                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 14-4813


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHN DAVID PINKE,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:14-cr-00009-IMK-JSK-2)


Submitted:   June 24, 2015                    Decided:   July 2, 2015


Before WILKINSON, AGEE, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Deirdre Purdy, Chloe, West Virginia, for Appellant. Andrew R.
Cogar, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       John Pinke appeals the district court’s judgment sentencing

him to 275 months of imprisonment pursuant to his convictions

for assaulting with intent to commit murder, conspiring to do

the same, assaulting with a dangerous weapon with intent to do

bodily harm, and assaulting another inmate resulting in serious

bodily injury, in violation of 18 U.S.C. §§ 2, 7(3), 113(a)(1),

(a)(3), (6), 371 (2012).              Pinke’s counsel filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967).                            Counsel stated

that there are no meritorious grounds for appeal but questioned

whether     the    district     court    correctly           admitted    videos     of    the

assault     and    resulting        injuries      given      their     gruesome    nature,

resentenced Pinke in order to apportion the sentence among the

four   counts      of    conviction,        and   grouped       Pinke’s        offenses   to

calculate his total offense level before stacking two of the

sentences as consecutive.               Pinke filed a pro se brief arguing

that the district court plainly erred in admitting the videos

without     a     proper      foundation      and      abused     its    discretion       in

excluding testimony describing alleged statements by the victim

as hearsay.         The Government declined to file a brief.                         After

careful review, we affirm.

       We   review      for   abuse    of    discretion         the    district    court’s

decision     to    admit      the   videos       of    the    assault     and    resulting

injuries     despite       their     gruesome         nature.         United    States    v.

                                             2
Forrest, 429 F.3d 73, 79 (4th Cir. 2005).                  A district court may

exclude otherwise relevant evidence if “its probative value is

substantially outweighed by a danger of . . . unfair prejudice.”

Fed. R. Evid. 403.

        We have reviewed the record, including the videos, and find

that, while gruesome, the videos were not so inflammatory that

their    potential     for   prejudice       substantially    outweighed       their

probative value.       The first video refutes the victim’s testimony

that he instigated the conflict, and tends to demonstrate that

Pinke and his codefendants intended to murder the victim, given

the    nature    and   duration   of   the     assault.       The   second     video

depicts the “serious bodily injury” element required to convict

Pinke under 18 U.S.C. § 113(a)(6).                 Consequently, the district

court did not abuse its discretion in admitting the videos.

        We next review, also for abuse of discretion, the district

court’s decision to correct its sentence under Fed. R. Crim. P.

Rule 35(a).      See United States v. Stump, 914 F.2d 170, 172 (9th

Cir.    1990).     A   district   court      may   “correct    a    sentence   that

resulted    from   arithmetical,       technical,     or    other   clear    error”

within 14 days after sentencing.             Fed. R. Crim. P. 35(a).

        Here, the court did just that.              Six days after Pinke was

sentenced, the court recognized that it failed to delineate the

specific sentences applicable to each count of conviction.                       We



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find no authority to suggest that the district court’s decision

to do so constituted an abuse of discretion.

       We likewise conclude that the district court did not abuse

its discretion in grouping Pinke’s offenses to calculate his

total       offense    level       before      stacking        the    sentences     for   two

counts,       so    that     the    overall       sentence         would   be   within     his

Guidelines         range     but   no     specific         sentence    would    exceed     the

statutory maximum for its corresponding offense.                           Gall v. United

States, 552 U.S. 38, 46 (2007) (providing standard of review).

Indeed, its decision to do so was entirely appropriate: “If the

sentence imposed on the count carrying the highest statutory

maximum is less than the total punishment, then the sentence

imposed       on     one     or    more     of       the     other    counts    shall      run

consecutively, but only to the extent necessary to produce a

combined          sentence    equal       to     the       total     punishment.”         U.S.

Sentencing Guidelines Manual § 5G1.2(d).

       We next consider Pinke’s assertion that the district court

plainly erred by admitting the contested videos without a proper

foundation.           See United States v. Perkins, 470 F.3d 150, 155

(4th       Cir.    2006)   (holding       that       plain-error       review   applies     to

unopposed evidentiary admissions). *                       To meet this standard, Pinke



       *
       While Pinke did contest admission of the videos under Fed.
R. Evid. 403, he did not challenge their foundation.



                                                 4
must demonstrate that an error (1) occurred, (2) was plain, and

(3) affected his substantial rights.                      United States v. Olano,

507   U.S.    725,     732    (1993).     Even         then,   we   may     exercise      our

discretion to correct such errors only if the errors “seriously

affect the fairness, integrity, or public reputation of judicial

proceedings.”         Id.

      “The    factual        determination        of    whether     evidence       is    that

which the proponent claims is ultimately reserved for the jury.”

United States v. Vidacak, 553 F.3d 344, 349 (4th Cir. 2009).

The district court is merely obligated to assess whether the

proponent has offered a proper foundation from which “the jury

could reasonably find that the evidence is authentic.”                         Id.

      Our    review     of    the   record       indicates      that    the   Government

presented     sufficient       evidence      of    authentication.            As    to    the

first video, a Government witness explained the manner in which

the prison’s closed circuit video system operates, the means by

which he obtained the video, and that he downloaded it onto the

DVD that was played for the jury.                      Regarding the second video,

another      prison    employee     explained          that    he   responded       to    the

assault, witnessed a nurse videotaping the victim’s injuries,

and the video depicted injuries that were consistent with his

recollection.          In light of this, we find no error, plain or

otherwise,      in    the    district   court’s          decision      to   admit       these

videos.

                                             5
      Finally, we review the district court’s hearsay rulings for

abuse of discretion.              United States v. Gonzales-Flores, 701 F.3d

112, 117 (4th Cir. 2012).                “Hearsay” is any statement that the

declarant      does    not        make   at    the   current      trial,     offered       in

evidence     “to    prove     the    truth      of   the   matter      asserted     in   the

statement.”         Fed.     R.    Evid.      801(c).      Hearsay     is   inadmissible

except as otherwise provided by federal rule or statute.                                 Fed.

R. Evid. 802.

      Here, we hold that even if error occurred, it was harmless,

in view of high probability “that the error did not affect the

judgment.”      See United States v. Nyman, 649 F.2d 208, 212 (4th

Cir. 1980) (providing the test for harmlessness).                           Pinke sought

to introduce threatening statements made before the assault by

the   victim       through     a    third      party,      and   the    district     court

eventually admitted other testimony detailing just that.

      In accordance with Anders, we have reviewed the record and

found no meritorious issues for appeal.                     Consequently, we affirm

the district court’s judgment.                  This court requires that counsel

inform Pinke, in writing, of his right to petition the Supreme

Court   of    the     United       States      for   further     review.       If    Pinke

requests that a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation.                          Counsel’s

motion must state that a copy thereof was served on Pinke.                                We

                                               6
dispense   with     oral   argument   because     the    facts   and   legal

contentions   are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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