UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4167

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

REMONE LEON ROBINSON, a/k/a Ramone Leon Robinson,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:08-cr-00020-RLV-DSC-1)

Argued: September 23, 2011 Decided: December 2, 2011

Before KING, SHEDD, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Elizabeth Anne Blackwood, FEDERAL DEFENDERS OF WESTERN 

NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. 

Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, 

Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. 

Rauscher, Director, Kevin A. Tate, Assistant Federal Defender, 

FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, 

North Carolina, for Appellant. Anne M. Tompkins, United States 

Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

After conducting a traffic stop, officers arrested Remone 

Leon Robinson for driving without a license. They secured him

in the back of a patrol car and proceeded to search his vehicle. 

The officers ultimately found crack cocaine in a compartment in 

the driver’s seat. They also recovered a firearm in the road 

along the route Robinson was driving. A jury convicted Robinson 

of possession with intent to distribute crack cocaine, but 

acquitted him of two firearm charges. At his sentencing 

hearing, the district court upwardly departed on the ground that 

Robinson’s criminal history category substantially 

underrepresented his likelihood of committing other crimes. 

Robinson appealed, raising four issues. He argues that the 

district court erred in denying his motion to suppress, in 

upwardly departing, in failing to make findings of fact or state 

conclusions of law when denying his motion to suppress, and in 

allowing the introduction of testimony about a prior arrest 

during which the arresting officer recovered a firearm and drugs 

on his person. We affirm.

I.

A.

In the early morning hours of May 2, 2003, Officers Richard 

Lee Whitman and Patrick Lynn Clark were conducting a routine 
3

property check at an apartment complex in Catawba County, North 

Carolina. While standing next to their marked patrol cars, they

observed Robinson, who was driving a Cadillac, begin to pull 

into the apartment complex’s parking lot. When Robinson’s

headlights shone upon the officers and their patrol cars, he

immediately swerved to leave the parking lot, almost striking 

the curb. Based on his actions, the officers suspected he might 

be impaired and decided to pursue him.

Officer Whitman drove to catch up with Robinson. At one 

point, he estimated Robinson to have increased his speed to 65 

mph in a 35 mph zone. As Officer Whitman followed Robinson, he 

ran over a hard, metal-like object in the roadway. Eventually, 

Officer Whitman caught up with Robinson and conducted a stop 

with Officer Clark providing backup.

After Robinson stopped, Officer Whitman approached the 

driver’s side and requested his license. Robinson responded 

that he did not have one. Officer Whitman placed Robinson under 

arrest for driving without a license, handcuffed him, and 

secured him in the back of his patrol car. At that time, 

Officer Whitman called another officer, Officer Mark Duncan, and 

asked him to find the hard object he ran over in his car, 

suspecting it might have been a firearm. 

With Robinson secured in the back of the patrol car, 

Officer Whitman returned to Robinson’s vehicle to conduct a 
4

search incident to arrest. He searched all areas of the car to 

determine if there was anything illegal in it. Although he

observed a digital scale sitting on the front passenger seat, he 

found nothing illegal. At some point thereafter, Officer Duncan 

notified Officer Whitman that he found a firearm in the road. 

Officer Whitman called a canine officer to bring his drugsniffing dog. The canine officer walked the drug-sniffing dog

around the car, and the dog alerted to the backside of the 

automobile on the driver’s side. The canine officer opened up 

the driver’s door, and the dog alerted to the driver’s seat, 

where Officer Whitman discovered a small compartment holding a

sandwich baggie that contained crack cocaine. 

B.

On April 25, 2008, a grand jury returned a three-count 

indictment, charging Robinson with possession with intent to 

distribute at least five grams of crack cocaine, in violation of 

21 U.S.C. §§ 841(a)(1), (b)(1)(B), possession of a firearm in 

furtherance of a drug-trafficking offense, in violation of 18 

U.S.C. § 924(c), and possession of a firearm as a convicted

felon, in violation of 18 U.S.C. § 922(g)(1). The case first 

went to trial on November 17, 2008, but it ended in a mistrial 

the next day. 
5

Prior to his retrial, Robinson filed a motion to suppress. 

