                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 09-4495


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

SANTOS MAXIMINO GARCIA, a/k/a Curley,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, District Judge.
(8:05-cr-00393-DKC-11)


Submitted:    March 27, 2012                 Decided:   April 6, 2012


Before KING, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael D.    Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland,    for Appellant.     Rod J. Rosenstein, United States
Attorney,    Robert K. Hur, Assistant United States Attorney,
Greenbelt,   Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             After       a     jury        trial,       Santos       Maximino          Garcia       was

convicted     of     one      count        of    conspiracy          to    participate          in    a

racketeering activity, in violation of 18 U.S.C. § 1962(d)(2006)

(“RICO”).      On appeal, Garcia challenges (1) the expert testimony

offered by an investigator; (2) the admission of his statements

and   testimony          regarding          an     assault          in     which        he    was      a

participant;       (3)       the   district         court’s         decision      to     allow       two

witnesses to testify anonymously; and (4) the sentence.                                       Finding

no error, we affirm.

             Garcia       contends          that       the    district        court      erred        in

permitting      unqualified            testimony             from     an    expert           witness.

Because he did not object at trial, review is for plain error.

Under plain error review, this court can correct an error only

when the Appellant shows that (1) there was error, (2) the error

was plain, (3) the error affected the Appellant’s substantial

rights   and       (4)       the    error        seriously          affects       the    fairness,

integrity    or     public         reputation           of   the     proceedings.             United

States v. Marsh, 130 S. Ct. 2159, 2164 (2010).

             We review the district court’s evidentiary rulings for

abuse of discretion.               United States v. Brooks, 111 F.3d 365, 371

(4th Cir. 1997).             “A district court abuses its discretion when

it    acts     arbitrarily            or        irrationally,            fails     to        consider

judicially      recognized          factors            constraining         its    exercise          of

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discretion, relies on erroneous factual or legal premises, or

commits an error of law.”                   United States v. Delfino, 510 F.3d

468, 470 (4th Cir. 2007).                      Under Fed. R. Evid. 702, expert

testimony is admissible if it will assist the trier of fact and

is (1) “based on sufficient facts or data,” (2) “the product of

reliable         principles       and    methods,”       and   (3)    “the     expert    has

reliably applied the principles and methods to the facts of the

case.”

                 This     court       has      approved        police        officers    and

investigators testifying as experts in a particular field, even

when       the    expertise      is     gained       through   impermissible      hearsay.

See, e.g., United States v. Wilson, 484 F.3d 267, 275 (4th Cir.

2007); see also United States v. Roach, 582 F.3d 1192, 1206-07

(10th Cir. 2009) (collecting cases).                      In fact, we found no error

with the district court’s decision to allow three members of law

enforcement, including the expert at issue in this instance, to

testify as experts on gangs and MS-13 in particular.                            See United

States v. Ayala, 601 F.3d 256 (4th Cir.), cert. denied, 131 S.

Ct. 262 (2010). 1

                 Here, Garcia fails to point to any testimony offered

by     the       expert   that     was      improper      or   in    violation     of    the

Confrontation           Clause     or    the     rule    announced      in    Crawford   v.

       1
           Ayala was indicted along with Garcia.



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Washington, 541 U.S. 36 (2004).                  He also fails to acknowledge

that the witness was permitted to testify as a fact witness only

after completing his direct testimony as an expert and after the

district court properly instructed the jury on the significance

of the two types of testimony offered by the witness and how to

evaluate the testimony.           We have considered Garcia’s arguments

and conclude there was no error, much less plain error.

           Garcia also contends the court erred in permitting a

witness to testify to statements he made while in jail and to an

assault   in   which   he   was    a   participant.            Garcia   claims   the

testimony about the assault was evidence of other crimes and was

improper in light of Fed. R. Evid. 404(b).                 Rule 404(b) applies

to extrinsic evidence.            Testimony regarding the assault of a

rival gang member was clearly intrinsic to the charged crime and

permissible.     Acts intrinsic to the crime are not subject to

Rule 404’s restrictions.          United States v. Basham, 561 F.3d 302,

326 (4th Cir. 2009).         “Evidence of uncharged conduct is not

other   crimes   evidence    subject        to    Rule   404    if   the   uncharged

conduct arose out of the same series of transactions as the

charged offense, or if [evidence of the uncharged conduct] is

necessary to complete the story of the crime on trial.”                          Id.

(internal quotation marks omitted).                 “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

                                        4
necessary preliminaries to the crime charged.”                           United States v.

Chin, 83 F.3d 83, 88 (4th Cir. 1996) (internal quotation marks

omitted).          In    other      words,     evidence    “is    intrinsic       if    it   is

necessary to provide context relevant to the criminal charges.”

Basham,      561     F.3d    at     326   (internal       quotation      marks    omitted).

Clearly, evidence that Garcia participated in an assault of a

rival gang member was intrinsic to the charged conspiracy.

               We further conclude there was no error in allowing the

same       witness      to   testify      as   to   statements         Garcia    made   while

detained.          See Fed. R. Evid. 801(d)(2)(a).                      There is also no

requirement Garcia receive notice about the testimony.                             He fails

to show any other testimony coming from the cooperating witness

that was improper.

               Garcia also challenges the district court’s decision

to permit two witnesses to testify anonymously.                            This issue was

resolved in United States v. Ramos-Cruz, 667 F.3d 487 (4th Cir.

2012).        Ramos-Cruz was charged in the same indictment and was

tried along side Garcia.                  We concluded that the court did not

err permitting the two witnesses to testify anonymously. 2

               Garcia        also     challenges       his       384     month     term      of

imprisonment, claiming it was above the statutory maximum and

       2
       This appeal was placed in abeyance for United States v.
Argueta, No. 10-4375, 2012 WL 941533 (4th Cir. Mar. 21, 2012)
(unpublished), which concerned itself with the same issue.



                                                5
that the statutory maximum was determined in an earlier trial

involving two other co-conspirators.                   Garcia was convicted under

18 U.S.C. § 1962.        Under 18 U.S.C. § 1963(a) (2006), the maximum

sentence     for    a    violation          of     § 1962     is    twenty        years’

imprisonment,      “or   for    life       if   the    violation    is    based    on   a

racketeering    activity       for    which      the   maximum     penalty   includes

life imprisonment[.]”

           Unlike the first trial Garcia references, Garcia was

on notice that the pattern of racketeering activity involved

multiple cases of first degree murder.                      Furthermore, the jury

found beyond a reasonable doubt that first degree murder was an

object of the RICO conspiracy.                  Under Maryland law, a defendant

may receive a life sentence for first degree murder.                         Md. Code

Ann., Crim. Law § 2-201 (Michie 2002).                      Accordingly, based on

the   jury’s    verdict,        Garcia’s        sentence     was    not    above    the

statutory maximum.

           We affirm the conviction and sentence.                         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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