                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4694


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEPHEN BRADFORD NICHOLS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:11-cr-00092-BO-1)


Submitted:   May 31, 2013                 Decided:   June 18, 2013


Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A     jury    convicted         Stephen      Bradford     Nichols    of

possession       of   stolen    firearms       and   aiding    and   abetting,   in

violation of 18 U.S.C. §§ 2, 922(j), 924(a)(2) (2006) (Count

One), and possession of firearms by a convicted felon and aiding

and abetting, in violation of 18 U.S.C. §§ 2, 922(g)(1), 924

(2006) (Count Two).        He received a within-Guidelines sentence of

100    months’    imprisonment.        On      appeal,    Nichols    raises   three

claims: (1) the district court erroneously admitted evidence of

uncharged    burglaries;       (2)   there     was    insufficient    evidence   to

support his convictions; and (3) the district court improperly

used     relevant     conduct     to   determine         his   criminal   history

category.    Finding no reversible error, we affirm.

                                        I.

            Nichols first argues that the district court erred in

admitting evidence of two uncharged burglaries and that the jury

heard inadmissible evidence of a third uncharged burglary, in

violation of his constitutional rights to due process and a fair

trial.     This court reviews the admission of evidence for abuse

of discretion.        United States v. Forrest, 429 F.3d 73, 79 (4th

Cir. 2005).       An abuse of discretion “occurs only when it can be

said that the trial court acted arbitrarily or irrationally in

admitting evidence.”           United States v. Williams, 445 F.3d 724,

732 (4th Cir. 2006) (internal quotation marks omitted).

                                           2
               Under Rule 404(b), “[e]vidence of a crime, wrong, or

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

order     to    show”   that    his    action      on     a    particular       occasion

conformed to that character.               Fed. R. Evid. 404(b)(1).                   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).

               Rule   404(b)   only   applies      to     acts    extrinsic      to   the

crime   charged.           “[W]here   testimony      is       admitted    as    to    acts

intrinsic to the crime charged, and is not admitted solely to

demonstrate bad character, it is admissible.”                         United States v.

Chin, 83 F.3d 83, 88 (4th Cir. 1996).                         “[A]cts are intrinsic

when they are inextricably intertwined or both acts are part of

a   single      criminal    episode   or   the     other       acts    were    necessary

preliminaries to the crime charged.”                    Id.     (internal quotation

marks and citation omitted).               In addition, evidence of other

crimes or “uncharged conduct is not considered ‘other crimes’”

for Rule 404(b) purposes “if it arose out of the same series of

transactions as the charged offense, or if it is necessary to

complete the story of the crime on trial.”                        United States v.

Kennedy, 32 F.3d 876, 885 (4th Cir. 1994) (internal quotation

marks, alterations, and citation omitted).



                                           3
               “To be admissible under Rule 404(b), evidence must be

(1) relevant to an issue other than character; (2) necessary;

and (3) reliable.”             United States v. Siegel, 536 F.3d 306, 317

(4th    Cir.    2008)     (internal       quotation         marks    omitted).           “Rule

404(b) is . . . an inclusive rule, admitting all evidence of

other   crimes     or    acts       except    that    which       tends    to    prove       only

criminal disposition.” United States v. Young, 248 F.3d 260, 271-

72 (4th Cir. 2001) (internal quotation marks omitted).

               “Evidence sought to be admitted under Rule 404(b) must

also satisfy [Fed. R. Evid.] 403 . . . ,” Siegel, 536 F.3d at

319,    such     that     its       probative       value     is     not    substantially

outweighed by its prejudicial value.                        United States v. Queen,

132 F.3d 991, 995 (4th Cir. 1997).                    Under Rule 403, “damage to a

defendant’s       case     is       not   a    basis       for     excluding       probative

evidence”        because        “[e]vidence          that     is     highly        probative

invariably       will     be     prejudicial         to     the     defense.”           United

States v. Grimmond, 137 F.3d 823, 833 (4th Cir. 1998).                             Rule 403

requires       exclusion       of    evidence       only     where    the       trial       judge

perceives “a genuine risk that the emotions of the jury will be

excited to irrational behavior” disproportionate to the value of

the proffered evidence.               United States v. Mohr, 318 F.3d 613,

618 (4th Cir. 2003) (internal quotation marks omitted).