In the motion, he argued the traffic stop was unlawful. He also 

maintained that the officers’ warrantless search of his 

automobile was illegal. The search-incident-to-arrest exception 

to the warrant requirement was inapplicable, he urged, because 

the officers had secured him in the back of the patrol car at 

the time of the search. He requested an evidentiary hearing on 

the motion. The following day, Robinson also filed a motion in 

limine to preclude the government from introducing evidence of 

prior bad acts. 

Robinson’s second trial began on January 7, 2009. At 

trial, he requested that the district court rule on his motion 

to suppress. The district court summarily denied it without 

conducting an evidentiary hearing or making findings of fact or 

stating conclusions of law. Robinson’s attorney, however, 

failed to object to the summary nature of the denial. 

During the trial, the district court allowed the government 

to present testimony from Officer Clark about his prior arrest 

of Robinson, subject to a limiting instruction. Immediately 

following the limiting instruction, Officer Clark testified 

that, on March 10, 2000, he arrested Robinson pursuant to an 

outstanding warrant. He stated that he recovered a firearm and 

crack cocaine during a pat-down of Robinson. The crack cocaine, 

he recounted, was in a little, clear plastic bag located in 
6

Robinson’s pants pocket. He testified that Robinson pleaded 

guilty to a gun charge, but that drug charges were never 

brought.

On January 9, 2009, the jury returned a verdict convicting

Robinson of the possession with intent to distribute charge and

acquitting him of the two firearm offenses.

Robinson subsequently filed a motion for a new trial. He 

based the motion on Arizona v. Gant, 129 S. Ct. 1710 (2009), 

which the Supreme Court decided after Robinson’s conviction, but 

prior to his sentencing hearing. Robinson contended that, in 

light of Gant, the officers’ search of his automobile was 

unlawful and unjustified under the search-incident-to-arrest 

exception. The district court denied the motion in an eightpage order. 

C.

Robinson’s Presentence Investigation Report (PSR) reflected 

a criminal history category of VI. Its calculation of 

Robinson’s criminal history included convictions for felony 

possession of cocaine stemming from offenses occurring on June 

5, 2000, and September 16, 2000 (2000 offenses). The PSR also 

provided an offense level of 26. The government objected to the 

PSR’s lack of a two-level enhancement for possession of a 

firearm in connection with a drug offense. The district court 
7

agreed with the government and assigned the two-level 

enhancement, making Robinson’s offense level 28. As a result, 

Robinson’s Sentencing Guidelines range was 140 to 175 months of 

imprisonment. 

Prior to Robinson’s sentencing hearing, the government 

filed a motion for an upward departure, asserting that 

Robinson’s criminal history category substantially 

underrepresented his criminal history. The government requested

that the district court sentence Robinson as a de facto career 

criminal, which would assign him an offense level of 37. In the 

alternative, it asked the district court to move incrementally, 

level-by-level, to a higher offense level of 33 to reflect 

accurately Robinson’s criminal history. 

At Robinson’s sentencing hearing on January 25, 2010, the 

district court allowed the government to present evidence in 

support of its motion. This evidence included, among other 

things, evidence of the conduct underlying Robinson’s prior 

convictions for felony possession of cocaine arising out of his 

2000 offenses. The government produced an officer who arrested 

Robinson for those offenses. The officer recounted that the 

amount of crack cocaine recovered from Robinson in both 

instances was sufficient to charge him with possession with 

intent to distribute. A probation officer also testified that 
8

Robinson was originally charged with possession with intent to 

sell and deliver for both offenses. 

After hearing the evidence, the district court granted the 

government’s motion for an upward departure. It concluded by a 

preponderance of the evidence that, with respect to the 2000 

offenses, Robinson’s conduct actually amounted to possession 

with intent to sell and deliver, even though he was convicted of

only felony possession. As a result, the district court 

expressed concern about Robinson’s likelihood of recidivism.

