                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4383


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LARNELL TORRENCE MINOR,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00055-JPB-DJJ-1)


Submitted:   November 20, 2012            Decided:   December 3, 2012


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Nicholas   J.  Compton,   Assistant   Federal  Public Defender,
Kristen M. Leddy, Research and Writing Specialist, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Thomas O. Mucklow, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Larnell    Torrence    Minor     appeals   from   his    convictions

and seventy-one month sentence for failure to register as a sex

offender under the Sex Offender Registration and Notification

Act (“SORNA”).      On appeal, he challenges the admission of prior

similar convictions, the jury instructions, his obstruction of

justice enhancement, and his sentence.              We affirm.



                                        I.

            Minor     first   challenges      the    admission      of   evidence

regarding his prior convictions for failure to register under

Maryland law. 1     We review a district court’s evidentiary rulings

for abuse of discretion.          United States v. Byers, 649 F.3d 197,

206 (4th Cir. 2011), cert. denied sub nom. Goodman v. United

States, 132 S. Ct. 468 (2011).           An abuse of discretion occurs if

the court commits “[a]n error of law” or “act[s] arbitrarily or

irrationally in admitting evidence.”                United States v. Basham,

561 F.3d    302,    326   (4th   Cir.   2009)   (internal     quotation    marks

omitted).




     1
       Minor was convicted of failure to register in Maryland in
2000, 2004, and 2009. He explicitly challenges the admission of
the 2000 and 2004 convictions.        He does not address the
admission of the 2009 conviction.



                                        2
            Rule    404(b)      prohibits         the   use    of    “[e]vidence        of    a

crime, wrong, or other act . . . to prove a person’s character”

and action in conformity with that character on a particular

occasion,    Fed.       R.   Evid.     404(b)(1),        but    provides        that      such

“evidence may be admissible for another purpose, such as proving

motive,     opportunity,           intent,       preparation,        plan,      knowledge,

identity, absence of mistake, or lack of accident.”                                 Fed. R.

Evid.   404(b)(2).           Under    this   court’s      precedent,         Rule      404(b)

evidence is admissible only if the district court determines it

is (1) relevant to some issue other than the defendant’s general

character, (2) necessary, and (3) reliable.                          United States v.

Hodge, 354 F.3d 305, 312 (4th Cir. 2004).                            In addition, the

evidence’s probative value cannot be substantially outweighed by

its danger of unfair prejudice.              Id.

            “To    be     relevant,      evidence        need       only   to   have      any

tendency    to     make      the     existence      of    any       fact   that      is      of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.”                                United

States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (internal

quotation marks omitted).               The greater the similarity between

Rule 404(b) evidence and the fact in question, the more relevant

the Rule 404(b) evidence becomes.                   United States v. Queen, 132

F.3d 991, 997 (4th Cir. 1997).                    To be necessary, the evidence

need not be critical to the prosecution’s case but need only be

                                             3
“‘probative       of        an   essential     claim      or     an    element    of    the

offense.’”        United States v. Rooks, 596 F.3d 204, 211-12 (4th

Cir. 2010) (quoting Queen, 132 F.3d at 997).                          We have repeatedly

held that “‘[a] not-guilty plea puts one’s intent at issue and

thereby makes relevant evidence of similar prior crimes when

that evidence proves criminal intent.’”                         United States v. Van

Metre, 150 F.3d 339, 350 (4th Cir. 1998) (quoting United States

v. Sanchez, 118 F.3d 192, 196 (4th Cir. 1997)).

               Minor argues that his prior Maryland convictions are

not relevant because they are remote in time and involved a

different statute with different elements.                            We find that the

Rule 404(b) evidence was relevant to establish “truth as to a

disputed issue,” Queen, 132 F.3d at 996, by making less probable

Minor’s        attempted         defense     that    he        was    unaware     of    the

registration requirements.                 Although Minor’s state convictions

were   pursuant        to    a   state,    rather    than      federal,      statute,   the

differing language in the statutes did not limit the otherwise

striking similarity between these prior acts and the charged

crime.     Specifically, both involved Minor’s knowing failure to

register as a sex offender.                Additionally, although Minor claims

that     the    convictions         are    remote    in     time,      the    last     state

conviction was actually from 2009, and the repeated violations

tended    to     show       that   Minor     had    notice      of     the   registration

requirements, such that any failure to comply would be knowing.

                                              4
As such, the Rule 404(b) evidence was relevant based on the

substantial similarity in the state of mind required for the

Rule 404(b) conduct and the charged conduct.

