                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4994


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FRANKLIN MACKENSIE ROBINSON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence. R. Bryan Harwell, District Judge.
(4:10-cr-00599-RBH-1)


Submitted:   June 26, 2012                 Decided:   July 24, 2012


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William W. Watkins, Sr., WILLIAM W. WATKINS, P.A., Columbia,
South Carolina, for Appellant. William N. Nettles, United States
Attorney,   Carrie  Fisher   Sherard,  Assistant   United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Franklin         MacKensie           Robinson     was     convicted          of

conspiracy     to     possess       with     intent     to     distribute         and   to

distribute 500 grams or more of cocaine and fifty grams or more

of cocaine base, 21 U.S.C. § 846 (2006), and distribution of

cocaine     base,    21     U.S.C.    § 841(a)(1)           (2006).        He    received

concurrent 360-month sentences.               We affirm.



                                             I

            At trial, Daytron Allen testified that on February 28,

2011, he and Robinson were in adjoining cells at the federal

courthouse.         Allen    stated    that       Robinson    threatened         potential

witnesses    and     their    families       and    asked     Allen   to    convey      the

threats.

            While in jail awaiting trial, Robinson made numerous

telephone     calls,        which     were       recorded.          Over        Robinson’s

objection, the district court admitted the recording of the call

made on November 29, 2010.            Robinson contends that the admission

of the recording violated Fed. R. Evid. 403 because the evidence

was cumulative, unnecessary, and unduly prejudicial.                            We review

a decision to admit evidence for abuse of discretion.                              United

States v. Forrest, 429 F.3d 73, 79 (4th Cir. 2005).

            While relevant evidence generally is admissible, Fed.

R. Evid. 402, it “may be excluded if its probative value is

                                             2
substantially         outweighed          by     the       danger      of    unfair          prejudice,

confusion       of     the        issues,       or       misleading          the    jury,       or     by

considerations         of     undue       delay,          waste       of    time,       or     needless

presentation         of     cumulative          evidence.”              Fed.       R.    Evid.       403.

Nonetheless,         “Rule        403     is     a       rule    of    inclusion,             generally

favoring admissibility.”                    United States v. Udeozor, 515 F.3d

260,    264-65       (4th     Cir.       2008)       (internal          quotation         marks       and

alteration omitted).                Under Rule 403, “damage to a defendant’s

case is not a basis for excluding probative evidence” because

“[e]vidence          that     is        highly       probative             invariably         will     be

prejudicial to the defense.”                             United States v. Grimmond, 137

F.3d 823, 833 (4th Cir. 1998).                           “Rule 403 requires exclusion of

evidence only in those instances where the trial judge believes

that there is a genuine risk that the emotions of the jury will

be    excited    to       irrational           behavior,         and       that     this       risk   is

disproportionate             to     the        probative          value       of        the     offered

evidence.”       United States v. Mohr, 318 F.3d 613, 618 (4th Cir.

2003) (internal quotation marks omitted).                              When assessing a Rule

403 issue on appeal, “we look at the evidence in a light most

favorable to its proponent, maximizing its probative value and

minimizing its prejudicial effect.”                             United States v. Simpson,

910    F.2d   154,     157        (4th    Cir.       1990)      (internal         quotation       marks

omitted).



                                                     3
            We hold that the recording was properly admitted under

Rule 403.       The prejudicial value of the recording was outweighed

by   its   probative         value.     As    the      district      court      found,     the

recording       was    the    only    evidence        that    tended       to   corroborate

Allen’s testimony about Robinson’s threats.                          Further, the fact

that Robinson wanted Allen to communicate the threats on his

behalf     to    potential       witnesses        suggested         that    Robinson        was

conscious       of     both     his    guilt          and     the    strength         of   the

prosecution’s case.



                                             II

            Because of a prior felony drug conviction, Robinson

was subject to an enhanced sentence under 21 U.S.C. § 841(b)(1)

(2006).         In    its    information     of       prior    conviction,       21    U.S.C.

§ 851(a) (2006), the United States identified the prior offense

as an August 2, 2006 conviction for possession with intent to

distribute cocaine.             Robinson was seventeen when he committed

the crime and nineteen when he was convicted and sentenced.                                  On

appeal,     Robinson         claims   that       it    was     a    violation     of       both

§ 841(b)(1) and the Eighth Amendment to base the enhancements on

criminal conduct that occurred when he was a juvenile.

