                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 08-10743                 JANUARY 13, 2010
                           Non-Argument Calendar               JOHN LEY
                                                             ACTING CLERK
                         ________________________

                       D. C. Docket No. 07-00002-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TERRY LEE STARR,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                               (January 13, 2010)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Terry Lee Starr appeals his convictions and sentences for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and for

possession of a firearm with an obliterated serial number, in violation of 18 U.S.C.

§ 922(k). We affirm, finding no merit to the arguments raised.

      First, although Starr argues that the evidence was insufficient to sustain

either of his convictions because he did not know there was a pistol in his pocket

until police removed it, much less that the pistol had an obliterated serial number,

the jury had an ample evidentiary basis to conclude otherwise.

      Second, the district court did not plainly err in failing to instruct the jury as

to the “innocent possession” defense to § 922(g)(1). Because this Court has not

recognized the availability of the innocent intent defense to § 922(g)(1), there is a

circuit split, and there is no precedent from the Supreme Court resolving the issue,

there cannot have been plain error, which is the applicable standard to be applied.

      Third, the district court did not err in failing to find that Starr suffered a

Fourth Amendment violation when police officers seized him and thereafter seized

the gun in his pocket. The evidence supports the conclusion that the officers were

justified in detaining Starr, patting him down, and seizing the firearm found in his

pocket.

      We likewise find no error on the district court’s conclusion that Starr was

not deprived of his Fourteenth Amendment due process rights when it found that



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he was competent to stand trial. There were no objections to the psychiatric report

concluding that Starr was competent and Starr forfeited any challenge to the

district court’s competency finding when counsel affirmatively withdrew his prior

objection and stated that he had no question as to Starr’s competency.

      Finally, we find no plain error in the two level increase to Starr’s offense

level per U.S.S.G. § 2K2.1(b)(4), for possessing a firearm with an obliterated serial

number. Section 2K2.1(b)(4) of the 2005 Guidelines provided that the base

offense level should be increased by two if the weapon had an altered or obliterated

serial number. U.S.S.G. § 2K2.1(b)(4) (2005). The commentary to that guideline

provided that the two-level increase applied “whether or not the defendant knew or

had reason to believe that the firearm . . . had an altered or obliterated serial

number.” U.S.S.G. § 2K2.1, comment. (n.16) (2005); see also United States v.

Richardson, 8 F.3d 769, 770 (11th Cir. 1993) (holding that the district court did not

err in applying a two-level enhancement, per § 2K2.1(b)(4), for possessing a stolen

firearm, notwithstanding the absence of proof that Richardson knew the firearm

was stolen).

      Because there is no dispute that the serial number was obliterated and

application of the two-level enhancement under § 2K2.1(b)(4) does not require

knowledge of the obliteration, the district court did not err, much less plainly err, in



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applying the enhancement.

      AFFIRMED.




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