            We conclude that the Rule 404(b) evidence was also

necessary to the Government’s case.                     Minor testified at length

regarding his purported lack of knowledge of both the state and

federal     registration       requirements.             Thus,       the     Rule      404(b)

evidence,     describing        prior   instances             in    which     Minor        was

convicted for knowing failure to register, was both relevant and

necessary, and thus admissible.                  Cf. United States v. Yearwood,

518 F.3d 220, 230 n.* (4th Cir. 2008) (affirming admission of

Rule 404(b) evidence to demonstrate intent and knowledge, when

Yearwood placed those elements at issue through his theory at

trial); Sanchez, 118 F.3d at 196 (holding that not-guilty plea

puts intent at issue, and evidence of similar prior crimes may

be relevant to prove intent in charged crime); United States v.

Roberts,    619   F.2d      379,   382-84       (5th    Cir.   1980)       (holding     Rule

404(b)     evidence      admissible         to     establish         intent       to    join

conspiracy    unless        defendant   affirmatively              removes    issue     from

case, for example by stipulation).                     Moreover, it is undisputed

that the court documents were reliable, and the court took steps

to limit any prejudice by instructing the jury on two separate

occasions    that     the    evidence   could          only    be    used    to     draw    an

inference that Minor acted knowingly and intentionally.                                Based

                                            5
on    the    foregoing,       the    district      court’s    admission      of   Minor’s

prior convictions was not an abuse of discretion.



                                             II.

               Minor next argues that the court erred in instructing

the    jury        with    respect    to    the    definitions       of    “reside”      and

“habitually          live.”         Under    SORNA,   “[a]     sex    offender         shall

register,          and     keep      the     registration       current,         in     each

jurisdiction where the offender resides.”                     42 U.S.C. § 16913(a)

(2006).       The term “resides” is defined as “the location of the

individual’s home or other place where the individual habitually

lives.”       42 U.S.C. § 16911(13) (2006).

               The        district     court       instructed        the     jury       that

“[h]abitually lives includes places in which the sex offender

lives       with    some    regularity,”       a   definition    from      the    National

Guidelines for Sex Offender Registration and Notification, 73

Fed. Reg. 38,030, 38,061-62 (July 2, 2008).                          The jury sent a

note asking for further clarification of the phrase “habitually

lives.”       Minor suggested the phrase be defined as “any place in

which the sex offender lives for at least 30 days,” based upon

the SORNA Guidelines.                The Government objected, averring that

there was no support for a consecutive 30-day requirement.                               The

court compromised and instructed the jury, without objection,

that    “a     person        would    live     with    some     regularity        in     any

                                               6
jurisdiction where he is present for 30 days or more during the

period from August 10, 2010, to August 10, 2011.”

           The    jury     again    had   questions     for   the    court.       They

sought   the     federal    definitions         of   “habitual    residence”      and

“permanent residence.”             They also asked how the definition of

“lives with some regularity” related to the terms “resides” and

“habitually lived.”         Without objection, the court told the jury

that the court had already defined all the terms and could not

define   them    further.      Minor      now    asserts   that     the   court    was

unable to give an adequate jury instruction because SORNA does

not appropriately define the terms.                  In addition, Minor argues

that the court was improperly unresponsive to the jury’s request

for clarification.

           We review jury instructions in their entirety and as

part of the whole trial to determine whether the district court

adequately instructed the jury on the elements of the offense

and the accused’s defenses.               See United States v. Bostian, 59

F.3d 474, 480 (4th Cir. 1995).                  Both the decision whether to

give a jury instruction and the content of that instruction are

reviewed for abuse of discretion.               United States v. Passaro, 577

F.3d 207, 221 (4th Cir. 2009).             It is typically not necessary to

define a particular term in the jury instructions if the meaning

attributed to that term is a matter of common knowledge.                      United

States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011).

                                          7
            In Poitra, the Eighth Circuit ruled that the statutory

definition of “resides” as “habitually lives” is similar to the

commonly held understanding of the term.                     As such, even that

definition was not required to be given to the jury, and even

absent   any    additional     explanation,         the    issue    was    fairly     and

adequately      submitted     to     the    jury.         Id.;     see    also     United

States v. Namey, 364 F.3d 843, 845 (6th Cir. 2004) (finding that

“resides”      in   a    federal    child   support       statue    has    a     commonly

accepted meaning of physical presence with an intent to stay for

an indefinite period of time, but not necessarily permanently,

and also noting that a person may have more than one residence).

            Here, the court instructed the jury on the definition

of “residence” contained in the statute and the definition of

“habitually lived” contained in the SORNA Guidelines.                          While the

thirty-day instruction did not specify whether the thirty days

had to be consecutive or could be aggregated, the ambiguity was

not objected to by the parties when offered by the court as a

compromise, and the thirty days is not further explained in the

Guidelines.             Moreover,    the        “thirty-day”       description        was

presented as an example of what would constitute “living with

some regularity,” not as a minimum requirement.                           We conclude

that the court’s legally correct definitions, combined with the

fact that the terms are commonly understood as a matter of law,



                                            8
provided adequate instruction to the jury and did not constitute

an abuse of discretion.



