UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4871

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES E. ORR, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Martinsburg. W. Craig Broadwater,

District Judge. (CR-03-22)

Submitted: May 28, 2004 Decided: July 27, 2004

Before LUTTIG, TRAXLER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert C. Stone, Jr., Martinsburg, West Virginia, for Appellant.

Thomas E. Johnston, United States Attorney, Paul T. Camilletti,

Assistant United States Attorney, Wheeling, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

Vacated by Supreme Court, January 24, 2005
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PER CURIAM:

James E. Orr, Jr., was convicted of possession of a

sawed-off shotgun, in violation of 26 U.S.C. §§ 5812, 5861(b), 5871

(2000), knowingly receiving and possessing a sawed-off shotgun, in

violation of 26 U.S.C. §§ 5812, 5861(c), 5871 (2000), and knowingly

receiving and possessing an unregistered sawed-off shotgun, in

violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (2000). Orr was

sentenced to thirty-three months incarceration, two years of

supervised release, and to pay $300 in special assessments. Orr

raises several issues on appeal. 

First, Orr asserts the district court erred in

instructing the jury on a defendant’s liability for willful

blindness to a firearm’s illegal characteristics. We review this

claim for abuse of discretion. United States v. Whittington, 26

F.3d 456, 462 (4th Cir. 1994). Orr’s claim is uncompelling. The

jury instructions, taken as a whole, fairly stated the controlling

law. United States v. Cobb, 905 F.2d 784, 788-89 (4th Cir. 1990);

see also United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.

1991). 

Second, Orr asserts the district court erred in denying

his motion for a judgment of acquittal. We review this claim to

determine “whether there is substantial evidence (direct or

circumstantial) which, taken in the light most favorable to the

prosecution, would warrant a jury finding that the defendant was
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guilty beyond a reasonable doubt.” United States v. MacCloskey,

682 F.2d 468, 473 (4th Cir. 1982). Orr’s claim lacks merit. The

Government introduced evidence sufficient to allow a finding of

guilt. 

Third, Orr asserts the district court erred in denying

his suppression motion. We review a district court’s legal

conclusions on a suppression motion de novo, and the court’s

underlying factual determinations for clear error. United States

v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998). We find no error.

The search warrant was valid. United States v. Oloyede, 982 F.2d

133, 138 (4th Cir. 1992). The discovery of the shotgun was a valid

part of the search. United States v. Jackson, 131 F.3d 1105, 1109

(4th Cir. 1997); United States v. Wells, 98 F.3d 808, 810 (4th Cir.

1996). Orr was not subjected to a custodial interrogation during

the search. Accord, Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

The credibility of the officers who testified regarding the search

is not subject to appellate review. United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997). Moreover, Orr fails to establish

grounds for appellate relief by asserting one of two troopers was

unavailable to testify at his suppression hearing. 

Fourth, Orr asserts the district court erred in admitting

into evidence statements he and a state trooper made when the

shotgun was found at his residence. We review this claim for abuse
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of discretion. United States v. Moore, 27 F.3d 969, 974 (4th Cir.

1994). Orr’s claim is uncompelling. Fed. R. Evid. 401, 402.

Fifth, Orr asserts the district court erred in denying

his motion to strike two jurors for cause. We review this claim

for abuse of discretion. Poynter v. Ratcliff, 874 F.2d 219, 222

(4th Cir. 1989). We find the district court did not err in

concluding the jurors in question could be impartial. United

States v. Capers, 61 F.3d 1100, 1105 (4th Cir. 1995).

Sixth, Orr asserts the district court erred in enhancing

his sentence for obstruction of justice based on perjury. We

review this claim for clear error. United States v. Puckett, 61

F.3d 1092, 1095 (4th Cir. 1995). The record supports the district

court’s finding of perjury, thereby justifying the enhancement.

U.S. Sentencing Guidelines Manual § 3C1.1, comment. (n.4(b)).

(2002).

Seventh, Orr asserts the district court erred in denying

him an adjustment for acceptance of responsibility. We review this

claim for clear error. United States v. Castner, 50 F.3d 1267,

1280 (4th Cir. 1995). We find no error. The district court’s

perjury finding warranted denying an adjustment. USSG § 3E1.1(a),

comment. (n.4).

Eighth, Orr asserts the district court erred in denying

him a downward departure for aberrant criminal behavior. We deny

review since the record reveals the district court was aware of its
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authority to grant a departure, but chose not to do so. USSG

§ 5K2.20; United States v. Shaw, 313 F.3d 219, 222 (4th Cir. 2002).

Accordingly, we affirm Orr’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

argument would not aid in the decisional process.

AFFIRMED