US v. Antonio Banks, No. 09-4306 (4th Cir. 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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4306 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO E. BANKS, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 violation of 18 U.S.C. § 922(g)(1) (2006). one year, in 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 request the prosecutor s question or a mistrial in district court, we review this issue for plain error. the 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. U.S. at 732. Furthermore, even 2 if Banks Olano, 507 satisfies this 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). thoroughly reviewed the record and conclude that We have 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 contentions are reviewed de novo. factual matters; United States v. Sun, 278 F.3d 302, 313 (4th Cir. 2002) (citation omitted). guidelines, a court should legal increase an offense Under the level by two levels if the defendant willfully obstructed or attempted to obstruct justice with respect to the prosecution of the offense of conviction. § 3C1.1 (2008). examples of U.S. Sentencing Guidelines ( USSG ) Manual The commentary to the guidelines provides that conduct qualifying for the enhancement include committing, suborning, or attempting to suborn perjury . § 3C1.1 cmt. n.4(b). USSG 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 3 matter, (3) with the 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 district the preponderance of court the did evidence not that err Banks in had finding by attempted a to obstruct justice. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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