                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4093


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

PHILIP MICHAEL SEBOLT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:12-cr-00033-JAG-1)


Argued:   December 11, 2013             Decided:   February 11, 2014


Before GREGORY, DAVIS, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Davis
and Judge Wynn joined.


ARGUED:    Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.   Thomas Kennerly
Johnstone IV, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.       ON BRIEF: Michael S.
Nachmanoff, Federal Public Defender, Alexandria, Virginia,
Valencia D. Roberts, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for
Appellant.     Neil   H.  MacBride,  United    States  Attorney,
Alexandria, Virginia, Elizabeth C. Wu, Assistant United States
Attorney, OFFICE OF THE     UNITED   STATES   ATTORNEY,   Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

     The defendant, Philip Michael Sebolt, was charged in a one-

count     indictment     with     advertising       child      pornography,        in

violation    of    18   U.S.C.   § 251(d).        At    trial,    the    government

sought to introduce five exhibits under Federal Rule of Evidence

404(b).      Over the defendant’s objections, the district court

admitted the materials, ruling that they helped establish the

defendant’s identity.         After a bench trial, the district court

found the defendant guilty.            At sentencing, the court increased

his criminal history category from IV to V, finding him to be a

“repeat and dangerous sex offender” pursuant to United States

Sentencing Guidelines § 4B1.5., and sentenced him to life in

prison.     On appeal, the defendant argues that the court erred in

(1) admitting the identity evidence, and (2) calculating his

Sentencing    Guidelines     range.      For     the    following       reasons,   we

affirm in part, vacate in part, and remand for resentencing.



                                        I.

     In March of 2012, Sebolt was charged with, between January

1,   2010    and    February     19,     2010,     creating       a     “notice    or

advertisement”      seeking      to    purchase        child     pornography,      in




                                        3
violation of 18 U.S.C. § 2251(d). 1              At the time of the charged

conduct, Sebolt was an inmate at F.C.I. Petersburg serving a

sentence for child pornography offenses.

     The    document    at    the   heart       of    the     prosecution 2    is   a

handwritten flyer seeking, in graphic terms, pictures of nude,

prepubescent children posing in various positions.                      The flyer

offers various sums of money for the pictures depending on the

pose or sexual act depicted.                 The reverse side of the flyer

includes    photographs      of   nude       children    as    well    as     graphic

drawings of the type of photos the author is seeking.

     Prison officials discovered the flyer in a box of materials

in   the   possession   of    another        inmate     at    F.C.I.   Petersburg,

Randall Russell Bland.        The box was searched in February 2010 as

Bland was set to be released from prison following completion of

his sentence for distribution of child pornography.                         The box

contained several dozen copies of the flyer in envelopes that

had been addressed to various individuals in foreign countries.

In particular, two of the envelopes were addressed to Buddhika

      1
       Sebolt had previously been convicted of two or more
offenses relating to the sexual exploitation of children,
subjecting   him to   a  35-year   mandatory minimum term of
imprisonment. 18 U.S.C. § 2251(e).
      2
       As discussed further below, the government contends that
several of the challenged exhibits are intrinsic to the charged
offense and that the flyer was therefore not the sole basis for
the prosecution.



                                         4
Jinadari       and        Roda    Tekeste,     women       living     in    Sri     Lanka    and

Ethiopia, respectively.                   The government contended that Sebolt

gave Bland the flyers for Bland to deposit in the mail once he

was out of prison.                The flyer instructs recipients to mail the

requested photographs to “Phil c/o Russell Cain” at a mail route

box address in Salem, West Virginia.                        At trial, Bland testified

that       Russell    Cain       is   his    given    name,    and     that       the   address

belonged to an aunt of his.

       Prior to Sebolt’s trial, the government submitted notice of

its    intent        to     introduce       evidence       pursuant    to     Rule      404(b).

Specifically, the government planned to introduce five letters

sent to or from Sebolt while in prison.                              The documents were

discovered by prison officials monitoring Sebolt’s mail.

       The     first       two    exhibits     were    2006     and        2007    handwritten

requests to book publishers seeking information on two books:

“Children:       A Picture Archive of Permission-Free Illustrations”

and “Children Are Children:                   Photographs from Nine Countries.”

The    requests,          which    were     signed    by    Sebolt     and        included   his

Federal Bureau of Prisons register number (“BOP number”), 3 asked

whether the books contained photos or illustrations.




       3
       At oral argument, Sebolt conceded that he is the author or
intended recipient of each of the five challenged exhibits.



