United States v. Robinson , 13 F. App'x 193 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4046
DARRELL LAMONT ROBINSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Jerome B. Friedman, District Judge.
(CR-00-139)
Submitted: June 29, 2001
Decided: July 12, 2001
Before WILLIAMS and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Bruce C. Sams, SAMS & SCOTT, P.C., Norfolk, Virginia, for Appel-
lant. Kenneth E. Melson, United States Attorney, James Ashford Met-
calfe, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
2 UNITED STATES v. ROBINSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darrell Lamont Robinson appeals his conviction and 120-month
custodial sentence subsequent to his jury trial on charges of violating
18 U.S.C. §§ 371 (conspiracy to receive, possess and conceal stolen
firearms and ammunition), 922(j) (possession of stolen firearms and
ammunition), and 922(g)(9) (possession of a firearm and ammunition
by a person convicted of a misdemeanor crime of domestic violence).
For reasons stated herein and upon our careful review of the briefs
and joint appendix, we affirm.
On appeal, Robinson claims the district court abused its discretion
in admitting several rounds of ammunition seized upon his arrest as
evidence under Fed. R. Evid. 404(b). However, Robinson’s not guilty
plea placed his intent to conspire to steal and possess firearms and
ammunition at issue, and the contested evidence was offered for that
purpose, rather than to demonstrate criminal character. Additionally,
the type of rounds seized matched the caliber of several weapons
stolen as a result of the conspiracy charged, indicating the evidence
was both probative as to a necessary element of the crimes charged
and reliable. See United States v. Queen, 132 F.3d 991, 995 (4th Cir.
1997). In light of the proximity of the rounds to Robinson at the time
of his arrest, and evidence indicating Robinson possessed similarly
calibered rounds on at least one other occasion, there is little risk of
unfair prejudice to Robinson. See id. Accordingly, we find there was
a sufficient basis for admitting the rounds as evidence under Rule
404(b).
Robinson also challenges the sufficiency of the evidence to sustain
his conviction on one count of conspiring to possess firearms and
ammunition, and four counts of disqualified possession of firearms
and ammunition. However, as to the conspiracy charge, at least two
co-conspirators testified at trial as to both Robinson’s instigation and
UNITED STATES v. ROBINSON 3
furtherance of the conspiracy. Specifically, these individuals testified
that Robinson invited them to a residence he knew to contain fire-
arms, and told them specifically where they were located and how
they could be taken. These witnesses also testified as to Robinson’s
involvement in removing the firearms from the premises, and subse-
quent distribution of those weapons among the conspirators. Because
a conspiracy may be "proved wholly by circumstantial evidence," and
a common purpose and plan "may be inferred from a development
and collocation of circumstances," we find there is sufficient evidence
to sustain Robinson’s conviction as to the conspiracy count. See
United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc)
(internal quotation omitted).
Robinson further challenges the sufficiency of the evidence under-
lying his conviction on four counts of possessing firearms and ammu-
nition. However, there is sufficient evidence to indicate Robinson’s
actual or constructive possession of firearms and ammunition on the
dates alleged in the conspiracy, as witnesses testified Robinson drove
the getaway car and kept one gun stolen as part of the conspiracy, and
a police officer offered unchallenged testimony that she later wit-
nessed Robinson dispose of a magazine of ammunition. See United
States v. Gallimore, 247 F.3d 134, 137 (4th Cir. 2001); United States
v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) (allowing Government to
demonstrate constructive possession by showing "ownership, domin-
ion or control" over the vehicle in which the contraband was con-
cealed). Accordingly, we find these arguments meritless.
Finally, Robinson asserts the computation of his offense level over-
states his criminal conduct, as the two instances in which he was
alleged to have possessed firearms and ammunition each yielded a
pair of possession charges, and that his indictment therefore violates
this court’s holding in United States v. Dunford, 148 F.3d 385, 388
(4th Cir. 1998). However, because only one count in each pair is
predicated on 18 U.S.C.A. § 922 (West 2000), rather than both, Dun-
ford is inapplicable. See 145 F.3d at 388. Accordingly, because Rob-
inson’s sentence otherwise comports with the requirements of the
Sentencing Guidelines, see United States Sentencing Guidelines Man-
ual §§ 1B1.3, 2K2.1 (2000), we find this argument to be meritless as
well.
4 UNITED STATES v. ROBINSON
In light of the foregoing, we affirm Robinson’s conviction and sen-
tence, and 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