UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4357

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DANIEL MCINTOSH, a/k/a Barfly, a/k/a B-Fly,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Roger W. Titus, Senior District Judge. 

(8:10-cr-00777-RWT-14)

Argued: January 28, 2016 Decided: August 23, 2016

Before WILKINSON, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

ARGUED: Carmen D. Hernandez, LAW OFFICES OF CARMEN D. HERNANDEZ, 

Highland, Maryland, for Appellant. Sonja M. Ralston, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

ON BRIEF: Leslie R. Caldwell, Assistant Attorney General, 

Sung-Hee Suh, Deputy Assistant Attorney General, Appellate 

Section, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C.; Rod J. Rosenstein, United States Attorney, 

Baltimore, Maryland, Sujit Raman, Chief of Appeals, OFFICE OF 

THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

A jury convicted Daniel McIntosh (“Appellant”) of

conspiracy to possess with intent to distribute marijuana, 

conspiracy to launder money, and aiding and abetting interstate 

travel in furtherance of drug trafficking. The district court 

sentenced Appellant to 120 months of imprisonment and ordered 

him to forfeit over $6.3 million. He timely appealed and 

alleges several errors arising from his trial and sentencing. 

We have reviewed the record and find no reversible 

error. Therefore, for the reasons that follow, we affirm. 

I.

During a decade-long, multi-state marijuana 

trafficking conspiracy beginning in 2001, Appellant and 15 

co-conspirators directed thousands of pounds of marijuana into 

Baltimore, Maryland, from California and Canada by 

tractor-trailer and airplane.1 Appellant was heavily involved in

the conspiracy: he arranged for drivers as well as deliveries

of marijuana, assisted in unloading trucks containing up to 100 

pounds of marijuana at a time, collected and counted proceeds,

and helped in dividing up the marijuana for distribution. 

 1 We recite the facts in the light most favorable to the 

Government, as the prevailing party at trial. See United States 

v. Said, 798 F.3d 182, 186 n.2 (4th Cir. 2015). 
3

In 2007, Appellant took over a Baltimore bar/music 

venue called Sonar, which he utilized as a cover for the illicit 

marijuana operation. Sonar struggled with its operational 

expenses, yet the infusion of cash from the marijuana operation

that was commingled with Sonar’s proceeds helped Appellant pay 

Sonar’s bills, including payroll, outstanding checks, and tax 

obligations. Moreover, Appellant used Sonar and its employees 

to coordinate the marijuana distribution network. For instance, 

Sonar was used as a drop-off and pick-up location for the cash 

that supported the conspiracy, Appellant paid a co-conspirator 

through Sonar’s payroll, and Appellant had a Sonar employee

deliver marijuana to an off-premises location. 

In May 2012 in the District of Maryland, Appellant was 

charged by a second superseding indictment, which was then 

amended on September 11, 2012, with the following crimes:

conspiracy to distribute and possess with intent to distribute 

1,000 kilograms or more of marijuana, in violation of 21 U.S.C. 

§ 846 (“Count One”); conspiracy to launder money, in violation 

of 18 U.S.C. § 1956(h) (“Count Two”); money laundering by 

concealment, in violation of 18 U.S.C. § 1956(a)(1)(B)(i)

(“Count Three”); knowingly maintaining a premises for the 

purpose of distributing marijuana, in violation of 21 U.S.C. 

§ 856(a)(1) (“Count Four”); managing and controlling a place for

the purpose of unlawfully storing, distributing, and using 
4

marijuana, in violation of 21 U.S.C. § 856(a)(2) (“Count Five”); 

and aiding and abetting interstate commerce in furtherance of 

drug trafficking, in violation of 18 U.S.C. §§ 1952, 2 (“Count 

Six”).

On the first day of trial, September 11, 2012, the 

Government filed an information pursuant to 21 U.S.C. § 851 (the 

“Information”), seeking to enhance Appellant’s sentence and 

citing four prior felony drug offenses. Appellant was convicted 

of three of the offenses in Pennsylvania in 1998: possession 

with intent to deliver marijuana, attempted possession of 

marijuana, and attempted possession of marijuana with intent to

deliver. He was convicted of the remaining offense --

possession with intent to distribute marijuana -- in Maryland in 

2005. As a result, the Government submitted that if the jury

convicted Appellant of conspiracy to distribute less than 1,000 

kilograms but more than 100 kilograms, he would be subject to a 

mandatory minimum term of ten years in prison. See 21 U.S.C. 

