UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-5116

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ROOSEVELT SIMMONS,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Wheeling. Frederick P. Stamp,

Jr., Senior District Judge. (5:07-cr-00040-FPS-JES-1)

Submitted: April 21, 2010 Decided: May 27, 2010

Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Travis R. Fitzwater, LAW OFFICE OF TRAVIS R. FITZWATER, 

Morgantown, West Virginia, for Appellant. Sharon L. Potter, 

United States Attorney, David J. Perri, Robert H. McWilliams, 

Jr., Assistant United States Attorneys, Wheeling, West Virginia, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Roosevelt Simmons appeals his conviction and sentence 

on one count of being a felon in possession of ammunition, in 

violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). He contends

that the district court committed reversible error in conducting 

a jury view of the crime scene, permitting identification 

testimony of Simmons, denying a motion to suppress the result of 

a gun-shot residue test (GSR test), admitting evidence that 

Simmons used a firearm while possessing the ammunition, and 

enhancing his sentence. For the foregoing reasons, we affirm. 

I.

Early on the morning on November 4, 2007, Roosevelt 

Simmons called 911 after returning home from work to report that 

his apartment at the Eagle Court Apartments in Wheeling, West 

Virginia, had been burglarized. Simmons told the responding 

officers that he believed his neighbors had committed the crime 

as retaliation for Simmons’s reporting them to the police for 

loud music several nights earlier. Simmons then left his 

apartment and drove to stay with his girlfriend, Nina Speights. 

The next morning, Simmons and Speights’s cousin, Cameron Sealey, 

drove to Steubenville, Ohio, to place a wager on a football 

game. The two then drove back to the Eagle Court Apartments. 

Proceeding at a high rate of speed, Simmons pulled up 
3

haphazardly in front of his apartment building and entered the 

building along with Sealey. Simmons approached apartments 322 

and 323, his direct neighbors, and began banging on their doors, 

yelling that someone must have known about the burglary on 

November 4. Sarah Ruthers and her boyfriend Richard Gooch were 

in apartment 322 at the time. Both noticed Simmons’s car as it 

entered the lot and parked. Both recognized Simmons as he 

exited the car and recognized his voice in the hallway. 

Although neither Ruthers nor Gooch considered themselves friends 

with Simmons, Gooch shared a cigarette with him on several 

occasions and the pair often saw Simmons coming and going from 

the apartment.

Gooch did not open the apartment door, but a person in 

apartment 323, Jaime Conley,1

 1 Conley was not a resident of the Eagle Court Apartments 

but was staying with friends in the complex at the time. 

did. Simmons began yelling at 

Conley about his apartment break-in, “getting in her face,” and 

telling her that whoever had robbed him had “f***ed with the 

wrong n*****r.” Conley noticed another man, who she did not 

recognize, standing in the hallway. Conley told Simmons that 

she knew nothing about the burglary and, frightened, slammed the 

door in his face. Conley did not know Simmons’s name, but she 

recognized him as the man that had come over several nights 

earlier to complain about loud music in the apartment.
4

Gooch began watching the events unfold through the 

peephole in Ruthers’s apartment. Gooch heard Simmons verbally 

abusing Conley and also saw a man he did not recognize standing 

further down the hallway. After Conley slammed the door, Gooch 

saw Simmons pull a handgun from a brown paper bag he was 

holding. Gooch told Ruthers to call 911 and retreated back into 

the apartment. Moments later the residents heard gunfire and 

the sound of breaking dishware and glass. Gooch heard four 

shots in quick succession followed by a fifth shot seconds 

later. One of the occupants of apartment 323 called 911, as did 

Ruthers. Ruthers, who had been seated in her living room 

looking out over the parking lot, saw the unidentified man exit 

the building into the parking lot prior to the shots being 

fired. Gooch and Ruthers then watched together as Simmons and 

the unidentified male entered the car and left the parking lot 

at a high rate of speed with Simmons driving. Sealey testified 

that he was the man standing down the hallway and that, when he 

saw Simmons pull a gun, he tried to dissuade him from using it. 

