                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
JOSEPH EDMUND WILLIAMS, a/k/a                    No. 04-5126
Abdullah Shabazz, a/k/a Taharqa
Abdullah Shabazz,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
         for the Eastern District of Virginia, at Alexandria.
                Leonie M. Brinkema, District Judge.
                            (CR-04-160)

                      Argued: February 3, 2006

                      Decided: April 18, 2006

  Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.



Affirmed in part, vacated in part, and remanded by published opinion.
Judge Traxler wrote the opinion, in which Judge Gregory and Judge
Duncan joined.


                            COUNSEL

ARGUED: Geremy Charles Kamens, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Patrick F. Stokes, Assistant
United States Attorney, Erik Russell Barnett, Assistant United States
2                     UNITED STATES v. WILLIAMS
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr.,
Federal Public Defender, Meghan S. Skelton, Assistant Federal Public
Defender, Alexandria, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Alexandria, Virginia, for Appellee.


                              OPINION

TRAXLER, Circuit Judge:

   Joseph Williams, who had previously been convicted of a felony,
was convicted of unlawful possession of a firearm and ammunition.
See 18 U.S.C.A. § 922(g)(1) (West 2000). Over Williams’s objection,
the district court permitted the government to prove Williams’s pos-
session of a weapon through evidence linking Williams to the killing
of Gail Collins. Because of the then-uncertain status of the Sentencing
Guidelines,1 the district court submitted additional questions to the
jury after it returned the guilty verdict. The jury answered the ques-
tions and determined that the government had proven beyond a rea-
sonable doubt that Williams killed Collins. Based on this factual
finding, the district court at sentencing cross-referenced the guideline
governing first-degree murder and imposed the life sentence required
by the Sentencing Guidelines. See U.S.S.G. § 2K2.1(c)(1)(B).

   Williams appeals, challenging his conviction and sentence. We
affirm Williams’s conviction, but we vacate his sentence and remand
for re-sentencing.

                                   I.

   Viewed in the light most favorable to the government, the evidence
presented at trial established the following. Gail Collins was a consci-
entious employee of the United States Treasury Department who
lived in Alexandria, Virginia. She was at work on March 11, 2003,
    1
   Williams’s trial took place in September 2004, after the Supreme
Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), but
before its decision in United States v. Booker, 543 U.S. 220 (2005).
                     UNITED STATES v. WILLIAMS                       3
and indicated to co-workers that she would be at work for the rest of
the week. Collins did not show up for work after March 11, nor did
she call to say that she would be absent. Friends and family eventu-
ally began worrying and contacted police on March 21, 2003. Police
entered Collins’s apartment that day and found her body in the bed-
room. She had been shot through the head execution-style, while she
was kneeling and the killer was standing over her. The bullet went
through her head, out through her cheek, and lodged in her shoulder.
Collins’s car keys, ATM card, and check register were missing, but
nothing else in the apartment appeared to be disturbed, and there were
no signs of forced entry. Records from the electronically operated
front door of her apartment building showed that Collins entered the
building on the night of March 11, but the records did not show that
she entered the building after that.

   Bank records revealed that Collins’s ATM card had been used mul-
tiple times in the early morning hours of March 12. Between 2:00 and
2:30 a.m., $580 dollars in $20 bills had been withdrawn over the
course of nine transactions. Those withdrawals caused Collins’s
account to be overdrawn for the first time since she opened it. There
were other unsuccessful attempts to withdraw money a few hours
later. During one of these unsuccessful attempts, an ATM camera
took a picture of a woman identified by police officers as Kathleen
Simmons, a crack addict and prostitute.

   Simmons told police that on the night of March 11, she was stand-
ing on the street after missing the last bus, hoping that someone
would give her a ride. Williams (whom she did not know before that
evening) drove by and asked her if she knew where he could get some
crack. She told him she did and hopped in his car. He drove her back
to his apartment to smoke the little bit of crack that he had. Williams
lived in the same apartment building as Collins; his apartment was on
the 15th floor and hers was on the 11th floor. On the way up to his
apartment, Williams paused the elevator on one of the floors below
his floor, stepped out of the elevator, and looked up and down the
hall.

  After Williams and Simmons smoked Williams’s crack, they got
back in his car and he drove to a nearby ATM. He gave Simmons an
ATM card and a PIN number and asked her to withdraw $400. The
4                    UNITED STATES v. WILLIAMS
ATM card belonged to Collins. When Simmons asked about the
woman’s name on the card, Williams said the card belonged to a
friend and that they were breaking up. Simmons tried to withdraw
money, but she was unsuccessful, because the account had already
been overdrawn. Simmons got back in Williams’s car and told him
that she could not get any money. Simmons then directed Williams
to a housing project in the District of Columbia where they could buy
crack. Williams gave Simmons $120 or $140 in crisp $20 bills, and
she returned with 15 "dime" bags of crack cocaine. They returned to
Williams’s apartment to smoke the crack. As Williams was getting
out of the car, Simmons saw him reach under his seat and retrieve an
object that he put inside his pants. On the way up to his apartment,
Williams again stopped the elevator on a lower floor, got out, looked
up and down the hall, and then got back inside the elevator. Once on
the 15th floor, Williams went into a trash room, where Simmons saw
him take a gun from inside his waistband and place it on top of the
air-conditioning duct. He removed ammunition from his pocket once
they were inside the apartment.

   After Williams and Simmons smoked the crack they had bought,
Williams left for work, but he returned about an hour later. He gath-
ered up CDs, which he and Simmons sold at a music store for about
$100. Williams and Simmons then bought more crack, which they
smoked at his apartment. After the drugs were gone, Williams took
Simmons to her friend’s house. Simmons never saw Williams again.

