UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4535
LEONARD CHRISTOPHER JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-98-185-BO)
Submitted: February 22, 2000
Decided: March 28, 2000
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Edwin C. Walker, Acting Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Felice McConnell Corpen-
ing, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Leonard Christopher Johnson appeals the 360-month sentence he
received after he pled guilty to armed bank robbery, see 18 U.S.C.A.
§ 2113(d) (West Supp. 1999), 18 U.S.C. § 2 (1994) (Count One), and
using or carrying a firearm during a crime of violence, see 18
U.S.C.A. § 924(c) (West Supp. 1999) (Count Two). He contends that
the district court clearly erred in denying him an adjustment for
acceptance of responsibility. See U.S. Sentencing Guidelines Manual
§ 3E1.1 (1998). We affirm.
On August 26, 1998, Leonard Johnson, James Harris, and Emman-
uel Barnhardt drove from Charlotte, North Carolina, to Henderson,
North Carolina, where Johnson and Harris robbed the Centura Bank
while Barnhardt waited in the car. Just before the robbery, Barnhardt
entered the bank and asked if it had a public restroom. Bank surveil-
lance photographs showed him wearing a white shirt with black letter-
ing on it. When the robbers entered a few minutes later, bank cameras
recorded Johnson wearing a denim jacket and Harris wearing a beige
T-shirt. All three were arrested a short time later on I-85, heading
back toward Charlotte. Two loaded handguns were found in the glove
compartment. A book bag containing a large amount of cash was in
the trunk. Police photographs of the three men after their arrest
showed that Harris and Barnhardt had switched shirts after the rob-
bery.
Johnson and Harris entered guilty pleas. Barnhardt went to trial.
Harris testified for the government that Barnhardt entered the bank at
Johnson's direction to see whether security officers were present. He
also testified that, after the robbery, he and Barnhardt switched shirts
to change their appearance, and that the guns were placed back in the
glove compartment. Johnson testified that Barnhardt was not involved
in the robbery. Johnson said that he intended to drive Barnhardt to
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New York that day for a week's visit. He said he did not tell Barn-
hardt that he and Harris planned to commit a robbery, that Barnhardt
never saw the guns, and that it was coincidence that Barnhardt went
into the bank just before the robbery. Johnson said he did not see
Barnhardt enter the bank and that he would not have robbed the bank
had he realized that Barnhardt had gone into it. Johnson also testified
that, after the robbery, he kept his gun tucked in his waistband at his
back, and that he intended to shoot Barnhardt if Barnhardt tried to get
out of the car once he realized a robbery had been committed. He tes-
tified that Harris and Barnhardt did not switch shirts.
When Johnson was sentenced a short time later, the district court
decided that an adjustment for acceptance of responsibility was not
warranted. The court found that Johnson had consistently lied about
Barnhardt's involvement and had given perjured testimony at Barn-
hardt's trial.
On appeal, Johnson argues that the evidence did not support the
district court's finding that he testified falsely and, even assuming that
he did, he nevertheless earned the adjustment by accepting responsi-
bility for his own criminal conduct. We review the district court's
determination for clear error. See United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995).
The sentencing court may decide that a defendant has not accepted
responsibility despite a guilty plea and truthful admission of his con-
duct if he engages in conduct inconsistent with an acceptance of
responsibility. See USSG § 3E1.1, comment. (n.3). Johnson asserts
that we should review de novo the district court's determination of the
credibility of his testimony because it was based on the evidence,
rather than on a subjective assessment of his truthfulness. He relied
on United States v. Dickerson, 166 F.3d 667, 675 n.6 (4th Cir.), cert.
granted in part, ___ U.S. ___, 68 U.S.L.W. 3365 (U.S. Dec. 6, 1999)
(No. 99-5525). De novo review of the district court credibility deter-
mination was appropriate in Dickerson because the district court
explicitly based its finding on the content of the witness' testimony
rather than his demeanor. In this case, the district court did not simi-
larly discount the effect of Johnson's demeanor. But even if we were
to assume that the district court judged Johnson untruthful based
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solely on the content of his testimony, the record discloses that the
court's conclusion was supported by the evidence.
Although Johnson testified that he did not place his gun back in the
glove compartment after the robbery, both guns were found there
when Johnson's car was stopped by the police. Johnson testified that
Barnhardt and Harris did not exchange shirts after the robbery, but the
bank surveillance photos proved that they did. Johnson testified that
he was taking Barnhardt to New York; however, after the robbery, he
drove back toward Charlotte--in the opposite direction from New
York. Notably, neither Barnhardt nor Johnson had any extra clothes
or other travel items with them. Johnson's statement that he did not
notice Barnhardt go into the bank and would not have robbed the
bank had he noticed, strains credulity, as does his testimony that he
and Harris never mentioned the planned bank robbery during the two-
hour drive from Charlotte. Consequently, Johnson's challenge to the
district court's conclusion that he gave perjured testimony fails.
We also must reject Johnson's argument that the only consideration
for acceptance of responsibility should be his admission of his own
criminal conduct. Although the district court did not enhance John-
son's sentence by making an adjustment for obstruction of justice, it
found that he had given perjured testimony. Such conduct could result
in an adjustment for obstruction of justice, see USSG § 3E1.1, com-
ment. (n.4), and thus is clearly inconsistent with acceptance of
responsibility. Therefore, it may be a basis for denial of the § 3E1.1
adjustment. See USSG § 3E1.1, comment. (n.3). In sum, the district
court did not clearly err in refusing Johnson the acceptance of respon-
sibility adjustment even though the judge chose not to give the
obstruction of justice adjustment.
Last, Johnson argues that his is an extraordinary case in which a
defendant who has obstructed justice should receive the adjustment
for acceptance of responsibility, see id., because his obstructive con-
duct was not intended to benefit himself. However, false testimony in
a co-defendant's case may amount to obstruction of justice. See
United States v. Acuna, 9 F.3d 1442, 1446 (9th Cir. 1993).
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the decisional
process.
AFFIRMED
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