The district court noted that it could sentence Robinson as a de 

facto career criminal, but, in the interest of justice, the 

court opted instead to move incrementally, level-by-level, to 

assign Robinson an offense level of 33. Thus, the district 

court sentenced Robinson to 293 months of incarceration and 8 

years of supervised release.

II.

Robinson’s first contention is that the district court 

erred in denying his motion to suppress and motion for a new 

trial based on Arizona v. Gant.

When reviewing a district court’s ruling on a motion to 

suppress, we will not disturb its factual findings unless they 

are in clear error. United States v. Massenburg, 654 F.3d 480, 

485 (4th Cir. 2011). Our review of legal determinations, 
9

however, is de novo. Id. Furthermore, we review a district 

court’s denial of a motion for a new trial for abuse of 

discretion. United States v. Robinson, 627 F.3d 941, 948 (4th 

Cir. 2010). 

Robinson maintains that the search of his vehicle was 

unconstitutional in light of Arizona v. Gant. In Gant, the 

Supreme Court held that “[p]olice may search a vehicle incident 

to a recent occupant’s arrest only if the arrestee is within 

reaching distance of the passenger compartment at the time of 

the search or it is reasonable to believe the vehicle contains 

evidence of the offense of arrest.” 129 S. Ct. at 1723. 

Robinson notes that, because the officers had secured him in the 

patrol car when they searched his vehicle, he was not within 

reaching distance of the vehicle’s passenger compartment. He 

also observes that the officers arrested him for driving without 

a suspended license, so it was not reasonable for them to 

believe that his vehicle contained evidence of the offense of 

arrest. Thus, he insists, the warrantless search of his vehicle 

was unconstitutional, and because the subsequently seized drugs 

and digital scale were fruits of the illegal search, they must 

be suppressed.

The Supreme Court’s recent decision in Davis v. United 

States, 131 S. Ct. 2419 (2011), and our even more recent 

decision in United States v. Wilks, 647 F.3d 520 (4th Cir. 
10

2011), foreclose Robinson’s contentions.*

 * We note that the parties filed their briefs before the 

Supreme Court decided Davis. After the Court issued its opinion 

in Davis and we decided Wilks, we requested supplemental 

briefing on the effect of those two opinions on this case. In 

his supplemental brief, Robinson insists that the government 

waived its ability to rely on these decisions by failing to 

raise the good-faith exception at the district court and in its 

opening brief. At the district court, however, the government 

observed in its response to the motion for a new trial that 

Officer Whitman’s search was based on the prevailing 

interpretation of New York v. Belton, 453 U.S. 454 (1981), that 

such searches were valid. Furthermore, in the government’s 

opening brief, it made the point that Officer Whitman’s search 

was based on binding precedent at the time and that the 

enforcement of the exclusionary rule would serve no deterrent 

purpose. Under these circumstances, we decline to find the 

government waived its ability to rely on Davis and Wilks. 

Furthermore, although the district court did not rely on the 

good-faith exception in denying the motion to suppress, we note 

that we may affirm the district court on any grounds apparent 

from the record. See United States v. Smith, 395 F.3d 516, 519 

(4th Cir. 2005). 

In Davis, the Supreme 

Court held that “searches conducted in objectively reasonable 

reliance on binding appellate precedent are not subject to the 

exclusionary rule.” 131 S. Ct. at 2423-24. It determined that 

such searches fall within the good-faith exception to the 

exclusionary rule. Id. at 2434. Thus, the Court declined to 

apply the exclusionary rule when an officer’s search incident to

arrest of an automobile complied with prevailing judicial 

precedent at the time, but was subsequently deemed 

unconstitutional by Gant. Id. at 2425-26, 2434. Since Davis, 

we have recognized that, prior to Gant, our precedent allowed 
11

officers to conduct a search incident to arrest of the passenger 

compartments of an automobile even though its recent occupant 

was detained in the patrol car at the time. Wilks, 647 F.3d at 

522. We held that where an officer’s search incident to arrest 

was lawful under that precedent at the time of the search, “per 

Davis, the exclusionary rule does not apply.” Id. at 524.