   Simmons was the government’s star witness at trial, and she testi-
fied to the facts outlined above. The defense, however, had several
grounds upon which to impeach Simmons’s credibility. First, Sim-
mons was an admitted drug addict and prostitute. In addition, she had
been shot in the head and was left with brain damage, had auditory
and visual hallucinations, and took multiple psychiatric medications.
Nonetheless, much of Simmons’s story was corroborated. The man-
ager of the music store recognized Simmons as having sold CDs with
Williams, and the superintendent of Williams’s apartment building
saw Simmons in the building with Williams on the morning of March
12. And while there was no evidence indicating that Simmons knew
Collins, the government presented evidence showing that Williams
knew Collins. Williams had helped Collins out from time to time, and
                     UNITED STATES v. WILLIAMS                      5
Williams brought Collins with him to his niece’s house on one occa-
sion.

   The government also presented evidence that suggested a motive
for the killing. In the months before Collins was killed, Williams’s
drug addiction appeared to be spiraling out of control. Williams was
buying hundreds of dollars worth of crack every other day from Keith
Bartee and staying up until the wee hours of the morning smoking the
crack with Bartee and Bartee’s girlfriend. Williams was having severe
money problems around this same time. He quit making car payments
in November 2002, stopped paying rent in January 2003, and was
officially evicted in late March 2003. He cashed out vacation time at
work, asked friends and family for money, stole money from his bank
by making ATM withdrawals after making phony ATM deposits, and
stole a check from a friend, forging her signature and making it pay-
able to him in the amount of $4,000. Williams had also been getting
money from Collins. About a week or so before she died, Collins told
her mother and her niece that she was not going to give Williams any
more money.

   In the weeks after Collins’s body was discovered, Williams made
statements that could be viewed as evidence of his guilt. After being
interviewed by the police, Williams’s niece asked him if he had killed
Collins. Williams told her that it was "none of [her] concern," J.A.
833, and that what she "[did]n’t know wouldn’t hurt" her. J.A. 852.
In addition, Keith Bartee, Williams’s main drug supplier, became
concerned about Williams’s strange and paranoid behavior. Bartee
asked Williams if he had killed someone, and Williams remained
silent.

   Although the weapon used to kill Collins was never found, Wil-
liams was charged with unlawful possession of a firearm and ammu-
nition by a felon and user of illegal drugs. See 18 U.S.C.A.
§§ 922(g)(1) & (3). The jury found Williams guilty.

   Collins was murdered in March 2003, and the case was headed for
trial in the summer of 2004. Before the case went to trial, the
Supreme Court issued its opinion in Blakely v. Washington, 542 U.S.
296 (2004). The government, to protect its ability to sentence Wil-
liams based on his involvement in Collins’s murder, obtained a super-
6                     UNITED STATES v. WILLIAMS
seding indictment that included allegations about the murder, and the
district court announced its intention to submit sentencing issues to
the jury. Before the trial started, however, this court issued its opinion
in United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc),2
which concluded that Blakely did not apply to proceedings under the
Sentencing Guidelines. See id. at 349-50. Notwithstanding Hammoud,
the district court proceeded with its plan to submit sentencing factors
to the jury. Accordingly, immediately after the jury returned the guilty
verdict, the court sent the jurors back to answer several special inter-
rogatories related to sentencing. The jury answered these interrogato-
ries and concluded that the government had proved beyond a
reasonable doubt that Williams killed Collins, that he killed her with
malice, that the killing was premeditated and deliberate, and that he
killed her during the commission of or an attempt to commit robbery.

   Sentencing for felon-in-possession charges is governed by section
2K2.1 of the Sentencing Guidelines. Section 2K2.1 provides that if
the defendant used or possessed any firearm in connection with
another offense that resulted in death, the most analogous guideline
for homicides should be applied, if application of the homicide guide-
line yields a higher offense level. See U.S.S.G. § 2K2.1(c)(1)(B). In
light of the jury’s answers to the special interrogatories, the most
analogous guideline was U.S.S.G. § 2A1.1, governing first-degree
murder. The offense level under § 2A1.1 is 43, which carries with it
a mandatory life sentence regardless of the criminal history category.
Accordingly, the district court sentenced Williams to life, noting more
than once during the sentencing proceeding that the sentence was
required by the Guidelines. The district court did not announce an
alternative sentence that it would have imposed had the Guidelines
not been mandatory.

                                   II.

  In this appeal, Williams first contends that the district court erred
by permitting the government to present evidence of Collins’s mur-
der. According to Williams, the evidence was unfairly prejudicial and
    2
  After deciding Booker, the Supreme Court vacated Hammoud. See
Hammoud v. United States, 543 U.S. 1097 (2005).
                      UNITED STATES v. WILLIAMS                        7
should have been excluded under Rule 403 of the Federal Rules of
Evidence. We disagree.

   Rule 403 provides that "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the dan-
ger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless pre-
sentation of cumulative evidence." Fed. R. Evid. 403. There is no
doubt that the evidence of the Collins murder was prejudicial to Wil-
liams, just as all evidence suggesting guilt is prejudicial to a defen-
dant. However, "[t]he mere fact that the evidence will damage the
defendant’s case is not enough—the evidence must be unfairly preju-
dicial, and the unfair prejudice must substantially outweigh the proba-
tive value of the evidence." United States v. Hammoud, 381 F.3d 316,
341 (4th Cir. 2004) (en banc) (internal quotation marks omitted),
vacated on other grounds, 543 U.S. 1097 (2005). Evidence is unfairly
prejudicial and thus should be excluded under Rule 403 "when there
is a genuine risk that the emotions of a jury will be excited to irratio-
nal behavior, and . . . this risk is disproportionate to the probative
value of the offered evidence." United States v. Aramony, 88 F.3d
1369, 1378 (4th Cir. 1996) (internal quotation marks omitted).