                                                5
      The third document was a 2007 letter signed by Sebolt and

addressed   to   an    individual   named   Candy       Brown.     The   letter

offered Ms. Brown twenty dollars in exchange for explicit photos

of young women.       The letter also contained detailed instructions

for   creating   a    compartment   on    the     inside    of   store   bought

greeting cards in which the photos could be hidden and mailed

into the prison undetected.

      The fourth document was a December 2008 Christmas card from

Sebolt to Ms. Jinadari in Sri Lanka.                   The card contained a

hidden compartment like the one described in the letter to Ms.

Brown.      Inside    the   compartment     was    a    letter   from    Sebolt

discussing his “photo collecting hobby” and offering to send Ms.

Jinadari money in exchange for photographs.                The letter did not

discuss the type of photographs requested, but it noted the need

for secrecy and instructed Ms. Jinadari to send the photos in a

similar hidden compartment.

      The fifth and final challenged document was a December 2008

greeting card sent to the defendant by Ms. Tekeste in Ethiopia.

Inside the card was a hidden compartment containing a photograph

of a nude female toddler in a sexually suggestive pose.                  Along

with the photograph was a letter from Ms. Tekeste to Sebolt

thanking him for money he had previously sent her and indicating




                                     6
that the photo was provided in response to Sebolt’s request for

help with his “hobby.” 4

        Sebolt filed a motion in limine seeking to exclude the five

proposed exhibits as improper character evidence.                   His argument

in support of the motion made clear that his primary defense in

the case would be that someone else –- likely Bland –- authored

the   flyer      in   question.   Sebolt       argued   that   he   “was   not   in

possession of the flyer or any of the letters [when they were

found]. . . . [Instead] it was the government’s key witness,

Randall Bland, who had the flyer, who had other items, who had

mail.”      J.A. 71-72.

      The district court denied the defendant’s motion to exclude

the evidence, ruling that the letters were admissible to show

“proof      of   motive,   opportunity,       intent,   preparation,   planning,

knowledge, identity, or absence of mistake or accident” under

Rule 404(b).          Specifically, the court noted that the defendant

had made the identity of the flyer’s author a key issue in the

case:

      I can’t help but note that counsel just argued that
      Mr. Bland had this pamphlet in his possession, and it
      sounds to me like [the defendant] was trying to point
      the finger at him as the criminal agent in this case.

        4
       The letter states, “Phil really I don’t know what sense to
give the people children nacked [sic] photos.      In my way, I
don’t care for the nacked [sic] children photos also I’m not
agree by these hobby [sic].” J.A. 406.



                                          7
       So establishing identity is apparently an issue that’s
       not just hypothetical, but that is an issue in this
       case.

J.A. 71-72.

       In    addition      to   the   five       challenged    documents    discussed

above,       the     government       introduced      several     other     materials

attempting to link Sebolt to the flyer.                       One such item, also

found in Bland’s possession, was a series of form letters to

book publishers and prison book programs requesting books on

child care, child development, artistic nudity, and nomadic and

indigenous tribes throughout the world.                   The letters requested

that       the     books   contain     photographs       and     that     nudity   was

preferred.         Each of the letters contained Sebolt’s name and BOP

number.

       The government also introduced a National Geographic book

that was discovered in a locker in Sebolt’s cell.                           The back

cover of the book contained a hidden compartment, in which were

photographs of nude children that matched the photographs found

in the flyer. 5


       5
       Also found in Bland’s box, and introduced at trial, was a
letter written to Ms. Tekeste that was signed in Sebolt’s name
and BOP number. The letter offered Ms. Tekeste the opportunity
to earn money in exchange for sexually graphic photos of a child
named Ezana. The letter also included sexually graphic sketches
similar to those included on the flyer.     The letter requested
that the pictures be sent to “Phil c/o Russell Cain” at the same
mailing address found in the flyer.



                                             8
     At    trial,       Sebolt   continued     to     deny   any    involvement     in

creating    the    flyer.        In    pointing     the   finger     at    Bland,   he

repeatedly        referenced       Bland’s      past      history     with        child

pornography and the fact that the flyer was found in Bland’s

possession.       In his closing argument, the defendant stated that

“it is Mr. Bland who is the real culprit in this.”                         J.A. 255.

Sebolt    also    specifically        denied   that    the   National      Geographic

book found in his cell belonged to him.

