UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4355


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

GARY ROBINSON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.   James P. Jones, Chief
District Judge. (2:07-cr-00014-jpj-pms-2)


Submitted:    June 2, 2009                  Decided:   July 10, 2009


Before MOTZ, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke,
Virginia, for Appellant. Julia C. Dudley, United States
Attorney,   Jennifer  R. Bockhorst,    Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              A jury convicted Gary Robinson of assault with intent

to commit murder and aiding and abetting, in violation of 18

U.S.C. §§ 2, 113(a)(1) (2006), assault with a dangerous weapon

with intent to do bodily harm without just cause or excuse and

aiding and abetting, in violation of 18 U.S.C. §§ 2, 113(a)(3)

(2006), assault resulting in serious bodily injury and aiding

and abetting, in violation of 18 U.S.C. §§ 2, 113(a)(6) (2006),

and   possession      of    prohibited       objects    intended       to    be     used   as

weapons,      in    violation    of     18     U.S.C.     § 1791(a)(2),           (d)(1)(B)

(2006).        Robinson was sentenced to a total of 262 months of

imprisonment and now appeals.            Finding no error, we affirm.

              Robinson      first     challenges        the    sufficiency          of     the

evidence supporting his conviction for assault with intent to

commit     murder.          Because    Robinson     failed        to    challenge          the

sufficiency of the evidence in the district court in a Fed. R.

Crim.    P.    29    motion,    we    review     this    claim    for       plain    error.

United States v. Wallace, 

, 331-32 & n.5 (4th Cir.

2008).        To prevail on a claim of unpreserved error, Robinson

must show that error occurred, that it was plain, and that it

affected his substantial rights.                  United States v. Olano, 

, 732 (1993).           Furthermore, this court will not exercise

its   discretion       to    correct    such      error       unless    it    “seriously

affect[s]      the    fairness,       integrity     or        public    reputation         of

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judicial    proceedings.”                   

   and

citations omitted).              We have thoroughly reviewed the record and

find that Robinson has failed to demonstrate any error in the

jury’s determination of his guilt on this count.

            Robinson        next        challenges            the    introduction       of      his

codefendant’s guilty plea to the charge in the first count on

cross-examination of the codefendant.                            Because Robinson failed

to object to the Government’s questioning of the codefendant in

the district court, we review this claim for plain error.                                       See

United States v. Adam, 

, 780 (4th Cir. 1995).                                         We

have thoroughly reviewed the record and conclude that Robinson

has     failed    to        demonstrate                that    the       admission      of      his

codefendant’s      guilty            plea    during       cross-examination           was     plain

error    that    affected             his    substantial            rights.       See       United

States v. Withers, 

, 1145 (4th Cir. 1996); United

States v. Blevins, 

, 1260 (4th Cir. 1992).

            Robinson also challenges the introduction of evidence

of a prior attack on an inmate by Robinson and his codefendant.

This    court    reviews         a    district          court’s      determination       of     the

admissibility of evidence under Fed. R. Evid. 404(b) for abuse

of discretion.         United States v. Queen, 

, 995 (4th

Cir.    1997).        “In    a       criminal          appeal,      we   will   not    vacate     a

conviction unless we find that the district court judge acted

arbitrarily      or    irrationally               in    admitting        evidence.”         United

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States v. Benkahla, 

, 309 (4th Cir. 2008) (internal

quotation marks and citations omitted), cert. denied, 

(2009); see also United States v. Williams, 

,

732 (4th Cir. 2006) (“[A]n abuse [of discretion] occurs only

when   .     .    .     the     [district]          court   acted     arbitrarily     or

irrationally in admitting evidence.”).

             Rule 404(b) prohibits the admission of “[e]vidence of

other crimes, wrongs, or acts . . . to prove the character of a

person in order to show action in conformity therewith.”                            Fed.

R.   Evid.   404(b).           However,      such    evidence   is    “admissible   for

other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake

. . . .”         

an inclusionary rule, allowing

evidence of other crimes or acts to be admitted, except that

which tends to prove only criminal disposition.                        See 

.          For such evidence to be admissible, it must be

“(1) relevant to an issue other than the general character of

the defendant; (2) necessary to prove an element of the charged

offense; and (3) reliable.”                  United States v. Hodge, 

,   312   (4th       Cir.    2004)     (citing      

).

Additionally, the probative value of the evidence must not be

substantially          outweighed       by    its     prejudicial      effect.      

Evid. 403).                   We have reviewed the record and

conclude that the admission of the evidence of Robinson and his

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codefendant’s      prior      attack      on    an   inmate       was       proper,    and     the

prejudicial effect did not outweigh the probative value.

            Finally,         Robinson       challenges          the      district        court’s

instruction       to   the    jury     on      the   charge        of       possession      of   a

prohibited object intended to be used as a weapon.                                       Because

Robinson    failed     to     object      to       the   jury      instructions          in    the

district    court,     we    review       this      issue    for       plain       error.      See

Neder v. United States, 

, 8-9 (1999) (noting that, in

cases    where    defendant        failed      to    object       to    jury       instruction,

issue is reviewed for plain error).                      Although the district court

inadequately instructed the jury on this charge in failing to

define “prohibited object”                we conclude that the error did not

affect     Robinson’s        substantial           rights.         The        district      court

instructed       the   jury        that     Robinson        had        been    charged        with

possessing an object with the intent to use it as a weapon.                                   See

18 U.S.C. § 1791(d)(1)(B) (2006).                    Thus, taking the instructions

as a whole, we find that the jury necessarily found the omitted

element.     See United States v. Wilkinson, 

, 223-24

(4th Cir. 1998).

            Although         not     initially           raised        by     Robinson,        the

Government       concedes     that     the     error      in      the       jury    instruction

resulted in a violation of Apprendi v. New Jersey, 

(2000),    because     Robinson        was      subjected         to    a     higher     maximum

penalty based on facts not found by the jury.                                  See 18 U.S.C.

                                               5
§ 1791(b)(3), (b)(5), (d)(1)(B), (d)(1)(F) (2006).                We conclude,

however, that this error did not affect Robinson’s substantial

rights.     See United States v. Ellis, 

, 599-600 (4th

Cir. 2003) (holding that sentence beyond statutory maximum based

on facts found by jury did not affect defendant’s substantial

rights because error did not result in longer total term of

imprisonment).        Finally,   to   the   extent     Robinson    attempts    to

challenge the imposition of a $100 special assessment for the

first time in his reply brief, the claim is not properly before

us.   See United States v. Rosen, 

, 196 n.6 (4th Cir.

2009); Edwards v. City of Goldsboro, 

, 241 n.6 (4th

Cir. 1999).

            Accordingly, we affirm the judgment of the district

court.    We also deny Robinson’s motion for leave to file a pro

se supplemental brief.        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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