UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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