     At the conclusion of trial, the district court found Sebolt

guilty.    The court relied in part on the Rule 404(b) evidence,

stating that “the evidence shows that the pamphlet or flyer is

very similar in writing to other items which are pretty clearly

linked to Mr. Sebolt.”           J.A. 261.     The court also noted that the

photographs in the flyer were the same as those in the National

Geographic       book    found   in    Sebolt’s     cell,    and    that    the   book

contained a secret compartment that was just like those in the

greeting cards.

     At    sentencing,       the      court    increased      Sebolt’s      criminal

history category from IV to V, finding him to be a “repeat and

dangerous sex offender” pursuant to U.S.S.G. § 4B1.5.                      The court

also applied a two-level enhancement for distribution pursuant

to U.S.S.G. § 2G2.1(b)(3).               Sebolt’s total offense level was

determined to be 38, resulting in a Sentencing Guideline range



                                          9
of 420 months to life. 6        Noting an intention to sentence the

defendant to the high-end of his Guidelines range, the court

imposed a sentence of life in prison.



                                      II.

                                       A.

      As an initial matter, the government briefly contends that

the December 2008 letters are intrinsic to the charged offense

and are therefore outside the scope of the Rule 404(b) analysis.

See United States v. Otuya, 720 F.3d 183, 188 (4th Cir. 2013).

We have held that other bad acts evidence is intrinsic to the

charged offense “if, among other things, it involves the same

series of transactions as the charged offense, which is to say

that both acts are part of a single criminal episode.”                Otuya,

720   F.3d    at    188   (internal    quotation     marks   and    citations

omitted).     We find no merit in the government’s contention that

the 2008 letters constituted the beginning of a single criminal

enterprise that continued through the attempted dissemination of

the   flyer    in     2010.      The        2008   letters   were    personal

correspondences with specific individuals concerning requests to

directly provide Sebolt with pornographic images in prison.               In

      6
       Sebolt faced a statutory mandatory minimum sentence of 420
months because of his two prior convictions.       See 18 U.S.C.
§ 2251(e).



                                       10
contrast,       the   flyers    were   general      advertisements        for   child

pornography      that   requested      the      photographs   be     mailed     to   an

address outside the prison.                Additionally, the government has

put forth no evidence that Sebolt continued to communicate or

request child pornography from these or any other individuals

during the 14-month interim.               Accordingly, we will analyze all

of   the   challenged     exhibits     under      Rule    404(b),    reviewing       for

abuse of discretion.            See United States v. McBride, 676 F.3d

385, 395 (4th Cir. 2012).

      Generally, evidence of “a crime, wrong, or other act is not

admissible 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)(1).               Such evidence, however,

“may be admissible for another purpose, such as proving motive,

opportunity,       intent,     preparation,       plan,    knowledge,     identity,

absence    of    mistake,      or   lack   of    accident.”         Id.   404(b)(2).

Importantly, Rule 404(b) is “an inclusive rule, admitting all

evidence of other crimes or acts except that which tends to

prove only criminal disposition.”                 United States v. Powers, 59

F.3d 1460, 1464 (4th Cir. 1995) (emphasis in original) (quoting

United States v. Percy, 765 F.2d 1199, 1203 (4th Cir. 1985)).

      We apply a four-part test for determining the admissibility

of extrinsic acts evidence.            To be admissible, the evidence must

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

                                           11
the defendant; (2) necessary to prove the charged offense; (3)

reliable; and (4) its probative value must not be substantially

outweighed by any prejudicial effect, as measured by Rule 403.

United States. v. Lighty, 616 F.3d 321, 352 (4th Cir. 2010).

Applying these principles to the facts of this case, we agree

with the district court that the five exhibits were admissible

for the purpose of proving that Sebolt created the flyer.

       Looking first at the question of relevancy, as a general

matter,    this    is     not    a    difficult       standard    to     meet.     To   be

relevant, the evidence “need only to have any tendency to make

the    existence     of    any       fact    that     is    of   consequence     to     the

determination of the action more probable or less probable than

it would be without the evidence.”                    United States v. Aramony, 88

F.3d    1369,     1377    (4th       Cir.    1996)     (internal       quotation   marks

omitted).       Of course, central to the Rule 404(b) analysis is the

requirement that the evidence be relevant for some reason “other

than the general character of the defendant . . . .”                               United

States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004).                         We conclude

that each of the five pieces of evidence in question provided a

link between Sebolt and the flyer without improperly implicating

the question of his character.                     First, the 2008 letters to Ms.