Unable to do so, Sealey fled the apartment building and heard 

multiple gunshots as he reached the parking lot.

Officers from the Wheeling Police Department responded 

to the scene. Gooch and Ruthers both identified “Rosie” Simmons 

as the shooter and provided a description of him and his car. 
5

Conley also provided a description of the suspect and told 

officers that he lived in the building.

After leaving Eagle Court, Simmons and Sealey returned 

to Speight’s home, where Sealey witnessed Simmons hide the gun 

in a laundry detergent box on top of the refrigerator. Twenty 

minutes later Officer Ben Heslep with the Bellaire, Ohio, Police 

Department2

At the Eagle Court Apartments, officers recovered five 

spent 9 mm. caliber shell casings in the hallway. Four were 

clustered together outside of doors 322 and 323 and the fifth 

spotted and stopped a vehicle matching the 

description provided by Gooch and Ruthers. With Simmons 

stopped, officers from the Wheeling Police Department escorted 

Gooch to the scene to see if he could identify Simmons. Apart 

from Simmons, only police officers in uniform were present at 

the scene when Gooch arrived. While Gooch stayed in his 

vehicle, Simmons was asked to stand up out of the police vehicle 

where he was being detained; Gooch identified Simmons as the 

shooter and Simmons was placed back in the car. Simmons was 

then transported to the Bellaire Police Department, where 

officers conducted a gun-shot residue test (GSR test) on 

Simmons’s hands. At the time the officers conducted the GSR 

test, Simmons had been requesting to use the restroom.

 2 Bellaire, Ohio, is located directly across the Ohio River 

from Wheeling, West Virginia.
6

was fifteen feet down the hall. Three bullet holes were found 

in the door to apartment 322 and two holes were found in the 

door to apartment 323. One of the bullets shattered the 

dishware in Ruthers’s apartment. Officers never recovered the 

firearm used in the shooting. 

Based upon the foregoing, a federal grand jury 

indicted Simmons on December 4, 2007, on one count of being a 

felon in possession of ammunition, in violation of 18 U.S.C. 

§ 922(g)(1) and 924(a)(2). During the pretrial period, 

investigators with the Bureau of Alcohol, Tobacco, and Firearms 

(“ATF”), obtained letters and jail phone recordings between 

Simmons and Speights. In these conversations, Simmons informed 

Speights that he had hidden the gun in a laundry box in 

Speights’s apartment and arranged for his sister to remove the 

gun. Simmons also suggested how Speights should make her 

statements to investigators. In addition, a prison inmate 

approached the Government with information that Simmons had 

discussed the possibility of attempting to kill or seriously 

injure the federal prosecutor in his case. Simmons apparently 

hoped that removing the prosecutor would delay his trial and 

provide him grounds to move for dismissal under the Speedy Trial 

Act.

Prior to trial, Simmons moved to exclude the results 

of the GSR test as well as both out-of-court and in-court 
7

identification testimony from Gooch. The district court, 

adopting the recommendation of the magistrate judge assigned to 

the case, denied both motions. A jury trial was conducted from 

August 26 to August 28, 2008. During the trial, the district 

court conducted a jury view of the crime scene outside the 

presence of Simmons, who was detained in a van in the parking 

lot. The jury ultimately convicted Simmons on the ammunition 

possession charge. The district court conducted a sentencing 

hearing on November 3, 2008, and sentenced Simmons to 120 months 

imprisonment. Simmons noted a timely appeal. 

II.

On appeal, Simmons contends that the district court 

committed reversible error in conducting a jury view of the 

Eagle Court Apartments, permitting Gooch’s identification 

testimony, denying the motion to suppress the GSR test, and 

admitting evidence of the shooting.3

 3 Simmons also contends that the district court committed 

reversible error in sentencing him. Specifically, Simmons 

argues that it violates the Sixth Amendment to impose sentencing 

enhancements even under an advisory Guidelines scheme and even 

if the resulting sentence is below the statutory maximum. 