               Nichols     contends       that      the     probative      value       of    the

evidence    as    to     two    October       29,    2010    burglaries         (the    “Jones

                                               4
burglary” and “Gauli burglary”) was substantially outweighed by

the danger of unfair prejudice.                     Nichols further argues that he

was being tried for possession of the firearms stolen on October

18,   from   the     Bennett     residence           as   those     were    the     only   guns

admitted     and     properly         identified.             The    remainder        of   the

testimony, including the testimony regarding the burglary at the

Sawyer residence (“Sawyer burglary”), Nichols argues, related to

burglaries for which he was not charged.

             After    review         of   the       record,    we    conclude       that   the

district     court       did    not       abuse      its      discretion      in     allowing

testimony    regarding         the    Sawyer        and    Jones    burglaries. 1          With

respect to the Sawyer burglary, the indictment charged Nichols

with possession of firearms stolen from the Sawyer residence.

Hence, like the testimony of the Bennetts, Sawyer’s testimony

was “admitted as to acts intrinsic to the crime charged,” Chin,

83    F.3d   at    88,    and    for       this      reason     Rule       404(b)    was   not

implicated. 2


      1
        Anthony Sawyer testified, without objection, to the
breaking and entering at his residence.    As such, the district
court’s admission of Sawyer’s testimony is reviewed for plain
error.   Chin, 83 F.3d at 87 (“Where a party . . . fails to
object to the admission of evidence, . . .          [this Court]
review[s] the admission for plain error.”) (citations omitted).
      2
       The fact that the district court later dismissed the
charges against Nichols based on the firearms stolen from the
Sawyer residence does not alter this conclusion.



                                                5
             With respect to the Jones burglary, we conclude that

testimony regarding the breaking and entering of Jones’ home, to

which Nichols had pled guilty, was relevant to Nichols’ and his

accomplice’s common scheme or plan to burglarize homes and pawn

or sell the firearms for cash.                 Furthermore, evidence of the

Jones burglary established Nichols’ plan to profit from stolen

firearms and that evidence directly rebutted his testimony that

he participated in the sale of stolen firearms unknowingly.                      We

therefore conclude the evidence was properly admitted under Rule

404(b), and that the probative value of the evidence outweighed

any prejudicial effect, particularly in light of the court’s

limiting instruction to the jury.

             To   the    extent    Nichols     challenges     the   admission    of

testimony with respect to the Gauli burglary, the district court

granted    Nichols’       motion   to    exclude     Larry    Gauli’s     testimony

concerning      the     breaking   and    entering    on     Rule   403   and   404

grounds.      The court only allowed testimony regarding Nichols’

residence at the Gauli home.             Because Gauli was not permitted to

testify regarding the breaking and entering, we conclude Rule

404(b) is not implicated.

                                         II.

           Next,        Nichols    challenges      the     sufficiency     of   the

evidence   to     support    his   convictions.          Specifically,     Nichols

argues on appeal that the Government failed to show that he

                                          6
possessed      the   firearms,    i.e.,    that      he   exercised,    or    had   the

power    to    exercise,     dominion     and   control       over    the    firearms.

Nichols’ mere presence at a place where the guns were located,

he   argues,         was     insufficient       to        establish    constructive

possession.

              Nichols moved for a Fed. R. Crim. P. 29 motion for

judgment of acquittal at the close of the Government’s evidence.

The district court denied the motion, except as to six of the

firearms listed in the indictment.                This Court reviews de novo

the district court’s denial of a Rule 29 motion for judgment of

acquittal.      United States v. Green, 599 F.3d 360, 367 (4th Cir.