As in Wilks, there is no doubt that the officers’ search of 

Robinson’s vehicle was a lawful search incident to arrest under 

our precedent at the time. See United States v. Milton, 52 F.3d 

78, 80 (4th Cir. 1995) (holding that an officer could conduct a 

lawful search incident to arrest of the passenger compartments 

of a vehicle even after its recent occupant had been arrested 

and separated from the vehicle). The Supreme Court decided Gant

on April 21, 2009, almost six years after the search in 

question. Because the officers conducted their search in 

objectively reasonable reliance on binding appellate precedent 

that was valid at the time, the exclusionary rule does not 

apply. The district court, therefore, did not err in denying 

the motion to suppress or abuse its discretion in denying the 

motion for a new trial.

 

III.

Robinson asserts that the district court erred in granting 

an upward departure based on its determination that his criminal 
12

history category substantially underrepresented his criminal 

history or the likelihood that he would commit other crimes. 

Specifically, he challenges the district court’s consideration 

of the conduct underlying his 2000 offenses in deciding to 

depart upwardly. 

Our review of a district court’s decision to depart 

upwardly is limited to ensuring that it “acted reasonably both 

with respect to its decision to impose such a sentence and with 

respect to the extent of the divergence from the sentencing 

range.” United States v. McNeill, 598 F.3d 161, 166 (4th Cir. 

2010) (quoting United States v. Hernandez-Villanueva, 473 F.3d 

118, 123 (4th Cir. 2007)) (internal quotation marks omitted), 

aff’d on other grounds, 131 S. Ct. 2218 (2011). In assessing a 

district court’s application of the Sentencing Guidelines, we 

review its factual findings for clear error and legal 

conclusions de novo. United States v. Hampton, 628 F.3d 654, 

659 (4th Cir. 2010).

The Sentencing Guidelines allow for sentencing courts to 

depart upwardly when “reliable information indicates that the 

defendant’s criminal history category substantially underrepresents the seriousness of the defendant’s criminal history 

or the likelihood that the defendant will commit other crimes.” 

U.S.S.G. § 4A1.3(a)(1). District courts may upwardly depart 

under § 4A1.3 even when the defendant already has a criminal 
13

history category of VI. See id. § 4A1.3(a)(4)(B). In doing so, 

they must “vertically traverse to successively higher offense 

levels until [they] find[] a guideline range appropriate to the 

case.” McNeill, 598 F.3d at 166.

The United States Sentencing Commission drafted § 4A1.3(a) 

“in classic catch-all terms for the unusual but serious 

situation where the criminal history category does not 

adequately reflect past criminal conduct or predict future 

criminal behavior.” United States v. Lawrence, 349 F.3d 724, 

730 (4th Cir. 2003). The Sentencing Guidelines elaborate that 

“[t]he information described in [§ 4A1.3(a)] may include 

information concerning the following” and proceed to set forth 

five sources of information:

(A) Prior sentence(s) not used in computing the 

criminal history category (e.g., sentences for foreign 

and tribal offenses). 

(B) Prior sentence(s) of substantially more than one 

year imposed as a result of independent crimes 

committed on different occasions. 

(C) Prior similar misconduct established by a civil 

adjudication or by a failure to comply with an 

administrative order. 

(D) Whether the defendant was pending trial or 

sentencing on another charge at the time of the 

instant offense. 

(E) Prior similar adult criminal conduct not resulting 

in a criminal conviction. 

U.S.S.G. § 4A1.3(a)(2).