   This court has upheld over a Rule 403 objection the use of evi-
dence of a shooting in order to prove weapons charges made against
the defendant. For example, in United States v. Grimmond, 137 F.3d
823 (4th Cir. 1998), we rejected an argument that Rule 403 barred
introduction of evidence of two shootings (one fatal) in a case where
the defendant was charged with multiple counts of drug and weapons
possession. The defendant shot and killed the first of his victims
because the victim had been "giving him looks that made him feel
unsafe," id. at 826, and then shot the second victim because he knew
too much about the first shooting. Id. We noted that the evidence of
the shootings directly established one of the elements of the § 922(g)
charge—possession of a firearm—and thus was highly probative. As
to the question of unfair prejudice, we stated:

    Perhaps Grimmond’s case was damaged when the jury
    heard evidence that he shot two individuals. However, dam-
    age to a defendant’s case is not a basis for excluding proba-
    tive evidence. And for good reason. Evidence that is highly
8                     UNITED STATES v. WILLIAMS
    probative invariably will be prejudicial to the defense. It is
    worth remembering that the touchstone for excluding evi-
    dence under Rule 403 is not prejudice, but "unfair" preju-
    dice. Moreover, unfair prejudice must "substantially"
    outweigh the probative value of the evidence. We have no
    difficulty in concluding that it was not unfairly prejudicial
    for the Government to introduce evidence that Grimmond
    shot Feaster and Kinney.

Id. at 833 (citations omitted).

  Similarly, in United States v. Myers, 280 F.3d 407 (4th Cir. 2002),
we found no error in the admission in a trial on drug and weapons
charges evidence that the defendant killed a drug customer:

       The district court did not abuse its discretion [by admit-
    ting evidence of the murder]. Given the testimony of the
    state police firearms expert that Myers’ firearm was the one
    used to kill Shilot, the court correctly found that evidence
    regarding the shooting of Shilot had substantial probative
    value. It was directly relevant to whether Myers was a felon
    in possession of a firearm . . ., whether he possessed and
    used a firearm in furtherance of drug trafficking. . ., and
    whether he knowingly possessed a firearm with an obliter-
    ated serial number. . . .

       In addition, the district court did not abuse its discretion
    in determining that the probative value of the shooting was
    not "substantially outweighed by the danger of unfair preju-
    dice." Fed. R. Evid. 403. This evidence was certainly dam-
    aging to Myers and possibly prejudicial as well. But it was
    not unfairly prejudicial.

Id. at 413-14; see also United States v. Higgs, 353 F.3d 281, 311-12
(4th Cir. 2003) (in murder case where no gun was recovered, finding
evidence of earlier uncharged shooting to be admissible because bul-
lets in uncharged shooting matched bullets recovered from the murder
victims); United States v. Melton, 970 F.2d 1328, 1336 (4th Cir.
1992) (affirming district court’s decision to admit evidence that the
defendant charged with drug-related offenses killed an informant).
                      UNITED STATES v. WILLIAMS                        9
   Williams, however, contends that these cases are distinguishable
because the evidence in them more clearly and directly tied the defen-
dants to the shootings. Williams contends that the evidence connect-
ing him to the Collins murder is purely circumstantial and too
speculative to justify its admission, because this court has counte-
nanced the admission of evidence of an uncharged murder only when
the evidence linking the defendant to the murder is overwhelming.
We disagree.

   Preliminarily, we note that while some (but certainly not all) of the
evidence connecting Williams to Collins’s murder may be circum-
stantial, circumstantial evidence is not inherently less valuable or less
probative than direct evidence. See Holland v. United States, 348 U.S.
121, 140 (1954) ("Circumstantial evidence . . . is intrinsically no dif-
ferent from testimonial evidence."); United States v. Espaillet, 380
F.3d 713, 719 (2d Cir. 2004) (explaining that circumstantial evidence
"is of no less intrinsic worth than direct evidence and, indeed, circum-
stantial evidence alone may support a guilty verdict"). Thus, the pres-
ence of circumstantial evidence provides no basis to distinguish this
case from the cases where similar evidence was admitted.

   More importantly, however, there is simply no basis in the lan-
guage of Rule 403 or our cases applying Rule 403 that would permit
a heightened standard to be applied when the evidence sought to be
excluded involves an uncharged murder. Nor does the rule operate
differently when the evidence sought to be excluded is circumstantial
rather than direct. To be sure, both factors—that the evidence is cir-
cumstantial and involves an uncharged murder—will be included in
the Rule 403 calculus of determining whether the probative value of
the evidence is substantially outweighed by the danger of unfair prej-
udice. Thus, in a case where the evidence sought to be excluded is cir-
cumstantial evidence that is only weakly probative of a minor point,
a defendant might have an easier time convincing the district court
that the danger of unfair prejudice substantially outweighs the mini-
mal probative value of the evidence. Similarly, the danger of unfair
prejudice is more likely to be present in a case where the challenged
evidence is a type that is highly likely to inflame the passions of the
jurors, and the district court will consider the increased likelihood of
unfair prejudice when determining whether the evidence should be
admitted. Nonetheless, the Rule 403 inquiry—determining whether
10                    UNITED STATES v. WILLIAMS
the danger of unfair prejudice substantially outweighs the probative
value of the evidence—remains the same in all cases, regardless of
the nature or type of the challenged evidence.

   While Williams suggests that the district court erred as a matter of
law in admitting the evidence of the Collins murder because the evi-
dence connecting him to the murder was not overwhelming, what
Williams is really arguing is that the district court incorrectly struck
the Rule 403 balance. The weighing of the evidence and balancing of
the Rule 403 scale, however, is a discretionary task vested with the
district court. "Because the evidence sought to be excluded under
Rule 403 is concededly probative, the balance under Rule 403 should
be struck in favor of admissibility, and evidence should be excluded
only sparingly." Aramony, 88 F.3d at 1378. A district court’s decision
to admit evidence over a Rule 403 objection will not be overturned
"except under the most extraordinary of circumstances, where that
discretion has been plainly abused." United States v. Simpson, 910
F.2d 154, 157 (4th Cir. 1990) (internal quotation marks omitted).
"Such an abuse occurs only when it can be said that the trial court
acted arbitrarily or irrationally in admitting evidence." Id. (internal
quotation marks omitted).

