UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4669
KENNETH R. HENSLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-98-48)
Submitted: February 20, 2001
Decided: March 12, 2001
Before WILLIAMS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
David L. Scyphers, SCYPHERS & AUSTIN, P.C., Abingdon, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Rick A. Mountcastle, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
2 UNITED STATES v. HENSLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kenneth R. Hensley appeals the seventy-month sentence imposed
after a jury found him guilty of being a felon in possession of firearms
and ammunition, in violation of 18 U.S.C.A. § 922(g) (West 2000).1
On appeal, Hensley challenges the burden of proof applied at sentenc-
ing, asserts that basing an enhancement on acquitted conduct violates
the Double Jeopardy Clause, and argues that he should not have
received a two-level enhancement under U.S. Sentencing Guidelines
Manual, § 3C1.1 (1998), for obstruction of justice. Finding no revers-
ible error, we affirm.
Hensley first argues that the Supreme Court’s decision in Apprendi
v. New Jersey, 530 U.S. 466 (2000), requires the Government at sen-
tencing to prove beyond a reasonable doubt that he obstructed justice.
We have held to the contrary. See United States v. Lewis, 235 F.3d
215, 219 (4th Cir. 2000) (applying a plain error standard of review);
United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000) (holding
that Apprendi does not apply to a judge’s exercise of sentencing dis-
cretion within a statutory range so long as a defendant’s sentence is
not set beyond the maximum term specified in the substantive statute).2
1
Hensley also initially was convicted of conspiring with William G.
Roark to knowingly make materially false statements to the Bureau of
Alcohol, Tobacco, and Firearms ("BATF") and the grand jury (count 2),
and of knowingly making a false material statement to the BATF (count
3). We vacated these convictions and resulting sentences, finding that the
admission of a nontestifying co-defendant’s statements violated Hens-
ley’s Sixth Amendment right to confront the witnesses against him.
United States v. Hensley, No. 99-4615 (4th Cir. Mar. 30, 2000) (unpub-
lished). On remand, the Government retried Hensley on counts 2 and 3,
the jury found him not guilty, and the court resentenced him on the felon-
in-possession count.
2
Here, Hensley’s seventy-month sentence falls well within the ten-year
maximum. 18 U.S.C.A. § 924(a)(2) (West 2000) ("Whoever knowingly
violates [§ 922(g)] shall be . . . imprisoned not more than 10 years").
UNITED STATES v. HENSLEY 3
We therefore find no plain error with regard to this claim. United
States v. Pratt, ___ F.3d ___, 2001 WL 101457, at *6 (4th Cir. Feb.
7, 2001) (stating standard of review).
Next, Hensley asserts that applying the obstruction of justice
enhancement violates the Double Jeopardy Clause. We review this
claim for plain error and find none. Id. A jury’s finding of not guilty
does not preclude a district court from enhancing a sentence based on
conduct underlying charges on which a defendant is acquitted. Monge
v. California, 524 U.S. 721, 728 (1998) ("Historically, we have found
double jeopardy protections inapplicable to sentencing proceedings
. . . ."); United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam)
(holding that "a jury’s verdict of acquittal does not prevent the sen-
tencing court from considering conduct underlying the acquitted
charge, so long as that conduct has been proved by a preponderance
of the evidence"); United States v. Martinez, 136 F.3d 972, 979 (4th
Cir. 1998) (same).
Finally, Hensley contends that even if the proper standard at sen-
tencing is preponderance of the evidence, the district court erred in
applying the enhancement because the Government failed to meet its
burden of proof. The district court found by a preponderance of the
evidence, Lewis, 235 F.3d at 218, that Hensley obstructed justice by
(1) providing false information to investigators regarding ownership
of the gun, (2) suborning perjury when he asked Roark (Hensley’s co-
defendant) to tell the investigators and the grand jury that Roark
owned the gun, and (3) testifying falsely at the first trial by denying
ownership of the gun. The court also found that these statements were
material and that Hensley willfully made them. USSG § 3C1.1, com-
ment. (n.4(b), n.4(g)); United States v. Dunnigan, 507 U.S. 87, 94-96
(1993) (holding that defendant who commits perjury qualifies for
obstruction of justice enhancement). Our review of the record leads
us to conclude that the district court’s findings were not clearly erro-
neous. United States v. Davis, 202 F.3d 212, 221 n.15 (4th Cir.) (stat-
ing standard of review), cert. denied, 120 S. Ct. 2675 (2000).
Accordingly, we affirm Hensley’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED