UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4941

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY GIBSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Florence. Mary G. Lewis, District Judge. (4:18-cr-00964-MGL-1)

Submitted: October 30, 2020 Decided: November 16, 2020

Before WYNN and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Elizabeth A. Franklin-Best, ELIZABETH FRANKLIN-BEST, P.C., Columbia, South Carolina, for Appellant. Peter M. McCoy, Jr., United States Attorney, Columbia, South Carolina, Lauren L. Hummel, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

A jury convicted Gregory Gibson of possession of a firearm and ammunition by a

convicted felon, in violation of

(g)(1), 924(a)(2), (e), and possession with

intent to distribute controlled substances, in violation of

(a)(1), (b)(1)(C),

(b)(1)(D). The district court sentenced Gibson to a total term of 262 months’

imprisonment. On appeal, Gibson argues that the district court erred in applying a two-

level obstruction of justice enhancement in the calculation of his Sentencing Guidelines

range. He also contends that the district court plainly erred in admitting law enforcement

officers’ testimony that, upon their discovery of drugs in his vehicle, Gibson stated, “I’ll

never see the streets again.” We affirm.

Addressing Gibson’s evidentiary claim first, we note that our review is for plain

error because trial counsel did not object to the officers’ testimony at trial. See United

States v. Moore,

(4th Cir. 2016) (applying plain error review to

unpreserved challenge to admissibility of character evidence). Under the plain error

standard, we “will correct an unpreserved error if (1) an error was made; (2) the error is

plain; (3) the error affects substantial rights; and (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Harris,

(4th Cir. 2018) (internal quotation marks omitted).

Gibson asserts on appeal that the officers’ testimony that he said, “I’ll never see the

streets again,” constitutes improper character evidence because it indicated to the jury that

Gibson had a lengthy criminal record such that he was more likely to be guilty of the instant

charges. “Evidence of a crime, wrong, or other act is not admissible to prove a person’s

2 character in order to show that on a particular occasion the person acted in accordance with

the character.” Fed. R. Evid. 404(b)(1). However, 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)(2). Thus, “Rule

404(b) allows admission of evidence of the defendant’s past wrongs or acts, as long as the

evidence is not offered to prove the defendant’s predisposition toward criminal behavior.”

United States v. Sterling,

(4th Cir. 2017).

“To be admissible under Rule 404(b), the evidence must be (1) relevant to an issue

other than the general character of the defendant, (2) necessary to prove an essential claim

or element of the charged offense, and (3) reliable.”

Moreover, Federal Rule of

Evidence 403 “demands that the evidence’s probative value not be substantially

outweighed by its unfair prejudice to the defendant.”

. Rule 404(b), however,

“does not affect the admission of evidence that is intrinsic to the alleged crime,” and

“[e]vidence of other bad acts is intrinsic if, among other things, it involves the same series

of transactions as the charged offense, or if it is necessary to complete the story of the crime

on trial.” United States v. Webb,

(4th Cir. 2020) (internal quotation

marks omitted).

Here, the challenged testimony is not evidence of Gibson’s prior bad acts or his

character and was not offered to establish his predisposition toward criminal behavior.

Rather, the testimony tends to establish Gibson’s consciousness of guilt, his knowledge of

the contraband in his vehicle, and the absence of mistake or accident. Accordingly, we

3 conclude that Gibson fails to establish that the district court erred, plainly or otherwise, in

admitting the officers’ testimony regarding Gibson’s statement.

Turning to Gibson’s sentencing claim, we review a sentence imposed by a district

court for reasonableness, applying a deferential abuse of discretion standard. Gall v.

United States,

(2007). In reviewing whether a sentencing court properly

calculated a Sentencing Guidelines range, including its application of a sentencing

enhancement, we review the district court’s legal conclusions de novo and its factual

findings for clear error. United States v. Fluker,

(4th Cir. 2018); United

States v. Andrews,

(4th Cir. 2015). Under this standard, we will not

reverse a district court’s factual findings simply because we would have reached a different

result. United States v. Charboneau,

(4th Cir. 2019). Instead, we will

reverse only if “left with the definite and firm conviction that a mistake has been

committed.”

(internal quotation marks omitted).

A defendant is subject to a two-level sentencing enhancement when he “willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice

with respect to the investigation, prosecution, or sentencing of the instant offense of

conviction.” U.S. Sentencing Guidelines Manual § 3C1.1 (2018). “Where the

enhancement for obstruction of justice is based on a defendant’s perjurious testimony, trial

court findings should encompass the factual predicates for perjury, namely that the

defendant (1) gave false testimony; (2) concerning a material matter; (3) with willful intent

to deceive.” Andrews,

(internal quotation marks omitted); see United

States v. Dunnigan,

(1993). We have reviewed the record and conclude

4 that the district court did not clearly err in finding that Gibson lied at trial when he denied

previously carrying a firearm.

Moreover, a Sentencing Guidelines error is harmless—and, thus, does not warrant

reversal—if “the record shows that (1) the district court would have reached the same

result even if it had decided the Guidelines issue the other way, and (2) the sentence would

be reasonable even if the Guidelines issue had been decided in the defendant’s favor.”

United States v. Mills,

(4th Cir. 2019) (alterations and internal quotation

marks omitted). Here, in calculating Gibson’s Guidelines range, the district court did not

rely on Gibson’s adjusted offense level of 30 to which the obstruction enhancement had

been applied, but instead found that Gibson was a career offender subject to an offense

level of 34 pursuant to USSG § 4B1.1(b)(2). Thus, the district court would have reached

the same Guidelines range even if it had upheld Gibson’s objection to the obstruction

enhancement.

As for the second prong of the harmless error inquiry, we review the substantive

reasonableness of a sentence by considering “the totality of the circumstances.” Gall,

. We apply “a presumption of reasonableness to a sentence within or below a

properly calculated [G]uidelines range.” United States v. Vinson,

(4th

Cir. 2017) (internal quotation marks omitted). This “presumption can only be rebutted by

showing that the sentence is unreasonable when measured against the

(a)

factors.”

(internal quotation marks omitted). There is no evidence in the

record to overcome the presumption of reasonableness accorded Gibson’s within-

5 Guidelines sentence. Accordingly, even if the district court erred in upholding the

obstruction enhancement, we conclude that such error was harmless.

Based on the foregoing, we affirm the judgment of the district court. Because

Gibson is represented by counsel and this appeal is not submitted pursuant to Anders v.

California,

(1967), we deny Gibson’s motions for leave to file pro se

supplemental briefs. United States v. Penniegraft,

, 569 n.1 (4th Cir. 2011).

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

6