UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4815
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDWARD C. CROW,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley,
District Judge. (1:13-cr-00038-IMK-JSK-1)
Submitted: April 30, 2015 Decided: May 13, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Tara Tighe, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Crow was convicted of assaulting a federal
correctional officer, in violation of 18 U.S.C. § 111(a)(1), (b)
(2012); assaulting with a dangerous weapon with intent to do
bodily harm, 18 U.S.C. §§ 7(3), 113(a)(3) (2012); and possessing
a prohibited weapon, in violation of 18 U.S.C. § 1791(a)(2),
(b)(3) (2012). The district court sentenced Crow to 240 months
of imprisonment. On appeal, Crow argues that the district court
(1) admitted improper evidence of prior bad acts pursuant to
Fed. R. Evid. 404(b), (2) should have granted a mistrial due to
inadmissible expert testimony on the ultimate issue, and (3)
imposed an unreasonable sentence. We affirm.
We review the admission of evidence of prior bad acts for
an abuse of discretion. United States v. Williams, 740 F.3d
308, 314 (4th Cir. 2014). “We will not find a district court to
have abused its discretion unless its decision to admit evidence
under Rule 404(b) was arbitrary and irrational.” Id. (internal
quotation marks omitted).
Rule 404(b) prohibits introducing “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b). But the
Government may offer otherwise inadmissible evidence to
“explain, repel, counteract, or disprove facts given in evidence
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by the opposing party.” United States v. Higgs, 353 F.3d 281,
329 (4th Cir. 2003) (internal quotation marks omitted).
Here, the district court appropriately permitted the
Government to introduce the challenged evidence because Crow
opened the door to such evidence. Crow’s contention that he
opened the door as to testimony from one witness, but not
another, is at odds with this Court’s precedent. See Higgs, 353
F.3d at 329-30 (holding that Government was entitled to present
rebuttal evidence of accused’s disciplinary infractions where
accused presented testimony that he was avoiding trouble in
prison). Therefore, this claim lacks merit.
We next review Crow’s contention that the district court
ought, sua sponte, to have declared a mistrial. Our review is
for plain error. See United States v. Cabrera-Beltran, 660 F.3d
742, 754 (4th Cir. 2011). To show plain error, Crow must
demonstrate that an error (1) occurred, (2) was plain, and
(3) affected his “substantial rights.” See United States v.
Olano, 507 U.S. 725, 732 (1993). Even then, “correction of the
error” is within our discretion, to be exercised only when “the
error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Muhammed,
478 F.3d 247, 249 (4th Cir. 2007) (internal alteration and
quotation marks omitted).
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“In a criminal case, an expert witness must not state an
opinion about whether the defendant did or did not have a mental
state that constitutes an element of . . . a defense.” Fed. R.
Evid. 704(b). This rule is “aimed at ameliorating the danger
associated with mental health testimony that the expert, who is
qualified only to explain medical concepts, will be called upon
to interpret legal ones.” United States v. Smart, 98 F.3d 1379,
1388 (D.C. Cir. 1996) (internal alteration and quotation marks
omitted). Consequently, an expert may “set out her medical and
psychological knowledge” regarding the defendant’s mental
disease or defect; however, she cannot conclude “that the mental
illness clouded the defendant’s ability to distinguish right
from wrong.” United States v. Diekhoff, 535 F.3d 611, 619 (7th
Cir. 2008).
In this case, while we agree that the expert’s opinion ran
afoul of Rule 704(b), we find no evidence that the district
court erred, plainly or otherwise, by failing to order a
mistrial. The district court immediately sustained Crow’s
objection, struck the testimony from the record, and issued a
proper limiting instruction.
In closing, we review for abuse of discretion Crow’s claim
that the district court imposed an unreasonable sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing a
sentence for reasonableness, we first ensure that the district
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court committed no “significant procedural error,” including
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors or inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010)
(internal quotation marks omitted).
In its explanation, the district court “must make an
individualized assessment based on the facts presented.” Gall,
552 U.S. at 50. “This individualized assessment need not be
elaborate or lengthy, but it must provide a rationale tailored
to the particular case at hand and adequate to permit meaningful
appellate review.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). Upon
review, we conclude that the district court committed no
procedural error.
We must also examine the substantive reasonableness of the
sentences, considering the “totality of the circumstances.”
Gall, 552 U.S. at 51. The sentence imposed must be “sufficient,
but not greater than necessary,” to satisfy the purposes of
sentencing. 18 U.S.C. § 3553(a). A properly calculated,
within-Guidelines sentence is presumed reasonable on appeal, and
an appellant bears the burden to “rebut the presumption by
demonstrating that the sentence is unreasonable when measured
against the § 3553(a) factors.” United States v. Montes-Pineda,
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445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks
omitted).
Crow’s sentences fell within their respective Guidelines
ranges. The court balanced the seriousness of the offense and
the need to ensure order in correctional facilities against
Crow’s personal history of isolation, mental illness, and
institutionalization.
That the district court later sentenced Crow in a different
case, stemming from a wholly unrelated crime, to a sentence to
run consecutive to this sentence, does not make this sentence
substantively unreasonable. “Judges have long been understood
to have discretion to select whether the sentences they impose
will run concurrently or consecutively with respect to other
sentences that they impose, or that have been imposed in other
proceedings.” Setser v. United States, 132 S. Ct. 1463, 1468
(2012). In any event, this assertion belongs in Crow’s appeal
from the latter case. We thus conclude that the district
court’s sentence was reasonable.
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
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