                                       III.

            Minor next argues that the district court erred in

applying an obstruction of justice enhancement based upon his

false testimony at trial.           Specifically, Minor contends that the

court did not articulate a sufficient basis for its ruling and

further asserts that the main issue in the case was the legal

definition of “reside” as opposed to his credibility.                      Finally,

Minor   argues   that,    if    his    testimony   was       false,   so    was   his

wife’s, his neighbor’s and his mother’s, and none of them had

been charged with perjury.

            We   review       for     clear    error     a    district       court’s

determination    that     a    defendant      obstructed      justice.       United

States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005).                       According

to   U.S.   Sentencing        Guidelines      Manual     §    3C1.1    (2011),     a

defendant’s base offense level is to be increased two levels for

obstruction of justice if –

     the defendant willfully obstructed or impeded, or
     attempted to obstruct or impede, the administration of
     justice    with   respect   to    the   investigation,
     prosecution, or sentencing of the instant offense of
     conviction, and . . . the obstructive conduct related
     to . . . the defendant’s offense of conviction and any
     relevant conduct[.]



                                         9
The application notes for § 3C1.1 specifically include perjury

by the defendant and providing materially false information to a

judge or magistrate.         USSG § 3C1.1 comment. (n.4(b), (f)).               For

purposes of § 3C1.1, the Supreme Court has defined perjury as

“giv[ing] false testimony concerning a material matter with the

willful    intent    to   provide     false    testimony,     rather   than    as   a

result of confusion, mistake, or faulty memory.”                  United States

v. Dunnigan, 507 U.S. 87, 94 (1993).                 Under Dunnigan, “it is

preferable for a district court to address each element of the

alleged perjury in a separate and clear finding[,]”                    id. at 95,

but it is sufficient if the district court makes a determination

“that encompasses all of the factual predicates for a finding of

perjury.”    Id.

            The     district   court    made    a   finding    that    Minor   gave

false     testimony,      willfully    intending     to     mislead    the     jury.

Specifically, the court concluded that Minor was living in West

Virginia significantly more than his testimony supported, and

Minor conceded that the main issue in the case was whether he

was in West Virginia enough to trigger registration under SORNA.

In addition, the court explicitly found that Minor “did in fact

commit perjury.”          Because the court’s findings, combined with

Minor’s admissions, encompassed all the elements of perjury, we




                                        10
find that the court’s ruling was sufficient to form the basis

for an obstruction enhancement. 2

              Moreover,   the   district   court’s   ruling   contradicted

Minor’s contention that his credibility was not an issue in the

case.       While the ultimate issue was whether Minor’s time in West

Virginia      triggered   the   statute,   the   parties   quite    clearly

disagreed on how much time Minor spent in West Virginia.                 As

such, Minor’s testimony was not only material to an element of

the case, but also hotly disputed.          Based on the foregoing, the

enhancement was not clearly erroneous. 3



                                     IV.

              Finally, Minor claims that the district court erred by

departing       upwards   based    upon    Minor’s    criminal     history.

        2
       The court did not explicitly rule on the materiality of
Minor’s false testimony.    While an explicit ruling would have
been preferable, it is sufficient if the court’s factual
findings “clearly establish[]” this element.        See United
States v. Perez, 661 F.3d 189, 193 (4th Cir. 2011).       Given
Minor’s own contention at sentencing that the main issue in the
case was whether Minor spent enough time in West Virginia to
require him to register, the materiality of the testimony was
clearly established. See also United States v. Quinn, 359 F.3d
666, 681 (4th Cir. 2004) (upholding obstruction of justice
enhancement despite court’s failure to rule on materiality of
false testimony, given that the testimony concerned the
“essential facts charged”).
        3
       Minor’s contention that the other defense witnesses had
not been charged with perjury is irrelevant to the court’s
finding that he perjured himself.



                                     11
According to Minor, the district court improperly adopted the

presentence       report’s       (“PSR”)       proposed    “extended         Guidelines

table”     and     calculated       Minor’s       Guidelines         range    under       a

“fictional” Criminal History Category VIII.                    However, the record

does     not     support    Minor’s       argument.           Although       the    court

considered a departure calculated in conformity with the PSR,

the court eventually calculated Minor’s Guidelines range based

upon a Criminal History Category VI.                    The court then sentenced

Minor    to    seventy-one       months   in    prison,   the    high       end    of   his

Guidelines range, with no departure.                As there was no departure

or variance involved, Minor’s claim is without merit.

               Based on the foregoing, we affirm Minor’s conviction

and sentence.       We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before    this    court    and    argument      would   not    aid    the    decisional

process.

                                                                                  AFFIRMED




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