            We find Robinson’s position to be without merit.                               The

Sixth Circuit has rejected similar arguments, concluding that

“[n]othing in § 841(b)(1)(A) indicates that a defendant’s age at

                                             4
the    time   of    his   .   .     .    prior       conviction      is   relevant     to   the

application of § 841, but to the extent that it is, age would

appear to matter if it was related to the process in which a

defendant’s prior conviction was obtained.”                               United States v.

Graham, 622 F.3d 445, 457 (6th Cir. 2010).                                The defendant in

Graham was convicted and sentenced as an adult for the predicate

offense although he was arrested as a juvenile.                              Id.    The court

ruled that the prior conviction was properly used to enhance the

statutory mandatory minimum for the federal offense.                                   Id. at

459.      Here,     state     court          records       reflect    that    Robinson      was

convicted and sentenced as an adult for the 2006 offense.                                    We

are persuaded by the rationale expressed in Graham and conclude

that    the     district      court’s         use     of    the   2006     conviction       for

enhancement purposes did not violate § 841(b).

              Nor does the use of the 2006 conviction violate the

Eighth Amendment under either Graham v. Florida, 130 S. Ct. 2011

(2010), or Roper v. Simmons, 543 U.S. 551 (2005).                                  Critically,

in each of those cases, the defendant was a juvenile at the time

he committed the relevant offenses.                         Robinson, however, was an

adult    when      he   committed        the     instant      federal       drug    offenses.

Accordingly,        there     was       no    Eighth       Amendment      violation.        See

Graham, 622 F.3d at 462; United States v. Scott, 610 F.3d 1009,

1018 (8th Cir. 2010).



                                                 5
                                           III

              Because Robinson’s offense level as computed under the

Drug    Quantity    Table     exceeded      that    calculated       based      upon    his

status as a career offender, the former was used to determine

his advisory Guidelines range.                   See U.S. Sentencing Guidelines

Manual    § 4B1.1(b)     (2010).           Nonetheless,       Robinson       claims     on

appeal that his presentence report erroneously identified him as

a career offender.

              For a defendant to qualify as a career offender, he

must have “at least two prior felony convictions of either a

crime    of   violence   or    a    controlled       substance    offense.”            USSG

§ 4B1.1(a).        At sentencing, the court found that Robinson had

not only two, but three, qualifying convictions: possession with

intent to distribute cocaine, committed in 2004, when Robinson

was    seventeen;    assault       and    battery    of   a   high   and     aggravated

nature (ABHAN), committed in 2005, when he was eighteen; and

ABHAN, committed in 2006, when he was nineteen.

              The Guidelines define “prior felony conviction” as “a

prior    adult      federal    or        state    conviction     for       an    offense

punishable by death or imprisonment for a term exceeding one

year, regardless of . . . the actual sentence imposed.”                                USSG

§ 4B1.2,      comment.   (n.1).           Further,    “[a]     conviction        for    an

offense committed before age eighteen is an adult conviction if



                                            6
it is classified as an adult conviction under the laws of the

jurisdiction in which the defendant was convicted. . . .”                        Id.

            Additionally,      before      an     conviction       is   counted        for

career offender purposes, the court must consult the Guidelines

provision     for     computing   criminal           history.       USSG    § 4B1.2,

comment. (n.3); United States v. Mason, 284 F.3d 555, 558 (4th

Cir. 2002).     Offenses committed prior to age eighteen are to be

included in the criminal history calculation if, among other

things, the defendant has an adult or juvenile sentence imposed

within five years of the defendant’s commencement of the instant

offense, USSG § 4A1.2(d)(2)(B).

            Robinson had not only the required two, but three,

qualifying    felony      convictions.          He    committed     the    two    ABHAN

offenses when he was eighteen and nineteen, respectively.                               He

was   convicted     and   sentenced   as     an      adult   for   those   offenses.

Robinson committed the third felony, possession with intent to

distribute cocaine, in 2006, when he was seventeen.                              He was

prosecuted as an adult and was sentenced in August, 2006, for

this crime.         The conspiracy that is the subject of the § 846

conviction commenced in 2005; the § 841(a) offense occurred in

2010.       Accordingly,     under    USSG        § 4A1.2(d)(2)(B),        the     2006

conviction also was correctly treated as a predicate felony for

career offender purposes.



                                         7
                                 IV

          We therefore affirm.       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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