                                UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                              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




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