                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-4665



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LONNIE MACK OGLESBEE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-04-38)


Submitted:   April 7, 2006                    Decided:   May 1, 2006


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Stanford K. Clontz, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Don D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Lonnie Mack Oglesbee was convicted by a jury of three

counts of assault with a dangerous weapon with intent to do bodily

harm (Counts Fourteen, Sixteen, Eighteen), three counts of assault

resulting in serious bodily injury (Counts Fifteen, Seventeen,

Nineteen), one count of kidnaping (Count Twenty), and six counts of

aggravated sexual assault (Counts Twenty-One through Twenty-Six),

in violation of 18 U.S.C. §§ 113(a)(3), (a)(6); 1153; 1201; 2241(a)

(2000).    Oglesbee was sentenced on the various offenses to life

imprisonment.    We find no error and affirm Oglesbee’s convictions

and sentences.

            Oglesbee first contends that the district court abused

its discretion in admitting Fed. R. Crim. P. 404(b) evidence over

defense objection. We review a district court’s decision regarding

the admission or exclusion of evidence for abuse of discretion.

United States v. Lancaster, 96 F.3d 734, 744 (4th Cir. 1996).   Rule

404(b) “is an inclusive rule that allows admission of evidence of

other acts relevant to an issue at trial except that which proves

only criminal disposition.”    United States v. Watford, 894 F.2d

665, 671 (4th Cir. 1990).

           Oglesbee argues his daughter’s testimony regarding his

cruel abuse of her pet birds was not probative of any disputed

issue.    Rather, Oglesbee asserts that the testimony was presented

merely to paint him as a generally “despicable and loathsome


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character.”      “Evidence of prior bad acts is admissible if it is

(1) relevant to an issue other than character, (2) necessary to

show an essential part of the crime or the context of the crime,

and (3) reliable.”*      United States v. Powers, 59 F.3d 1460, 1464

(4th Cir. 1995).      Exclusion under Fed. R. Crim. P. 403 is required

“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 the this risk is disproportionate to the

probative value of the offered evidence.”             Id. at 1467 (internal

quotations omitted). Oglesbee’s daughter’s testimony regarding the

incident with her pet birds helped place in context why she

conceded to her father’s wishes and thus participated in sexual

acts with her parents.        Oglesbee’s violent acts, combined with the

fear they instilled, formed the basis of the factual context in

this case.     Such testimony was therefore relevant to the issue of

Oglesbee’s      guilt    on       Counts     Twenty-One    and     Twenty-Two.

Additionally, any danger of prejudice was slight in view of the

overwhelming evidence of guilt.            Consequently, we find no abuse of

discretion in permitting such testimony.

              Next, Oglesbee contends that the district court abused

its discretion when it denied his motion for a mistrial.               We review

the   grant    or   denial   of   a   motion   for   mistrial    for   abuse   of


      *
      Oglesbee does not allege that the testimony is unreliable,
but rather that it is “irrelevant, inflammatory, and highly
prejudicial.”

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discretion.       United States v. West, 877 F.2d 281, 287-88 (4th Cir.

1989).    In addition, Oglesbee must show prejudice in order for the

court’s   ruling         to   constitute      an     abuse   of    discretion,    and   no

prejudice        exists       if    the    jury    could     make    individual      guilt

determinations by following the court’s cautionary instructions.

See id. at 288.

            During        its      closing   argument,       the    Government    stated:

“Alice couldn’t even look at him, even today, even with leg

shackles on, couldn’t even look at him.”                     Oglesbee objected to the

reference to leg shackles, and the district court sustained the

objection.        The court then gave the following instruction: “You

won’t consider that remark at any point in your deliberations,

members     of     the    jury.           Strike     that    from    your   memory      and

recollection.”           Oglesbee moved for a mistrial, arguing that the

Government’s reference to the leg shackles was “highly improper and

prejudicial.”       In response, the court stated:

     As I indicated by my ruling, the reference was improper,
     however, I do not consider it such a quality of prejudice
     that it would justify a mistrial. Clearly, the Court’s
     instruction and the wisdom of the jury, I’m certain,
     would prevail over any abuse of discretion, if that’s
     what it was, that occurred. So I will deny the motion.

