US v. Gary Robinson

Filing 920090710

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4355 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GARY ROBINSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (2:07-cr-00014-jpj-pms-2) Submitted: June 2, 2009 Decided: July 10, 2009 Before MOTZ, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: A jury convicted Gary Robinson of assault with intent to commit murder and aiding and abetting, in violation of 18 U.S.C. 2, 113(a)(1) (2006), assault with a dangerous weapon with intent to do bodily harm without just cause or excuse and aiding and abetting, in violation of 18 U.S.C. 2, 113(a)(3) (2006), assault resulting in serious bodily injury and aiding and abetting, in violation of 18 U.S.C. 2, 113(a)(6) (2006), and possession in of prohibited of 18 objects U.S.C. intended to be used as weapons, (2006). violation 1791(a)(2), (d)(1)(B) Robinson was sentenced to a total of 262 months of Finding no error, we affirm. the sufficiency of the imprisonment and now appeals. Robinson first challenges evidence supporting his conviction for assault with intent to commit murder. Because Robinson failed to challenge the sufficiency of the evidence in the district court in a Fed. R. Crim. P. 29 motion, we review this claim for plain error. United States v. Wallace, 515 F.3d 327, 331-32 & n.5 (4th Cir. 2008). To prevail on a claim of unpreserved error, Robinson must show that error occurred, that it was plain, and that it affected his substantial rights. U.S. 725, 732 (1993). its discretion the to United States v. Olano, 507 Furthermore, this court will not exercise such error or unless public it "seriously of correct affect[s] fairness, integrity 2 reputation judicial proceedings." Id. (internal quotation marks and citations omitted). We have thoroughly reviewed the record and find that Robinson has failed to demonstrate any error in the jury's determination of his guilt on this count. Robinson next challenges the introduction of his codefendant's guilty plea to the charge in the first count on cross-examination of the codefendant. Because Robinson failed to object to the Government's questioning of the codefendant in the district court, we review this claim for plain error. United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). See We have thoroughly reviewed the record and conclude that Robinson has failed to demonstrate plea his that the admission of was See his plain United codefendant's error that guilty affected during cross-examination rights. substantial States v. Withers, 100 F.3d 1142, 1145 (4th Cir. 1996); United States v. Blevins, 960 F.2d 1252, 1260 (4th Cir. 1992). Robinson also challenges the introduction of evidence of a prior attack on an inmate by Robinson and his codefendant. This court reviews a district court's determination of the admissibility of evidence under Fed. R. Evid. 404(b) for abuse of discretion. Cir. 1997). United States v. Queen, 132 F.3d 991, 995 (4th "In a criminal appeal, we will not vacate a conviction unless we find that the district court judge acted arbitrarily or irrationally in 3 admitting evidence." United States v. Benkahla, 530 F.3d 300, 309 (4th Cir. 2008) (internal quotation marks and citations omitted), cert. denied, 129 S. Ct. 950 (2009); see also United States v. Williams, 445 F.3d 724, 732 (4th Cir. 2006) ("[A]n abuse [of discretion] occurs only when . . . the [district] court acted arbitrarily or irrationally in admitting evidence."). Rule 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." R. Evid. 404(b). However, such evidence is "admissible Fed. for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake . . . ." Id. Rule 404(b) is an inclusionary rule, allowing evidence of other crimes or acts to be admitted, except that which tends to prove only criminal disposition. F.3d at 994-95. See Queen, 132 For such evidence to be admissible, it must be "(1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable." 305, 312 (4th Cir. 2004) United States v. Hodge, 354 F.3d (citing Queen, 132 F.3d at 997). Additionally, the probative value of the evidence must not be substantially outweighed by its prejudicial effect. Id. (citing Fed. R. Evid. 403). We have reviewed the record and conclude that the admission of the evidence of Robinson and his 4 codefendant's prior attack on an inmate was proper, and the prejudicial effect did not outweigh the probative value. Finally, instruction to the Robinson jury on challenges the charge the of district court's of a possession prohibited object intended to be used as a weapon. Robinson district failed court, to we object review to this the jury for instructions plain Because in the See issue error. Neder v. United States, 527 U.S. 1, 8-9 (1999) (noting that, in cases where defendant failed to object to jury instruction, issue is reviewed for plain error). Although the district court inadequately instructed the jury on this charge in failing to define "prohibited object" affect Robinson's the we conclude that the error did not rights. had The been district charged court with See substantial that instructed jury Robinson possessing an object with the intent to use it as a weapon. 18 U.S.C. 1791(d)(1)(B) (2006). Thus, taking the instructions as a whole, we find that the jury necessarily found the omitted element. See United States v. Wilkinson, 137 F.3d 214, 223-24 (4th Cir. 1998). Although Government concedes not that initially the error raised in by Robinson, jury the the instruction resulted in a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), because Robinson was subjected to a higher maximum penalty based on facts not found by the jury. 5 See 18 U.S.C. 1791(b)(3), (b)(5), (d)(1)(B), (d)(1)(F) (2006). We conclude, however, that this error did not affect Robinson's substantial rights. See United States v. Ellis, 326 F.3d 593, 599-600 (4th Cir. 2003) (holding that sentence beyond statutory maximum based on facts found by jury did not affect defendant's substantial rights because error did not result in longer total term of imprisonment). Finally, to the extent Robinson attempts to challenge the imposition of a $100 special assessment for the first time in his reply brief, the claim is not properly before us. See United States v. Rosen, 557 F.3d 192, 196 n.6 (4th Cir. 2009); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). Accordingly, we affirm the judgment of the district court. We also deny Robinson's motion for leave to file a pro We dispense with oral argument because se supplemental brief. the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 6

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