UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-5037


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CORNELL VINCENT,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:05-cr-00371-CCB)


Submitted:    January 28, 2009              Decided:   March 13, 2009


Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Lee Ann Anderson McCall, Washington, D.C., for Appellant. Rod
J. Rosenstein, United States Attorney, Charles J. Peters,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Following a jury trial, Cornell Vincent was convicted

of possession of a firearm by a convicted felon, in violation of

18 U.S.C. § 922(g)(1) (2006), and was sentenced to 120 months in

prison with a three-year term of supervised release to follow.

Vincent timely appealed.

             On appeal, Vincent argues that the court:                         (1) erred

in instructing the jury on the interstate commerce element of

the offense; (2) erred in admitting expert testimony; (3) abused

its    discretion     in    admitting          evidence     of        uncharged         drug

possession;     and   (4)   imposed        a    sentence        in     excess      of    the

statutory maximum.     Finding no error, we affirm.

             First, relying on United States v. Lopez, 

(1995), Vincent contends that the trial court’s instruction on

the interstate nexus element of § 922(g)(1) “unconstitutionally

broadened” the interstate commerce requirement of the statute by

incorrectly focusing on the interstate travel of the firearm

instead of the interstate impact of Vincent’s possession of the

firearm.     We have previously considered and rejected a challenge

to    the   constitutionality   of    § 922(g)(1)         based        on    Lopez.       In

United States v. Wells, 

, 810-11 (4th Cir. 1996), we

determined     that   “[u]nlike      the       statute     at        issue    in    Lopez,

§ 922(g) expressly requires the Government to prove the firearm

was shipped or transported in interstate or foreign commerce;

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was possessed in or affected commerce; or was received after

having    been    shipped    or    transported         in     interstate      or   foreign

commerce.”        

  (internal       quotation     marks

omitted).         Thus,     “[t]he       existence       of     this     jurisdictional

element, requiring the Government to show that a nexus exists

between     the    firearm       and     interstate         commerce     to    obtain      a

conviction under § 922(g), distinguishes Lopez and satisfies the

minimal     nexus    required          for     the     Commerce        Clause.”           

must fail.

            Moreover, the district court properly instructed the

jury on the interstate commerce portion of the statute.                                 The

content of a jury instruction is reviewed to determine whether,

viewed as a whole, the instruction fairly states applicable law.

United States v. McQueen, 

, 759 (4th Cir. 2006).

Vincent’s    argument       is   foreclosed       by    this     Court’s      holding      in

McQueen, where we affirmed that “‘the Government may establish

the   requisite     interstate         commerce        nexus    by     showing     that    a

firearm was manufactured outside the state where the defendant

possessed it’ and that [Lopez and its progeny] did not alter

this required showing.”            

United States v.

Gallimore, 

, 138 (4th Cir. 2001)).                         We conclude the

jury instruction fairly stated controlling law.

            Next, Vincent argues that the court erred in admitting

the   “unreliable     and    prejudicial”         expert       testimony      of   Special

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Agent Hodnett of the Bureau of Alcohol, Tobacco, Firearms and

Explosives, because he was not qualified to testify as an expert

regarding the interstate nexus of firearms.                Because counsel for

Vincent did not object to the testimony, the claim is reviewed

for plain error.       United States v. Olano, 

, 732-34

(1993).

           This court reviews the admission of expert testimony

for an abuse of discretion.            See United States v. Beasley, 

, 150 (4th Cir. 2007), cert. denied, 

(2008).       Expert   testimony       is     admissible     if     it    concerns:

(1) scientific, technical, or other specialized knowledge that

(2) will aid the jury or other trier of fact to understand or

resolve a fact at issue.           Fed. R. Evid. 702; see Daubert v.

Merrell Dow Pharms., Inc., 

, 592 (1993); Kumho Tire

Co. v. Carmichael, 

, 141 (1999) (extending Daubert’s

two-pronged    gatekeeping      test   for     scientific     evidence      to    all

expert testimony).       An expert’s testimony is admissible under

Rule 702 if it “rests on a reliable foundation and is relevant,”

Kumho Tire 

(internal quotation marks and

citation omitted), and falls outside the common knowledge of the

jury.     See United States v. Dorsey, 

, 814-15 (4th

Cir. 1995).

