                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4088


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT JAMES CRISP,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:05-cr-00258-RLV-CH-2)


Submitted:   December 13, 2011            Decided:   December 27, 2011


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles R. Brewer, Asheville, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Robert       James    Crisp             appeals       his      conviction        and

resulting        168-month      custodial           sentence.           A    jury     found     Crisp

guilty     of    participating          in      a       conspiracy      to     manufacture       and

possess with intent to distribute methamphetamine in violation

of 21 U.S.C. §§ 841(b)(1)(A), 846 (2006).                             We affirm.

                Crisp first appeals the district court’s denial of his

motion     for    a   new     trial     without          an    evidentiary          hearing.      We

review     a     district      court’s        decision           to    deny    an     evidentiary

hearing in connection with a new trial motion for an abuse of

discretion.        United States v. Smith, 62 F.3d 641, 651 (4th Cir.

1995).     To grant a new trial based on newly discovered evidence,

a court usually must find the existence of all five of the

following        elements:           (1)      that         the    evidence          was    in   fact

discovered after trial; (2) that the facts alleged permit the

court to infer diligence on the part of the movant; (3) that the

newly    discovered          evidence      is       more      than    merely     cumulative       or

impeaching; (4) that the newly discovered evidence is material

to   the    issues       involved;       and        (5)       that    the     newly       discovered

evidence is of such a nature that it is likely to produce an

acquittal at a new trial.                    United States v. Robinson, 627 F.3d

941, 948 (4th Cir. 2010).                  New evidence that bears only on the

credibility        of    a    witness        “does         not       generally       warrant     the

granting of a new trial,” but “[t]here may be an exceptional

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‘rare case’ that would justify granting a new trial solely on

the basis of impeachment evidence.”               United States v. Custis,

988 F.2d 1355, 1359 (4th Cir. 1993).

            Here, the district court found that Crisp’s new trial

motion satisfied only the first two elements.                  We find that the

affidavits     supporting      Crisp’s       motion    drew    only       a    tenuous

connection between the alleged misconduct in the investigation

and   the    testimony    at    Crisp’s       trial.       Multiple           witnesses

testified to Crisp’s direct involvement in the manufacture of

methamphetamine     and   none    of     those    witnesses        volunteered      to

recant their testimony.        Without a more direct nexus between the

alleged misconduct and Crisp’s conviction, we conclude that the

district court did not abuse its discretion in declining to hold

an evidentiary hearing on Crisp’s new trial motion. ∗

            Crisp   mounts      several       challenges      to    the        district

court’s evidentiary rulings.           “We review a trial court’s rulings

on the admissibility of evidence for abuse of discretion, and we

will only overturn an evidentiary ruling that is arbitrary and

irrational.”    United States v. Cole, 631 F.3d 146, 153 (4th Cir.

2011) (internal quotation marks omitted).                Relevant evidence is


      ∗
       To the extent that Crisp argues on appeal that the
Government violated its duty to turn over favorable evidence as
required by Brady v. Maryland, 373 U.S. 83 (1963), we are not
persuaded.



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generally admissible.          Fed. R. Evid. 402.           Relevant evidence is

that which has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more

probable     or    less    probable       than   it   would      be   without       the

evidence.”      Fed. R. Evid. 401.

            Under Fed. R. Evid. 404(b), evidence of other crimes,

wrongs,    or     acts    of   a   defendant     is   admissible      for    limited

purposes.         Rule    404(b)    “is     understood      to   be   a     rule     of

inclusion,”       and    permits   the    admission    of    evidence       of   other

crimes or acts except that which tends to prove only criminal

disposition.       United States v. Queen, 132 F.3d 991, 994-95 (4th

Cir. 1997).       For Rule 404(b) evidence to be admissible, it must

be “(1) relevant to an issue other than the general character of

the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable.”               United States v. Hodge, 354 F.3d

305, 312 (4th Cir. 2004).              In addition, acts intrinsic to the

crime charged are not excluded by Rule 404(b).                   United States v.

Chin, 83 F.3d 83, 87-88 (4th Cir. 1996).                 Acts are intrinsic to

the charged offense if they are “inextricably intertwined” with

it, are part of a single criminal incident, or are necessary

preliminaries to the charged offense.                  Id. at 88.           Like all

relevant     evidence,      evidence      otherwise   admissible       under       Rule

404(b) “may be excluded if its probative value is substantially



                                           4
outweighed by the danger of unfair prejudice,” confusion, or

needless delay.        Fed. R. Evid. 403.

              Crisp appeals the district court’s rulings permitting

testimony regarding his involvement with using and distributing

cocaine.        We    do   not   find    that      such    evidence    was    unfairly

prejudicial or improperly admitted.                   The testimony chronicled

Crisp’s entrée into the conspiracy; as such, it was intrinsic to

the charged offense.

              Crisp    also      appeals     the     district    court’s       rulings

admitting a photographic exhibit and alleged hearsay testimony.

Testimony sufficiently linked the photograph to the conspiracy

to support its entry into the record.                     The alleged hearsay was

either admissible as co-conspirators’ statements under Fed. R.

Evid.    Fed.    R.   Evid.      801(d)(2)      or   was    harmless       against   the

backdrop of the quantum of testimony directly linking Crisp to

the methamphetamine conspiracy.

              Crisp lastly raises three challenges to the district

court’s Guidelines calculations at his sentencing hearing.                           We

review    a     sentence    under    a     deferential      abuse     of    discretion

standard.       Gall v. United States, 552 U.S. 38, 51 (2007).                        We

assess the procedural reasonableness of the sentence by ensuring

that    the   district     court    committed        no    significant      procedural

errors such as failing to calculate or improperly calculating

the Guidelines range.            United States v. Boulware, 604 F.3d 832,

                                            5
837-38 (4th Cir. 2010).                  “As a matter of procedure, the district

court     must    begin        its       sentencing       proceeding              ‘by     correctly

calculating       the     applicable             Guidelines          range. . . .                [T]he

Guidelines       should    be        the     starting          point        and     the     initial

benchmark.’”       United States v. Hernandez, 603 F.3d 267, 270 (4th

Cir. 2010) (quoting Gall, 552 U.S. at 49).

            We first review the district court’s imposition of the

firearm     enhancement         pursuant          to     U.S.        Sentencing          Guidelines

Manual    (“USSG”)       § 2D1.1(b)(1)            (2006).            Testimony          established

that Crisp aided in the manufacture of methamphetamine in an

outbuilding       and    that        a    rifle        hung    over        the     door     of       the

outbuilding.       We do not find that the district court abused its

discretion in finding that the rifle was accessible and in plain

view     during     Crisp’s          participation             in     the     manufacture             of

methamphetamine.          Moreover, Crisp has failed to demonstrate a

clear    improbability          that       the    firearm           was    connected        to       the

offense.

            We similarly uphold the district court’s imposition of

a   three    offense      level           enhancement         for     the        creation       of    a

substantial       risk    of    harm       to    human        life    or    the     environment.

Crisp    claims    that        no    such       enhancement          existed       in     the    2006

Guidelines.       He is incorrect; the enhancement is found at USSG

§ 2D1.1(b)(8)(B).



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            Finally, we review the district court’s approximation

of   the   drug    quantity     attributable   to    Crisp    for    Guidelines

purposes for clear error.           United States v. Carter, 300 F.3d

415, 425 (4th Cir. 2002).         The court’s drug quantity finding was

supported by testimony of multiple trial witnesses detailing the

fruits of the methamphetamine conspiracy; thus, we find no clear

error.

            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 in the decisional process.



                                                                       AFFIRMED




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