   In this case, we simply cannot conclude that the district court acted
irrationally or arbitrarily when determining that the probative value of
the Collins evidence was not substantially outweighed by the danger
of unfair prejudice. The evidence surrounding Collins’s murder was
clearly relevant to the § 922(g) charges. A determination that Wil-
liams shot Collins obviously would demonstrate that Williams pos-
sessed a firearm, and the evidence of the Collins murder would also
establish that the firearm that Williams possessed was operable and
thus satisfied the statutory definition of "firearm." See 18 U.S.C.A.
§ 921(a)(3) (West 2000) ("The term ‘firearm’ means (A) any weapon
(including a starter gun) which will or is designed to or may readily
be converted to expel a projectile by the action of an explosive; (B)
the frame or receiver of any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive device. Such term does not
include an antique firearm.").3 A firearms expert testified that the bul-
  3
    Although § 921(a)(3) does not require that the firearm be operable
when the defendant possessed it, see United States v. Adams, 137 F.3d
1298, 1300 (11th Cir. 1998) (per curiam); United States v. Willis, 992
F.2d 489, 491 n.2 (4th Cir. 1993), an operable firearm certainly meets the
statutory definition.
                      UNITED STATES v. WILLIAMS                      11
let recovered from Collins was not manufactured in Virginia and that
none of the guns that the bullet fit were manufactured in Virginia, tes-
timony which established the interstate commerce requirement of sec-
tion 922(g). The evidence was thus highly probative of the charges
against Williams. And contrary to Williams’s contention, the presence
of some circumstantial evidence did not render the evidence specula-
tive or otherwise reduce its probative value.

   The evidence presented by the government directly and quite com-
pellingly tied Williams to the murder of Gail Collins. The government
established through direct evidence (the testimony of Williams’s
niece and Collins’s mother and niece) that Williams knew Collins,
that Williams had received money from Collins, and that shortly
before her death Collins had declared that she would not give any
more money to Williams. The government presented direct evidence
establishing that Williams had a serious and very expensive drug
habit, as well as evidence of Williams’s mounting financial problems.
The government tied its evidence together with direct evidence (the
testimony of Kathleen Simmons) that Williams had Collins’s ATM
card and PIN number in the early morning hours after the last night
that Collins was known to be alive and very strong circumstantial evi-
dence pointing to Williams as Gail Collins’s murderer. For example,
the government’s circumstantial evidence showed that on the night
Williams had Collins’s ATM card and PIN number, multiple early-
morning ATM transactions ended up overdrawing Collins’s checking
account for the first time since she opened the account and that Wil-
liams behaved very strangely in the apartment building the night that
he gave Collins’s ATM card to Simmons, stopping the elevator on a
floor below his apartment and stepping out to look up and down the
hallway.

   To be sure, the evidence of the Collins murder was prejudicial to
Williams, as is all evidence tending to show a defendant’s guilt. See
Grimmond, 137 F.3d at 833 ("Evidence that is highly probative
invariably will be prejudicial to the defense."). Whether or not the
evidence overwhelmingly linked Williams to Collins’s murder, it was
strong evidence of Williams’s involvement in the murder. And while
evidence of an uncharged murder certainly carries with it some risk
that it will incite the emotions of the jurors, the evidence was also
highly probative of the weapons-possession charge against Williams,
12                    UNITED STATES v. WILLIAMS
and the district court instructed the jury to consider the evidence only
for the limited purpose of showing that Williams had possessed a fire-
arm in violation of § 922(g). Under these circumstances, we cannot
say that the district court acted arbitrarily or irrationally when con-
cluding that the risk of unfair prejudice did not substantially outweigh
the probative value of the evidence. See Aramony, 88 F.3d at 1378;
see also Grimmond, 137 F.3d at 833; Myers, 280 F.3d 413-14; Higgs,
353 F.3d at 311-12.

                                  III.

   Williams also contends that the district court erred by refusing to
strike from the indictment allegations about the Collins murder. See
Fed. R. Crim. P. 7(c)(1) ("The indictment or information must be a
plain, concise, and definite written statement of the essential facts
constituting the offense charged and must be signed by an attorney for
the government."); Fed. R. Crim. P. 7(d) ("Upon the defendant’s
motion, the court may strike surplusage from the indictment or infor-
mation."). Williams argues that including the allegations in the indict-
ment might have been proper after Blakely, but that they were
improper after the opinions in Hammoud and Booker were issued,
because those cases made it clear that the jury had no role in the sen-
tencing process.

   "The purpose of Rule 7(d) is to protect a defendant against prejudi-
cial allegations that are neither relevant nor material to the charges
made in an indictment, or not essential to the charge, or unnecessary,
or inflammatory." United States v. Poore, 594 F.2d 39, 41 (4th Cir.
1979) (citations omitted). A district court’s ruling on a motion to
strike is reviewed for abuse of discretion. Id.

   "[A] motion to strike surplusage from the indictment should be
granted only if it is clear that the allegations are not relevant to the
charge and are inflammatory and prejudicial." United States v. Rezaq,
134 F.3d 1121, 1134 (D.C. Cir. 1998) (internal alteration and quota-
tions marks omitted); see also United States v. Hedgepeth, 434 F.3d
609, 612 (3d Cir. 2006) ("[I]nformation that is prejudicial, yet rele-
vant to the indictment, must be included for any future conviction to
stand and information that is irrelevant need not be struck if there is
no evidence that the defendant was prejudiced by its inclusion.").
                      UNITED STATES v. WILLIAMS                       13
Given our conclusion that the evidence of the Collins murder was not
unfairly prejudicial, we fail to see how Williams could have been
prejudiced by the inclusion of those allegations in the indictment, par-
ticularly since the indictment was not given to the jury and the district
court specifically instructed the jury that the indictment was not evi-
dence. The district court, therefore, did not abuse its discretion by
denying the motion to strike. See United States v. Hartsell, 127 F.3d
343, 353 (4th Cir. 1997) (finding no abuse of discretion in denial of
motion to strike alleged surplusage from indictment where defendant
was not prejudiced by the allegations at issue).

