                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4965


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

WILLIAM TYRONE PAYTON,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:06-cr-00341)


Submitted:    November 10, 2008             Decided:   December 8, 2008


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Daniel H. Ginsburg, BENNETT & BAIR, LLC, Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, David
I. Salem, Jonathan Su, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              William        Tyrone       Payton         was       convicted      by     a     jury    of

conspiracy       to    distribute             500    grams         or   more     of     cocaine,       in

violation       of     21        U.S.C.        §§ 846,         853      (2000),          use     of     a

communication         device        to    facilitate           a    cocaine       conspiracy,           in

violation of 21 U.S.C. § 843(b) (2000), and distribution of 500

grams    or    more     of       cocaine,       in       violation       of      21    U.S.C.        § 841

(2000),    and       was    sentenced          to    292     months      in      prison.         Payton

asserts       that     the       district           court:     (i)       violated         his        Fifth

Amendment rights by constructively amending his indictment so he

could be convicted based on his marijuana sales; (ii) erred when

it admitted evidence of his prior cocaine-related convictions;

(iii) erroneously sentenced him as a career offender based, in

part, on his prior 18 U.S.C. § 924(c) (2006) conviction; and

(iv) erred in refusing to lower his offense level because of his

allegedly      minor         role    in        the       conspiracy         of        which     he    was

convicted.       Finding no reversible error, we affirm.

              First,        we     find       that       the       district       court        did     not

constructively         amend        Payton’s             indictment.              A     constructive

amendment occurs when the bases for conviction are broadened

beyond     those       charged           in    the        indictment.                 United     States

v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).                                         Although this

may occur if a district court’s jury instructions broaden the

possible      bases        for    conviction          beyond        those      presented        to     the

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grand jury, United States v. Floresca, 38 F.3d 706, 710 (4th

Cir. 1994) (en banc), we conclude that the district court’s jury

instructions did not constructively amend Payton’s indictment.

The district court correctly instructed the jury that it could

find     Payton    guilty     of   the    cocaine-related       charges       in    his

indictment, regardless of his marijuana dealings, so long as

they found he engaged in the cocaine-related conduct with which

he was charged.

             We also reject Payton’s assertion that the district

court erred in admitting his prior cocaine-related convictions

under Fed. R. Evid. 404(b).                Substantial deference is due a

district court’s evidentiary rulings and reversal may occur only

when there has been an abuse of discretion.                    See General Elec.

Co. v. Joiner, 522 U.S. 136, 141 (1997).                 Rule 404(b) decisions

by     the   district    court     are    discretionary     and       will    not     be

overturned unless arbitrary or irrational.                     See United States

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

             Because     Payton    pled   not   guilty    to    the    crimes       with

which he was charged, he placed his mental state in issue and

the Government was authorized to offer evidence of prior bad

acts     tending    to      establish     Payton’s   intent       and        knowledge

regarding the cocaine conspiracy.               See United States v. Mark,

943 F.2d 444, 448 (4th Cir. 1991) (holding that evidence of

prior drug transactions was offered for a proper purpose because

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a   defendant’s         knowledge         and    intent    are        elements        of    a    § 841

charge       and     the    evidence       admitted       showed           how    the      defendant

obtained the drugs he was charged with selling and that he was

“a major cocaine distributor responsible for the transaction at

issue”).

               Since Payton admitted that he was around the cocaine

conspiracy         with     which    he    was    charged,           but    suggested           he    was

involved in legitimate business transactions or only conspired

to sell marijuana, we find that Payton’s prior cocaine-related

convictions were relevant to establish: (i) his knowledge of the

cocaine trade; and (ii) that his intent in the conspiracy was to

sell cocaine.              See United States v. Hodge, 354 F.3d 305, 312

(4th     Cir.        2004)     (finding          that     evidence           of       other          drug

transactions was relevant and necessary because it tended to

show     the       existence    of     a    continuing          narcotics          business           and

therefore showed that defendant had “knowledge of the drug trade

and    his     intent      [was]     to    distribute          the    cocaine”);           see       also

United States v. Branch, 537 F.3d 328, 341-42 (4th Cir. 2008)

(upholding admissibility of prior conviction for possession with

intent    to       distribute       cocaine      base     as    evidence         of     intent        and

knowledge in later prosecution for cocaine base possession and

distribution).

               Although Payton also argues that the probative value

of the prior bad acts evidence was substantially outweighed by

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its prejudicial effect, we conclude that the district court’s

limiting instruction to the jury, as well as the initial Rule

404(b) notice that was given to Payton by the Government, was

sufficient to reduce any prejudicial effect the evidence may

have had.         See United States v. Queen, 132 F.3d 991, 997 (4th

Cir. 1997) (holding that the fear a jury may improperly use Rule

404(b) evidence subsides when the trial judge gives the jury a

limiting instruction regarding proper use, and that “the fear of

a   ‘trial   by    ambush’    recedes”    when      the   prosecution       has   given

notice of the evidence to be introduced). *

             We    also   find    that   Payton’s     sentence      is   reasonable.

See   Rita   v.    United     States,    127   S.   Ct.   2456,     2462-69       (2007)

(upholding presumption of reasonableness for within—Guidelines

sentence); United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008) (same).         Because Payton possessed two prior convictions

for   felony      controlled     substance     offenses,      we    find    that    the

district court did not err in classifying Payton as a career

offender     under     U.S.      Sentencing      Guidelines        Manual    (“USSG”)

§ 4B1.1 (2006).




      *
       Even if the district court erred in admitting Payton’s
prior bad acts evidence, given the substantial evidence of
Payton’s guilt in the cocaine conspiracy, we would find that the
verdict would have been the same absent any error.     See United
States v. Williams, 461 F.3d 441, 448-49 (4th Cir. 2006).



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            Additionally, we uphold the district court’s decision

to deny Payton a two-level downward adjustment in his offense

level for his claimed minor role in the conspiracy, pursuant to

USSG    § 3B1.2    (2006),       since   “[a]    seller     possesses     a   central

position    in    a      drug    distribution      conspiracy,”       even      if    he

participated in the conspiracy for a relatively brief period of

time.     See United States v. Brooks, 957 F.2d 1138, 1149 (4th

Cir. 1992); see also United States v. Daughtrey, 874 F.2d 213,

218-19    (4th    Cir.     1989)    (recognizing       that      simply   because      a

criminal    conspiracy          participant     does      not    conceive     of     the

conspiracy does not mean that he should be assigned a minor role

adjustment if he helped to implement it).

             Accordingly, we affirm the district court’s judgment.

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




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