                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4028


UNITED STATES OF AMERICA,

                       Plaintiff – Appellee,

          v.

MATTHEW LUKE WESTON,

                       Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever, III,
Chief District Judge. (5:14-cr-00073-D-1)


Submitted:   November 19, 2015             Decided:   November 23, 2015


Before NIEMEYER, KING, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


EJ Hurst II, Durham, North Carolina, for Appellant. Thomas G.
Walker,   United  States   Attorney, Jennifer  P.   May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Matthew Luke Weston appeals from his convictions after a

jury trial for possession of a firearm by a convicted felon and

possession of a stolen firearm, both counts involving a 9 mm

Beretta   pistol.          He    also    challenges            his    175-month     sentence.

Weston contests the district court’s admission of testimony that

he possessed a .22 caliber pistol that was not the subject of

the charged counts and the court’s denial of his motions for a

mistrial, and asserts that the court impermissibly sentenced him

based on facts found by a preponderance of evidence.                                 After a

thorough review of the record and the parties’ arguments, we

affirm.

     We      first       review,       for    abuse           of     discretion,     Weston’s

challenges         to    the    district      court’s          admission      of    evidence.

United States v. Hassan, 742 F.3d 104, 130 (4th Cir.), cert.

denied,      135    S.    Ct.    157    (2014).            Weston      contends     that   the

testimony regarding Weston’s possession of a .22 caliber pistol

stolen from the same area at the same time as the charged 9 mm

Beretta was not intrinsic evidence or admissible under Federal

Rules   of    Evidence         404(b)   or    403.            Rule    404(b)(1)     prohibits

introduction        of    “[e]vidence        of       a   crime,     wrong,   or   other   act

. . . to prove a person’s character in order to show that on a

particular     occasion         the    person         acted    in    accordance     with   the

character.”             Evidence      “concern[ing]            acts     intrinsic    to    the

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alleged    crime,”       however,      does    not      fall       within      Rule    404(b)’s

ambit.      United States v. Otuya, 720 F.3d 183, 188 (4th Cir.

2013)     (internal          quotation        marks       and       brackets          omitted).

“[E]vidence       of    other    bad    acts      is    intrinsic         if,     among   other

things,    it    involves       the    same    series         of    transactions        as    the

charged offense, which is to say that both acts are part of a

single criminal episode.”                 Id. (internal quotation marks and

citation    omitted).           Moreover,         evidence         subject       to   exclusion

under Rule 404(b)(1) “may be admissible for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2).

     To    be    admissible       under    Rule        404(b),       the    proffered        “bad

acts”     evidence       must    be    relevant          to    an        issue    other      than

character, necessary to prove an element of the crime charged,

reliable,       and    its    probative    value        must       not    be     substantially

outweighed by its prejudicial nature.                     United States v. Fuertes,

___ F.3d ___, ___, No. 13-4755, 2015 WL 4910113, at *4 (4th Cir.

Aug. 18, 2015).              Generally, we will not find that a district

court     abused       its    discretion      in       admitting         evidence     over     an

objection unless that decision was “arbitrary and irrational.”

United States v. Williams, 740 F.3d 308, 314 (4th Cir. 2014).

Under these standards, we conclude that there was no abuse of



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discretion        in    the     district       court’s          decision         to     admit       the

challenged testimony.

       Next,      Weston      contends       that    the    district            court    erred       in

denying his        motion       for    a    mistrial    because         a       juror    allegedly

viewed him in restraints, without first allowing him to question

the     marshals        transporting         him.          We    review          for     abuse       of

discretion        the     district         court’s    denial       of       a    motion        for    a

mistrial or the denial of a motion for a new trial.                                            United

States       v.    Robinson,         627     F.3d    941,        948     (4th          Cir.     2010)

(discussing motion for new trial); United States v. Wallace, 515

F.3d 327, 330 (4th Cir. 2008) (discussing motion for mistrial).

The district court’s denial “will be disturbed only under the

most     extraordinary          of     circumstances.”                  United          States       v.

Dorlouis, 107 F.3d 248, 257 (4th Cir. 1997).

       The     juror      who    the       defendant    thought         had       seen        him    in

restraints credibly and unequivocally testified that he had not

seen the defendant during the morning in question.                                       The court

found    the      juror    to    be    credible      and        that    with       the    fact       in

question resolved, there was no need for further investigation.

This factual finding, based on the court’s assessment of the

witness’s credibility, is not clearly erroneous.                                        See United

States       v.   DiTommaso,          405    F.2d      385,      393     (4th          Cir.     1968)

(providing standard).             We therefore determine that the court did

not abuse its discretion.

                                                4
       Next,     Weston      argues      that       the    district      court    erred     in

denying his motion for a new trial under Fed. R. Crim. P. 33.

At trial, Weston contended that there was no direct evidence of

his possession of the 9 mm Beretta and the testimonial evidence

was contradictory, inconsistent, and incredible.                             In denying the

motion, the court made several specific credibility findings in

favor     of    the       Government’s       witnesses          and     stated   that      the

defendant perjured himself.

       The denial of a motion for a new trial is reviewed for an

abuse of discretion.             United States v. Bartko, 728 F.3d 327, 334

(4th     Cir.    2013).          Federal      Rule        of    Criminal      Procedure     33

authorizes a district court to “vacate any judgment and grant a

new trial if the interest of justice so requires.”                                  Fed. R.

Crim. P. 33(a).           When the Rule 33 motion “attacks the weight of

the evidence, the court’s authority is much broader than when it

is deciding a motion to acquit on the ground of insufficient

evidence”       in    that      “it    may   evaluate          the    credibility   of     the

witnesses.”          United States v. Arrington, 757 F.2d 1484, 1485

(4th Cir. 1985).             “When the evidence weighs so heavily against

the verdict that it would be unjust to enter judgment, the court

should    grant       a   new    trial.”        Id.       (citing      cases).      We    have

reviewed the record with the requisite standards and conclude

that,    in     light      of    the    heavy       weight       of    the    evidence     and

credibility findings made by the court, including that Weston

                                                5
perjured     himself      at    trial,    the      court    did    not    abuse      its

discretion in denying the motion.

      Finally, Weston argues that the court erred in considering

acquitted    or    uncharged      conduct     in   calculating      the   Sentencing

Guidelines      range     and     in   making      sentencing      findings     by     a

preponderance of the evidence and not beyond a reasonable doubt.

A district court’s legal conclusions at sentencing are reviewed

de novo and factual findings for clear error.                     United States v.

Gomez–Jimenez, 750 F.3d 370, 380 (4th Cir.), cert. denied, 135

S. Ct. 305, 384 (2014).                Weston recognized at sentencing and

admits on appeal that Alleyne v. United States, 133 S. Ct. 2151

(2013), forecloses his argument.                 The Supreme Court made clear

in Alleyne that its holding “does not mean that any fact that

influences judicial discretion must be found by a jury.                        We have

long recognized that broad sentencing discretion, informed by

judicial    factfinding,        does    not   violate      the   Sixth    Amendment.”

133 S. Ct. at 2163; see United States v. Smith, 751 F.3d 107,

117 (3d Cir.) (“Alleyne did not curtail a sentencing court’s

ability to find facts relevant in selecting a sentence within

the prescribed statutory range.”), cert. denied, 135 S. Ct. 383,

497   (2014).       The    district      court     therefore      did    not   err    in

considering       the   conduct    and   applying     a    preponderance       of    the

evidence standard.



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     Accordingly, we affirm the judgment.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.



                                                         AFFIRMED




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