                                  IV.

   During the presentation of its case, the government called as a wit-
ness Keith Bartee, Williams’s main drug supplier. Bartee testified that
he asked Williams whether he had killed someone but Williams did
not respond. On appeal, Williams contends that his silence in
response to Bartee’s question was inadmissible hearsay. In a related
argument, Williams contends that the government’s reference in clos-
ing argument to Bartee’s testimony amounted to an improper com-
ment on Williams’s silence.

                                   A.

   Bartee testified about Williams’s strange behavior around the time
of Collins’s murder. Bartee testified that sometime in March, Wil-
liams suddenly stopped showing up at the hotel where Bartee sold
crack. Bartee finally called Williams and asked him what was wrong.
According to Bartee, Williams "told me that something was, you
know, something was wrong and he didn’t want us to be involved
with it. I don’t know, I guess it was something he had done, and he
didn’t want me to be involved with the police." J.A. 947.

   About a week after that telephone conversation, Bartee called Wil-
liams again to see if he would give him a ride to a laundromat. Bartee
and Williams ended up smoking crack in several different locations,
and Williams behaved strangely the entire time. Bartee testified that
Williams "wasn’t himself," J.A. 949, and that Williams "kept saying
the police w[ere] following him." J.A. 951-52. Bartee found this
behavior puzzling, because Williams "was always calm and cool."
14                    UNITED STATES v. WILLIAMS
J.A. 952. Williams and Bartee eventually decided to go to Williams’s
apartment to smoke more crack. While in the apartment, Williams
continued to behave strangely. Bartee asked him what was wrong, but
Williams did not respond. After about 40 minutes, the crack was
gone, and Bartee and Williams left the apartment. On the elevator ride
down, Bartee asked Williams if he was seeing any women in the
building. Williams said that "there was a lady downstairs," but that he
did not have any "sexual contact" with her. J.A. 952. Bartee testified
that Williams mentioned something about "some guys that went down
there," but that Williams never said "what happened." J.A. 952-53.
The exchange about which Williams complains on appeal then took
place. While still in the elevator, Bartee again "asked him what was
wrong. I asked him, did he, you know, did he kill somebody or what?
You know, like I say, he didn’t say anything. He was blank. He didn’t
say . . . . Like I say, I never knew what was wrong." J.A. 953.

                                  B.

   Williams contends that the district court treated his failure to
answer Bartee’s question as an adoptive or tacit admission. Williams
argues that the exchange does not qualify as an adoptive admission
and that the district court therefore erred by admitting it.

   Generally speaking, statements made by a party opponent are
excluded from the definition of hearsay and are admissible in court.
See Fed. R. Evid. 801(d)(2)(A). A statement made by someone else
may be treated as a statement of the party if the party adopts that
statement. See Fed. R. Evid. 801(d)(2)(B) (defining as not hearsay a
"statement of which the party has manifested an adoption or belief in
its truth"). "A party may manifest adoption of a statement in any num-
ber of ways, including through words, conduct, or silence." United
States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001) (internal alter-
ation omitted).

     When a statement is offered as an adoptive admission, the
     primary inquiry is whether the statement was such that,
     under the circumstances, an innocent defendant would nor-
     mally be induced to respond, and whether there are suffi-
     cient foundational facts from which the jury could infer that
                      UNITED STATES v. WILLIAMS                       15
    the defendant heard, understood, and acquiesced in the state-
    ment.

Id. (quoting United States v. Jinadu, 98 F.3d 239, 244 (6th Cir.
1996)).

   Williams argues that his silence when Bartee asked if he had killed
someone does not qualify as an adoptive admission. He contends that
Bartee’s question did not accuse him of committing a crime. Because
the question was not accusatory, Williams argues that his failure to
respond cannot be treated as a tacit or adoptive admission. We agree.

   The adoptive-admission doctrine permits statements of others to be
treated by the jury as statements of the party—it is as if the party him-
self made the statement. If someone says in the defendant’s presence
that "this is the money the defendant got when he robbed the bank,"
it is logical for the jury to conclude that the defendant would have
spoken up if he in fact had not robbed the bank. Thus, a jury would
be entitled to treat the robbed-the-bank statement as if it had been
made by the defendant himself. Cf. United States v. Ward, 377 F.3d
671, 675-76 (7th Cir. 2004).

   If the defendant remains silent in the face of a question, however,
the adoptive admissions analysis is not always appropriate. If the
question is highly accusatory (for example, "Why did you rob the
bank?"), the adoptive admissions would be proper, because a jury
could reasonably view the failure to answer as an adoption of the
accusatory statement that is the premise of the question—that the
defendant robbed the bank. Cf. Folston v. Allsbrook, 691 F.2d 184,
187 (4th Cir. 1982) (finding no error in the admission of evidence that
defendant failed to respond when a cellmate "asked [the defendant]
why did he shoot the man"); see also John Strong, McCormick on
Evidence § 161 (explaining that for silence to be admitted as a tacit
admission, there must be "preliminary proof . . . of an accusatory
statement" (emphasis added). The question in this case is not so accu-
satory. Bartee did not accuse Williams of killing someone and ask
him to explain it, but instead simply asked if Williams had killed
someone. Because there is no accusatory statement implicit in the
question, there is no statement that Williams could have adopted by
remaining silent. We therefore agree with Williams that the exchange
16                     UNITED STATES v. WILLIAMS
with Bartee is not admissible as an adoptive admission under Rule
801(d)(2)(B).

