UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4383
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LARNELL TORRENCE MINOR,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00055-JPB-DJJ-1)
Submitted: November 20, 2012 Decided: December 3, 2012
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larnell Torrence Minor appeals from his convictions
and seventy-one month sentence for failure to register as a sex
offender under the Sex Offender Registration and Notification
Act (“SORNA”). On appeal, he challenges the admission of prior
similar convictions, the jury instructions, his obstruction of
justice enhancement, and his sentence. We affirm.
I.
Minor first challenges the admission of evidence
regarding his prior convictions for failure to register under
Maryland law. 1 We review a district court’s evidentiary rulings
for abuse of discretion. United States v. Byers, 649 F.3d 197,
206 (4th Cir. 2011), cert. denied sub nom. Goodman v. United
States, 132 S. Ct. 468 (2011). An abuse of discretion occurs if
the court commits “[a]n error of law” or “act[s] arbitrarily or
irrationally in admitting evidence.” United States v. Basham,
561 F.3d 302, 326 (4th Cir. 2009) (internal quotation marks
omitted).
1
Minor was convicted of failure to register in Maryland in
2000, 2004, and 2009. He explicitly challenges the admission of
the 2000 and 2004 convictions. He does not address the
admission of the 2009 conviction.
2
Rule 404(b) prohibits the use of “[e]vidence of a
crime, wrong, or other act . . . to prove a person’s character”
and action in conformity with that character on a particular
occasion, Fed. R. Evid. 404(b)(1), but provides that such
“evidence may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R.
Evid. 404(b)(2). Under this court’s precedent, Rule 404(b)
evidence is admissible only if the district court determines it
is (1) relevant to some issue other than the defendant’s general
character, (2) necessary, and (3) reliable. United States v.
Hodge, 354 F.3d 305, 312 (4th Cir. 2004). In addition, the
evidence’s probative value cannot be substantially outweighed by
its danger of unfair prejudice. Id.
“To be relevant, evidence need only to have any
tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.” United
States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (internal
quotation marks omitted). The greater the similarity between
Rule 404(b) evidence and the fact in question, the more relevant
the Rule 404(b) evidence becomes. United States v. Queen, 132
F.3d 991, 997 (4th Cir. 1997). To be necessary, the evidence
need not be critical to the prosecution’s case but need only be
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“‘probative of an essential claim or an element of the
offense.’” United States v. Rooks, 596 F.3d 204, 211-12 (4th
Cir. 2010) (quoting Queen, 132 F.3d at 997). We have repeatedly
held that “‘[a] not-guilty plea puts one’s intent at issue and
thereby makes relevant evidence of similar prior crimes when
that evidence proves criminal intent.’” United States v. Van
Metre, 150 F.3d 339, 350 (4th Cir. 1998) (quoting United States
v. Sanchez, 118 F.3d 192, 196 (4th Cir. 1997)).
Minor argues that his prior Maryland convictions are
not relevant because they are remote in time and involved a
different statute with different elements. We find that the
Rule 404(b) evidence was relevant to establish “truth as to a
disputed issue,” Queen, 132 F.3d at 996, by making less probable
Minor’s attempted defense that he was unaware of the
registration requirements. Although Minor’s state convictions
were pursuant to a state, rather than federal, statute, the
differing language in the statutes did not limit the otherwise
striking similarity between these prior acts and the charged
crime. Specifically, both involved Minor’s knowing failure to
register as a sex offender. Additionally, although Minor claims
that the convictions are remote in time, the last state
conviction was actually from 2009, and the repeated violations
tended to show that Minor had notice of the registration
requirements, such that any failure to comply would be knowing.
4
As such, the Rule 404(b) evidence was relevant based on the
substantial similarity in the state of mind required for the
Rule 404(b) conduct and the charged conduct.
