United States v. Dobbin , 139 F. App'x 518 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4948
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC DOBBIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-04-70-F)
Submitted: June 27, 2005 Decided: July 18, 2005
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, James E. Todd, Jr., Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury found Eric Dobbin guilty of two counts of bank
robbery, in violation of 18 U.S.C. § 2113(a), (d) (2000), and two
counts of using, carrying and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1) (2000). On appeal, Dobbin contends the evidence was
insufficient to support the firearms convictions. Dobbin further
contends the sentence violated the rules announced in United
States v. Booker, 125 S. Ct. 738 (2005) and Blakely v. Washington,
124 S. Ct. 2531 (2004). We affirm.
When reviewing a sufficiency-of-the-evidence claim, the
verdict will be sustained “if there is substantial evidence, taking
the view most favorable to the Government, to support it.”
Glasser v. United States, 315 U.S. 60, 80 (1942). “[S]ubstantial
evidence is evidence that a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d
849, 862 (4th Cir. 1996) (en banc). Under § 924(c), any person is
prohibited from possessing a firearm during and in relation to any
crime of violence or drug trafficking crime. With respect to
§ 924(c), a firearm is “(A) any weapon (including a starter gun)
which will or is designed to or may readily be converted to expel
a projectile by the action of an explosive; (B) the frame or
receiver of any such weapon; (C) any firearm muffler or firearm
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silencer; or (D) any destructive device.” 18 U.S.C. § 921(a)(3)
(2000). The Government need not present expert testimony to
support a § 924(c) conviction. In United States v. Redd, 161 F.3d
793, 797 (4th Cir. 1998), this Court stated that “eyewitness
testimony is sufficient to prove that a person used a firearm.” We
find there was sufficient evidence to support the firearm
convictions.
At sentencing, the district court imposed a sentence
treating the sentencing guidelines as mandatory. The court also
imposed an alternate sentence, as instructed by this Court’s order
in United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004), opinion
issued by, United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004),
cert. granted, judgment vacated, 125 S. Ct. 1051 (2005). The
mandatory sentence and the alternate sentence were identical.
Because the district court specifically imposed an alternate
sentence “pursuant to 18 United States Code Section 3553(a), as
directed by the Court of Appeals in United States v. Hammoud,”
(J.A. at 758-59), we find there was no error. The burden is on
Dobbin to establish prejudice, United States v. White, 405 F.3d
208, 223 (4th Cir. 2005), which he has failed to do.
Accordingly, we affirm the convictions and sentence. 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.
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AFFIRMED
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