UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Lee Ebersbach appeals his convictions and
sentence after he was found guilty of violating 18 U.S.C.
§ 2251(a), (e), 18 U.S.C. § 2252(a), (b), and 18 U.S.C.
§ 2252(a)(5)(B), (b)(2) (2006) and sentenced to 360 months’
imprisonment. 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 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). Rule 404(b) evidence
is admissible only if the court determines it is necessary,
reliable, and relevant to some issue other than the defendant’s
character. United States v. Hodge, 354 F.3d 305, 312 (4th Cir.
2004). 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
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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. This court reviews the
denial of a Rule 29 motion de novo. See United States v.
Alerre, 430 F.3d 681, 693 (4th Cir. 2005). 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 assertions, the jury was presented with ample
evidence from which they could find him guilty of the charged
crimes. Numerous law enforcement officers testified as to
Ebersbach’s ownership of the computers and digital files in
question. An expert testified that the images in question were
child pornography. The minor female, who was the subject of the
child pornography production count, testified that Ebersbach
took pornographic photographs of her, asked her to take
pornographic photos of herself, and shared pornographic images
of himself with her. We conclude that the district court
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properly denied Ebersbach’s Rule 29 motion and that the evidence
is sufficient to uphold the verdict.
Finally, Ebersbach challenges the substantive
reasonableness of his 360-month sentence. * This court reviews a
sentence applying the abuse-of-discretion 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 178, 193 (4th Cir. 2007). The 360-month sentence was
within the appropriately-calculated Guidelines range and
Ebersbach offers no reason why his within-range sentence is
unreasonable. Because he has not rebutted the presumption of
reasonableness, we conclude that the sentence is substantively
reasonable.
Accordingly, we affirm Ebersbach’s convictions 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
*
Ebersbach does not challenge the procedural reasonableness
of his sentence.
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