UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4606

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MADISON DUANE MCRAE,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

Chief District Judge. (3:04-cr-00223-2)

Submitted: January 22, 2007 Decided: May 30, 2007

Before WILKINSON, NIEMEYER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ann T. Shafer, Atlanta, Georgia, for Appellant. Gretchen C. F.

Shappert, United States Attorney, Charlotte, North Carolina, Amy E.

Ray, Assistant United States Attorney, Asheville, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Madison Duane McRae was convicted by jury of conspiracy

to possess with intent to distribute cocaine and ecstasy, in

violation of 21 U.S.C. § 846 (2000), possession with intent to

distribute cocaine and aiding and abetting, in violation of 21

U.S.C. § 841(a)(1)(2000), conspiracy to import cocaine and ecstasy

into the United States, in violation of 21 U.S.C. § 963 (2000), and

unlawful importation of cocaine into the customs territory of the

United States and aiding and abetting, in violation of 21 U.S.C.

§ 952(a)(2000). The court sentenced McRae to 210 months of

imprisonment. McRae appealed and asserts that: (1) the district

court abused its discretion in denying his motion for continuance

made a week before trial; (2) the court incorrectly determined that

five kilograms of cocaine were reasonably foreseeable to McRae’s

involvement in the conspiracy; and (3) the court abused its

discretion by admitting character evidence in contravention of Fed.

R. Evid. 404(b). 

First, McRae argues that the district court abused its

discretion when it denied his motion for a continuance, filed one

week before trial was scheduled, because a proposed defense witness

who had not been subpoenaed was medically unavailable to appear at

trial. We review the district court’s refusal to grant a

continuance for abuse of discretion. Morris v. Slappy, 461 U.S. 1,

11-12 (1983); United States v. Speed, 53 F.3d 643, 644 (4th Cir.
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1995). An abuse of discretion in this context is “‘an unreasoning

and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay.’” United States v. LaRouche, 896

F.2d 815, 823 (4th Cir. 1990) (quoting Morris, 461 U.S. at 11-12).

We conclude the district court did not abuse its discretion in

denying McRae’s motion for continuance. McRae did not provide the

court with an adequate proffer regarding the testimony to be

elicited from the witness, and from the limited information

provided, the court properly discerned that cross-examination of

other witnesses would sufficiently serve impeachment purposes. 

McRae next contends that the district court erred when it

found he was accountable for more than five kilograms of cocaine,

when his co-conspirator was held responsible for less. When

reviewing the district court’s application of the sentencing

guidelines, this court reviews findings of fact for clear error.

United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,

126 S. Ct. 2309 (2006). From the evidence presented at trial, it

was reasonable for the district court to find that McRae was

responsible for more than five kilograms of cocaine during his

involvement in the conspiracy. The court also concluded the

sentence was reasonable and necessary to accomplish the objectives

of § 3553(a) and regardless of the factual finding relating to drug

quantity, the court would have imposed the same 210-month sentence.
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Finally, McRae contends that the district court abused

its discretion in admitting character evidence in violation of Fed.

R. Evid. 404(b). McRae argues that testimony about his past

marijuana sales should have been stricken as evidence of bad acts

that were not relevant or admissible. We review a district court’s

determination of the admissibility of evidence under Fed. R. Evid.

404(b) for abuse of discretion, see United States v. Queen, 132

F.3d 991, 995 (4th Cir. 1997), and will not reverse such a decision

unless it is arbitrary or irrational. See United States v. White,

405 F.3d 208, 212-13 (4th Cir. 2005). Such evidentiary rulings are

also subject to review for harmless error under Fed. R. Evid. 52,

and will be found harmless if we can conclude “without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error.” United States v. Heater, 63

F.3d 311, 325 (4th Cir. 1995). 

Evidence of other crimes is not admissible to prove bad

character or criminal propensity. Fed. R. Evid. 404(b). Such

evidence is admissible, however, to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Id.; see Queen, 132 F.3d at 994. Rule

404(b) is inclusive, allowing evidence of other crimes or acts

except that which tends to prove only criminal disposition. Queen,

132 F.3d at 994-95. Evidence of prior acts is admissible under

Rules 404(b) and 403 if the evidence is: (1) relevant to an issue
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other than the general character of the defendant, (2) necessary,

and (3) reliable, and if the probative value of the evidence is not

substantially outweighed by its prejudicial effect. Id. at 997. 

We find no abuse of discretion as the testimony

demonstrated both McRae’s state of mind and the absence of mistake

pertaining to the drug conspiracy. Additionally, under Fed. R.

Evid. 52(a), even if the district court erred, admission of the

testimony was harmless as there was overwhelming evidence of

McRae’s guilt presented at trial.

Accordingly, we affirm McRae’s conviction and sentence.

We grant McRae’s motion to file a pro se brief but nevertheless

find that the claims he raises are meritless. We deny counsel’s

motion to withdraw. 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