           Hodnett testified that he examined the records of the

firearm   manufacturer    and    found       that   the   firearm   was    made    in

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Florida.     Hodnett gave his opinion that the firearm necessarily

traveled     across     state     lines       because      the    firearm     was   later

recovered     in    Maryland,       in    Vincent’s        possession.           Hodnett’s

evidence     was    reliable,       relevant        to   whether    the     firearm      had

traveled in interstate commerce, and outside the jury’s common

knowledge.         Based     on   this    testimony,        the    jury    was    free   to

conclude the weapon had crossed state lines by traveling between

Florida and Maryland, and thus moved in interstate commerce.

The district court did not abuse its discretion in admitting

this testimony.

             Vincent also argues that the district court erred when

it admitted testimony about the drugs found on Vincent’s person

at his arrest.        He contends that, because he was not charged for

with   any   offense       relating      to   the    drugs,      their    admission      was

irrelevant, unnecessary, and unfairly prejudicial.                           This court

reviews the district court’s admission of evidence for an abuse

of discretion.         See United States v. Hodge, 

, 312

(4th Cir. 2004).           An abuse of discretion occurs “only when it

can    be    said     that    the     trial       court     acted        arbitrarily      or

irrationally in admitting evidence.”                     United States v. Williams,

, 732 (4th Cir. 2006) (internal quotation marks and

citation omitted).

             Rule 404(b), Fed. R. Evid., prohibits the admission of

evidence of “other crimes” solely to prove a defendant’s bad

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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.’”         

(quoting Fed. R. Evid.

404(b)).          Rule 404(b) only applies to acts extrinsic to the

crime   charged.          “[W]here        testimony       is     admitted      as    to    acts

intrinsic to the crime charged, and is not admitted solely to

demonstrate bad character, it is admissible.”                            United States v.

Chin, 

, 88 (4th Cir. 1996).                            “[A]cts are intrinsic

when they are inextricably intertwined or both acts are part of

a   single    criminal        episode     or     the     other    acts    were      necessary

preliminaries to the crime charged.”                       

and citation omitted).                     In addition, evidence of other

crimes or “uncharged conduct is not considered ‘other crimes’”

for Rule 404(b) purposes “if it arose out of the same series of

transactions as the charged offense, or if it is necessary to

complete the story of the crime on trial.”                              United States v.

Kennedy, 

, 885 (4th Cir. 1994) (internal quotation

marks, alterations, and citation omitted).

              Vincent argues that the drug evidence was inadmissible

because      it    reflected      a   prior        bad    act     and    the   drugs      were

irrelevant to the firearm charge.                      He is incorrect.          First, the

drug evidence, though uncharged, was intrinsic to the firearm

conviction as the drugs and firearm were found together during

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the same criminal episode.                  Moreover, the jury heard testimony

from a police officer that individuals who carry drugs often

carry firearms to protect themselves.                            Thus, the evidence was

indicative of Vincent’s knowing possession of the firearm and

was admissible.         Additionally, the court made clear through its

instruction      to    the     jury       that       the    drug      evidence       should   be

considered    only      if    the    jury    found         it    helpful      in    determining

whether    the    defendant         knowingly         possessed       the     firearm.        The

court   noted      that      Vincent      was        not   on    trial       for    any   drugs.

Therefore,    we      conclude      the    district         court      did    not    abuse    its

discretion in admitting this evidence.

            Finally, Vincent argues that the district court erred

by sentencing him to 120 months plus three years of supervised

release.         Vincent      contends       that          his    sentence         exceeds    the

statutory    ten-year        maximum       sentence         of   18    U.S.C.       § 924(a)(2)

(2006), because if he violates the terms of supervised release

he can be ordered to serve all or part of those three years,

with the consequence that he would be imprisoned for more than

ten years.       We have previously held that “supervised release is

not considered to be part of the incarceration portion of a

sentence and therefore is not limited by the statutory maximum

term of incarceration.”               United States v. Pierce, 

,

178 (4th Cir. 1996).            Therefore, the district court did not err

in imposing the term of supervised release.

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            Accordingly,      we   affirm    Vincent’s        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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