We conclude that the Rule 404(b) evidence was also
necessary to the Government’s case. Minor testified at length
regarding his purported lack of knowledge of both the state and
federal registration requirements. Thus, the Rule 404(b)
evidence, describing prior instances in which Minor was
convicted for knowing failure to register, was both relevant and
necessary, and thus admissible. Cf. United States v. Yearwood,
518 F.3d 220, 230 n.* (4th Cir. 2008) (affirming admission of
Rule 404(b) evidence to demonstrate intent and knowledge, when
Yearwood placed those elements at issue through his theory at
trial); Sanchez, 118 F.3d at 196 (holding that not-guilty plea
puts intent at issue, and evidence of similar prior crimes may
be relevant to prove intent in charged crime); United States v.
Roberts, 619 F.2d 379, 382-84 (5th Cir. 1980) (holding Rule
404(b) evidence admissible to establish intent to join
conspiracy unless defendant affirmatively removes issue from
case, for example by stipulation). Moreover, it is undisputed
that the court documents were reliable, and the court took steps
to limit any prejudice by instructing the jury on two separate
occasions that the evidence could only be used to draw an
inference that Minor acted knowingly and intentionally. Based
5
on the foregoing, the district court’s admission of Minor’s
prior convictions was not an abuse of discretion.
II.
Minor next argues that the court erred in instructing
the jury with respect to the definitions of “reside” and
“habitually live.” Under SORNA, “[a] sex offender shall
register, and keep the registration current, in each
jurisdiction where the offender resides.” 42 U.S.C. § 16913(a)
(2006). The term “resides” is defined as “the location of the
individual’s home or other place where the individual habitually
lives.” 42 U.S.C. § 16911(13) (2006).
The district court instructed the jury that
“[h]abitually lives includes places in which the sex offender
lives with some regularity,” a definition from the National
Guidelines for Sex Offender Registration and Notification, 73
Fed. Reg. 38,030, 38,061-62 (July 2, 2008). The jury sent a
note asking for further clarification of the phrase “habitually
lives.” Minor suggested the phrase be defined as “any place in
which the sex offender lives for at least 30 days,” based upon
the SORNA Guidelines. The Government objected, averring that
there was no support for a consecutive 30-day requirement. The
court compromised and instructed the jury, without objection,
that “a person would live with some regularity in any
6
jurisdiction where he is present for 30 days or more during the
period from August 10, 2010, to August 10, 2011.”
The jury again had questions for the court. They
sought the federal definitions of “habitual residence” and
“permanent residence.” They also asked how the definition of
“lives with some regularity” related to the terms “resides” and
“habitually lived.” Without objection, the court told the jury
that the court had already defined all the terms and could not
define them further. Minor now asserts that the court was
unable to give an adequate jury instruction because SORNA does
not appropriately define the terms. In addition, Minor argues
that the court was improperly unresponsive to the jury’s request
for clarification.
We review jury instructions in their entirety and as
part of the whole trial to determine whether the district court
adequately instructed the jury on the elements of the offense
and the accused’s defenses. See United States v. Bostian, 59
F.3d 474, 480 (4th Cir. 1995). Both the decision whether to
give a jury instruction and the content of that instruction are
reviewed for abuse of discretion. United States v. Passaro, 577
F.3d 207, 221 (4th Cir. 2009). It is typically not necessary to
define a particular term in the jury instructions if the meaning
attributed to that term is a matter of common knowledge. United
States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).
7
In Poitra, the Eighth Circuit ruled that the statutory
definition of “resides” as “habitually lives” is similar to the
commonly held understanding of the term. As such, even that
definition was not required to be given to the jury, and even
absent any additional explanation, the issue was fairly and
adequately submitted to the jury. Id.; see also United
States v. Namey, 364 F.3d 843, 845 (6th Cir. 2004) (finding that
“resides” in a federal child support statue has a commonly
accepted meaning of physical presence with an intent to stay for
an indefinite period of time, but not necessarily permanently,
and also noting that a person may have more than one residence).
Here, the court instructed the jury on the definition
of “residence” contained in the statute and the definition of
“habitually lived” contained in the SORNA Guidelines. While the
thirty-day instruction did not specify whether the thirty days
had to be consecutive or could be aggregated, the ambiguity was
not objected to by the parties when offered by the court as a
compromise, and the thirty days is not further explained in the
Guidelines. Moreover, the “thirty-day” description was
presented as an example of what would constitute “living with
some regularity,” not as a minimum requirement. We conclude
that the court’s legally correct definitions, combined with the
fact that the terms are commonly understood as a matter of law,
8
provided adequate instruction to the jury and did not constitute
an abuse of discretion.