   That the adoptive admissions analysis is inappropriate, however,
does not mean that the district court erred by admitting the testimony.4
Evidence of Bartee’s question helped establish that Williams was
behaving quite strangely around the time of Collins’s murder—so
strangely that a good friend felt compelled to ask him if he had com-
mitted a crime. The question was thus not offered to prove the truth
of the matter asserted and was not hearsay. See Fed. R. Evid. 801(c)
(defining "hearsay" as "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted").5 Similarly, Williams’s fail-
ure to answer was not hearsay but was additional relevant evidence
of his strange behavior, and it was for the jury to decide what infer-
ence should be drawn from Williams’s silence in the face of Bartee’s
non-accusatory question. See Fed. R. Evid. 401 ("‘Relevant evidence’
means evidence having 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.");
see also United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003)
("[R]elevance typically presents a low barrier to admissibility. Indeed,
to be admissible, evidence need only be worth consideration by the
jury, or have a plus value." (citation and internal quotation marks
omitted)).

  Even if we were to conclude that evidence of Williams’s failure to
answer Bartee’s question was improperly admitted, the error would be
harmless, because the evidence was cumulative to other unobjected-to
evidence. See United States v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993)
(holding that the admission of cumulative testimony was harmless).
  4
     We note that the district court did not rely on the adoptive admissions
analysis when admitting the evidence. The court simply overruled, with
little explanation, Williams’s hearsay objection.
   5
     Even if the question could be viewed as hearsay, it demonstrated
Bartee’s state of mind when he asked the question and thus would be
admissible as an exception to the prohibition against hearsay. See Fed.
R. Evid. 803(3).
                       UNITED STATES v. WILLIAMS                         17
   Williams’s niece Julia was a reluctant witness for the government.
After police talked to her about Collins’s murder, she asked Williams
if he had killed Collins. Williams responded that "[i]t was none of
[her] concern," J.A. 833, and that "what you don’t know won’t hurt
you." J.A. 852. The inference of guilt to be drawn from these state-
ments is much stronger than any inference that would be drawn from
Williams’s failure to answer Bartee’s question, as these responses
quite clearly suggest that Williams in fact killed Collins. Accordingly,
even if we were to conclude that the Bartee exchange should not have
been admitted, it was cumulative to the properly admitted testimony
of Williams’s niece, and any error was thus harmless.6

                                    C.

   During closing argument, the prosecutor when discussing Bartee’s
testimony argued that:

      You also know that the defendant killed Gail Collins
      because he as much as said so to friends and family. You
      heard from Keith Bartee. He was with the defendant, and the
      defendant mentioned that something bad happened to a
      woman. And he later told Keith Bartee . . . when he was in
      his building that something bad happened to a woman
      downstairs, and Keith asked him and said, "Did you kill
      somebody?" And the defendant didn’t say anything. Is
      silence what an innocent man does? Does an innocent man
      not protest when somebody asks?

J.A. 1103-04. Williams contends that Bartee never accused Williams
of killing anyone and that only the government has ever accused Wil-
liams of killing Collins. Williams thus claims that by arguing to the
jury that an "innocent man" would protest when being accused of kill-
  6
    In his reply brief, Williams argues in passing that his niece’s testi-
mony was likewise inadmissible as an adoptive admission. See Reply
Brief at 12. Because Williams did not object to Julia’s testimony at trial
and did not challenge the issue in his original brief, this argument comes
far too late in the day. See, e.g., United States v. Al-Hamdi, 356 F.3d 564,
571 n.8 (4th Cir. 2004) (declining to consider issue first raised in reply
brief).
18                    UNITED STATES v. WILLIAMS
ing someone, the government’s argument must be viewed as a com-
ment on Williams’s failure to testify at trial. This argument is without
merit.

   To determine whether argument constitutes an improper comment
on the defendant’s right to refuse to testify, the question is whether
"the language used manifestly [was] intended to be, or was it of such
character that the jury would naturally and necessarily take it to be a
comment on the failure of the accused to testify." United States v.
Francis, 82 F.3d 77, 78 (4th Cir. 1996) (internal quotation marks
omitted). The government argued that an innocent man would protest
when asked if he had killed someone. In context, it is abundantly clear
that these comments were in reference to Williams’s failure to answer
Bartee’s question and were not improper comments on Williams’s
refusal to testify at trial.7 Whether or not Bartee’s question was suffi-
ciently accusatory to trigger the adoptive admissions analysis simply
cannot transform the government’s statement into an improper com-
ment on the failure to testify. Because the jury would not naturally or
necessarily have taken the government’s closing argument to be a
comment on Williams’s right to refuse to testify, the closing argument
was proper.

                                   V.

   Williams contends that the district court erred by denying his
motion for a continuance. Before we address this issue, an explana-
tion of the procedural background is in order.

  7
    In the course of this argument, Williams mentions that the govern-
ment misrepresented Bartee’s testimony in its closing argument, because
Williams never told Bartee that something bad had happened to the
woman in his building. See Brief of Appellant at 30, n.4. Although
Bartee testified that Williams told him something had happened, Bartee
did not testify that Williams told him that something bad had happened
to the woman in his apartment building. Nonetheless, Williams did not
object to the closing argument on the grounds that it misstated the evi-
dence, and Williams does not argue on appeal that the misstatement enti-
tles him to any relief.
                      UNITED STATES v. WILLIAMS                       19
                                   A.

   The discovery order entered by the district court required the gov-
ernment to provide Williams with Brady and Giglio material one
week before trial.8 Consistent with that order, the government one
week before trial informed Williams that Kathleen Simmons, the gov-
ernment’s star witness, had been treated for years for schizophrenia
and suffered from visual and auditory hallucinations. Williams sought
a continuance to give him time to investigate her problems. The dis-
trict court held a hearing on that and other pending motions on
Wednesday, September 15, with trial scheduled to begin on Monday,
September 20. The court ordered the government to find Simmons’s
medical records and submit them to the court for review. The court
explained that schizophrenia was a common diagnosis, and that with
the names of Simmons’s medications that the defense had been given,
there was time for the defense to research the issue and conduct an
effective cross-examination. The court thus denied the continuance
motion, but noted that the decision could change if there was some-
thing unusual in the medical records.

