UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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.
3

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 
4

“‘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. 
5

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 
6

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 
7

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).
8

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, 
9

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[.]
10

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 
11

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.
12

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