Simmons concedes that his argument is foreclosed by Booker v. 

United States, 543 U.S. 220 (2005), but contends that Booker was 

wrongly decided. Booker remains binding law, however, and we 

thus reject Simmons’s argument.

 We address each contention 

in turn.
8

A.

Simmons first contends that the district court 

committed reversible error in conducting a jury view of the 

Eagle Court Apartments during the trial. “The federal courts 

recognize their inherent power to permit a jury view of places 

or objects outside the courtroom. The decision to permit a view 

is entrusted to the sound discretion of the trial court.” 

United States v. Passos-Paternina, 918 F.2d 979, 986 (1st Cir.

1990) (citations omitted). See also United States v. Woolfolk, 

197 F.3d 900, 905 (7th Cir. 1999) (noting that a district 

court’s ruling on a motion for a jury view is reviewed for abuse 

of discretion).

Three months prior to trial, the Government moved for 

a jury view of the Eagle Court Apartments and included a 

proposed list of sites. The district court granted the motion 

as to the sites described by the Government and also offered 

Simmons the opportunity to suggest additional sites.

On the first day of the trial, the district court, 

accompanied by counsel, the Defendant, and the lead

investigator, Agent James E. Sirbaugh of the ATF, took the jury 

to view the Eagle Court Apartments. The Defendant stayed in a 

van with U.S. Marshals during the view. Before entering the 

apartments, Agent Sirbaugh suggested to the district court, 

outside the presence of the jury, that the jurors look at the 
9

bullet holes in the apartment doors from both sides, a request 

the district court granted. Once inside the apartment, and 

again outside the jury’s presence, Agent Sirbaugh suggested that 

the jurors see the holes in Ruthers’s refrigerator. Simmons’s 

counsel objected to that view because it was not on the 

Government’s pretrial list of sites, and the district court 

sustained the objection. The jurors completed the view and 

returned to court.

On appeal, Simmons does not contest the conducting of 

a jury view, but rather argues that, given Special Agent 

Sirbaugh’s comments, the jury view was transformed from a 

permissible crime scene inspection into an unconstitutional 

opportunity for Agent Sirbaugh to testify outside of the 

Defendant’s presence. Simmons also argues that he was unable to 

communicate with counsel during the jury view, and that this 

failure kept Simmons from having his counsel point out several 

important features of the scene. 

We do not believe either situation constituted 

reversible error in this case. The presence of Simmons’s 

counsel during the view resolves any constitutional issues 

arising from Simmons’s inability to take part in the view. See

Snyder v. Massachusetts, 291 U.S. 97 (1934), (holding that a 

jury view with counsel present is constitutional). In addition, 

Agent Sirbaugh’s comments were not made in front of the jury, 
10

and, even if they were, he was simply assisting the district 

court in finding the sites already supplied by the Government. 

Moreover, even assuming the district court erred in 

conducting the view, Simmons cannot show that such error was 

harmful. This court has held that jury views of crime scenes, 

both court-ordered and unsupervised, are subject to harmless 

error review. See Arnold v. Evatt, 113 F.3d 1352, 1361 (4th 

Cir. 1997) (court-ordered jury view subject to harmless error 

review); Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996) 

(en banc) (unsupervised jury view of crime scene subject to 

harmless error review). In determining the possible harm of any 

error, this court should “look to the nature and extent of the 

[jury’s] activity and assess how that activity fit into the 

context of the evidence presented at trial.” Sherman, 89 F.3d 

at 1138. “The level of conjecture inherent in this inquiry is 

reduced, making it even more appropriate for harmless-error 

analysis, when the jury view is personally supervised by the 

judge.” Arnold, 113 F.3d at 1361. An error is harmless “if a 

reviewing court is able to ‘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.’” United States v. Basham, 561 F.3d 302, 

