.      §

2K2.1 cmt. n.3 (“The enhancement should be applied if the weapon

                                               17
was present, unless it is clearly improbable that the weapon was

connected with the offense.”).



                                   III.

     In   sum,     Defendant    received    a   fair   trial,    free    of

prejudicial      error,   and    the     sentence   imposed     was     both

procedurally and substantively reasonable.

                                                                 AFFIRMED




                                    18