   The government submitted Simmons’s medical records to the dis-
trict court on Thursday. The records revealed that Simmons reported
seeing ghosts and hearing voices even while on her medication; that
she had been shot in the head in 1998 and suffered organic brain dam-
age, which exacerbated her delusions; and that she complained in
2003 of having difficulty seeing. The court ordered the government
to provide the medical records to Williams by 1:00 p.m. Friday. The
court ordered counsel for Williams to keep the records under seal and
to request permission from the court before using the information
contained in the records.

   At trial, counsel for Williams was able to use the information
learned through the medical records to impeach Simmons during
cross-examination. Counsel for Williams had tried unsuccessfully to
  8
    See Brady v. Maryland, 373 U.S. 83, 87 (1963) (requiring the govern-
ment to furnish the defendant with all exculpatory evidence that is mate-
rial to guilt or punishment); Giglio v. United States, 405 U.S. 150, 154-
55 (1972) (requiring the government to furnish the defendant with mate-
rial evidence affecting the credibility of government witnesses).
20                     UNITED STATES v. WILLIAMS
locate the intern who had performed a psychological evaluation of
Simmons, and the district court refused to admit a report of that eval-
uation prepared by the intern. However, counsel was able to call as
a witness Dr. Rachna Varia, the clinical psychologist who supervised
the intern and reviewed the report prepared after the evaluation.
Although the district court refused to admit the report through Dr.
Varia, counsel for Williams was able to elicit a substantial amount of
information from Dr. Varia. Dr. Varia testified that Simmons had "pe-
riods of impaired reality testing," which meant that Simmons might
"experience auditory hallucinations, visual hallucinations, have
impaired judgment, and have problems deciphering what is real and
what is not." J.A. 1046. Dr. Varia also testified that Simmons had
memory problems, explaining that Simmons "showed problems in
recall, and so after an immediate and delayed time, she has difficulty
remembering all the information that she might have seen." J.A. 1047.
Dr. Varia testified about the general effects of crack cocaine—that it
can impair judgment, observation, and visual and auditory memory.
Dr. Varia also testified that someone with Simmons’s cognitive
impairments and memory problems who had been smoking crack
cocaine for several hours with another person could two weeks later
have a significantly impaired ability to identify that person.

                                    B.

   On appeal, Williams contends that the government’s last-minute
disclosure of Simmons’s problems required the district court to grant
his motion for a continuance. If a continuance had been granted, Wil-
liams contends that he could have located the intern who evaluated
Simmons, called her as a witness, and introduced her report of the
evaluation. Williams argues that without that evidence, he was unable
to effectively test Simmons’s credibility. Thus, Williams argues that
the denial of a continuance violated his Sixth Amendment right to
effectively confront the witnesses against him.

   "[B]road discretion must be granted trial courts on matters of con-
tinuances; only an unreasoning and arbitrary insistence upon expedi-
tiousness in the face of a justifiable request for delay violates the right
to the assistance of counsel." Morris v. Slappy, 461 U.S. 1, 11-12
(1983) (internal quotation marks omitted). "[A] trial court’s denial of
a continuance is . . . reviewed for abuse of discretion; even if such an
                     UNITED STATES v. WILLIAMS                      21
abuse is found, the defendant must show that the error specifically
prejudiced her case in order to prevail." United States v. Hedgepeth,
418 F.3d 411, 419 (4th Cir. 2005). We find no abuse of discretion in
this case.

   Although Williams insists that the government’s disclosure of Sim-
mons’s psychological problems was "tardy," the government dis-
closed Simmons’s problems to Williams a week before trial, in
accordance with the deadlines set out in the discovery order.9 The dis-
trict court concluded that a week was sufficient time for counsel to
prepare to cross-examine Simmons about her psychiatric problems.
While a defense attorney can always make good use of additional
time to prepare for trial, the thoroughness of Williams’s cross-
examination of Simmons and presentation of evidence through Dr.
Varia confirms that the district court was correct in its assessment of
the time needed to prepare.

   The government elicited many details from Simmons about her
psychological problems, including the fact that she saw ghosts or spir-
its and heard voices. Counsel for Williams was able to cross-examine
Simmons about her psychiatric problems, and Simmons admitted that
she has hallucinations even when taking her medication. Counsel was
also able to make effective use of Simmons’s status as a crack addict
and prostitute. Simmons admitted on cross-examination that she had
smoked crack three days in the week before trial and that she was
undergoing detoxification during trial. Simmons also admitted that in
the week before trial, she had engaged in acts of prostitution three
times to order to get the money she needed to buy crack. In addition
to cross-examining Simmons on the many areas that called her credi-
bility into doubt, counsel for Williams was able to bring in an expert
witness who testified in detail about the nature of Simmons’s psycho-
logical problems and the effects that Simmons’s medical problems
and illicit drug use had on her memory and her ability to perceive
reality. Because Williams was able to throughly explore before the
jury the many issues that called Simmons’s credibility into question,
we cannot conclude that the district court abused its discretion in
  9
   The government represented to the court that it had learned of Sim-
mons’s problems on Saturday, two days before it disclosed the informa-
tion to Williams.
22                    UNITED STATES v. WILLIAMS
denying Williams’s request for a continuance. See, e.g., United States
v. Lawrence, 161 F.3d 250, 254 (4th Cir. 1998) ("A district court is
entitled to broad discretion with respect to a decision to deny a contin-
uance. Furthermore, absent a presumption of prejudice, specific errors
must be shown which undermine confidence in the outcome of the
trial to constitute reversible error." (citation and internal quotation
marks omitted)); cf. United States v. Cole, 293 F.3d 153, 163 (4th Cir.
2002) (rejecting defendant’s claim that government breached its
Brady obligations by waiting until a weekend break in trial after the
close of its case to disclose that key witness suffered from psychiatric
problems; since court permitted defendant to recall witness to cross-
examine him about his psychiatric problems, "counsel did receive
enough information about [the witness’s] disorders in time for its
effective use at trial" (internal quotation marks omitted)).

