UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 06-4868



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


PHILLIP TERRY DELANEY,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00039-ALL)


Submitted:   January 9, 2007                 Decided:   January 25, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


John R. McGhee, Jr., KAY, CASTO & CHANEY, P.L.L.C., Charleston,
West Virginia, for Appellant. Charles T. Miller, United States
Attorney, R. Booth Goodwin, II, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Phillip Delaney appeals his conviction and sentence for being

a felon in possession of a firearm in violation of 18 U.S.C.A.

§ 922(g)(1) (West 2000).       Finding no reversible error, we affirm.



                                      I.

     Delaney was completing a sentence of 21 months imprisonment at

Bannum Place Community Corrections Center, a half-way house, in

Charleston, West Virginia. Nine days before his scheduled release,

Delaney called Bannum Place staff and informed them that he was

required to work a double shift at Bob Evans and would be returning

later than his authorized absence. A staff member called Bob Evans

to verify Delaney’s reported over-time and discovered that Delaney

was not scheduled to work that day and had not reported to work the

previous day.    Bannum Place placed him on escape status and the

Bureau of Prisons issued an authorization to the United States

Marshal Service to apprehend and detain Delaney.

     Delaney was apprehended at his nephew’s house in Huntington,

West Virginia, by a team of federal marshals and Huntington police

officers.     When the officers approached the house, Delaney was

quickly   apprehended,   but    his   nephew,   Jermaine   Johnson,   fled.

Johnson was quickly apprehended by the officers on the scene.            A

protective search of the house conducted during Delaney’s arrest




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uncovered a .25 caliber pistol, a .22 caliber long barrel Ruger, a

.22 caliber rifle, and a .22 caliber bolt action rifle.

     Marshal Seckman, who had arrested Delaney, informed Delaney

that someone had to take responsibility for the guns.          Since

Johnson was a felon at the time of the search, and the firearms

were in his home, Johnson was the most likely individual to be

charged with the possession of the firearms. However, Delaney told

Marshal Seckman that the guns were his, signed a waiver-of-rights

form, and then wrote a description of the four firearms on a sheet

of paper. His description of the firearms was relatively accurate,

and he was charged as a felon in possession of firearms as well as

escape.    Delaney pleaded guilty to the escape charge but pleaded

not guilty to the felon in possession of a firearm charge.   Delaney

claimed that he was just covering for his nephew when he said that

the guns were his.   At trial, the jury found him guilty, and he was

sentenced to 180 months imprisonment based on the finding of an

offense level of 32 and a criminal history category of VI.   Delaney

appeals.



                                 II.

     Delaney first contends that the district court committed error

when it ruled to exclude the results of his polygraph examination.

It is well-established in this circuit that polygraph examination

results are not admissible.     United States v. Prince-Oyibo, 320


                                  

, 501 (4th Cir. 2003).             We decline to revisit this per se

rule against polygraph evidence here.               Thus, the district court

committed no error in excluding Delaney’s polygraph results.

       Delaney next argues that the district court erred when it

denied his motion to exclude his confession.               “An appellate court

must     make    an    independent     determination       on    the   issue    of

voluntariness [of a confession].                Although the review of this

ultimate issue is to be independent, the district court's findings

of fact on the circumstances surrounding the confession are to be

accepted unless clearly erroneous.”              United States v. Pelton, 

, 1072 (4th Cir. 1987) (internal citations omitted).

Since Delaney does not contest that his confession was completely

voluntary,      he    has   no   grounds   to   appeal   the    district   court’s

decision to deny the motion to exclude.

       Delaney next contends that the district court’s denial of his

motion for a bench trial constituted an abuse of discretion.                   This

Court reviews the district court’s rulings regarding waiver of a

jury trial for abuse of discretion.             See United States v. Morlang,

, 186-87 (4th Cir. 1975).              The Supreme Court has held

that while a defendant has a constitutional right to a jury trial,

a defendant does not have a constitutional right to a non-jury

trial.     Singer v. United States, 

, 34-35 (1965).

Moreover, Delaney offers no argument as to how he was prejudiced by

the jury trial.        Thus, this argument has no merit.


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                                      III.

     In the wake of Booker, when sentencing a criminal defendant,

the district court must properly calculate the sentence range

recommended by the guidelines and determine whether a sentence

within that range and within statutory limits serves the factors

set forth in § 3553(a).       United States v. Green, 

, 456

(4th Cir.), cert. denied, 

 (2006).                     We review a

sentence for reasonableness.          “A sentence falling outside of the

properly     calculated   Guidelines         range     is     not   ipso      facto

unreasonable.      But if that sentence is based on an error in

construing    or   applying     the    Guidelines,       it    will     be    found

unreasonable and vacated.”       Id. at 457.         “An error of law or fact

can render a sentence unreasonable.” Id. at 456.                      This court

reviews the district court’s factual findings for clear error and

its application of the sentencing guidelines de novo.                        United

States v. Daughtrey, 

, 217 (4th Cir. 1989).

