UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4166
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD RAY CRAIG,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00044-FDW-1)
Submitted: March 18, 2009 Decided: March 31, 2009
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
_______________
Claire J. Rauscher, Steven Slawinski, Ross H. Richardson, Emily
Marroquin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina; Amy
E. Ray, Assistant United States Attorney, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donald Ray Craig pled guilty to felon in possession of
a firearm, in violation of 18 U.S.C. §§ 922(g), 924(e) (2006).
Craig was sentenced as an armed career criminal to 210 months’
imprisonment. On appeal, his sole argument is that the district
court erred in admitting and considering victim testimony from
his adoptive father, Mr. Craig. Finding no reversible error, we
affirm.
At sentencing, the Government called Mr. Craig to
testify. Craig objected, arguing Mr. Craig was not a crime
victim under the Crime Victims Reform Act, 18 U.S.C.A. § 3771
(West Supp. 2008) (“CVRA”), and thus any victim impact testimony
from him would be improper. The district court agreed that he
was not a victim for purposes of CVRA, but admitted the
testimony, as well as a letter the court received from Mr. Craig
prior to sentencing, under relevant conduct. After hearing the
parties’ arguments and considering the 18 U.S.C. § 3553(a)
(2006) sentencing factors, the district court sentenced Craig to
210 months’ imprisonment.
“Rulings related to admission and exclusion of
evidence are addressed to the sound discretion of the trial
judge and will not be reversed absent an abuse of that
discretion.” United States v. Stitt, 250 F.3d 878, 896 (4th
2
Cir. 2001). A district court “abuses its discretion when it
makes an error of law.” Koon v. United States, 518 U.S. 81, 100
(1996). Evidentiary rulings are also subject to review for
harmless error under Federal Rule of Criminal Procedure 52(a),
and will be found harmless if the reviewing court can conclude,
“without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (internal
quotations and citation omitted); see also United States v.
Patrick, 988 F.2d 641, 647-48 (6th Cir. 1993) (“[I]mproprieties
on the part of sentencing judges are subject to review under the
harmless error rule.”).
In this case, the district court admitted Mr. Craig’s
statements as consideration of relevant conduct, conduct the
court is required to consider in sentencing Craig. See USSG
§ 1B1.3(a)(1) (stating court can consider “all acts and
omissions committed . . . by the defendant . . . that occurred
during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense”). Although
Craig concedes that the district court was permitted to consider
Mr. Craig’s statements, he maintains that the court relied on
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Mr. Craig’s victim status to permit testimony that did not
necessarily relate to relevant conduct.
The district court explained the reasons for its
sentence in great detail, relying primarily on Craig’s extensive
criminal history. There is no indication in the record that the
district court was “substantially swayed” by Mr. Craig’s
testimony. Brooks, 111 F.3d at 371. Thus, we conclude that,
even assuming there was error in admitting the statements, the
error was harmless.
Accordingly, we affirm the district court’s judgment.
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
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