                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5013


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TIMOTHY LEROY NIXON,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00008-RLV-DSC-1)


Submitted:   September 23, 2010              Decided:   October 1, 2010


Before WILKINSON and     DUNCAN,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Mark A. Jones, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Timothy Leroy Nixon appeals his jury convictions and

180-month sentence for one count each of: (i) possession with

intent to distribute cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1),       (b)(1)(B)   (2006);       (ii)    using     and    carrying    a

firearm during and in relation to a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1) (2006); and (iii) possession

of a firearm in and affecting commerce by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1) (2006).                    Nixon asserts that

the district court erred when it denied his motion to suppress

the   fruits   of    a   warrantless     police      search    on     his   vehicle,

allowed evidence of other bad acts, allegedly in violation of

Fed. R. Evid. 404(b), failed to grant his motion for a mistrial,

and denied his motion for judgment of acquittal on his § 924(c)

conviction.     Because we disagree, we affirm the district court’s

judgment.

            In reviewing the district court’s denial of Nixon’s

suppression    motion,     we   review       the   district     court's     factual

determinations for clear error and any legal determinations de

novo.    United States v. Kelly, 592 F.3d 586, 589 (4th Cir.),

cert. denied, 130 S. Ct. 3374 (2010).                   Because the district

court denied Nixon’s motion, we construe the evidence “in the

light most favorable to the government.”              Id.



                                         2
               The    Fourth       Amendment        guarantees       “the    right       of   the

people to be secure . . . against unreasonable searches and

seizures    .    .     .    .”      U.S.     Const.    amend.       IV.      This     guarantee

requires       that    “searches        be    conducted        pursuant      to     a   warrant

issued    by    an     independent         judicial         officer.”        California        v.

Carney, 471 U.S. 386, 390 (1985).                     There are “a few specifically

established           and         well-delineated            exceptions[,]”             however.

California       v.    Acevedo,         500    U.S.     565,    580       (1991)      (internal

quotation marks and citations omitted).

               For instance, it is undisputed that the officers were

within their rights to conduct the vehicle checkpoint during

which Nixon was detained.                  See City of Indianapolis v. Edmond,

531 U.S. 32, 37-38 (2000) (reaffirming that a “roadblock with

the     purpose        of        verifying     drivers’        licenses         and      vehicle

registrations would be permissible”).                         Moreover, officers asked

Nixon     for     consent          to   search        his    person       and     the     record

establishes that Nixon voluntarily agreed.                            See Schneckloth v.

Bustamonte, 412 U.S. 218, 219 (1973) (recognizing that consent

is an exception to the warrant requirement).

               Nixon       nonetheless        suggests       that    after      the     officers

found crack cocaine on his person, arrested him and placed him

in handcuffs, he could not have voluntarily consented to the

search of his vehicle because the officers failed to Mirandize

him.     Regardless of whether Nixon consented to the search of his

                                                3
vehicle, we find that the crack cocaine found on Nixon’s person

provided officers with an independent right to conduct a limited

protective search of the vehicle.                       See Arizona v. Gant, 129 S.

Ct. 1710, 1723 (2009) (holding that police may search a vehicle

incident to a recent occupant’s arrest if it is reasonable to

believe the vehicle contains evidence of the offense of arrest).

Moreover, we conclude that, under the facts of this case, the

absence    of    Miranda    warnings        did        not    render      Nixon’s        consent

involuntary.           United    States     v.         Saenz,      474    F.3d     1132,    1137

(8th Cir.   2007);       United    States         v.    Elie,       111   F.3d     1135,    1146

(4th Cir.       1997)    (recognizing         that          “the    absence       of     Miranda

warnings    is    [only]    a     factor      to       be    considered       in       assessing

whether a defendant's consent was given voluntarily”), abrogated

in part on other grounds by, United States v. Sterling, 283 F.3d

216 (4th Cir. 2002).

            Given the narcotics found on Nixon’s person and in the

passenger compartment of the vehicle he drove, the officers also

had   probable     cause    to     search     the        vehicle’s        trunk     under   the

“automobile      exception”        to   the       warrant          requirement.          Kelly,

592 F.3d at 589; see Gant, 129 S. Ct. at 1721 (recognizing that

“[i]f   there     is    probable    cause         to    believe      a    vehicle      contains

evidence of criminal activity, United States v. Ross, 456 U.S.

798, 820-821 (1982), authorizes a search of any area of the

vehicle in which the evidence might be found”).

                                              4
            In light of the narcotics canine’s alert on the safe

found in the vehicle’s trunk, and considering Nixon’s narcotics

possession, we hold that the subsequent search of the safe was

also supported by probable cause.                   See Acevedo, 500 U.S. at 579-

80   (eliminating     warrant          requirement     for     locked   containers      in

automobiles,       which    require         probable   cause);       United   States    v.

Jeffus, 22 F.3d 554, 557 (4th Cir. 1994) (holding that a drug

detection    dog    alert    on    an       automobile    gives      rise   to   probable

cause to search the automobile).                    Because we conclude that the

district    court    correctly          determined     that     Nixon’s     consent    and

probable cause justified the search of Nixon’s person and the

vehicle he drove, we conclude that the district court did not

err when it denied Nixon’s motion to suppress the fruits of the

checkpoint search on his vehicle.

