UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4387
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY EUGENE BUNCHE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, Chief
District Judge. (CR-03-233-BO)
Submitted: October 19, 2005 Decided: November 22, 2005
Before WILLIAMS, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary Eugene Bunche appeals his jury conviction of
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1), 924 (2000) and resulting sentence as an armed
career criminal to 210 months in prison followed by five years of
supervised release. We find no reversible error and affirm
Bunche’s conviction and sentence.
Bunche first contends the district court committed
reversible error by permitting the Government to question a defense
witness in cross examination as to her knowledge of the facts
associated with Bunche’s 1999 felony conviction for possessing a
weapon. Although Bunche stipulated he had been convicted in 1999
of a felony offense punishable by imprisonment for a term exceeding
one year, and that the firearm found by police after they observed
Bunche throwing an object while running away from them had traveled
in interstate commerce, he pled not guilty to possessing the
weapon. The district court found the witness’ testimony regarding
Bunche’s living arrangements, activities, and demeanor during the
weekend prior to his arrest was character evidence and allowed the
Government to rebut the testimony by inquiry on cross examination
pursuant to Fed. R. Evid. 404(a)(1).
“A district court’s evidentiary rulings are entitled to
substantial deference and will not be reversed absent a clear abuse
of discretion.” United States v. Moore, 27 F.3d 969, 974 (4th Cir.
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1994). “We will find that discretion to have been abused only when
the district court acted ‘arbitrarily or irrationally.’” Id.
(quoting United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.
1993)). “Evidence of a defendant’s character, while not generally
admissible, may be offered by the government to rebut the character
evidence introduced by the accused.” Id. at 974 (citing Fed. R.
Evid. 404(a)(1)). When a defendant “opens the door” by soliciting
favorable opinions about his character, the district court may
properly allow the government to rebut the offered testimony by
inquiry on cross examination into relevant instances of conduct.
Id. (citing Fed. R. Evid. 405(a)).
Any error “that does not affect substantial rights must
be disregarded.” Fed. R. Crim. P. 52(a); see also Fed. R. Evid.
103(a). Nonconstitutional error is harmless when the court “can
say ‘with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.’” United States v.
Nyman, 649 F.2d 208, 211-12 (4th Cir. 1980) (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)). Where the trial judge
has given a limiting instruction on the use of evidence, the fear
that the jury may improperly use the evidence subsides. United
States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).
We conclude that any possible error was harmless. With
Bunche’s concurrence, the district court gave a limiting
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instruction to the jury that the Government’s questions were not
substantive evidence, and the Government presented no other
evidence or argument regarding the prior conviction.
Bunche next contends the district court engaged in
unconstitutional fact finding by sentencing him as an armed career
criminal. However, he does not dispute that he has at least three
prior convictions qualifying as “violent felonies” and that they
were “committed on occasions different from one another.”* See 18
U.S.C. § 924(e) (2000). Because the facts necessary to support
both the fifteen-year statutory minimum prison sentence under 18
U.S.C. § 924(e) and the enhancement under U.S. Sentencing
Guidelines Manual § 4B1.4(b)(3)(B) (2003) “inhere in the fact of
conviction,” there is no error. See United States v. Thompson, 421
F.3d 278, 283, 287 & n.5 (4th Cir. 2005).
Accordingly, we affirm Bunche’s conviction 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
*
Bunche was previously convicted of seven counts of robbery
with a dangerous weapon and three counts of second degree
kidnapping committed on six different occasions.
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