Jinadari     and        from     Ms.        Tekeste        established     pre-existing

relationships between Sebolt and these individuals.                              This is

important because they were both intended recipients of copies

                                              12
of the flyer found in Bland’s possession.                     It is also clear from

the letters that these relationships were centered on secretly

exchanging photographs for money.                     Thus, the letters make it

more likely that the flyer, which sought to exchange nude photos

of children for money with these same individuals, was created

by Sebolt and not Bland, who had no similar connection with Ms.

Jinadari     and   Ms.     Tekeste.          Additionally,        the    government’s

handwriting expert testified that it was highly probable that

the same person who drafted the letter to Ms. Jinadari, which

was signed in Sebolt’s name and BOP number, also created the

flyer.

       Next, the March 2007 letter to Candy Brown was relevant to

showing that the National Geographic book found in Sebolt’s cell

belonged to him, a fact he specifically put in dispute at trial.

The    district    court    noted     that      the    book    contained       a   secret

compartment similar to the one in the greeting cards, the design

of which was discussed in detail in the letter to Ms. Brown.

Thus, the letter made it more likely that the book belonged to

Sebolt,    which    in     turn     helped      show    that     the    flyer,      which

contained the same photographs found in the book, was created by

him.

       Finally,    the     2006     book     requests     provided       yet       another

connection    between      Sebolt    and     the   flyer.       The     requests      were

similar to other request forms found in Bland’s box and signed

                                           13
by Sebolt.       The requests therefore indicated that at least some

of the materials found alongside the flyer belonged to Sebolt.

Although this connection was to some extent similar to those

demonstrated       by     the    other     materials,         it     supported         the

Government’s      contention     that     Sebolt    was    the       source     of    the

documents found in Bland’s box, including the flyers, and that

he    gave    Bland     the   documents    to    safely    place       in     the    mail

following his release from prison.

      In all of these ways, the disputed evidence did more than

merely       establish    Sebolt’s      propensity      for        soliciting        child

pornography.       To the contrary, they each indicated a specific

connection between Sebolt and the flyer that helped show he was

its author.

      The defendant notes that our case law concerning 404(b)

evidence      admitted    for   the   purpose      of    proving       identity       has

generally required that the other acts demonstrate a “signature

crime” or “modus operandi.”           See, e.g., United States v. Haney,

914 F.2d 602, 607 (4th Cir. 1990).               He contends that this degree

of similarity is lacking in this case.                  We simply disagree, and

are    comfortable       concluding       that   handwritten          communications

concerning the exchange of money for photos with two specific

individuals in distant countries, as well as repeated references

to secret photo-storing compartments on the inside of greeting

cards, satisfies this requirement.

                                          14
       For    many    of    the    same        reasons   that     the    exhibits       were

relevant, each was also necessary to proving the government’s

case.    See McBride, 676 F.3d at 396 (stating that the relevancy

and necessity factors, “which embody overlapping concerns, are

often considered in tandem”).                  Evidence is necessary when it is

“an essential part of the crimes on trial” or it “furnishes part

of the context for the crime.”                  United States v. Byers, 649 F.3d

197,    209    (4th   Cir.      2011).         The    primary   issue     at   trial     was

whether Sebolt created the flyer.                     Given that the copies of the

flyer were found in Bland’s possession, it was necessary for the

government to establish a connection to Sebolt through other

means.       It did so by using similarities in the handwriting, the

intended      recipients,       and   the      content    of    the    flyer    and   other

works    attributed        to     Sebolt.            Without    this     evidence,      the

government would have been forced to rely largely on the word of

Bland,   a    convicted      felon       and    the    person   at     whom    Sebolt   was

pointing the finger.              Given these circumstances, we conclude

that the disputed exhibits satisfy the necessity requirement of

our Rule 404(b) analysis.

       Turning next to the reliability prong, there is no reason

to   think     that   the       404(b)    evidence       was    not     reliable.       The

witnesses through which the exhibits were introduced were cross-

examined by the defendant, see Queen, 132 F.3d at 998, and there

was no indication of bias or untruthfulness on their part, see

                                               15
id.    Additionally, although the defendant insinuated at trial

that he had no knowledge of or involvement with any of the

disputed exhibits, they all bore sufficient indicia that he was

the author or intended recipient of each, as counsel has now

acknowledged.

