United States v. Robinson ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 of prohibited objects intended to be used as
weapons, in violation of 18 U.S.C. § 1791(a)(2), (d)(1)(B)
(2006). Robinson was sentenced to a total of 262 months of
imprisonment and now appeals. Finding no error, we affirm.
Robinson first challenges the sufficiency of the
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. United States v. Olano, 507
U.S. 725, 732 (1993). Furthermore, this court will not exercise
its discretion to correct such error unless it “seriously
affect[s] the fairness, integrity or public reputation of
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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. See
United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). We
have thoroughly reviewed the record and conclude that Robinson
has failed to demonstrate that the admission of his
codefendant’s guilty plea during cross-examination was plain
error that affected his substantial rights. See United
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. United States v. Queen, 132 F.3d 991, 995 (4th
Cir. 1997). “In a criminal appeal, we will not vacate a
conviction unless we find that the district court judge acted
arbitrarily or irrationally in admitting evidence.” United
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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.” Fed.
R. Evid. 404(b). However, such evidence is “admissible 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. See Queen, 132
F.3d at 994-95. 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.” United States v. Hodge, 354 F.3d
305, 312 (4th Cir. 2004) (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
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codefendant’s prior attack on an inmate was proper, and the
prejudicial effect did not outweigh the probative value.
Finally, Robinson challenges the district court’s
instruction to the jury on the charge of possession of a
prohibited object intended to be used as a weapon. Because
Robinson failed to object to the jury instructions in the
district court, we review this issue for plain error. See
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” we conclude that the error did not
affect Robinson’s substantial rights. The district court
instructed the jury that Robinson had been charged with
possessing an object with the intent to use it as a weapon. See
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 not initially raised by Robinson, the
Government concedes that the error in the jury 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. See 18 U.S.C.
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§ 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
se supplemental brief. 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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