US v. Douglas Ebersbach, No. 11-4886 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4886 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DOUGLAS LEE EBERSBACH, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Douglas sentence after § 2251(a), Lee he (e), § 2252(a)(5)(B), imprisonment. 18 Ebersbach was found U.S.C. (b)(2) appeals guilty of § 2252(a), (2006) and his convictions violating (b), sentenced 18 U.S.C. 18 and to and U.S.C. 360 months 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 purpose, such such evidence as proving may be admissible motive, for opportunity, another intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. Fed. R. Evid. 404(b). is if admissible only the court Rule 404(b) evidence determines it is necessary, reliable, and relevant to some issue other than the defendant s character. 2004). United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 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 2 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. denial of a Rule 29 motion de This court reviews the novo. See United Alerre, 430 F.3d 681, 693 (4th Cir. 2005). States v. 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 with assertions, the jury was presented ample evidence from which they could find him guilty of the charged crimes. Numerous Ebersbach s question. law ownership enforcement of the officers computers and testified digital as to files in An expert testified that the images in question were child pornography. child pornography took pornographic The minor female, who was the subject of the production count, photographs of testified her, asked that her Ebersbach to take pornographic photos of herself, and shared pornographic images of himself with her. We conclude 3 that the district court properly denied Ebersbach s Rule 29 motion and that the evidence is sufficient to uphold the verdict. Finally, Ebersbach challenges reasonableness of his 360-month sentence. * sentence applying the abuse-of-discretion the substantive This court reviews a 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 The 178, within 193 the Ebersbach (4th Cir. 2007). appropriately-calculated offers unreasonable. no reason why his 360-month sentence was Guidelines range and sentence is within-range Because he has not rebutted the presumption of reasonableness, we conclude that the sentence is substantively reasonable. Accordingly, sentence. legal before affirm Ebersbach s convictions and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED * Ebersbach does not challenge the procedural reasonableness of his sentence. 4
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