§ 841(b)(1)(B).

The trial lasted approximately 25 days. At trial, 

Appellant filed a motion to exclude evidence of the prior 

Pennsylvania and Maryland marijuana convictions. He claimed 

that including such convictions would violate Rule 404(b) of the 

Federal Rules of Evidence. The district court denied 

Appellant’s motion but cautioned the jury twice that the 
5

evidence was to be used only for the limited purposes outlined 

in Rule 404(b).

During trial, the Government introduced evidence that, 

as to the Pennsylvania offenses, Appellant paid $12,000 for 15 

pounds of marijuana from a confidential informant, and police 

then recovered approximately one ounce of marijuana from 

Appellant’s car. About one month later, Appellant arranged for 

a courier to pay $2,400 for five pounds of marijuana. At a 

consolidated proceeding, Appellant pled guilty to attempted 

possession of marijuana and possession with intent to distribute 

marijuana with regard to the 15-pound purchase. When he denied 

involvement with the five-pound purchase, he was allowed to 

enter an Alford plea2 to the charges of attempted possession of 

marijuana and conspiracy to possess with intent to deliver 

marijuana. The Government also introduced a court record 

reflecting Appellant’s Maryland conviction for possession with 

intent to distribute marijuana, but no additional facts were 

provided to the jury with regard to this conviction. 

Ultimately, in the instant case, the District of 

Maryland jury found Appellant guilty of a lesser included 

 2 See North Carolina v. Alford, 400 U.S. 25 (1970) 

(authorizing a defendant to waive trial and to consent to 

punishment without admitting participation in the acts 

constituting the crime).
6

offense in Count One, that is, conspiracy to distribute more

than 100 but less than 1,000 kilograms of marijuana; Count Two,

conspiracy to launder money; and Count Six, interstate travel in 

furtherance of drug trafficking. He was acquitted of the 

remaining counts.

At sentencing on March 20, 2014, the district court 

established that Appellant was a career offender, and thus, his

advisory Sentencing Guidelines range was 360 months to life 

imprisonment. The district court also determined that Appellant 

was subject to a mandatory minimum sentence of ten years based 

on the Government’s § 851 Information. Ultimately, the district 

court varied downward and sentenced Appellant to the mandatory 

minimum of 120 months for the drug conspiracy, a concurrent 120 

months for the money laundering conspiracy, and a concurrent 60 

months for the conviction of interstate travel in furtherance of 

unlawful activity. The district court also ordered Appellant to 

forfeit over $6.3 million, representing the gross proceeds from 

his criminal activity.

In this appeal, Appellant claims the district court 

erred in five ways: (1) admitting evidence of his prior 

marijuana convictions in violation of Rule 404(b) (the “Rule 

404(b) argument”); (2) imposing the mandatory minimum sentence 

of 120 months based on the Information (the “sentencing 

argument”); (3) imposing a forfeiture order without a 
7

constitutional, factual, or statutory basis; (4) preventing 

Appellant from presenting a defense and confronting witnesses;

and (5) denying his motion for acquittal based on insufficiency 

of the evidence. While we reject each of these arguments, we 

focus on the first two: the Rule 404(b) argument and the 

sentencing argument. 

II.

Rule 404(b) Argument

A.

We review a district court’s Rule 404(b) evidentiary 

determinations for abuse of discretion. See United States v. 

Briley, 770 F.3d 267, 275-76 (4th Cir. 2014). “Under this 

standard, a district court abuses its discretion when it acts 

arbitrarily or irrationally” in admitting the evidence. Id.

(internal quotation marks omitted). Even if the district court 

abused its discretion, Appellant must still surmount the 

harmless error hurdle. See United States v. Madden, 38 F.3d 

747, 753 (4th Cir. 1994). “Where error is founded on a 

violation of Rule 404(b), the test for harmlessness is whether 

we can say with fair assurance, after pondering all that 

happened without stripping the erroneous action from the whole, 

that the judgment was not substantially swayed by the error.” 

Id. (internal quotation marks omitted).
8

B.