Robinson’s primary contention is that the district court’s

consideration of the conduct underlying his 2000 offenses was 
14

improper because § 4A1.3(a)(2) does not allow for it. His 

argument assumes that § 4A1.3(a)(2) provides an exhaustive list 

of permissible bases for departing upwardly under § 4A1.3. Not 

included in that list, he argues, are prior convictions where 

the underlying conduct could have yielded a conviction for a 

greater offense. Thus, he insists, it was improper for the 

district court to consider that the conduct underlying his 2000 

offenses actually amounted to possession with intent to sell and 

deliver as opposed to felony possession, the lesser offense of 

which he was convicted. He notes that § 4A1.3(a)(2)(E) allows 

the district court to consider “[p]rior similar adult criminal 

conduct not resulting in a criminal conviction,” but 

distinguishes that provision on the basis that the 2000 offenses

resulted in convictions for felony possession.

Contrary to Robinson’s assumption, § 4A1.3(a)(2)’s list of 

types of information courts can consider in upwardly departing 

is not exhaustive; instead, it merely provides examples. See

U.S.S.G. § 1B1.1 cmt. 2 (“The term ‘includes’ is not 

exhaustive . . . .”); United States v. Porter, 439 F.3d 845, 849 

(8th Cir. 2006) (“The information which may be considered by a 

district court when departing under § 4A1.3 is not limited to 

those enumerated examples listed under § 4A1.3(a)(2).”); United 

States v. McKenley, 895 F.2d 184, 186 (4th Cir. 1990) (noting 

that the list provides a “broad, noninclusive range of 
15

examples”). That list, therefore, did not bind the district 

court in the types of information it could consider. The 

district court was free to consider conduct underlying past 

convictions in determining whether Robinson’s criminal history 

category substantially underrepresented the seriousness of his 

criminal history or the likelihood that he would commit other 

crimes. See United States v. De Luna-Trujillo, 868 F.2d 122, 

125 (5th Cir. 1989) (“‘[P]rior similar adult criminal conduct’ 

may indicate the seriousness of the past crimes and the 

likelihood of future crimes whether or not it has resulted in 

conviction.” (alteration in original)). 

The information about the conduct underlying Robinson’s 

2000 offenses provided the district court with a reasonable 

basis for departing upwardly. The evidence demonstrated that 

Robinson received lenient treatment for the offenses, which 

indicated that the felony-possession convictions counted in his 

criminal history category did not accurately reflect the 

seriousness of the offenses. More importantly, however, the 

information exposed the similarity between the conduct 

underlying the 2000 offenses and the offense for which he was 

being sentenced. The district court was sentencing Robinson for 

his conviction of possession with intent to distribute crack 

cocaine. By finding that Robinson had engaged in similar 

conduct before—possession with intent to sell and deliver crack 
16

cocaine—the district court reasonably found a likelihood that he 

would engage in this conduct again. See id. (“The recidivist’s 

relapse into the same criminal behavior . . . suggests an 

increased likelihood that the offense will be repeated yet

again.”). Because Robinson’s criminal history category did not 

reflect the similarity between the conduct underlying his 2000 

offenses and the offense for which he was being sentenced, the 

district court had a reasonable basis to depart upwardly to 

ensure that it adequately represented the likelihood that he 

would commit similar crimes in the future. See id. (“While the 

prior similar adult criminal conduct that has resulted in 

conviction may have already been counted under section 

4A1.2(e)(1) or (2) when computing the criminal-history category, 

the similarity between the two offenses provides the district 

court with additional reason to enhance the sentence under 

section 4A1.3.”). Thus, § 4A1.3(a)(2) did not restrict the 

district court in the type of information it could consider in 

deciding whether to depart upwardly under § 4A1.3, and the 

district court reasonably determined that the information 

regarding the conduct underlying Robinson’s 2000 offenses 

justified such an upward departure.

Robinson also suggests that the district court’s 

consideration of the conduct underlying his 2000 offenses in 

upwardly departing constitutes impermissible double counting. 
17

He insists that the felony possession convictions resulting from 

his 2000 offenses had already been counted in his criminal 

history category and so it was improper to use them again as a 

basis for upwardly departing. 

