                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4845


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO DAVIS, a/k/a Tank Top,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:13-cr-00002-WDQ-1)


Submitted:   April 29, 2016                    Decided:   May 6, 2016


Before WILKINSON and    THACKER,    Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Arthur S. Cheslock, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James Thomas Wallner,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      A    jury    convicted        Antonio     Davis       of   conspiracy      to    affect

commerce by robbery, in violation of 18 U.S.C. §§ 2, 1951(a)

(2012);     conspiracy         to   distribute        and    possess     with    intent         to

distribute five kilograms or more of cocaine, in violation of

21 U.S.C.        § 846    (2012);      conspiracy           to   possess      firearms          in

furtherance of a crime of violence or a drug trafficking crime,

in   violation      of    18    U.S.C.     § 924(o)         (2012);    possession          of    a

firearm     in     furtherance       of    a    crime       of   violence       or     a   drug

trafficking crime, in violation of 18 U.S.C. §§ 2, 924(c); and

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 2, 922(g)(1) (2012).                       The district court sentenced

Davis to a total of 295 months’ imprisonment.

      On   appeal,       counsel     for   Davis       filed     a    brief   pursuant          to

Anders v. California, 386 U.S. 738 (1967), asserting that there

are no meritorious issues for appeal but questioning whether the

district court erred in certifying the transcript for appeal,

whether     the    government’s        employment           of   a   stash    house        sting

operation constituted outrageous conduct, whether the district

court     abused    its   discretion           in    admitting       evidence    of     Davis’

criminal     record,       and      whether         sufficient       evidence        supported

Davis’ convictions for possession of a firearm.                              Davis did not

file a supplemental pro se brief, despite notice of his right to



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do so.     The government elected not to file a response to the

Anders brief.

                                    I.

       On appeal, Davis first contends that the district court

abused    its   discretion    by   certifying    the   trial   transcripts

without referring to the court reporter’s backup tapes.                  Davis

asserts that the trial transcript is deficient because it does

not reflect (1) his statement to the court on the first day of

trial that he had not had time to prepare a defense and wanted a

new lawyer, and (2) defense counsel’s objection to the trial

court’s response to the jury’s question regarding entrapment.

       The Court Reporter Act requires a verbatim recording of

“all     proceedings   in    criminal    cases   had   in   open    court.”

28 U.S.C. § 753(b) (2012).         “The public, including the parties

to a suit, have a right of access to the records of a judicial

proceeding.”     Smith v. U.S. Dist. Court Officers, 203 F.3d 440,

441 (7th Cir. 2000).        A defendant would have a right to access a

tape that is an original record of the proceeding.             Id. at 442.

However, “audiotapes that merely back up the court reporter’s

stenographic record” are the “personal property of the reporter”

and are not “judicial records, unless some reason is shown to

distrust the accuracy of the stenographic transcript.”             Id.

       We have held that, when a portion of a trial transcript is

unavailable, “[t]he lack of a record does not warrant reversal

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. . . as long as the reviewing court is satisfied that no error

occurred      at    trial.           The    appellant       must     demonstrate       that   the

missing portion . . . specifically prejudices his appeal before

relief will be granted.”                    United States v. Gillis, 773 F.2d 549,

554    (4th     Cir.      1985)      (internal          citation    omitted);     see    United

States v. Huggins, 191 F.3d 532, 537 (4th Cir. 1999) (when a

transcript is missing or less than complete, the “defendant must

show    that       the    transcript         errors       specifically       prejudiced       his

ability     to     perfect       an    appeal.”).            An    appellant     demonstrates

prejudice “when a trial transcript is so deficient that it is

impossible for the appellate court to determine if the district

court has committed reversible error.”                            Huggins, 191 F.3d at 537

(internal quotation marks omitted).

       Here, the district court conducted an evidentiary hearing

and    certified         the    transcripts         based    on     the    testimony     of   the

court reporter, trial counsel, and the court’s own recollection

of    events.            Davis       does    not    pursue        either    of   the    alleged

omissions substantively on appeal, nor does our review pursuant

to     Anders      find        any    meritorious         issue      associated      with     the

purported omissions.                 Accordingly, we conclude that Davis fails

to establish prejudice.

                                                   II.

       In   his     second       issue       on    appeal,    Davis       suggests     that   the

government’s employment of a stash house sting operation was

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outrageous conduct in violation of the Due Process Clause.                                    The

Supreme Court has held that there may be “a situation in which

the conduct of law enforcement agents is so outrageous that due

process    principles          would    absolutely          bar     the    government        from

invoking judicial processes to obtain a conviction.”                                      United

States v. Russell, 411 U.S. 423, 431 (1973).                                  However, “the

outrageous conduct doctrine is highly circumscribed and applies

only in rare cases.”            United States v. Hare, __ F.3d __, __, No.

14-4758,       2016    WL   1567051,       at       *7    (4th     Cir.    Apr.     19,     2016)

(internal       citations        and    quotation           marks        omitted).           “The

government’s          actions       must     be          shocking     or      offensive        to

traditional      notions       of    fundamental           fairness.”         Id.    (internal

quotation marks omitted).               We recently held in Hare that it is

not   outrageous        for    law     enforcement          “to     utilize       stash     house

stings    as    an     investigative        tool.”           Id.    at     *8.      Given     the

circumstances of the instant case, the government’s conduct here

was not “so outrageous as to shock the conscience of the court.”

Id. (internal quotations marks omitted).

                                            III.