III.
Minor next argues that the district court erred in
applying an obstruction of justice enhancement based upon his
false testimony at trial. Specifically, Minor contends that the
court did not articulate a sufficient basis for its ruling and
further asserts that the main issue in the case was the legal
definition of “reside” as opposed to his credibility. Finally,
Minor argues that, if his testimony was false, so was his
wife’s, his neighbor’s and his mother’s, and none of them had
been charged with perjury.
We review for clear error a district court’s
determination that a defendant obstructed justice. United
States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005). According
to U.S. Sentencing Guidelines Manual § 3C1.1 (2011), a
defendant’s base offense level is to be increased two levels for
obstruction of justice if –
the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and . . . the obstructive conduct related
to . . . the defendant’s offense of conviction and any
relevant conduct[.]
9
The application notes for § 3C1.1 specifically include perjury
by the defendant and providing materially false information to a
judge or magistrate. USSG § 3C1.1 comment. (n.4(b), (f)). For
purposes of § 3C1.1, the Supreme Court has defined perjury as
“giv[ing] false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States
v. Dunnigan, 507 U.S. 87, 94 (1993). Under Dunnigan, “it is
preferable for a district court to address each element of the
alleged perjury in a separate and clear finding[,]” id. at 95,
but it is sufficient if the district court makes a determination
“that encompasses all of the factual predicates for a finding of
perjury.” Id.
The district court made a finding that Minor gave
false testimony, willfully intending to mislead the jury.
Specifically, the court concluded that Minor was living in West
Virginia significantly more than his testimony supported, and
Minor conceded that the main issue in the case was whether he
was in West Virginia enough to trigger registration under SORNA.
In addition, the court explicitly found that Minor “did in fact
commit perjury.” Because the court’s findings, combined with
Minor’s admissions, encompassed all the elements of perjury, we
10
find that the court’s ruling was sufficient to form the basis
for an obstruction enhancement. 2
Moreover, the district court’s ruling contradicted
Minor’s contention that his credibility was not an issue in the
case. While the ultimate issue was whether Minor’s time in West
Virginia triggered the statute, the parties quite clearly
disagreed on how much time Minor spent in West Virginia. As
such, Minor’s testimony was not only material to an element of
the case, but also hotly disputed. Based on the foregoing, the
enhancement was not clearly erroneous. 3
IV.
Finally, Minor claims that the district court erred by
departing upwards based upon Minor’s criminal history.
2
The court did not explicitly rule on the materiality of
Minor’s false testimony. While an explicit ruling would have
been preferable, it is sufficient if the court’s factual
findings “clearly establish[]” this element. See United
States v. Perez, 661 F.3d 189, 193 (4th Cir. 2011). Given
Minor’s own contention at sentencing that the main issue in the
case was whether Minor spent enough time in West Virginia to
require him to register, the materiality of the testimony was
clearly established. See also United States v. Quinn, 359 F.3d
666, 681 (4th Cir. 2004) (upholding obstruction of justice
enhancement despite court’s failure to rule on materiality of
false testimony, given that the testimony concerned the
“essential facts charged”).
3
Minor’s contention that the other defense witnesses had
not been charged with perjury is irrelevant to the court’s
finding that he perjured himself.
11
According to Minor, the district court improperly adopted the
presentence report’s (“PSR”) proposed “extended Guidelines
table” and calculated Minor’s Guidelines range under a
“fictional” Criminal History Category VIII. However, the record
does not support Minor’s argument. Although the court
considered a departure calculated in conformity with the PSR,
the court eventually calculated Minor’s Guidelines range based
upon a Criminal History Category VI. The court then sentenced
Minor to seventy-one months in prison, the high end of his
Guidelines range, with no departure. As there was no departure
or variance involved, Minor’s claim is without merit.
Based on the foregoing, we affirm Minor’s conviction
and sentence. 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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