UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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.
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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 
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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