The district court did not engage in double counting when 

it departed upwardly based on the conduct underlying Robinson’s 

2000 offenses, despite the fact that the resulting convictions 

were counted in his criminal history category. “Double counting 

occurs when a provision of the Guidelines is applied to increase 

punishment on the basis of a consideration that has been 

accounted for by application of another Guideline provision or 

by application of a statute.” United States v. Reevey, 364 F.3d 

151, 158 (4th Cir. 2004) (citing United States v. Rohwedder, 243 

F.3d 423, 426-27 (8th Cir. 2001)). By definition, an upward 

departure under § 4A1.3 is based on a finding that the 

defendant’s criminal history category does not fully account for 

the seriousness of the defendant’s criminal history or the 

likelihood that he will commit further crimes. See U.S.S.G. 

§ 4A1.3(a)(1); United States v. Dixon, 318 F.3d 585, 588-89 (4th 

Cir. 2003) (“[B]y definition, this factor is not otherwise 

accounted for in the criminal history calculation.”). The 

district court decided that Robinson’s criminal history category 

did not fully account for the likelihood that he would commit 

other crimes because it did not consider the conduct underlying 
18

his 2000 offenses, which was similar to the offense for which he 

was being sentenced and for which he had received lenient 

treatment. The district court upwardly departed to account 

fully for this consideration. Because double counting occurs 

only when a consideration has been fully accounted for in 

another Sentencing Guidelines provision, Rohwedder, 243 F.3d at 

426-27, the district court did not double count. 

IV.

Robinson’s third argument is that the district court erred 

by failing to hold an evidentiary hearing and make findings of 

fact or conclusions of law when denying his motion to suppress.

Because Robinson failed to object to the district court’s 

summary dismissal of his motion to suppress at trial, our review 

is only for plain error. See United States v. McIver, 470 F.3d 

550, 561 (4th Cir. 2006). To obtain relief under plain-error 

review, he must demonstrate “(1) an error, (2) that is plain, 

that not only (3) affects h[is] substantial rights, but also 

(4) seriously affects the fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Brack, 

651 F.3d 388, 392 (4th Cir. 2011). In the end, whether we 

should correct a plain error is a matter left to our discretion. 

United States v. Allen, 446 F.3d 522, 530 (4th Cir. 2006).
19

Federal Rule of Criminal Procedure 12(d) requires a 

district court to “state its essential findings on the record” 

when ruling on a pretrial motion that presents factual issues. 

We have recognized “[w]hen material facts that affect the 

resolution of a motion to suppress . . . are in conflict, the 

appropriate way to resolve the conflict is by holding an 

evidentiary hearing after which the district court will be in a 

position to make findings.” United States v. Taylor, 13 F.3d 

786, 789 (4th Cir. 1994). But even when a district court fails 

to make explicit findings of fact, we assume it found all facts 

in favor of the party who prevailed on the motion to suppress. 

See United States v. Cardwell, 433 F.3d 378, 388 (4th Cir. 

2005). Consequently, we will uphold the district court’s 

decision on appeal “if any reasonable view of the evidence, 

looked at in the light most favorable to the government, will 

sustain the denial.” United States v. Bethea, 598 F.2d 331, 

333-34 (4th Cir. 1979). Although the better practice is for

district courts to state conclusions of law, Rule 12 does not 

require them. See Fed. R. Crim. P. 12. 

Robinson is unable to demonstrate a plain error that

affects his substantial rights. A reasonable view of the 

evidence in this case, when viewed in the light most favorable 

to the government, sustains the district court’s denial of 

Robinson’s motion to suppress. Officer Whitman’s observance of 
20

Robinson speeding and his and Officer Clark’s witnessing 

Robinson’s swerving in the parking lot provided the officers 

with adequate justification to conduct a lawful traffic stop. 

Furthermore, as we have described, even if the evidence obtained 

from Robinson’s vehicle was the fruit of an illegal search, the 

exclusionary rule would not apply to require its suppression. 

Thus, Robinson is unable to demonstrate a plain error that 

adversely affects his substantial rights.