     Delaney claims that the district court erred in calculating

his sentence when it enhanced his base offense level for two prior

crimes of violence pursuant to U.S.S.G. § 2K2.1(a)(2). Delaney

contends that his assault on a federal officer and prior escape

charges should not be considered crimes of violence because Delaney

was not violent towards the federal marshal during the assault and

his escape was simply to walk away from the courthouse.




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     The guidelines define “crimes of violence” as “any offense

under federal or state law punishable by imprisonment for a term

exceeding one year, that (1) has as an element the use, attempted

use, or threatened use of physical violence against the person of

another.”   U.S.S.G.   §   4B1.2(a).   Escape   is   not    specifically

designated as a crime of violence under the guidelines, but this

Court has held that escape (both attempted and actual) is a crime

of violence because it “involves conduct that presents a serious

potential risk of physical injury to another.”       United States v.

Dickerson, 

, 777 (4th Cir. 1996).    Delaney’s escape was

therefore properly categorized as a crime of violence, whether or

not any violence was used during the escape.               Regarding the

forcible assault charge, a conviction of “forcibly assaulting,

resisting, opposing, impeding, intimidating, or interfering with [a

federal officer],” under § 111(a)(1), “has as an element the use,

attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 4B1.2(a). Thus, the district court

did not clearly err when it enhanced Delaney’s base offense level

for two prior crimes of violence.

     Delaney next argues that the possession of a firearm cannot be

considered “in connection with” his escape charge because the

government did not provide any facts to connect the two charges.

Delaney contends that he simply walked away from his supervision at

Bannum Place and at no time used the firearms found at the scene of


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his arrest into his escape.           A determination that there were

sufficient facts to impose a § 2K2.1(b)(5) enhancement is a factual

finding and is subject to a two step analysis.             See United States

v. Garnett, 

, 828 (4th Cir. 2001) (government has

burden of proving facts to support § 2K2.1(b)(5) enhancement by

preponderance of the evidence and district court's fact finding is

reviewed for clear error).           The government must show that the

defendant used or possessed a firearm and that such use was in

connection with another felony offense.              See id.        “And while

neither   ‘used’   nor   ‘in   connection    with’    is    defined       in    the

Guidelines, these terms are deemed analogous to the terms ‘use’ and

‘in relation to’ found in 18 U.S.C. § 924(c).                    Such ‘use’ is

defined expansively.       Thus, a district court may find that a

firearm is ‘used’ ‘in connection with’ another felony offense if it

facilitates or has a tendency to facilitate the felony offense.”

Id. at 828-29 (internal citations omitted).             The district court

correctly   followed     the   two    step   analysis      and    found    by     a

preponderance of the evidence that Delaney possessed the weapons

when he arrived at Johnson’s house and had them when the officers

arrived to arrest him.     The district court also found that Delaney

possessed the firearms in connection with his escape by carrying

the weapons with him as he moved from place to place.                Thus, the

district court did not clearly err when it enhanced Delaney’s

sentence pursuant to § 2K2.1(b)(5).


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     Delaney’s final argument is that the district court erred when

it enhanced Delaney’s base offense level for obstruction of justice

pursuant to U.S.S.G. § 3C1.1. Given the polygraph evidence showing

Delaney was telling the truth when he said he was not in possession

of the firearms, the fact that his nephew fled the scene, the fact

that his nephew gave inconsistent testimony regarding the timing of

when the firearms arrived, and that Delaney’s fingerprints were not

found on the firearms, Delaney argues that this corroborating

evidence demonstrates that he did not lie when he testified at

trial that the guns were not his.

     In United States v. Dunnigan, 

 (1993), the Supreme

Court stated:

     Of course, not every accused who testifies at trial and
     is convicted will incur an enhanced sentence under §
     3C1.1 for committing perjury. As we have just observed,
     an accused may give inaccurate testimony due to
     confusion, mistake, or faulty memory.          In other
     instances, an accused may testify to matters such as lack
     of capacity, insanity, duress, or self-defense. H[is]
     testimony may be truthful, but the jury may nonetheless
     find the testimony insufficient to excuse criminal
     liability or prove lack of intent. For these reasons, if
     a defendant objects to a sentence enhancement resulting
     from h[is] trial testimony, a district court must review
     the evidence and make independent findings necessary to
     establish a willful impediment to, or obstruction of,
     justice, or an attempt to do the same, under the perjury
     definition we have set out.

Id. at 95.      “Upon a proper determination that the accused has

committed perjury at trial, an enhancement of sentence is required

by the Sentencing Guidelines.”   Id. at 98.   The district court made

factual findings that Delaney committed perjury –he denied that the

                                 8
guns were his, a story that was clearly rejected by the jury.

Under the circumstances, the obstruction of justice enhancement was

proper and the district court did not clearly err.



                               IV.

     For the foregoing reasons, we affirm Delaney’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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