UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-4407



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


JAMES MICHAEL HARKUM,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CR-03-47)


Submitted:   August 3, 2005                 Decided:   August 30, 2005


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


L. Richard Walker, Assistant Federal Public Defender, Clarksburg,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Robert H. McWilliams, Jr., Sherry L. Muncy, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          James Harkum appeals his conviction following a jury

trial and his 462-month sentence imposed for conspiracy to commit

bank robbery, in violation of 18 U.S.C. § 371 (2000), attempted

bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2 (2000), armed

bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (2000), two

counts of possession of a firearm, in violation of 18 U.S.C.

§ 924(c) (2000), and interference with commerce by violence, in

violation of 18 U.S.C. § 1951 (2000).

          On appeal, Harkum asserts that the district court erred

by admitting evidence of an uncharged prior robbery of the local

McDonald’s.     Review of a district court’s determination of the

admissibility    of   evidence   under   Rule   404(b)   is   for   abuse   of

discretion.     See United States v. Queen, 

, 995 (4th

Cir. 1997).   A district court will not be found to have abused its

discretion unless its decision to admit evidence under Rule 404(b)

was arbitrary or irrational. United States v. Haney, 

,

607 (4th Cir. 1990).       Evidentiary rulings are also subject to

review for harmless error under Federal Rule of Criminal Procedure

52, and will be found harmless if the reviewing court can conclude

“without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error.” United States

v. Brooks, 

, 371 (4th Cir. 1997) (quoting United States

v. Heater, 

, 325 (4th Cir. 1995)).


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             Rule 404(b) prohibits the admission of evidence of “other

crimes” solely to prove a defendant’s bad character, but such

evidence may be “admissible for other purposes, such as proof of

motive,    opportunity,         intent,    preparation,       plan,    knowledge,

identity, or absence of mistake or accident.”                       Fed. R. Evid.

404(b).    For such evidence to be admissible under Rule 404(b), it

must be necessary, reliable, and relevant to an issue other than

character.     See United States v. Rawle, 

, 1247 (4th

Cir. 1988).     After careful review of the record, we conclude that

this evidence was properly admitted to demonstrate Harkum’s ongoing

participation in a conspiracy to commit a spree of robberies that

included robbing this McDonald’s. Fed. R. Evid. 404(b); 

; United States v. Masters, 

, 86 (4th Cir.

1980.     Accordingly, we find no abuse of discretion.                 

.

            Harkum also contends that the district court abused its

discretion    in   admitting      evidence       of   his   flight    from   police

following the instant offense, in violation of Fed. R. Evid. 403.

The   Government    asserts      that     evidence    of    flight    demonstrated

consciousness      of   guilt    and    was     therefore    both    relevant   and

probative.      This court reviews a district court’s evidentiary

rulings for abuse of discretion.              United States v. Leftenant, 

, 342 (4th Cir. 2003), cert. denied, 

(2004).

This court defers to the balancing engaged in by the district court


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under Rule 403 “unless it is an arbitrary or irrational exercise of

discretion.”       United States v. Heater, 

, 321 (4th Cir.

1995).     We conclude that the district court’s admission of such

evidence to demonstrate consciousness of guilt was not an arbitrary

or irrational exercise of discretion.                       

; see

United     States       v.    Obi,       

,    665    (4th     Cir.    2001)

(recognizing that consciousness of guilt may be inferred from

evidence of flight).

             Harkum          also        asserts      that        various     instances       of

prosecutorial          misconduct         affected        his     substantial      rights    and

deprived him of a fair trial.                  A claim of prosecutorial misconduct

is reviewed to determine whether the conduct complained of so

infected    the     trial      with       unfairness        as    to   make   the       resulting

conviction a denial of due process.                       United States v. Scheetz, 

, 185 (4th Cir. 2002).                       To prevail under this standard,

Harkum must show that “the prosecutor’s remarks or conduct were

improper    and,        second       .    .    .    that    such       remarks     or    conduct

prejudicially affected his substantial rights” so as to deprive him

of a fair trial.               

is in turn

established       by    the    following:             (1)    the    degree    to    which    the

prosecutor’s remarks had a tendency to mislead the jury; (2)

whether the remarks were isolated or extensive; (3) the strength of

competent proof introduced to establish defendant’s guilt; (4)

whether the prosecutor’s remarks were invited by the improper


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conduct of defense counsel; and (5) whether curative instructions

were given.     

one factor is dispositive.        United

States v. Wilson, 

, 299 (4th Cir. 1998).           After careful

consideration of Harkum’s numerous claims of prosecutorial errors,

we conclude that Harkum has failed to demonstrate that the conduct

complained of so infected the trial with unfairness as to make the

resulting conviction a denial of due process. 

