Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4871
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES E. ORR, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-03-22)
Submitted: May 28, 2004 Decided: July 27, 2004
Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.
Thomas E. Johnston, United States Attorney, Paul T. Camilletti,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James E. Orr, Jr., was convicted of possession of a
sawed-off shotgun, in violation of 26 U.S.C. §§ 5812, 5861(b), 5871
(2000), knowingly receiving and possessing a sawed-off shotgun, in
violation of 26 U.S.C. §§ 5812, 5861(c), 5871 (2000), and knowingly
receiving and possessing an unregistered sawed-off shotgun, in
violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (2000). Orr was
sentenced to thirty-three months incarceration, two years of
supervised release, and to pay $300 in special assessments. Orr
raises several issues on appeal.
First, Orr asserts the district court erred in
instructing the jury on a defendant’s liability for willful
blindness to a firearm’s illegal characteristics. We review this
claim for abuse of discretion. United States v. Whittington, 26
F.3d 456, 462 (4th Cir. 1994). Orr’s claim is uncompelling. The
jury instructions, taken as a whole, fairly stated the controlling
law. United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990);
see also United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.
1991).
Second, Orr asserts the district court erred in denying
his motion for a judgment of acquittal. We review this claim to
determine “whether there is substantial evidence (direct or
circumstantial) which, taken in the light most favorable to the
prosecution, would warrant a jury finding that the defendant was
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guilty beyond a reasonable doubt.” United States v. MacCloskey,
682 F.2d 468, 473 (4th Cir. 1982). Orr’s claim lacks merit. The
Government introduced evidence sufficient to allow a finding of
guilt.
Third, Orr asserts the district court erred in denying
his suppression motion. We review a district court’s legal
conclusions on a suppression motion de novo, and the court’s
underlying factual determinations for clear error. United States
v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). We find no error.
The search warrant was valid. United States v. Oloyede, 982 F.2d
133, 138 (4th Cir. 1992). The discovery of the shotgun was a valid
part of the search. United States v. Jackson, 131 F.3d 1105, 1109
(4th Cir. 1997); United States v. Wells, 98 F.3d 808, 810 (4th Cir.
1996). Orr was not subjected to a custodial interrogation during
the search. Accord, Berkemer v. McCarty, 468 U.S. 420, 440 (1984).
The credibility of the officers who testified regarding the search
is not subject to appellate review. United States v. Beidler, 110
F.3d 1064, 1067 (4th Cir. 1997). Moreover, Orr fails to establish
grounds for appellate relief by asserting one of two troopers was
unavailable to testify at his suppression hearing.
Fourth, Orr asserts the district court erred in admitting
into evidence statements he and a state trooper made when the
shotgun was found at his residence. We review this claim for abuse
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of discretion. United States v. Moore, 27 F.3d 969, 974 (4th Cir.
1994). Orr’s claim is uncompelling. Fed. R. Evid. 401, 402.
Fifth, Orr asserts the district court erred in denying
his motion to strike two jurors for cause. We review this claim
for abuse of discretion. Poynter v. Ratcliff, 874 F.2d 219, 222
(4th Cir. 1989). We find the district court did not err in
concluding the jurors in question could be impartial. United
States v. Capers, 61 F.3d 1100, 1105 (4th Cir. 1995).
Sixth, Orr asserts the district court erred in enhancing
his sentence for obstruction of justice based on perjury. We
review this claim for clear error. United States v. Puckett, 61
F.3d 1092, 1095 (4th Cir. 1995). The record supports the district
court’s finding of perjury, thereby justifying the enhancement.
U.S. Sentencing Guidelines Manual § 3C1.1, comment. (n.4(b)).
(2002).
Seventh, Orr asserts the district court erred in denying
him an adjustment for acceptance of responsibility. We review this
claim for clear error. United States v. Castner, 50 F.3d 1267,
1280 (4th Cir. 1995). We find no error. The district court’s
perjury finding warranted denying an adjustment. USSG § 3E1.1(a),
comment. (n.4).
Eighth, Orr asserts the district court erred in denying
him a downward departure for aberrant criminal behavior. We deny
review since the record reveals the district court was aware of its
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authority to grant a departure, but chose not to do so. USSG
§ 5K2.20; United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).
Accordingly, we affirm Orr’s conviction and sentence. 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 in the decisional process.
AFFIRMED
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