Filed: Aug. 30, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4207 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GARY RAY DEBOLT, Defendant – Appellant.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 Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4207 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GARY RAY DEBOLT, Defendant – Appellant.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 Affirmed by unpublished per ..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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