      Next,     Davis       complains      that      the     trial       court     abused     its

discretion       by     admitting          Fed.      R.     Evid.         404(b)     evidence,

specifically          Davis’    criminal          record.           Fed.     R.     Evid.     404

“generally prohibits evidence of other crimes or bad acts to

prove the defendant’s character and conduct in accordance with

                                                5
his character.”        United States v. McLaurin, 764 F.3d 372, 380

(4th Cir. 2014), cert. denied, 135 S. Ct. 1842 (2015).                        However,

such evidence may be admissible for another purpose and “there

is no doubt that proving predisposition [to rebut an entrapment

defense] is one of the purposes for which bad-act evidence may

be admissible.”        Id.      “To be admissible under Rule 404(b) to

prove    predisposition,        . . .     the    past       conduct    need     not    be

identical to the crime charged.                 Rather, the conduct need only

be similar enough and close enough in time to be relevant to the

matter    at    issue.”        Id.   at    382    (internal          quotation    marks

omitted).      “Where the evidence is probative, the balance under

[Fed. R. Evid.] 403 should be struck in favor of admissibility,

and evidence should be excluded only sparingly.”                       United States

v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008) (internal quotation

marks    omitted).        A   district    court    abuses      its     discretion       by

admitting      Rule   404(b)     evidence       only    if     its    decision        “was

arbitrary and irrational.”              United States v. Weaver, 282 F.3d

302, 313 (4th Cir. 2002).

     Davis’      criminal      record     established         that     he   had       been

convicted of attempted first-degree murder, two counts of first-

degree assault, and the use of a firearm in the commission of

those offenses.        Davis was on parole for these crimes at the

time of the instant offense.                  We conclude that the district

court    did   not    abuse    its   discretion        in    finding     that     Davis’

                                          6
criminal record was relevant as to whether he was predisposed to

commit violent crimes with firearms.

                                          IV.

       Finally, Davis questions the sufficiency of the evidence

supporting    his    convictions      for       possession       of    a    firearm.         We

review de novo the denial of a Fed. R. Crim. P. 29 motion for a

judgment of acquittal.            United States v. Hickman, 626 F.3d 756,

762    (4th   Cir.    2010).        In    considering        a    challenge          to     the

sufficiency of the evidence, we view the evidence in the light

most    favorable     to    the     government       and     inquire             “whether     a

reasonable finder of fact could find the essential elements of

the crime beyond a reasonable doubt.”                United States v. Min, 704

F.3d   314,   322    (4th   Cir.     2013).        “Reversal          for    insufficient

evidence is reserved for the rare case where the prosecution’s

failure is clear.”          United States v. Beidler, 110 F.3d 1064,

1067 (4th Cir. 1997) (internal quotation marks omitted).

       To prove a violation of § 924(c)(1), the government must

demonstrate that: “(1) the defendant used or carried a firearm,

and (2) the defendant did so during and in relation to a drug

trafficking    offense      or    crime     of    violence,”          United      States     v.

Mitchell,     104    F.3d   649,    652     (4th    Cir.   1997),           or    “that     the

possession of a firearm furthered, advanced, or helped forward a

drug trafficking crime.”           United States v. Perry, 560 F.3d 246,

254 (4th Cir. 2009) (internal quotation marks omitted).                                     The

                                            7
government can prove the possession element of this offense by

establishing that the defendant “exercised, or had the power to

exercise, dominion and control over the firearm.”                         United States

v. Wilson, 484 F.3d 267, 282 (4th Cir. 2007) (internal quotation

marks omitted).

       Likewise, “[l]iability under § 922(g)(1) may arise from a

felon’s     voluntary      and     intentional           possession    of    a     firearm,

whether      the     felon        possessed          the     weapon       actually          or

constructively,       exclusively        or       jointly   with    others.”         United

States v. Graham, 796 F.3d 332, 376 (4th Cir. 2015), reh’g en

banc granted, 624 F. App’x 75 (4th Cir. Oct. 28, 2015) (granting

government’s        petition       for    rehearing          regarding       warrantless

procurement of cell site location information).                           “Constructive

possession occurs when a person exercises, or has the power to

exercise, dominion and control over an item of property.”                               Id.

(alterations and internal quotation marks omitted).                                Evidence

that   “a   defendant       has    dominion        and    control     over   the    .   .    .

vehicle     where    the    item    is   located”          establishes       constructive

possession of the item.            Id.

       Moreover,     a     defendant     is       liable     for    his   codefendant’s

reasonably foreseeable acts in furtherance of a conspiracy.                             See

United States v. Ashley, 606 F.3d 135, 142-43 (4th Cir. 2010)

(citing United States v. Pinkerton, 328 U.S. 640, 647 (1946))

(setting forth doctrine of vicarious coconspirator liability).

                                              8
Finally, “[a] defendant is guilty of aiding and abetting if he

has knowingly associated himself with and participated in the

criminal venture.”          United States v. Burgos, 94 F.3d 849, 873

(4th Cir. 1996) (en banc) (internal quotation marks omitted).

“An   active    participant       in    a    drug       transaction    has    the      intent

needed to aid and abet a § 924(c) violation when he knows [in

advance]      that    one   of    his       confederates        will   carry       a    gun.”

Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014).

      We have reviewed the evidence and conclude that, under any

theory, the evidence is sufficient to support Davis’ substantive

firearm convictions.

                                             V.

      In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal.                                 We

therefore      affirm    the     district      court’s      judgment.        This        court

requires that counsel inform Davis, in writing, of the right to

petition    the      Supreme   Court     of       the    United   States     for       further

review.     If Davis 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 Davis.




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     We 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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