US v. Marcus Barley

Filing 920090911

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4935 UNITED STATES OF AMERICA, Plaintiff Appellee, v. MARCUS DORAN BARLEY, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:07-cr-00200-NCT-17) Submitted: August 31, 2009 Decided: September 11, 2009 Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC, Winston-Salem, North Carolina, for Appellant. Anna Mills Wagoner, United States Attorney, Sandra J. Hairston, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marcus Doran Barley pled guilty to one count of conspiracy to distribute cocaine hydrochloride, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A), 846 (2006). The district Barley district court imposed a sentence of 105 months' imprisonment. appeals this sentence, specifically challenging the court's application of an enhancement for obstruction of justice under U.S. Sentencing Guidelines Manual ("USSG") 3C1.1 (2007), based on perjury, and its denial of a downward adjustment for acceptance of responsibility, see USSG 3E1.1. Barley contends that the district We affirm. court erred in finding that he willfully obstructed justice when he testified falsely at sentencing concerning whether he had possessed a firearm in connection with his drug offense. Section 3C1.1 of the Sentencing Guidelines provides for a two-level increase in a defendant's base offense level "[i]f . . . 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." defendant who USSG 3C1.1. commits perjury. The enhancement applies to a Id., comment. (n.4(b)). Application of the enhancement is appropriate if the sentencing court finds that "the defendant when testifying under oath (1) gave false testimony; (2) concerning a material matter; (3) with 2 the willful intent to deceive . . . ." United States v. Jones, 308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing United States v. Dunnigan, 507 U.S. 87, 92-98 (1993)). either finding make that findings on each all element the The district court may of perjury or make for a a encompasses Id. factual predicates finding of perjury. Guidelines' A district court's application of the for obstruction of justice will be enhancement overturned only if clearly erroneous. 61 F.3d 1092, 1095 (4th Cir. 1995). United States v. Puckett, The district court concluded that Barley's testimony at sentencing concerning whether he had possessed a firearm in connection with his drug offense was unworthy of belief. Evaluation of witness credibility is reserved for the finder of fact and generally is not subject to review by this court. United States as v. Saunders, had base 886 F.2d to 56, the 60 See (4th Cir. 1989). report's of a Further, Barley of his objected offense at presentence for in enhancement firearm and level possession support of testified sentencing that objection, the question of whether Barley possessed the firearm in connection with his offense is clearly material; Barley does not suggest otherwise. 290, 294 (4th Cir. See United States v. Gormley, 201 F.3d (providing that the threshold for 2000) materiality is conspicuously low). finding that Barley's false Moreover, the court made a was willfully given. testimony 3 Accordingly, we conclude that the district court did not clearly err in applying the obstruction enhancement. A defendant generally is not eligible for the acceptance of responsibility adjustment under USSG 3E1.1 when he receives an upward adjustment for obstruction of justice under USSG 3C1.1. See USSG 3E1.1, comment. (n.4); United To States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). merit the reduction, the defendant bears the burden of showing that his circumstances are extraordinary. 264. Barley, however, does not Hudson, 272 F.3d at the presence of suggest extraordinary circumstances meriting the acceptance reduction. Because the district court did not err in its determination of obstruction of justice, it also did not err in denying an adjustment under 3E1.1. We therefore affirm the district court's judgment. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4

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