UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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).

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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 Amendment violations are waived by failing to file a pretrial motion to suppress as required by Fed. R. Crim. P. 12(b)(3). In this case, Braithwaite's attorney waited until the trial had begun before making his

motion to suppress the firearm on the ground that there was a technical 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 support his conviction of possessing the firearm. Specifically, Braith-

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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 question 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 reasonable 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 testimony 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 testimony 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

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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 perjury 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 argument would not aid the decisional process.

AFFIRMED

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