US v. Donald Craig

Filing 920090331

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4166

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD RAY CRAIG, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:07-cr-00044-FDW-1)

Submitted:

March 18, 2009

Decided:

March 31, 2009

Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. _______________ Claire J. Rauscher, Steven Slawinski, Ross H. Richardson, Emily Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Donald Ray Craig pled guilty to felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) (2006). Craig was sentenced as an armed career criminal to 210 months' imprisonment. On appeal, his sole argument is that the district

court erred in admitting and considering victim testimony from his adoptive father, Mr. Craig. affirm. At testify. sentencing, objected, the Government Mr. called was Mr. not Craig a to Finding no reversible error, we

Craig

arguing

Craig

crime

victim under the Crime Victims Reform Act, 18 U.S.C.A. § 3771 (West Supp. 2008) ("CVRA"), and thus any victim impact testimony from him would be improper. was not a victim for The district court agreed that he of CVRA, but admitted the

purposes

testimony, as well as a letter the court received from Mr. Craig prior to sentencing, under relevant conduct. parties' arguments and considering the 18 After hearing the U.S.C. § 3553(a)

(2006) sentencing factors, the district court sentenced Craig to 210 months' imprisonment. "Rulings evidence judge are related to be to the admission sound and exclusion of the of of

addressed not

discretion an

trial that

and

will

reversed

absent

abuse

discretion."

United States v. Stitt, 250 F.3d 878, 896 (4th 2

Cir.

2001).

A

district court

"abuses

its

discretion

when

it

makes an error of law." (1996). Evidentiary

Koon v. United States, 518 U.S. 81, 100 are also subject to review for

rulings

harmless error under Federal Rule of Criminal Procedure 52(a), and will be found harmless if the reviewing court can conclude, "without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (internal quotations and citation omitted); see also United States v.

Patrick, 988 F.2d 641, 647-48 (6th Cir. 1993) ("[I]mproprieties on the part of sentencing judges are subject to review under the harmless error rule."). In this case, the district court admitted Mr. Craig's statements as consideration of relevant conduct, conduct the

court is required to consider in sentencing Craig. § 1B1.3(a)(1) (stating court can consider "all

See USSG acts and

omissions committed . . . by the defendant . . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense"). Although

Craig concedes that the district court was permitted to consider Mr. Craig's statements, he maintains that the court relied on

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Mr.

Craig's

victim

status

to

permit

testimony

that

did

not

necessarily relate to relevant conduct. The district court explained the reasons for its

sentence in great detail, relying primarily on Craig's extensive criminal history. district testimony. court There is no indication in the record that the was "substantially swayed" by Mr. Craig's

Brooks, 111 F.3d at 371.

Thus, we conclude that,

even assuming there was error in admitting the statements, the error was harmless. Accordingly, we affirm the district court's judgment. 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

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