UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4886

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DOUGLAS LEE EBERSBACH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. William L. Osteen, 

Jr., District Judge. (1:10-cr-00388-WO-1)

Submitted: May 4, 2012 Decided: May 17, 2012

Before DUNCAN, AGEE, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David Bruce Freedman, CRUMPLER, FREEDMAN, PARKER & WITT, 

Winston-Salem, North Carolina, for Appellant. Ripley Rand, 

United States Attorney, Anand P. Ramaswamy, Assistant United 

States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Douglas Lee Ebersbach appeals his convictions and 

sentence after he was found guilty of violating 18 U.S.C. 

§ 2251(a), (e), 18 U.S.C. § 2252(a), (b), and 18 U.S.C. 

§ 2252(a)(5)(B), (b)(2) (2006) and sentenced to 360 months’ 

imprisonment. We affirm.

Ebersbach first argues that the introduction of three 

non-pornographic images found in his home after a consensual 

search was prejudicial and impermissible under Fed. R. Evid. 

404(b) (2010). We disagree. Rule 404(b) prohibits the use of 

evidence of an uncharged act to prove a person’s character in 

conformity with such character on a particular occasion, but 

provides that such “evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake, or 

lack of accident.” Fed. R. Evid. 404(b). Rule 404(b) evidence 

is admissible only if the court determines it is necessary, 

reliable, and relevant to some issue other than the defendant’s 

character. United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 

2004). The evidence’s probative value cannot be substantially 

outweighed by its danger of unfair prejudice. Id. Because the 

three photographs found in Ebersbach’s residence matched digital 

images found on Ebersbach’s computer, the physical photographs 

were relevant to show Ebersbach’s ownership and control of the 
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computer. Further, because the images were not pornographic, 

the risk of prejudice was minimal considering the subsequent, 

and proper, introduction of numerous pornographic images that 

formed the basis of the indictment.

Ebersbach next challenges the district court’s denial 

of his Fed. R. Crim. P. 29 motion. This court reviews the 

denial of a Rule 29 motion de novo. See United States v. 

Alerre, 430 F.3d 681, 693 (4th Cir. 2005). When a Rule 29 

motion was based on a claim of insufficient evidence, the jury’s 

verdict must be sustained “if there is substantial evidence, 

taking the view most favorable to the Government, to support 

it.” United States v. Abu Ali, 528 F.3d 210, 244 (4th Cir. 

2008) (internal punctuation and citations omitted). Contrary to 

Ebersbach’s assertions, the jury was presented with ample 

evidence from which they could find him guilty of the charged 

crimes. Numerous law enforcement officers testified as to 

Ebersbach’s ownership of the computers and digital files in 

question. An expert testified that the images in question were 

child pornography. The minor female, who was the subject of the 

child pornography production count, testified that Ebersbach 

took pornographic photographs of her, asked her to take 

pornographic photos of herself, and shared pornographic images 

of himself with her. We conclude that the district court 
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properly denied Ebersbach’s Rule 29 motion and that the evidence 

is sufficient to uphold the verdict.

Finally, Ebersbach challenges the substantive 

reasonableness of his 360-month sentence.* This court reviews a 

sentence applying the abuse-of-discretion standard. Gall v. 

United States, 552 U.S. 38, 51 (2007); United States v. Lynn, 

592 F.3d 572, 575 (4th Cir. 2010). This court presumes on 

appeal that a sentence within the properly-calculated Guidelines 

range is substantively reasonable. United States v. Allen, 491 

F.3d 178, 193 (4th Cir. 2007). The 360-month sentence was 

within the appropriately-calculated Guidelines range and 

Ebersbach offers no reason why his within-range sentence is 

unreasonable. Because he has not rebutted the presumption of 

reasonableness, we conclude that the sentence is substantively 

reasonable.

Accordingly, we affirm Ebersbach’s 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.

AFFIRMED

 * Ebersbach does not challenge the procedural reasonableness 

of his sentence.