   We recognize, of course, that the denial of a motion for continu-
ance could, under certain circumstances, implicate a defendant’s right
to present a defense or to confront the witnesses against him. See,
e.g., United States v. Garman, 748 F.2d 218, 221-22 (4th Cir. 1984);
United States v. Jordan, 466 F.2d 99, 101 (4th Cir. 1972). Although
Williams was unable to locate and call as a witness the intern who
performed the psychological evaluation of Simmons and was unable
to introduce into evidence the report of the evaluation, no avenue of
cross-examination was foreclosed to Williams by the district court’s
denial of the requested continuance. Williams was able to cross-
examine Simmons about her psychiatric problems, and he was also
able to present his own expert witness who testified about the nature
of the problems suffered by Simmons. Given the degree to which
Simmons was already impeached and the specific medical informa-
tion that was presented to the jury by Dr. Varia, the denial of a contin-
uance at most prevented Williams from presenting some additional
information to the jury about the nature and scope of Simmons’s
problems. Because Williams was able to adequately explore this issue
on cross-examination of Simmons and through the testimony of his
expert witness, we simply cannot conclude that Williams’s inability
to impeach Simmons to a somewhat greater degree can be viewed as
a violation of his constitutional rights. See Garman, 748 F.2d at 223
(concluding that denial of continuance sought to obtain testimony of
two witnesses did not deprive defendant of his right to present a
defense because "[t]here is nothing new in what defendant sought to
                      UNITED STATES v. WILLIAMS                      23
present through the two witnesses"); Jordan, 466 F.2d at 101-02 (con-
cluding that denial of a continuance to a defendant who had not been
given the names of the witnesses who would testify for the prosecu-
tion until the day of trial did not violate the defendant’s Sixth Amend-
ment confrontation rights because the defendant was able to impeach
the credibility of the witnesses and any further impeachment "would
have been cumulative"); see also United States v. Garcia, 854 F.2d
1280, 1284 (11th Cir. 1988) (finding no abuse of discretion in denial
of continuance where denial merely prevented defendant from pre-
senting cumulative evidence).

                                  VI.

   Section 922(g) makes it unlawful for people in specified categories
"to ship or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in inter-
state or foreign commerce." 18 U.S.C.A. § 922(g). Williams contends
that the government failed to present sufficient evidence of the inter-
state commerce element. This argument is without merit.

   The requisite connection to interstate commerce can be satisfied
through proof that the firearm or ammunition is manufactured in one
state and possessed in another. See United States v. Gallimore, 247
F.3d 134, 138 (4th Cir. 2001) ("[T]he Government may establish the
requisite interstate commerce nexus by showing that a firearm was
manufactured outside the state where the defendant possessed it.").
The government presented expert testimony indicating that the 9-mm
bullet that was retrieved from Collins’s body was not homemade and
was manufactured outside of Virginia and that no 9-mm guns are
manufactured in Virginia. Because Collins was murdered in Virginia,
that evidence was sufficient to satisfy the interstate commerce
requirement of section 922(g).

                                 VII.

  Finally, Williams argues that his sentence was imposed in violation
of the principles set out in United States v. Booker, 543 U.S. 220
(2005), and that he is therefore entitled to a remand for re-sentencing.
24                    UNITED STATES v. WILLIAMS
The government agrees with Williams’s position on this point, as do
we.

   Broadly speaking, there are two types of Booker sentencing errors.
The first kind of error—the Sixth Amendment or constitutional error
—occurs if a sentencing court "enhances a sentence beyond the maxi-
mum authorized by facts found by a jury beyond a reasonable doubt
or admitted by the defendant." United States v. Rodriguez, 433 F.3d
411, 414 (4th Cir. 2006). The second kind of error—sometimes called
a statutory Booker error—occurs if the sentencing court "treats the
Guidelines as mandatory, rather than as advisory." Id.

   In this case, the jury’s findings with regard to the Collins murder
may well eliminate the Sixth Amendment error arising from the appli-
cation of the murder cross-reference. Nonetheless, a statutory Booker
error occurred because the district court treated the Guidelines as
mandatory. Williams made a timely Blakely objection below, and that
objection was sufficient to preserve for appeal the district court’s stat-
utory error in treating the Guidelines as mandatory. Thus, we review
the sentencing error for harmlessness. See Rodriguez, 433 F.3d at 415
("Rodriguez properly preserved his claim of statutory Booker error by
raising a timely Blakely objection at sentencing. We are therefore
obliged to review his preserved claim of statutory Booker error for
harmless error.").

    Under harmless error review, the burden is on the government to
prove that the district court would not have imposed a lesser sentence
if it had known that the Guidelines were not mandatory. See id. at
416. Because the record is devoid of any such indication, a remand
for re-sentencing is required. See id. ("[T]he court offered no indica-
tion of whether it might have imposed a different sentence had it con-
sidered the § 3553(a) factors under an advisory Guidelines regime.
. . . The prejudice burden therefore falls on the Government, and the
sentencing court’s silence must be interpreted in favor of Rodriguez.
Accordingly, we must conclude that Rodriguez was prejudiced when
the court treated the Guidelines as mandatory. We are thus obliged to
vacate Rodriguez’s sentence and remand for further proceedings.").

                                  VIII.

   Accordingly, for the foregoing reasons, we hereby affirm Wil-
liams’s conviction. However, because the district court erred by treat-
                    UNITED STATES v. WILLIAMS                   25
ing the Guidelines as mandatory and there is no indication in the
record that the court would have imposed the same sentence under an
advisory system, we vacate Williams’s sentence and remand for re-
sentencing.

                                            AFFIRMED IN PART,
                                             VACATED IN PART,
                                               AND REMANDED