The district court denied Appellant’s motion to 

exclude his prior convictions because it concluded these prior 

convictions were relevant, necessary, reliable, and not unduly 

prejudicial. On appeal, Appellant (1) contends the Government 

did not timely provide notice of its intended use of this 

evidence; and (2) challenges the relevancy of the prior 

convictions. We conclude that the district court did not abuse 

its discretion.

1. 

We first address Appellant’s argument that the 

Government did not provide timely notice of its intent to use 

Rule 404(b) evidence. Rule 404(b)(2) provides that upon request 

by the defendant, the Government must, before trial, “provide 

reasonable notice of the general nature of any such evidence 

that the prosecutor intends to offer at trial.” Fed. R. Evid. 

404(b)(2)(A). Such a notice “is intended to reduce surprise and 

promote early resolution on the issue of admissibility.” Fed. 

R. Evid. 404(b) advisory committee’s note to 1991 amendments. 

Accordingly, if the Government does not comply with the notice 

requirement of Rule 404(b), the proffered evidence is 

inadmissible. See id. (“[T]he notice requirement serves as 

condition precedent to admissibility of 404(b) evidence.”). 
9

Contrary to Appellant’s argument, the Government 

satisfied the notice requirement. Appellant’s trial counsel 

herself acknowledged that August 1, 2012, was “the first time 

[the Government] set out in some specificity what [the 

Government was] hoping to submit to the court.” J.A. 1700.3 

This was 41 days prior to trial. Then, on August 26, 2012, the 

Government again informed Appellant that it “may introduce 

evidence of [Appellant’s] prior drug arrests and convictions 

under [R]ule 404(b).” G.S.A. 30.4 These notices were given 

several weeks before the trial was set to begin on September 11. 

And, although the content of the notice was broad in scope, the 

Government nonetheless met the requirement by providing the 

“general nature” of the type of evidence it was planning to 

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

Moreover, Appellant cannot claim that he was surprised

at trial because on September 11, 2012, he conceded in a motion 

in limine “the [G]overnment has informed the defense that it may 

introduce [Rule 404(b)] evidence.” G.S.A. 40; see United States 

v. Basham, 561 F.3d 302, 327 n.12 (4th Cir. 2009) (sufficient 

notice when record indicates that the defendant had actual 

 3 Citations to the “J.A.” refer to the Joint Appendix 

filed by the parties in this appeal.

4 Citations to the “G.S.A.” refer to the Government’s 

Supplemental Appendix filed in this appeal.
10

notice); United States v. Queen, 132 F.3d 991, 997 (4th Cir. 

1997) (“[I]n cases where the prosecution has notified the 

defendant of its intent to use particular Rule 404(b) 

evidence[,] . . . the fear of a ‘trial by ambush’ recedes.”). 

Indeed, it was nearly a month into trial, on October 9, 2012, 

when the prior-act evidence was ultimately introduced, and 

Appellant has provided no support for the notion that he lacked 

time to prepare a sufficient defense. 

Under these circumstances, we conclude the Government 

provided reasonable notice to Appellant under Rule 404(b). 

2.

Appellant next challenges the relevancy of the 

Pennsylvania and Maryland convictions. Rule 404(b)(1) of the 

Federal Rules of Evidence states, “Evidence of a crime, wrong, 

or other act is not admissible to prove a person’s character in 

order to show that on a particular occasion the person acted in 

accordance with the character.” Fed. R. Evid. 404(b)(1). 

However, such evidence “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). Moreover, “Rule 404(b) is a rule of 

inclusion,” and relevant evidence will be admitted except “that 

which tends to prove only criminal disposition.” Briley, 770 

F.3d at 275 (internal quotation marks omitted). 
11

In assessing admissibility of Rule 404(b) evidence, 

this court has set forth the following requirements:

(1) the prior-act evidence must be relevant 

to an issue other than character, such as 

intent; (2) it must be necessary to prove an 

element of the crime charged; (3) it must be 

reliable; and (4) its probative value must 

not be substantially outweighed by its 

prejudicial nature. 

United States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013)

(alteration omitted) (internal quotation marks omitted). 

Appellant contends the prior-act evidence in this case was “not 

relevant or necessary,” Appellant’s Br. 16, but his brief only 

makes a sufficient argument on the relevancy issue. Therefore,

our review is restricted to that issue. See Fed. R. App. P. 