327 (4th Cir. 2009) (quoting Kotteakos v. United States, 328 

U.S. 750, 765 (1946)). 
11

Applying this standard, any error in this case was 

harmless. Two witnesses who knew Simmons, Gooch and Ruthers, 

testified that he was the person in the hallway, and Gooch and 

Conley both testified that Simmons drew a gun. Simmons’s own 

companion that day, Cameron Sealey, testified that Simmons drew 

a gun and that, in response, Sealey fled the apartment building 

and subsequently heard gunshots. Conley and Gooch both 

testified that they heard gunfire almost immediately after 

Simmons drew the gun. During pretrial incarceration, Simmons 

told his girlfriend Speights that he had hidden the gun and that 

his sister was disposing of it. Sealey further testified that 

he watched Simmons hide the gun in Speight’s home. Given this 

wealth of testimony, it is difficult to see how Agent Sirbaugh’s 

suggestion or Simmons’s exclusion were prejudicial. Simmons 

suggests that he would have asked for different site views 

regarding the ability to see the parking lot from the 

apartments, but he had the opportunity to do so during the 

pretrial period and also had ample opportunity to cross-examine 

Ruthers and Gooch on that point. 

B.

Next, Simmons argues that the district court erred in 

permitting Gooch’s identification testimony at trial. “Due 

process principles prohibit the admission at trial of an out-ofcourt identification obtained through procedures ‘so 
12

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification.’” United States v. 

Saunders, 501 F.3d 384, 389 (4th Cir. 2007) (quoting Simmons v. 

United States, 390 U.S. 377, 384 (1968)). No due process 

violation occurs if the “identification was sufficiently 

reliable to preclude the substantial likelihood of 

misidentification.” United States v. Johnson, 114 F.3d 435, 442 

(4th Cir. 1997); see also Manson v. Brathwaite, 432 U.S. 98, 106 

(1977) (stating that the central question is “whether under the 

totality of the circumstances the identification was reliable 

even though the [identification] procedure was suggestive”) 

(internal quotations omitted). 

We consider the admissibility of identification 

testimony in two steps:

First, the defendant must show that the photo 

identification procedure was impermissibly suggestive.

Second, if the defendant meets this burden, a court 

considers whether the identification was nevertheless 

reliable in the context of all of the circumstances. 

Saunders, 501 F.3d at 389-90. 

If a witness’s out-of-court photo identification is 

unreliable and therefore inadmissible, any in-court 

identification is also inadmissible. Simmons, 390 U.S. at 383-

84. On appeal, we may assume the suggestiveness of a 

identification procedure and move directly to the second step. 

Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. 1994). 
13

The magistrate judge denied Simmons’s motion to 

exclude identification testimony after a hearing, and the 

district court adopted that recommendation. The district court 

assumed that the photo identification procedure was 

impermissibly suggestive but concluded that the identification 

was still reliable because Gooch knew Simmons personally and 

made the identification roughly one half-hour after the 

shooting.

We agree with the district court that, even assuming 

the initial procedure was impermissibly suggestive, Gooch’s 

identification was reliable and thus admissible. We have 

explained that five factors should be considered in assessing 

the reliability of an out-of-court identification: (1) the 

witness’s opportunity to view the suspect at the time of the 

crime; (2) the witness’s degree of attention at the time of the 

crime; (3) the accuracy of the witness’s initial description of 

the suspect; (4) the witness’s level of certainty in making the 

identification; and (5) the length of time between the crime and 

the identification. Saunders, 501 F.3d at 391. “In addition, 

courts may consider other evidence of the defendant’s guilt when 

assessing the reliability of the identification.” Id. (internal 

quotation marks and alterations omitted). 