            Nixon next asserts that the district court erred when

it allowed the jury to hear evidence that he was taken into

custody     and     questioned         by     police     the    day     following      his

checkpoint    arrest.        According         to    Nixon,    the    evidence    of   his

subsequent arrest was inadmissible under Rule 404(b) because it

was not “inextricably intertwined” with the crimes for which he

was tried and its prejudicial effect substantially outweighed

its probative value.

             Rule    404(b)       is    “an       inclusive    rule,    admitting      all

evidence of other crimes or acts except that which tends to

                                              5
prove only criminal disposition.”                         United States v. Young, 248

F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks and

citation omitted).             To be admissible under Rule 404(b), prior

bad acts evidence: (i) must be relevant to an issue other than

character, such as intent; (ii) must be necessary to prove an

element of the crime charged; (iii) must be reliable; and (iv)

its probative value must not be substantially outweighed by its

prejudicial nature.            See United States v. Siegel, 536 F.3d 306,

317-21 (4th Cir. 2008).

             Rule 404(b) does not limit the admission of evidence

of   acts    intrinsic        to     the       crime      charged,      however.          United

States v.     Chin,     83    F.3d       83,    87-88        (4th   Cir.   1996).         “Other

criminal      acts      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.    at    88    (citation          and    internal     quotation       marks

omitted).        We have also recently recognized that “[e]vidence is

inextricably intertwined with the evidence regarding the charged

offense     if     it   forms       an    integral         and      natural   part    of    the

witness's accounts of the circumstances surrounding the offenses

for which the defendant was indicted.”                         United States v. Wilson,

--   F.3d    --,    2010      WL    3495876,         *6    (4th     Cir.   Sept.     8,   2010)

(internal citation and quotation marks omitted).                               Rule 404(b)

decisions by the district court are discretionary and will not

                                                 6
be overturned unless arbitrary or irrational.                    See United States

v. Powers, 59 F.3d 1460, 1464 (4th Cir. 1995).                    We conclude that

the   district     court’s   decision        to   admit   the    limited     fact   of

Nixon’s custody on the day following his checkpoint arrest was

neither arbitrary nor irrational. 1               Wilson, 2010 WL 3495876 at

*6.

             Nixon last asserts that the district court erred when

it denied his motion for judgment of acquittal on his § 924(c)

conviction because he claims that nothing in his encounter with

police on the day of his arrest ties his firearm possession to a

drug trafficking offense.          We review the denial of a Fed. R.

Crim. P. 29 motion de novo.             See United States v. Alerre, 430

F.3d 681, 693 (4th Cir. 2005).               When a Rule 29 motion was based

on a claim of insufficient evidence, the jury’s verdict must be

sustained “if there is substantial evidence, taking the view

most favorable to the Government, to support it.”                    United States

v.    Abu   Ali,   528   F.3d   210,     244      (4th    Cir.    2008)    (internal

quotation     marks   and    citations       omitted).       This    court    “ha[s]

defined     ‘substantial     evidence’       as   evidence   that    a    reasonable

      1
       We also discern no error in the district court’s decision
to deny Nixon’s motion for a mistrial.      See United States v.
Wallace, 515 F.3d 327, 330-31 (4th Cir. 2008) (holding that
district court did not abuse its discretion when it denied a
motion for mistrial where the Government did not purposefully
elicit prejudicial testimony and defense counsel did not
immediately request a curative instruction).



                                         7
finder    of    fact        could      accept    as     adequate      and    sufficient        to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     Alerre, 430 F.3d at 693 (internal quotation marks and

citations omitted).

               We    “must      consider      circumstantial          as    well   as       direct

evidence, and allow the government the benefit of all reasonable

inferences          from    the       facts     proven    to        those    sought     to     be

established.”          United States v. Tresvant, 677 F.2d 1018, 1021

(4th Cir. 1982) (citations omitted).                           A defendant challenging

the   sufficiency          of    the    evidence       faces    a    heavy    burden.         See

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).

               To convict Nixon of violating § 924(c), the Government

was     required       to       prove    that        Nixon:    (i)     committed        a    drug

trafficking crime; and (ii) possessed a firearm in furtherance

of that crime.             18 U.S.C. § 924(c)(1)(A).                 We have reviewed the

record and conclude that, construing the evidence in the light

most favorable to the Government, a reasonable finder of fact

could have found beyond a reasonable doubt that Nixon possessed

the firearm found by police to further his crime of possession

with intent to distribute cocaine base.                             Cf. United States v.

Lomax, 293 F.3d 701, 705-06 (4th Cir. 2002).

               Based on the foregoing, we affirm the district court’s

judgment.       We dispense with oral argument because the facts and

legal    contentions            are    adequately       presented      in    the   materials

                                                 8
before   the   court   and   argument   would   not   aid   the   decisional

process.



                                                                    AFFIRMED




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