28(a)(8)(A); Projects Mgmt. Co. v. Dyncorp Int’l LLC, 734 F.3d 

366, 376 (4th Cir. 2013) (argument is waived when a party fails 

to support its contentions “with citations to the authorities 

and parts of the record on which it relies” (alteration omitted) 

(internal quotation marks omitted)). 

Evidence is relevant when it is “sufficiently related 

to the charged offense,” and “[t]he more closely that the prior 

act is related to the charged conduct in time, pattern, or state 

of mind, the greater the potential relevance of the prior act.” 

United States v. McBride, 676 F.3d 385, 397 (4th Cir. 2012)

(internal quotation marks omitted). However, when time, manner, 

place, or pattern of conduct of the prior activity is not 
12

related to the offense, past drug activity, in and of itself, is 

not a sufficient nexus. See United States v. Johnson, 617 F.3d 

286, 297 (4th Cir. 2010).

Applying these principles here, the fact that 

Appellant’s prior convictions were strikingly similar to the 

charged conduct weighs in favor of admission. Considering that 

Appellant faced charges of conspiracy to distribute and 

possession with intent to distribute marijuana and engaging in 

interstate travel in furtherance of drug distribution 

activities, the district court admitted the evidence of 

Appellant’s prior marijuana convictions because the evidence was

“some indication of distributive intent.” J.A. 1728. 

Further, inclusion of this evidence goes well beyond a 

mere showing of Appellant’s criminal disposition. Rather, the 

convictions are relevant to show Appellant’s state of mind, 

intent, pattern of conduct of ongoing involvement, and knowledge

of the drug distribution trade. See McBride, 676 F.3d at 397; 

Johnson, 617 F.3d at 297; see also United States v. Rooks, 596 

F.3d 204, 211 (4th Cir. 2010) (holding that a 14-year-old 

conviction was relevant to show “familiarity with drug 

distribution business”). 

In fact, for his Pennsylvania convictions, Appellant 

first paid $12,000 to obtain 15 pounds of marijuana and then 

utilized a courier to pick up several more pounds of marijuana 
13

on his behalf -- quite similar to his conduct in this case. 

Additionally, the Government introduced Appellant’s 2005 

Baltimore County conviction for possession with intent to 

distribute marijuana, which took place at the same time, same 

place, and consisted of the same conduct as that charged in the 

instant case. As in Rooks, the prior convictions in this case 

were offered for permissible purposes under Rule 404(b), that 

is, to show Appellant’s familiarity with drug distribution 

practices and intent to distribute marijuana in the Baltimore 

area. And as set forth in McBride, the prior acts in this case 

“closely . . . relate[] to the charged conduct in time, pattern, 

or state of mind.” 676 F.3d at 397. 

Significantly, the district court prefaced the 

introduction of each of these convictions with an instruction 

explaining their limited evidentiary purpose. See United States 

v. Williams, 461 F.3d 441, 451 (4th Cir. 2006) (explaining that

limiting instructions mitigate any possibility of prejudice

because we “presum[e] that the jury obeyed [them]” (internal 

quotation marks omitted)). As a result, we have no difficulty 

concluding that the prior-act evidence in this case was 

relevant. Appellant’s Rule 404(b) arguments, therefore, fail.

Even if we assume the district court erred in this 

regard, the admission of such evidence was not harmful error. 

The evidence against Appellant was overwhelming during the 
14

multi-week trial, including the Government’s introduction of 

testimony from numerous witnesses and co-conspirators. We 

conclude that excluding the prior convictions would not have 

altered the jury’s decision, and thus any perceived error is 

harmless. See Madden, 38 F.3d at 753.5

III.

Sentencing Argument

A.

Appellant also challenges the propriety of the 

district court’s imposition of a mandatory minimum sentence 

based on the Government’s Information. In addressing such a 

challenge, we review the court’s findings of fact for clear 

error and its legal conclusions de novo. See United States v. 

Kellam, 568 F.3d 125, 143 (4th Cir. 2009).

B.

