United States v. Robert Bowling , 442 F. App'x 72 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT GARTRELL BOWLING,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., Senior
District Judge. (6:09-cr-00894-HMH-1)
Submitted: July 5, 2011 Decided: August 2, 2011
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, Columbia, South Carolina, William J. Watkins, Jr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Robert Gartrell Bowling of one count
of conspiracy to utter and possess counterfeit securities in
violation of 18 U.S.C. § 513; two counts of unlawful possession
and/or transfer of five or more identification documents in
violation of 18 U.S.C. § 1028(a)(3); two counts of aggravated
identity theft in violation of 18 U.S.C. § 1028(a)(1); two
counts of being a felon in possession of a fire arm in violation
of 18 U.S.C. § 922(a)(1); and one count of assault on a federal
officer in violation of 18 U.S.C. § 111(a)(1). The district
court sentenced Bowling to a term of imprisonment of 192 months.
Bowling appeals, challenging some of his convictions and his
sentence. Finding no error, we affirm.
First, Bowling claims that the district court erred in
instructing the jury. Because Bowling failed to object to the
jury instructions, we review for plain error. United States v.
Robinson, 627 F.3d 941, 953-54 (4th Cir. 2010). Bowling
contends that the district court plainly erred by failing to
instruct the jury that the identity documents at issue in the
two § 1028(a)(3) counts must be false. He further contends that
since the § 1028(a)(3) counts provided the predicate for the
§ 1028(a)(1) counts, the instructions as to the § 1028(a)(1)
counts were also erroneous. This argument fails because
§ 1028(a)(3) criminalizes not just the possession of false
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identification documents, but also possession of genuine
identification documents with the intent to use or transfer
unlawfully. See 18 U.S.C. § 1028(a)(3). Accordingly, the
district court did not err in its instructions.
Bowling next contends that the two § 1028(a)(1) counts
were multiplicitous with the two § 1028(a)(3) counts. Because
he failed to timely raise this contention before the district
court, we again review for plain error. United States v.
Jarvis, 7 F.3d 404, 410 (4th Cir. 2010). An indictment is
multiplicitous if “a single offense was charged in multiple”
counts when, in law and fact, only one crime was committed.
United States v. Goodine, 400 F.3d 202, 207 (4th Cir. 2005).
However, “[i]t is well-settled that a defendant may be charged
and prosecuted for the same statutory offense multiple times
when each prosecution is based on discreet acts that each
constitute a crime.” Id. at 208. The record contains ample
evidence of discreet acts from which the jury could convict
Bowling for both aggravated identity theft in violation of
§ 1028(a)(1) and possession of false identification documents in
violation of § 1028(a)(3).
Finally, Bowling argues that the court erred in
applying a reckless endangerment enhancement to his sentence.
We review the application of a sentencing enhancement for clear
error. United States v. Carter, 601 F.3d 252, 254 (4th Cir.
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2010). Again, evidence in the record amply supports the
application of the reckless endangerment enhancement.
Accordingly, we affirm the judgment of the district
court. 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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