2010).        This   Court    reviews   the     sufficiency      of    the    evidence

supporting a conviction by determining whether, in the light

most favorable to the Government, there is substantial evidence

in the record to support the conviction.                       Id.     “Substantial

evidence” is “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                         Id. (internal

quotation marks omitted).           Reversal on grounds of insufficient

evidence is appropriate only in cases in which the Government’s

failure to present substantial evidence is clear.                           Id.     This

Court also assumes that the jury resolved all contradictions in

the testimony in favor of the Government.                   United States v. Sun,

278 F.3d 302, 313 (4th Cir. 2002).

                                          7
               To convict Nichols for possessing stolen firearms, in

violation of 18 U.S.C. § 922(j), and possessing firearms as a

convicted       felon,     in   violation       of   18    U.S.C.   §    922(g),     the

Government          did   not   need   to        produce     evidence      of   actual

possession.         United States v. Moye, 454 F.3d 390, 395 (4th Cir.

2006); United States v. Gallimore, 247 F.3d 134, 136-37 (4th

Cir.       2001).    Instead,   evidence        of   constructive       possession   is

sufficient.          Moye, 454 F.3d at 395.            The Government may prove

constructive         possession   by   demonstrating         that   the     defendant

“exercised, or had the power to exercise, dominion and control

over the item.”           Gallimore, 247 F.3d at 137 (internal quotation

marks omitted). 3         With this standard in mind, we have reviewed

the evidence and conclude that there was sufficient evidence to

support Nichols’ convictions.

                                       III.

               Last, Nichols maintains the district court incorrectly

used the Jones burglary, properly deemed relevant conduct, to

determine his criminal history category. 4                 Prior sentences may be



       3
       Nichols does not challenge his status as a convicted
felon.    Moreover, he does not challenge the Government’s
evidence at trial concerning the firearms’ nexus to interstate
commerce.
       4
       The Government appropriately concedes that, while Nichols’
objection at sentencing on this ground was not clear, he
properly preserved the issue for appeal.



                                            8
used   to   determine      the   defendant’s    criminal     history          category.

See U.S. Sentencing Guidelines Manual (“USSG”) § 4A1.1 (2011).

However, § 4A1.1 excludes convictions for conduct that qualifies

as “relevant conduct” to the instant offense.                   See USSG § 4A1.2

cmt. n.1.     Relevant conduct is conduct that was part of the same

course of conduct or a common scheme or plan as the offense of

conviction, and it may be used to increase the defendant’s base

offense level.      See USSG § 1B1.3(a).

            The     probation      officer     assessed      three        points    in

computing     Nichols’      criminal    history     category        for       Nichols’

burglary of the Jones’ residence on October 29, 2010, and the

resulting     five-year      state   sentence.           Nichols     argues      that,

assuming    this    court    finds   that    the   district        court      properly

admitted testimony regarding this burglary at trial, the Jones

burglary should have been deemed relevant conduct as it arises

under a “common scheme or plan” as the subject offenses.

            Here,    the     district   court      did    not      use    the    Jones

burglary as relevant conduct in fashioning Nichols’ sentence as

only one base offense level was specified, there were no related

specific offense characteristics, no cross references in Chapter

Two, and no related adjustments in Chapter Three.                             See USSG

§ 1B1.3(a).        Because Nichols’ sentence for the Jones burglary

was    appropriately     considered     in   his   computation           of   criminal



                                        9
history points and not as relevant conduct, the district court

did not err in determining Nichols’ criminal history category.

            Accordingly,      we   affirm    Nichols’     convictions     and

sentence.    We dispense with oral argument because the facts and

legal    contentions    are   adequately    presented    in   the   materials

before   this   Court   and   argument    would   not   aid   the   decisional

process.

                                                                      AFFIRMED




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