                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                                F I L E D
                        REVISED JUNE 9, 2004
               IN THE UNITED STATES COURT OF APPEALS             June 8, 2004
                       FOR THE FIFTH CIRCUIT
                                                          Charles R. Fulbruge III
                                                                  Clerk

                             No. 03-10167


     UNITED STATES OF AMERICA

                            Plaintiff - Appellee

     v.

     WILLIAM CLARK TAYLOR

                            Defendant - Appellant


          Appeal from the United States District Court
               for the Northern District of Texas
                       No. 3:02-CR-163-1-D


Before KING, Chief Judge, and REAVLEY and EMILIO M. GARZA,
Circuit Judges.

PER CURIAM:*

     William Taylor appeals both his conviction and his sentence

for knowingly possessing a firearm silencer.       We affirm.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     While enforcing a court-ordered eviction at Taylor’s

automotive shop, Dallas constables discovered approximately

thirty-five weapons, many modified, and a number of what appeared



     *
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

                                   1
to be homemade silencers.     The constables called the Bureau of

Alcohol, Tobacco, and Firearms, who sent agents to the site.

Taylor consented, in writing, to allow ATF agents to search the

premises.     ATF Special Agent Joseph Patterson seized silencers

found on Taylor’s workbench and elsewhere.1

         When questioned about the silencers, Taylor admitted that

he had tried to make silencers with the help of a book entitled

“How to Build Practical Firearms Suppressors: an Illustrated

Step-by-Step Guide.”     Agent Patterson discovered this book inside

a briefcase near the workbench where the silencers were found.

Taylor signed a written confession, which stated:

     On Friday, December 8, 2000, I consented to the search of
     my   business   to   ATF   Special   Agent    Joseph   A.
     Patterson. . . . I also told [Special Agent] Patterson
     that I had found a couple of firearm silencers and I
     decided to make them a little better. I bought a book on
     how to make firearm silencers and I began to . . . make
     silencers. . . . I made firearm silencers a couple of
     times and I stuffed them on the end of my guns and fired
     them.   The silencers I made did not work very well.
     Someone told me to quit making silencers because I
     would be arrested.

Special Agent Patterson later confirmed that Taylor had not

registered the silencers with the National Firearms Registration

and Transfer Record.

     Taylor was charged in a four-count indictment with several

     1
          The silencers (approximately ten or eleven in all)
varied greatly and were made from all sorts of common materials.
For example, one was a piece of plastic tubing wrapped in black
tape with a rubber cap on the end, another was a metal
cylindrical object with rubber insulation inside of it, and yet
another was a rubber tube with threads inside it and an end cap.

                                   2
firearms offenses, including possession of unregistered silencers

and silencer parts, in violation of 26 U.S.C. §§ 5845(a)(7) and

5861(d).2   Taylor pleaded not guilty.

     In his defense, Taylor took the witness stand.    He testified

that he had ordered the how-to book on making silencers two years

before his eviction, when there was a Japanese fighting dog

terrorizing the neighborhood.    By the time the book arrived,

however, the dog had died.    Consequently, according to Taylor, he

was no longer interested in making silencers when he received the

book.    Taylor also testified that he did not know he was in

possession of silencers and that he did not intend for the items

seized to be silencers.

     Notwithstanding Taylor’s testimony, the jury found Taylor

guilty of knowingly possessing silencers.3   The district court

concluded, based on Taylor’s trial testimony, that he had

perjured himself.    Thus, the district court increased Taylor’s

sentencing range by two levels, pursuant to U.S.S.G. § 3C1.1.      In

     2
          Section 5861(d) makes it unlawful for any person “to
. . . possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record.”
Section 5845(a) defines the term “firearm” to include “any
silencer, as defined in 18 U.S.C. § 921.” Under 18 U.S.C. §
921(a)(24), a “silencer” is “any device for silencing, muffling,
or diminishing the report of a portable firearm, including any
combination of parts, designed or redesigned, and intended for
use in assembling or fabricating a firearm silencer or firearm
muffler, and any part intended only for use in such assembly or
fabrication.”
     3
          The jury found Taylor not guilty of the three remaining
firearm counts.

                                  3
accordance with this new range, the district court sentenced

Taylor to fifty-two months’ imprisonment followed by three years

of supervised release.

                 II.     SUFFICIENCY OF THE EVIDENCE

      Taylor argues that the district court erred by denying his

motion for judgment of acquittal.      According to Taylor, the

government’s evidence was insufficient to show (1) that he knew

the items were firearm silencers and intended for them to be

firearm silencers and (2) that the supposed firearm silencers

were “in or could readily have been put in operating condition.”

