UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 

2 
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 

4 
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. 

5 
6 

§ 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