Applying these factors, Gooch’s identification was 

reliable. First, Gooch was certain that Simmons was the person 
14

in the hallway, and Gooch was personally familiar with Simmons 

because they lived in the same apartment complex. While Gooch 

and Simmons lived on different floors, Gooch’s girlfriend, whom 

Gooch was visiting that day, lived next to Simmons. After the 

shooting, Gooch had Ruthers immediately dial 911 and identify, 

by name, Simmons as the perpetrator. The actual identification 

was made one half-hour after the shooting. Gooch had a good 

opportunity to view Simmons’s approach and exit from the 

apartment complex and recognized his car. In addition, two 

other witnesses, Ruthers and Sealey, placed Simmons in the 

apartment building. Likewise, Conley also identified Simmons at 

trial as the man that she spoke with that day.

Because Gooch’s identification was reliable, the 

district court correctly permitted his in-court testimony and 

identification. 

C.

Simmons asserts that the district court erred in 

denying his motion to suppress the GSR test taken at the 

Bellaire Police Department. In addressing the denial of a 

motion to suppress evidence, we review the district court’s 

findings of historical fact for clear error, “giving due weight 

to inferences drawn from those facts by resident judges and 

local law enforcement officers.” Ornelas v. United States, 517 

U.S. 690, 699 (1996). We review de novo the ultimate legal 
15

conclusion. Id. And, “[b]ecause the district court denied the 

motion to suppress, we construe the evidence in the light most 

favorable to the Government.” United States v. Perkins, 363 

F.3d 317, 320 (4th Cir. 2004). 

The Fourth Amendment provides that “[t]he right of the 

people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not 

be violated. . . .” U.S. Const. amend. IV. Warrantless 

searches “are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and welldelineated exceptions.” United States v. Bush, 404 F.3d 263, 

275 (4th Cir. 2005) (quoting Mincey v. Arizona, 437 U.S. 385, 

390 (1978)). One of the well-recognized exceptions to the 

warrant requirement is a search incident to a lawful arrest. 

See United States v. Currence, 446 F.3d 554, 556 (4th Cir.

2006). Pursuant to this exception, law enforcement officers 

following a lawful arrest may search “the arrestee’s person and 

the area ‘within his immediate control.’” Id. (quoting Chimel 

v. California, 395 U.S. 752, 763 (1969)). Another such 

exception is when exigent circumstances exist, situations “where 

police officers (1) have probable cause to believe that evidence 

of illegal activity is present and (2) reasonably believe that 

evidence may be destroyed or removed before they could obtain a 
16

warrant.” United States v. Cephas, 254 F.3d 488, 494-95 (4th 

Cir. 2001). 

The magistrate judge, after conducting an evidentiary 

hearing, concluded that Simmons was lawfully arrested and that, 

given the inherent destructibility of gun-shot residue evidence, 

the police were permitted to run the GSR test without a warrant. 

The district court adopted that recommendation, and we conclude 

that the district court correctly denied the motion to suppress.

Recently, the Fifth Circuit concluded that a GSR test 

is a reasonable search incident to arrest. United States v. 

Johnson, 445 F.3d 793, 795-96 (5th Cir. 2006). As the court 

explained, “[b]ecause the presence of gun powder on his hands 

was relevant evidence that [the defendant] (or merely time) 

could have eventually removed or destroyed, if his arrest was 

valid, the performance of the gun powder residue test was 

lawful, and the admission of the results at trial was proper.” 

Id. at 795-96. Such a result is dictated by Cupp v. Murphy, 412 

U.S. 291 (1973), in which the Supreme Court concluded that 

police, consistent with the Fourth Amendment, could take 

fingernail samples incident to a lawful arrest. Id. at 295-96. 

In Cupp, the Court explained the basis for the search incident 

to arrest doctrine was the belief that “it is reasonable for a 

police officer to expect the arrestee to use any weapons he may 

have and to attempt to destroy any incriminating evidence then 
17

in his possession. Id. at 295. Applying that rationale, the 

Court concluded that the police were justified in performing a 

“very limited search necessary to preserve the highly evanescent 

evidence they found under his fingernails.” Id.

