UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4207

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

GARY RAY DEBOLT,

Defendant – Appellant.

Appeal from the United States District Court for the Northern

District of West Virginia, at Wheeling. Frederick P. Stamp, 

Jr., Senior District Judge. (5:09-cr-00024-FPS-JES-1)

Submitted: August 25, 2011 Decided: August 30, 2011

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Matthew A. Victor, VICTOR VICTOR & HELGOE LLP, Charleston, West 

Virginia, for Appellant. William J. Ihlenfeld, II, United 

States Attorney, David J. Perri, Assistant United States 

Attorney, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Gary Ray DeBolt appeals his 151-month sentence 

following his jury conviction of five counts of receipt of child 

pornography, in violation of 18 U.S.C.A. § 2252(a)(2) (West 

Supp. 2011), and two counts of possession of child pornography, 

in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2011). 

On appeal, DeBolt argues that the district court erred in 

(1) denying his motion to suppress; (2) excluding proposed

impeachment testimony; and (3) applying a sentencing enhancement 

pursuant to U.S. Sentencing Guidelines Manual (“USSG”) 

§ 2G2.2(b)(7)(D) (2009).

DeBolt first argues that the district court erred in 

denying his motion to suppress his statements made to law 

enforcement officers during his alleged custodial interrogation. 

We review the factual findings underlying a denial of a motion 

to suppress for clear error and the legal conclusions de novo. 

United States v. Blake, 571 F.3d 331, 338 (4th Cir. 2009). 

When, as here, the district court denied the motion to suppress, 

“we construe the evidence in the light most favorable to the 

Government.” United States v. Hernandez-Mendez, 626 F.3d 203, 

206 (4th Cir. 2010), cert. denied, 131 S. Ct. 1833 (2011). A 

defendant’s statements during custodial interrogation are 

presumptively compelled in violation of the Fifth Amendment and 

are inadmissible unless the Government shows that law 
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enforcement officers informed the defendant of his rights 

pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and 

obtained a waiver of those rights. See United States v. 

Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005). In determining 

whether a defendant was in custody for purposes of Miranda, 

courts examine the totality of the circumstances surrounding the 

interrogation and ask whether an objectively reasonable person 

would have felt free to terminate the interrogation and leave. 

See J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011) 

(citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

Here, the officers who interviewed DeBolt were not 

required to inform him of his Miranda rights because he was not 

in custody for purposes of Miranda. DeBolt agreed to speak with 

the officers in his own home, he was not confined, and he was 

not threatened, coerced, or intimidated. Accordingly, we hold 

that the district court did not err in denying DeBolt’s motion 

to suppress.

DeBolt next argues that the district court abused its 

discretion when it excluded the proffered testimony of two 

defense witnesses as to another witness’s prior statements. We 

review for abuse of discretion a district court’s decision to 

admit or exclude evidence. See United States v. Lighty, 616 

F.3d 321, 351 (4th Cir. 2010). Federal Rule of Evidence 613(b) 

permits the admission of a prior statement for impeachment 
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purposes, so long as the prior statement is inconsistent, the 

witness is afforded an opportunity to explain or deny the prior 

statement, and the opposing party is permitted to interrogate 

the witness about such a statement. Fed. R. Evid. 613(b); see 

also United States v. Young, 248 F.3d 260, 267 (4th Cir. 2001). 

Further, even if the requirements of Rule 613(b) are met, a 

district court may exercise its discretion to exclude any or all 

evidence of a prior inconsistent statement that does not comport 

with Fed. R. Evid. 403. See Young, 248 F.3d at 268.

The prior statements DeBolt sought to introduce were

not inconsistent with the witness’s testimony, and counsel for 

DeBolt failed to give the witness an opportunity to explain or 

deny the statements DeBolt sought to admit. Further, the 

district court did not err in exercising its discretion to 

exclude the testimony on Rule 403 grounds, as the prior 

statements were more prejudicial and confusing than probative. 

Thus, we hold that the district court did not abuse its 

discretion in excluding the proffered testimony.

Finally, DeBolt argues that the application of USSG 

§ 2G2.2(b)(7)(D) resulted in a substantively unreasonable 

sentence. Because DeBolt did not raise this specific allegation 

of error below, it is subject to plain-error review. United 

States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010). We hold 

that the district court did not err. Absent any argument 
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against the application of § 2G2.2(b)(7)(D), the district court 

correctly applied an existing, unchallenged Guidelines 

provision, respecting our instructions that “district courts, in 

the course of selecting an appropriate sentence, ought to give 

respectful attention to Congress’ view that child pornography 

crimes are serious offenses deserving serious sanctions.” 

United States v. Morace, 594 F.3d 340, 350 (4th Cir. 2010) 

(internal quotation marks and alterations omitted).

We therefore affirm the district court’s judgment. 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