      Finally,    as     with   all     evidence,    proposed     Rule    404(b)

evidence   must    not     be   substantially       more    prejudicial     than

probative to the defendant, as determined by Rule 403.                    Byers,

649 F.3d at 210.       We have previously acknowledged that, in the

context of a bench trial, there is less concern that the finder

of fact will utilize evidence for an improper purpose.                         See

United States v. Hassanzadeh, 271 F.3d 574, 578 (4th Cir. 2001)

(“[W]e have confidence that at the bench trial, the experienced

district judge was able to separate the emotional impact from

the probative value of this potentially prejudicial evidence.”);

see also Shultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994)

(holding   that   in   civil    bench    trials   “evidence     should   not    be

excluded under [Rule] 403 on the ground that it is unfairly

prejudicial”).    Indeed, we are unable to find a single published

case in which a court of appeals reversed a district court’s

admission of extrinsic evidence in a bench trial.                  For all of

the reasons previously stated, as well as our confidence in the

district   court’s       ability   to    sort     through   any    potentially



                                        16
prejudicial impact of the disputed evidence, we decline to be

the first.        We therefore affirm the defendant’s conviction.

                                               B.

      The defendant also challenges the procedural reasonableness

of his sentence.              He argues, and the government concedes, that

the   district         court    improperly      increased    his    criminal      history

category from IV to V after finding that he was a repeat and

dangerous sex offender under U.S.S.G. § 4B1.5.                      We agree. 7

      Section      4B1.5       of    the   Guidelines     increases      a    defendant’s

criminal history category to V when the defendant’s offense of

conviction is a covered sex crime and the defendant has at least

one       prior    sex        offense      conviction.           However,       § 4B1.5’s

application       notes        explicitly      exclude    from    the    definition    of

covered sex crime, among other things, “trafficking in, receipt

of,   or     possession        of,     child   pornography       . . . .”        U.S.S.G.

§ 4B1.5 cmt.           n.2.      The    defendant’s      prior   conviction      was   for

violating         18     U.S.C.        § 2251(d)(1)(A),          which       criminalizes

advertising        “to        receive,     exchange,      buy,     produce,     display,

distribute, or reproduce[] [child pornography] . . . .”                           Because


      7
       The defendant did not object to this issue at sentencing,
and so our review is for plain error. United States v. Cotton,
535 U.S. 625, 631 (2002).        Plain error exists where the
defendant can establish that an error occurred, that it was
plain, and that it affected the defendant’s substantial rights.
United States v. Olano, 507 U.S. 725, 732-36 (1993).



                                               17
that    statute          includes         both    conduct        that    falls     within       the

exception      in    § 4B1.5,         i.e.,       “trafficking          in,    receipt    of,    or

possession of, child pornography,” as well as conduct that is

not exempted, i.e., the production of child pornography, it is

appropriate         to     apply      the        modified       categorical       approach       to

determine the precise scope of the crime of conviction.                                         See

Descamps v. United States, 133 S. Ct. 2276, 2284-2286 (2013).

However, the government concedes that it has no Shepard-approved

documents showing that Sebolt was engaged in the production of

child pornography.                 See Shepard v. United States, 544 U.S. 13,

16 (2005).          Without these, it is unable to show that Sebolt’s

conviction was for conduct that is not exempted from the covered

sex    crime   definition            in    U.S.S.G.       § 4B1.5       cmt.    n.2.      It    was

therefore      error          to    apply    the       enhancement        and    increase       the

defendant’s criminal history category to V.

       Further,      it        is    clear       that     the     error       harmed     Sebolt’s

substantial     rights.             Had     he    been    sentenced       under    a     criminal

history category IV, his Guidelines range would have been 324 to

405 months which becomes the statutory mandatory minimum of 420

under U.S.S.G. 5G1.1(b), instead of 420 months to life, assuming

the same total offense level.                      Because the district court stated

its    intention         to    sentence          Sebolt    “at    the     very    top     of    the

guidelines,” J.A. 341, the sentence of life imprisonment clearly

harmed him.          We therefore vacate the defendant’s sentence and

                                                  18
remand the case for resentencing.            In light of the remand, we

need not reach the defendant’s second argument that the district

court erred in applying a two-level enhancement for distribution

of   child    pornography    under     U.S.S.G.     § 2G2.1(b)(3).     The

defendant is free to again raise that objection in the district

court if he wishes.



                                     III.

     For     the   reasons   stated,        we   affirm   the   defendant’s

conviction, vacate his sentence, and remand for resentencing.



                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




                                      19
