United States v. Banks ( 2009 )


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  •                                 UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 09-4306
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    ANTONIO E. BANKS,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Newport News.    Raymond A. Jackson,
    District Judge. (4:08-cr-00041-RAJ-TEM-1)
    Submitted:    October 6, 2009                 Decided:   October 20, 2009
    Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mark H. Bodner, Fairfax, Virginia, for Appellant. Dana J.
    Boente, United States Attorney, Robert E. Bradenham II,
    Assistant United States Attorney, Amy D. Paul, Second Year Law
    Student, Newport News, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    A jury convicted Antonio Banks of stealing firearms
    from    a    licensed     dealer,      in    violation       of    
    18 U.S.C. § 922
    (u)
    (2006), and possession of a firearm after having previously been
    convicted      of     a   crime    punishable      by    more      than    one    year,    in
    violation of 
    18 U.S.C. § 922
    (g)(1) (2006).                             The district court
    sentenced Banks to 102 months of imprisonment on each count, to
    run concurrently, and Banks now appeals.                          Finding no error, we
    affirm.
    Banks first challenges the district court’s failure to
    consider or declare a mistrial after the prosecutor asked Banks
    during cross-examination whether he had subpoenaed a particular
    witness to testify on his behalf.                  Because Banks did not object
    to   the     prosecutor’s         question    or   request         a    mistrial    in     the
    district court, we review this issue for plain error.                                   United
    States v. Farrior, 
    535 F.3d 210
    , 222 (4th Cir. 2008) (citing
    United States v. Olano, 
    507 U.S. 725
    , 733-36 (1993)); see also
    United States v. Ford, 
    88 F.3d 1350
    , 1363 (4th Cir. 1996) (“The
    plain       error   standard      is   appropriate       because         [the    defendant]
    never communicated to the court that he wanted a mistrial.”).
    To     prevail      on    a   claim     of    unpreserved          error,       Banks     must
    demonstrate that (1) there was error; (2) the error was plain;
    and (3) the error affected his substantial rights.                               Olano, 
    507 U.S. at 732
    .        Furthermore,       even      if    Banks       satisfies       this
    2
    standard, this court will exercise its discretion to notice the
    error    only     “if    the    error     seriously       affect[s]      the   fairness,
    integrity, or public reputation of the judicial proceedings.”
    
    Id.
     (internal quotation marks and citation omitted).                              We have
    thoroughly      reviewed        the    record     and    conclude       that   Banks     has
    failed to demonstrate that the district court committed plain
    error.
    Banks next challenges the district court’s enhancement
    of his offense level under the guidelines for obstruction of
    justice.     We “review an application of the [guidelines] by the
    district     court       for    clear     error     in     factual      matters;      legal
    contentions are reviewed de novo.”                       United States v. Sun, 
    278 F.3d 302
    , 313 (4th Cir. 2002) (citation omitted).                              Under the
    guidelines,       a    court    should    increase       an   offense     level    by   two
    levels if the defendant willfully obstructed or attempted to
    obstruct justice with respect to the prosecution of the offense
    of   conviction.          U.S.        Sentencing    Guidelines       Manual       (“USSG”)
    § 3C1.1 (2008).          The commentary to the guidelines provides that
    examples     of       conduct    qualifying        for    the    enhancement       include
    “committing, suborning, or attempting to suborn perjury”.                               USSG
    § 3C1.1 cmt. n.4(b).            In order to enhance an offense level under
    this section based on perjury, the district court must find by a
    preponderance of the evidence that “(1) the defendant gave false
    testimony,      (2)      concerning       a   material        matter,    (3)   with     the
    3
    willful intent to deceive (rather than as a result of confusion,
    mistake, or faulty memory).”               Sun, 
    278 F.3d at 314
     (citation
    omitted).       We have thoroughly reviewed the record and conclude
    that     the    district       court   did      not    err     in     finding   by    a
    preponderance      of    the    evidence       that    Banks    had    attempted     to
    obstruct justice.
    Accordingly, we affirm the judgment of the district
    court.     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
    4
    

Document Info

Docket Number: 09-4306

Judges: Michael, Gregory, Shedd

Filed Date: 10/20/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024