            To establish that the prosecutor’s statement constituted

reversible error, Oglesbee must show that (1) the prosecutor’s

remarks or conduct were improper and (2) the remarks or conduct

prejudicially affected the defendant’s substantial rights so as to

deprive him of a fair trial.               See United States v. Wilson, 135 F.3d

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291, 297 (4th Cir. 1998).       Oglesbee contends that the Government’s

remark improperly disclosed his custodial status to the jury.                 The

Government concedes that the remark was improper, but argues it did

not deprive Oglesbee of a fair trial.

           Relevant     factors     in   the   determination      of   prejudice

include:

      (1) the degree to which the prosecutor’s remarks had a
      tendency to mislead the jury and to prejudice the
      defendant; (2) whether the remarks were isolated or
      extensive; (3) absent the remarks, the strength of
      competent proof introduced to establish the guilt of the
      defendant; (4) whether the comments were deliberately
      placed before the jury to divert attention to extraneous
      matters; (5) whether the prosecutor’s remarks were
      invited by improper conduct of defense counsel; and
      (6) whether curative instructions were given to the jury.

United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).

           The Government’s remark was an isolated comment made

during a lengthy rebuttal closing argument.                 Even if the remark

prejudiced   Oglesbee    by    misleading      the   jury    or   diverting   its

attention, such prejudice was minimal when compared to the volume

of evidence of Oglesbee’s guilt.               Furthermore, any prejudice

suffered by Oglesbee was cured by the district court’s limiting

instruction, which was given immediately after Oglesbee’s objection

was sustained. See United States v. Francisco, 35 F.3d 116, 119-20

(4th Cir. 1994) (per curiam) (stating this court generally follows

the   presumption     that    the   jury   obeyed     the    district   court’s

instructions).



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               Finally, Oglesbee contends that the district court’s

application of sentencing enhancements violated United States v.

Booker,    543      U.S.   220    (2005).       Though      Oglesbee    was    sentenced

post-Booker, he argues that the court “erred in transferring jury

findings from one count to another and establishing enhancement

factors under Booker” as well as “by imposing a sentence in excess

of the applicable guideline range.”

               After Booker, a sentencing court is no longer bound by

the range prescribed by the sentencing guidelines.                            See United

States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005).                            However,

sentencing courts are still required to calculate and consider the

guideline range prescribed thereby as well as the factors set forth

in 18 U.S.C. § 3553(a).            Id.    If the sentence imposed is within the

properly       calculated        guideline       range,      it    is   presumptively

reasonable.         United States v. Green, 436 F.3d 449, 457 (4th Cir.

2006).

               Oglesbee objected to the enhancements applied in the

Presentence Investigation Report because they were not specifically

found by the jury.               The district court agreed with Oglesbee’s

interpretation of Booker and stated that the jury was required to

make     the        applicable      findings       for      enhancement        purposes.

Consequently, the court determined that its instructions required

the    jury    to    specifically        find   some   of    the   enhancements,     but

sustained Oglesbee’s objection as to the U.S. Sentencing Guidelines


                                           - 6 -
Manual   §   2A3.1(b)(3)(A)       (2003)   enhancement.     The     court   then

clarified     that   it   believed    the    enhancements    were    factually

supported by the evidence, but maintained that Booker required the

jury to make the findings.

             Despite the district court’s rulings, Oglesbee’s properly

calculated sentencing guidelines encompassed the total sentence he

received--life imprisonment.          We therefore conclude his sentence

was reasonable.

             Accordingly,    we     affirm   Oglesbee’s     convictions     and

sentences.    We deny Oglesbee’s pro se request for new counsel.             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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