United States v. Oglesbee , 177 F. App'x 359 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4665
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LONNIE MACK OGLESBEE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-38)
Submitted: April 7, 2006 Decided: May 1, 2006
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stanford K. Clontz, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Don D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lonnie Mack Oglesbee was convicted by a jury of three
counts of assault with a dangerous weapon with intent to do bodily
harm (Counts Fourteen, Sixteen, Eighteen), three counts of assault
resulting in serious bodily injury (Counts Fifteen, Seventeen,
Nineteen), one count of kidnaping (Count Twenty), and six counts of
aggravated sexual assault (Counts Twenty-One through Twenty-Six),
in violation of 18 U.S.C. §§ 113(a)(3), (a)(6); 1153; 1201; 2241(a)
(2000). Oglesbee was sentenced on the various offenses to life
imprisonment. We find no error and affirm Oglesbee’s convictions
and sentences.
Oglesbee first contends that the district court abused
its discretion in admitting Fed. R. Crim. P. 404(b) evidence over
defense objection. We review a district court’s decision regarding
the admission or exclusion of evidence for abuse of discretion.
United States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996). Rule
404(b) “is an inclusive rule that allows admission of evidence of
other acts relevant to an issue at trial except that which proves
only criminal disposition.” United States v. Watford, 894 F.2d
665, 671 (4th Cir. 1990).
Oglesbee argues his daughter’s testimony regarding his
cruel abuse of her pet birds was not probative of any disputed
issue. Rather, Oglesbee asserts that the testimony was presented
merely to paint him as a generally “despicable and loathsome
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character.” “Evidence of prior bad acts is admissible if it is
(1) relevant to an issue other than character, (2) necessary to
show an essential part of the crime or the context of the crime,
and (3) reliable.”* United States v. Powers, 59 F.3d 1460, 1464
(4th Cir. 1995). Exclusion under Fed. R. Crim. P. 403 is required
“only in those instances where the trial judge believes that there
is a genuine risk that the emotions of the jury will be excited to
irrational behavior, and the this risk is disproportionate to the
probative value of the offered evidence.” Id. at 1467 (internal
quotations omitted). Oglesbee’s daughter’s testimony regarding the
incident with her pet birds helped place in context why she
conceded to her father’s wishes and thus participated in sexual
acts with her parents. Oglesbee’s violent acts, combined with the
fear they instilled, formed the basis of the factual context in
this case. Such testimony was therefore relevant to the issue of
Oglesbee’s guilt on Counts Twenty-One and Twenty-Two.
Additionally, any danger of prejudice was slight in view of the
overwhelming evidence of guilt. Consequently, we find no abuse of
discretion in permitting such testimony.
Next, Oglesbee contends that the district court abused
its discretion when it denied his motion for a mistrial. We review
the grant or denial of a motion for mistrial for abuse of
*
Oglesbee does not allege that the testimony is unreliable,
but rather that it is “irrelevant, inflammatory, and highly
prejudicial.”
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discretion. United States v. West, 877 F.2d 281, 287-88 (4th Cir.
1989). In addition, Oglesbee must show prejudice in order for the
court’s ruling to constitute an abuse of discretion, and no
prejudice exists if the jury could make individual guilt
determinations by following the court’s cautionary instructions.
See id. at 288.
During its closing argument, the Government stated:
“Alice couldn’t even look at him, even today, even with leg
shackles on, couldn’t even look at him.” Oglesbee objected to the
reference to leg shackles, and the district court sustained the
objection. The court then gave the following instruction: “You
won’t consider that remark at any point in your deliberations,
members of the jury. Strike that from your memory and
recollection.” Oglesbee moved for a mistrial, arguing that the
Government’s reference to the leg shackles was “highly improper and
prejudicial.” In response, the court stated:
As I indicated by my ruling, the reference was improper,
however, I do not consider it such a quality of prejudice
that it would justify a mistrial. Clearly, the Court’s
instruction and the wisdom of the jury, I’m certain,
would prevail over any abuse of discretion, if that’s
what it was, that occurred. So I will deny the motion.
To establish that the prosecutor’s statement constituted
reversible error, Oglesbee must show that (1) the prosecutor’s
remarks or conduct were improper and (2) the remarks or conduct
prejudicially affected the defendant’s substantial rights so as to
deprive him of a fair trial. See United States v. Wilson, 135 F.3d
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291, 297 (4th Cir. 1998). Oglesbee contends that the Government’s
remark improperly disclosed his custodial status to the jury. The
Government concedes that the remark was improper, but argues it did
not deprive Oglesbee of a fair trial.
Relevant factors in the determination of prejudice
include:
(1) the degree to which the prosecutor’s remarks had a
tendency to mislead the jury and to prejudice the
defendant; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of the
defendant; (4) whether the comments were deliberately
placed before the jury to divert attention to extraneous
matters; (5) whether the prosecutor’s remarks were
invited by improper conduct of defense counsel; and
(6) whether curative instructions were given to the jury.
United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
The Government’s remark was an isolated comment made
during a lengthy rebuttal closing argument. Even if the remark
prejudiced Oglesbee by misleading the jury or diverting its
attention, such prejudice was minimal when compared to the volume
of evidence of Oglesbee’s guilt. Furthermore, any prejudice
suffered by Oglesbee was cured by the district court’s limiting
instruction, which was given immediately after Oglesbee’s objection
was sustained. See United States v. Francisco, 35 F.3d 116, 119-20
(4th Cir. 1994) (per curiam) (stating this court generally follows
the presumption that the jury obeyed the district court’s
instructions).
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Finally, Oglesbee contends that the district court’s
application of sentencing enhancements violated United States v.
Booker, 543 U.S. 220 (2005). Though Oglesbee was sentenced
post-Booker, he argues that the court “erred in transferring jury
findings from one count to another and establishing enhancement
factors under Booker” as well as “by imposing a sentence in excess
of the applicable guideline range.”
After Booker, a sentencing court is no longer bound by
the range prescribed by the sentencing guidelines. See United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). However,
sentencing courts are still required to calculate and consider the
guideline range prescribed thereby as well as the factors set forth
in 18 U.S.C. § 3553(a). Id. If the sentence imposed is within the
properly calculated guideline range, it is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006).
Oglesbee objected to the enhancements applied in the
Presentence Investigation Report because they were not specifically
found by the jury. The district court agreed with Oglesbee’s
interpretation of Booker and stated that the jury was required to
make the applicable findings for enhancement purposes.
Consequently, the court determined that its instructions required
the jury to specifically find some of the enhancements, but
sustained Oglesbee’s objection as to the U.S. Sentencing Guidelines
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Manual § 2A3.1(b)(3)(A) (2003) enhancement. The court then
clarified that it believed the enhancements were factually
supported by the evidence, but maintained that Booker required the
jury to make the findings.
Despite the district court’s rulings, Oglesbee’s properly
calculated sentencing guidelines encompassed the total sentence he
received--life imprisonment. We therefore conclude his sentence
was reasonable.
Accordingly, we affirm Oglesbee’s convictions and
sentences. We deny Oglesbee’s pro se request for new counsel. 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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