Since Taylor preserved his challenge to the sufficiency of the

government’s evidence, we review de novo the district court’s

denial of his motion for judgment of acquittal.        United States v.

Carbajal, 290 F.3d 277, 289 (5th Cir. 2002).      The question is

whether, viewing the evidence in the light most favorable to the

government, a rational jury could conclude that the government

proved all elements of the offense beyond a reasonable doubt.

Id.

      We conclude that the government’s evidence was sufficient to

show that Taylor knew that the items in his possession were

firearm silencers and that he intended for them to be silencers.

Taylor argues that, because he is an experienced mechanic, if he

intended for the items to be silencers, they would have worked.

Yet, Taylor conceded that he had possessed silencers in the past



                                   4
and that he had been interested in building silencers.

Furthermore, Taylor signed a confession admitting that he was

trying to make silencers with the help of a book entitled “How to

Build Practical Firearms Suppressors: an Illustrated Step-by-Step

Guide.”   Agent Houde testified that the silencers found in

Taylor’s possession were “very consistent” with the silencers

illustrated in the how-to book.    Finally, one of the silencers

was found attached to a firearm.       Thus, the evidence supports the

jury’s determination that Taylor knew and intended for the items

found in his shop to be silencers or silencer parts.

     The jury instructions also required the government to prove

that the silencers were “in or could readily have been put in

operating condition.”    Taylor argues that there is no evidence

that the silencers actually worked.      Indeed, Agent Alfred Houde,

who examined the items found in Taylor’s shop, testified that he

was unable to determine whether the silencers were functional

because “on each selected sample they blew off the gun and blew

down range or came apart after the initial shot.”      But, contrary

to Taylor’s assertion, the government did not have to prove that

the silencers were in operating condition; it merely needed to

prove that they could readily have been put into operating

condition.    And the evidence is sufficient to support this

conclusion.    Agent Houde testified that the silencers were “in or

could readily have been put in operating condition.”      According

to Agent Houde, many of the silencers were “very consistent” with

                                   5
those described in Taylor’s how-to book.   Furthermore, Agent

Houde opined that, if properly made, the silencers illustrated in

the how-to book would work.   Agent Houde explained that affixing

the silencers to the firearms, with tape or bondo, would have

helped the silencers stay on the firearms.   Given all this, as

well as Taylor’s mechanical ability, the jury could have

concluded beyond a reasonable doubt that Taylor could readily

have put the silencers into operating condition.

                   III.   SENTENCING ENHANCEMENT

     Taylor argues that the district court erred by finding that

he had committed perjury and, on this basis, enhancing his

sentence for obstruction of justice under U.S.S.G. § 3C1.1.4    We

review the district court’s perjury determination for clear

error.   United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir.

1998).

     The district court found that the following statements given

by Taylor at trial were false:

     . . . that he was no longer interested in making a
     silencer at the time he got the book on how to make
     silencers, because the problem he needed it for had
     already taken care of itself and he did not need it
     anymore;

     . . .


     4
          Taylor also contends that it is unfair to increase his
sentencing range for three statements that the jury did not even
credit. Since there is no requirement, however, that the jury
actually believe the defendant’s perjured testimony, this
argument is unavailing.

                                 6
     . . . that he did not know he was in possession of silencers
     and that they would be considered silencers; and

     . . . that he did not intend for anything in Government
     Exhibit 5--the box containing Government Exhibits 5A
     and 97-107--to actually be a firearm silencer or
     suppressor.

Taylor contends that these three statements were not false.    We

conclude, however, that the district court did not clearly err in

finding otherwise.   Taylor’s first statement directly contradicts

the written confession he gave to the government, wherein he

admitted the following: “I bought a book on how to make firearm

silencers and I began . . . to make silencers.”   Further, the

evidence discussed above supports the conclusions that Taylor

knew that he possessed silencers and that he intended for the

items to be silencers.   Consequently, we hold that the district

court correctly increased Taylor’s offense level by two under

U.S.S.G. § 3C1.1.5

                         IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM both Taylor’s

conviction and his sentence for knowingly possessing a firearm

silencer.



     5
          In a footnote, Taylor also complains that it is
fundamentally unfair to make defendants choose between not
testifying, and risking “a jury’s wrath,” and testifying, and
being subjected to a two-level sentencing increase for perjury.
As the Supreme Court noted in United States v. Dunnigan, however,
“a defendant’s right to testify does not include a right to
commit perjury.” 507 U.S. 87, 96 (1993). Thus, Taylor’s
argument has no merit.

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