Section 851(a)(1) provides that the Government must

request increased punishment for a defendant by filing an 

information stating that the defendant has one or more prior 

 5 Appellant also alleges numerous other erroneous 

evidentiary rulings, yet fails to support his contentions with 

citations to the record. See Fed. R. App. P. 28(a)(8)(A); 

Projects Mgmt., 734 F.3d at 376 ; Johnson v. United States, 734 

F.3d 352, 360 (4th Cir. 2013) (determining that an appellant 

waived his claim when he failed “in any meaningful way” to 

comply with the dictates of Rule 28 of the Federal Rules of 

Appellate Procedure). Nonetheless, we have reviewed the record 

and cannot divine any error in this regard. 
15

convictions qualifying him for a sentence enhancement. 

According to 21 U.S.C. § 841(b)(1)(B)(vii) and § 846, a person 

convicted of conspiracy to distribute and possess with intent to 

distribute 100 kilograms or more of marijuana is subject to a 

ten-year mandatory minimum if he has a prior conviction for a 

felony drug offense. See 21 U.S.C. § 841(b)(1)(B). In this 

case, the Government cited all of the Pennsylvania convictions 

and the Maryland conviction as qualifying convictions. 

Appellant contends the convictions cannot be used to enhance his 

sentence for three reasons: (1) the Pennsylvania convictions

were not charged by indictment; (2) any fact that increases the 

mandatory minimum sentence must be alleged in an indictment and 

proved to the jury beyond a reasonable doubt; and (3) the 

Controlled Substances Act violates the separation of powers by 

giving the executive branch the power to classify marijuana as a 

controlled substance and prosecute offenses as well.6

We easily dispose of Appellant’s second and third 

arguments as they have been roundly rejected by the Supreme 

 6 Appellant also argues in a conclusory fashion that the 

Maryland conviction “c[annot] be used to enhance the sentence 

because it was not a separate prior but rather, it was part of 

the instant offense.” We need not consider this argument 

because McIntosh fails to cite any authority supporting his 

position. See Fed. R. App. P. 28(a)(8)(A). Moreover, the 

Pennsylvania convictions are sufficient to trigger 

§ 841(b)(1)(B)’s 10-year mandatory minimum. 
16

Court. See Alleyne v. United States, 133 S. Ct. 2151, 2160 & 

n.1 (2013) (recognizing the “general rule” that “[f]acts that 

expose a defendant to a punishment greater than that otherwise 

legally prescribed were by definition ‘elements’ of a separate 

legal offense,” but acknowledging that “the fact of a prior 

conviction” is an “exception” to this rule (citing Almendarez–

Torres v. United States, 523 U.S. 224 (1998)) (internal 

quotation marks omitted)); Touby v. United States, 500 U.S. 160, 

167-68 (2012) (rejecting argument that the separation of powers 

is upset by the Attorney General’s dual role of scheduling drugs 

and prosecuting those who manufacture and distribute those 

drugs, explaining that argument “has no basis in our separationof-powers jurisprudence”). 

Next, we turn to Appellant’s argument that his 

Pennsylvania convictions do not qualify because they were not 

charged by indictment. Section 851(a)(2) provides, “An 

information may not be filed under this section if the increased 

punishment which may be imposed is imprisonment for a term in 

excess of three years unless the person either waived or was 

afforded prosecution by indictment for the offense for which 

such increased punishment may be imposed.” 21 U.S.C. 

§ 851(a)(2) (emphasis supplied). This language clearly states 

that the instant offense should have been charged by indictment, 

not a prior qualifying offense. Indeed, every other circuit has 
17

so held. See United States v. Sanchez, 389 F.3d 271, 273 (1st 

Cir. 2004) (collecting cases). And because Appellant’s federal 

convictions were charged by indictment, § 851(a)(2) is satisfied 

in this case. Therefore, we reject Appellant’s contentions.

IV.

We have reviewed Appellant’s remaining arguments that 

the district court lacked the constitutional, statutory, and 

factual bases to enter the forfeiture order; the evidence 

presented at trial was insufficient to support the convictions; 

Appellant was unable to confront witnesses against him; he was 

erroneously denied a continuance to review discovery; and he was 

improperly denied CJA funds for an expert. Upon review of the 

record and the relevant authorities, we conclude these claims

are without merit.

V.

For the foregoing reasons, the judgment of the 

district court is 

AFFIRMED.