V.

Robinson’s final contention is that the district court 

erred in allowing Officer Clark to testify about recovering a 

firearm and drugs during his prior arrest of Robinson.

Our review of a district court’s decision to admit evidence 

of prior bad acts under Federal Rule of Evidence 404(b) is for 

abuse of discretion. United States v. Penniegraft, 641 F.3d 

566, 574 (4th Cir. 2011). We will not reverse a district court 

for admitting evidence of prior bad acts under Rule 404(b) 

unless we find the “decision to admit [the] evidence . . . was 

arbitrary and irrational.” United States v. Byers, 649 F.3d 

197, 206 (4th Cir. 2011) (quoting United States v. Weaver, 282 

F.3d 302, 313 (4th Cir. 2002)) (internal quotation marks 

omitted).
21

Evidence of prior bad acts is admissible to prove “motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” Fed. R. Evid. 404(b). It is 

inadmissible when offered “to prove the character of a person in 

order to show action in conformity therewith.” Id. We have 

recognized that “Rule 404(b) is an inclusionary rule, allowing 

evidence of other crimes or acts to be admitted, except that 

which tends to prove only criminal disposition.” Penniegraft, 

641 F.3d at 574.

We have established essentially a four-part test for 

determining the admissibility of evidence of prior bad acts 

under Rule 404(b). See id. The evidence “must be ‘(1) relevant 

to an issue other than the general character of the defendant; 

(2) necessary to prove an element of the charged offense; and

(3) reliable,’” and (4) “the probative value of the evidence 

must not be substantially outweighed by its prejudicial effect.” 

Id. (quoting United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 

2004)). To satisfy the first prong and demonstrate the 

evidence’s relevance to an issue other than general character, 

we require a sufficient nexus to exist between the prior act and 

the charged crime. United States v. Johnson, 617 F.3d 286, 297 

(4th Cir. 2010). Generally, they should be “related in time, 

manner, place, or pattern of conduct.” Id.
22

We are satisfied that Officer Clark’s testimony was 

relevant to an issue other than Robinson’s general character. 

The testimony was relevant to show, at the very least, absence 

of mistake, which Robinson made an important issue by defending 

on the ground that other people drove the Cadillac and that he 

did not know the drugs were in it. There was a sufficient nexus

in manner and pattern of conduct between the acts described in 

Officer Clark’s testimony and Robinson’s charged offense to 

demonstrate this relevance. Officer Clark testified that, when 

he arrested Robinson in 2000, he recovered a plastic baggie 

holding crack cocaine. Similarly, Officer Whitman also

recovered crack cocaine in a small sandwich baggie. This 

similarity suggested the absence of mistake. We therefore 

determine that Officer Clark’s testimony was relevant to an 

issue other than Robinson’s general character.

We likewise are of the opinion that Officer Clark’s 

testimony satisfies the other three factors for determining the 

admissibility of evidence of prior bad acts. It was necessary 

to prove intent. See United States v. Rooks, 596 F.3d 204, 211-

12 (4th Cir. 2010) (noting that the “necessary” prong does not 

require the evidence to be critical to the government’s case, 

but instead focuses on whether it was “probative of an essential 

claim or an element of the offense” (quoting United States v. 

Queen, 132 F.3d 991, 997 (4th Cir. 1997)) (internal quotation 
23

marks omitted)). The evidence, which involved testimony from a 

police officer with personal knowledge, was reliable. Finally, 

the prejudicial effect of Officer Clark’s testimony did not 

outweigh its probative value, “especially in light of the 

[district] court’s limiting instruction to the jury.” Id. at 

212; see also United States v. Powers, 59 F.3d 1460, 1467-68 

(4th Cir. 1995) (recognizing that a limiting instruction will 

“generally obviate any . . . prejudice”). Thus, the district 

court did not abuse its discretion in admitting Officer Clark’s 

testimony. 

VI.

For the foregoing reasons, we affirm the judgment of the 

district court.

AFFIRMED