.   Accordingly, we affirm Harkum’s conviction.

           Finally, we turn to Harkum’s claim that in light of the

Supreme Court’s decision in Blakely v. Washington, 

(2004), the district court erroneously enhanced his sentence based

upon facts not found by the jury.          Because Harkum did not raise

this claim in the district court, his sentence is reviewed for

plain error.    United States v. Hughes, 

, 547 (4th Cir.

2005) (citing United States v. Olano, 

, 731-32 (1993)

(holding   that   to   demonstrate   plain    error,   a     defendant   must

establish that error occurred, that it was plain, that it affected

his substantial rights, and the error seriously affected the

fairness, integrity or public reputation of judicial proceedings)).

After Harkum filed this appeal, the Supreme Court decided United

States v. Booker,      

(2005), holding that the federal

sentencing     guidelines’    mandatory    scheme,   which    provides   for

sentencing enhancements based on facts found by the court that were

not submitted to the jury, violated the Sixth Amendment.


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            On appeal, Harkum asserts that three different offense-

level enhancements were imposed in violation of his Sixth Amendment

rights.     At sentencing, the district court applied a two-level

increase,      pursuant    to    U.S.         Sentencing   Guidelines        Manual

§ 2B3.1(b)(1), because the object of the robbery was a financial

institution.     The district court also applied a two-level increase

for bodily injury to a victim, pursuant to USSG § 2B3.1(b)(3)(D).

Finally, Harkum received a three-level enhancement for possession

of a firearm, pursuant to USSG § 2B3.1(b)(2)(E).                     Based on an

offense level of 26, and a Criminal History Category of III, the

district court imposed a 78-month sentence for Counts II, III, and

V, to run concurrently with a five-year sentence for Count I.

Finally, the court imposed a consecutive seven-year mandatory

minimum sentence on Count IV,1 and a consecutive 25-year mandatory

minimum on Count VI.2

            First     we   conclude     that      the   financial    institution

enhancement was not erroneous.          At trial, the Government presented

uncontroverted      evidence    that    Harkum     participated     in   the    bank

robbery   of    the   Huntington       Bank    (Count   III).       Harkum     never

challenged these facts at trial or sentencing.                  Instead, Harkum

asserted the defense of duress, a claim the jury necessarily

rejected in finding Harkum guilty.             Consequently, we find that the


     1
      See 18 U.S.C. § 924(c)(1)(A)(ii) (2000).
     2
      See 18 U.S.C. § 924(c)(1)(C)(i) (2000).

                                       - 6 -
facts underlying the district court’s enhancement for robbing a

financial    institution   were   charged    in   the   indictment   and

necessarily found by the jury.       Thus, there is no plain error.

; see 

(quoting

Apprendi v. New Jersey, 

, 490 (2000) (“[A]ny fact that

increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.").

     Evaluation    of   the   constitutionality    of   the   remaining

enhancements challenged by Harkum requires a two-step analysis.

The firearm enhancement was applied to Count II; however, the

indictment does not allege possession of a firearm.       Moreover, the

jury was not required to find a possession of a firearm in this

instance to return a guilty verdict.        Consequently, we find that

this enhancement was based upon facts not submitted to the jury, or

admitted by Harkum.     Additionally, although several witnesses at

trial testified that Harkum struck a bank employee with the butt of

his gun, the jury did not have to make a finding of bodily injury

to convict Harkum of bank robbery and assault with a dangerous

weapon, as charged in Count III.     We therefore conclude that this

enhancement as well was based upon facts not submitted to the jury,

or admitted by Harkum.

            Nevertheless, we conclude that the application of these

two enhancements did not violate Harkum’s Sixth Amendment rights.


                                  - 7 -
Without   the   firearm   and   bodily   injury    enhancements,    Harkum’s

offense level for Counts II, III and V would be reduced to 25,

making his applicable sentencing range 70-87 months.              See United

States v. Evans, ___ F.3d ___, 

, at *1 n.4 (4th Cir.

July 22, 2005) (noting that, in determining whether Sixth Amendment

error occurred, sentence imposed must be compared to permissible

guideline range before adjusting for acceptance of responsibility).

Because the 78-month sentence actually imposed by the district

court fell squarely within this range, we conclude that no Sixth

Amendment violation occurred.

           Accordingly, we affirm Harkum’s convictions 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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