Likewise, the GSR test in this case was 

constitutional. Simmons does not contest the lawfulness of his 

arrest, and, given that concession, the GSR test, a “very 

limited search,” was appropriate as a search incident to arrest. 

In the alternative, exigent circumstances also justify the 

search because Simmons was requesting to use the bathroom and 

both parties agree that washing his hands could have removed any 

gun-shot residue. The district court did not err in denying the 

motion to suppress. 

D.

Simmons also challenges the district court’s decision 

to permit testimony regarding the shooting in order to prove 

Simmons’s possession of ammunition, arguing that the evidence 

was inadmissible under Federal Rules of Evidence 404(b) and 403. 

We review evidentiary rulings of the district court for abuse of 

discretion. United States v. Delfino, 510 F.3d 468, 470 (4th 

Cir. 2007). We will not “‘vacate a conviction unless we find 

that the district court judge acted arbitrarily or irrationally’ 

in admitting evidence.” United States v. Benkahla, 530 F.3d 
18

300, 309 (4th Cir. 2008) (quoting United States v. Ham, 998 F.2d 

1247, 1252 (4th Cir. 1993)). 

Under Rule 404(b), “[e]vidence of other crimes, 

wrongs, or acts is not admissible to prove the character of a 

person in order to show action in conformity therewith.” Fed. 

R. Evid. 404(b). The Rule 404(b) inquiry, however, applies only 

to evidence of other acts that are “extrinsic to the one 

charged.” United States v. Chin, 83 F.3d 83, 87 (4th Cir. 

1996). “[A]cts intrinsic to the alleged crime do not fall under 

Rule 404(b)'s limitations on admissible evidence.” Id. at 87-

88. “Evidence of uncharged conduct is not ‘other crimes’ 

evidence subject to Rule 404 if the uncharged conduct ‘arose out 

of the same series of transactions as the charged offense, or if 

[evidence of the uncharged conduct] is necessary to complete the 

story of the crime on trial.’” Siegel, 536 F.3d at 316 (quoting 

United States v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)).

Rule 403 provides a more limited bar to otherwise 

admissible evidence:

Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issues, 

or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of 

cumulative evidence.

Fed. R. Evid. 403.
19

Rule 403 is likewise a rule of inclusion, “generally 

favor[ing] admissibility . . . .” United States v. Wells, 163 

F.3d 889, 896 (4th Cir. 1998). District judges enjoy wide 

discretion to determine what evidence is admissible under the 

Rule. See United States v. Love, 134 F.3d 595, 603 (4th Cir.

1998). We “review a district court’s admission of evidence over 

a Rule 403 objection under a broadly deferential standard.” Id.

(internal quotations omitted). Indeed, “[a] district court's 

decision to admit evidence over a Rule 403 objection will not be 

overturned except under the most extraordinary of circumstances, 

where that discretion has been plainly abused.” United States 

v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) (internal 

quotations omitted). In reviewing the admission of evidence, we 

construe the evidence in the “light most favorable to its 

proponent, maximizing its probative value and minimizing its 

prejudicial effect.” United States v. Simpson, 910 F.2d 154, 

157 (4th Cir. 1990).

Applying these standards, we have little difficulty 

concluding that the district court did not abuse its discretion

in admitting the challenged evidence. First, evidence of the 

shooting satisfied Rule 404(b) because it was intrinsic to the 

crime charged—it was part of the same series of transactions as 

the offense and helped to tell the story of the crime. In 

addition, such testimony does not run afoul of Rule 403 because, 
20

as intrinsic evidence, it was highly probative. The evidence 

that Simmons was seen with a gun immediately before a shooting 

occurred was damaging to Simmons’s case, but that is not the 

standard under Rule 403 and such evidence was not unfairly 

prejudicial. 

III.

For the foregoing reasons, we affirm the district 

court's judgment. Simmons’s motions to file supplemental briefs 

are denied. 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