UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 95-5183

TREVOR BRAITHWAITE,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-94-653-4)

Submitted: March 21, 1996

Decided: April 4, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William Reynolds Williams, WILLCOX, MCLEOD, BUYCK &
WILLIAMS, Florence, South Carolina, for Appellant. J. Preston
Strom, Jr., United States Attorney, Alfred J. Bethea, Jr., Assistant
United States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Trevor Braithwaite appeals his conviction and sentence on a jury
verdict of knowing possession of a firearm by a convicted felon, in
violation of 18 U.S.C.A. § 922(g) (West Supp. 1995). Braithwaite
timely filed this direct appeal, advancing three claims of error. First,
Braithwaite claims that his arrest was unlawful due to a technical
defect in the warrant, and therefore that the district court erred in
denying his motion to suppress the firearm. Second, Braithwaite
claims that the evidence was insufficient to support the jury's verdict.
Finally, Braithwaite claims that the district court erred in enhancing
his sentence for committing perjury pursuant to U.S.S.G. § 3C1.1
(Nov. 1994). For the reasons set forth below, we affirm Braithwaite's
conviction and sentence.

This Court reviews the district court's factual findings regarding
suppression for clear error, and applies a de novo standard of review
to the ultimate suppression decision. United States v. Rusher, 966
F.2d 868, 873 (4th Cir.), cert. denied, ___ U.S. ___, 61 U.S.L.W.
3285 (U.S. Oct. 13, 1992) (No. 92-5734). Fourth and Fifth Amend-
ment violations are waived by failing to file a pretrial motion to sup-
press as required by Fed. R. Crim. P. 12(b)(3). In this case, Braith-
waite's attorney waited until the trial had begun before making his
motion to suppress the firearm on the ground that there was a techni-
cal defect in the arrest warrant. While the failure to timely move to
suppress evidence may be excused for just cause and a showing of
resultant prejudice, we find that no just cause exists in this case. See
United States v. Wilson, 895 F.2d 168, 173 (4th Cir. 1990); see also
Fed. R. Crim. P. 12(f). Accordingly, we find Braithwaite's first claim
of error to be without merit.

Braithwaite next claims that the evidence was insufficient to sup-
port his conviction of possessing the firearm. Specifically, Braith-

                     2
waite claims that the testimony of the police officers that they found
the firearm on Braithwaite's person was incredible. In evaluating the
sufficiency of the evidence to support a conviction, the relevant ques-
tion is whether any rational trier of fact could have found Braithwaite
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.
1982). The evidence must be construed in the light most favorable to
the Government. Tresvant, 677 F.2d at 1021; United States v. Giunta,
925 F.2d 758, 764 (4th Cir. 1991). If there exists substantial evidence
to support a verdict, viewing the evidence in the light most favorable
to the Government, the verdict must be sustained. Glasser v. United
States, 315 U.S. 60, 80 (1942). This Court considers circumstantial
and direct evidence, and allows the Government the benefit of all rea-
sonable inferences from the facts established to those sought to be
proven. Tresvant, 677 F.2d at 1021. Circumstantial evidence need not
exclude every reasonable hypothesis of innocence. United States v.
Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989).

At the trial on this matter, Officer Potter testified that he found the
firearm in Braithwaite's right pocket. Officer Parker testified that he
saw Officer Potter find the gun in Braithwaite's right front pocket.
Moreover, two other officers testified that they were present when the
gun was seized from Braithwaite. Braithwaite asserts that the testi-
mony of the police officers is not credible given the type of clothing
he was wearing at the time. Specifically, he claims that if he had had
a gun on his person prior to a scuffle which ensued prior to his arrest,
many other witnesses would have seen the firearm. However, in
resolving issues of substantial evidence, this Court does not weigh
evidence or review witness credibility. United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989); Murdaugh Volkswagen, Inc. v. First Nat'l
Bank of S.C., 801 F.2d 719, 725 (4th Cir. 1986).

Even if the jury had decided guilt on the basis of Officers Potter
and Parker's testimony alone, the jury's decision to believe their testi-
mony is not reviewable. The officers' testimony, taken in the light
most favorable to the Government, supports Braithwaite's conviction.
Accordingly, we deny Braithwaite relief on this claim.

Finally, an enhancement for obstruction of justice based on perjury
may be given if the district court finds that the defendant committed

                     3
perjury in his trial testimony, that is, that he intentionally lied about
a material matter. U.S.S.G. § 3C1.1; United States v. Dunnigan, 507
U.S. 87, ___, 61 U.S.L.W. 4180, 4183 (U.S. Feb. 23, 1993) (No. 91-
1300). Rather than make a specific finding on each of the elements
of perjury, the court may make a finding that encompasses them all.
Id.; United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995).
Here, the district court found that Braithwaite intentionally lied when
he testified that he had no firearm in his possession, and that the per-
jury was material. We find that the district court's findings were
proper and adequate to permit the adjustment under Dunnigan and
U.S.S.G. § 3C1.1.

Accordingly, we affirm Braithwaite's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.

AFFIRMED

                     4
