US v. Gary DeBolt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:09-cr-00024-FPS-JES-1 Copies to all parties and the district court/agency. [998666415]. [11-4207]

Appeal: 11-4207

Document: 41

Date Filed: 08/30/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 08/30/2011

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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

(1) denying

his

argues

motion

that

to

the

district

suppress;

court

erred

(2) excluding

in

proposed

impeachment testimony; and (3) applying a sentencing enhancement
pursuant

to

U.S.

Sentencing

Guidelines

(“USSG”)

Manual

§ 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.

571

Blake,

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).
defendant’s

statements

during

custodial

interrogation

A
are

presumptively compelled in violation of the Fifth Amendment and
are

inadmissible

unless

the
2

Government

shows

that

law

Appeal: 11-4207

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enforcement

Date Filed: 08/30/2011

officers

pursuant

to

obtained

a

informed

Miranda
waiver

v.

of

the

Arizona,

those

Page: 3 of 5

defendant
384

U.S.

rights.

of
436

See

a

defendant

was

in

custody

for

rights

(1966),

United

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

his

States

and
v.

In determining

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).
permits

the

admission

of

a

Federal Rule of Evidence 613(b)
prior
3

statement

for

impeachment

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Date Filed: 08/30/2011

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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
See Young, 248 F.3d at 268.

with Fed. R. Evid. 403.

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

district
exclude

statements
court
the

did

DeBolt
not

testimony

sought

err
on

in

to

admit.

exercising

Rule

403

Further,
discretion

its

grounds,

the
to

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)
sentence.

resulted

in

a

substantively

unreasonable

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
4

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
United

are

serious

States

v.

offenses

Morace,

594

deserving
F.3d

340,

serious
350

(4th

sanctions.”
Cir.

2010)

(internal quotation marks and alterations omitted).
We therefore affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

5