UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4772
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN A. DYER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:05-cr-00069-RBS)
Submitted: March 21, 2007 Decided: May 23, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Acting Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Stephen W.
Haynie, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John A. Dyer appeals the sixty-three-month sentence he
received after he pled guilty to conspiracy to present false
claims, 18 U.S.C. § 286 (2000) (Count 1), making false claims, 18
U.S.C. § 287 (2000) (Counts 2-9), embezzlement of public money, 18
U.S.C.A. § 641 (West Supp. 2006) (Count 10), conspiracy, 18 U.S.C.
§ 371 (2000) (Count 11), and acceptance of a gratuity by a public
official, 18 U.S.C. § 201 (2000) (Count 12). Dyer contends that
the district court clearly erred in making an adjustment for
obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1
(2005), and in denying him an adjustment for acceptance of
responsibility, USSG § 3E1.1, and further maintains that his
sentence is unreasonable because the court’s errors resulted in an
incorrectly calculated guideline range. We affirm.
While Dyer was working as a Combat Directions Systems
Activity (CDSA) program manager with the Naval Sea Systems Command
in Dam Neck, Virginia, he conspired with Scott Carleton, another
CDSA employee, to create SD-184, a fictitious project. His wife,
Amy Dyer, was hired by Star Digital, a staffing agency for
government contracts, to work on the project. At the time, Amy
Dyer was employed full time with the Chesapeake public schools.
From March 2000 through the end of the year, Amy Dyer was paid
$81,373.89 for work on several language translation programs, work
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she did not perform. John and Amy Dyer were charged in Counts 1
through 10 with conspiracy, making false claims, and embezzlement.1
During the same period, Dyer began an affair with Gina
McCoy, a graphic arts student who operated a business from her
home. Dyer helped McCoy obtain work as a subcontractor for Global
Technical Systems (GTS), a Virginia Beach company that provided
services to CDSA and ACS Systems & Engineering (ACS), a similar
company. Dyer told McCoy to inflate her invoices, and provided her
with a laptop computer which was designated for use on other
government projects. Dyer demanded and received from McCoy over
$10,000 of the money she received. Dyer was charged in Counts 11
and 12 with conspiracy and with seeking and receiving a gratuity
for official acts.2
At Dyer’s guilty plea hearing, after the government
presented its statement of facts supporting the guilty plea, the
government attorney informed the court that Dyer agreed with the
facts stated, with certain exceptions. These were: that Dyer was
an engineer, not a program manager; that Dyer’s supervisor, James
Whiddon, originally suggested hiring Dyer’s wife; that Amy Dyer was
1
Amy Dyer went to trial in April 2006. She testified that she
had been duped by her husband into believing that she had been
hired part-time to review lesson plans for remedial English courses
for soldiers. The jury was unable to reach a verdict, and the
government moved to dismiss the charges against her.
2
McCoy pled guilty to willfully giving a gratuity to a public
official, 18 U.S.C. § 201(c)(1)(A) (2000).
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initially hired for a legitimate project and was unaware that Dyer
and Carleton subsequently extended the project from September to
December 2000 and increased the number of hours she billed; that
Amy Dyer was not part of the conspiracy between Dyer and Carleton;
that Dyer destroyed and/or doctored the time sheets Amy Dyer gave
him to send to Star Digital by forging her signature to new time
sheets or having her sign blank time sheets and filling them in
later; that Amy Dyer performed the legitimate work for which she
billed; that her work was given to Carleton; that Dyer saw copies
of her work on Carleton’s desk; and that Carleton directed the
funding of SD-184 with Dyer’s knowledge.
Although the probation officer recommended that Dyer had
earned an adjustment for acceptance of responsibility, the
government objected, asserting that Dyer should receive an
adjustment for obstruction of justice because he made false
statements in the statement of facts during the guilty plea hearing
and should not be awarded an adjustment for acceptance of
responsibility.
At the sentencing hearing, the government presented
testimony from the lead investigative agent, who said that Whiddon
testified at Amy Dyer’s trial that he did not suggest that she be
hired, and was unaware she was working on SD-184 until near the end
of the conspiracy. Whiddon was not familiar with the language
training programs that were the subject of SD-184: the Military
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Language Trainer (MILT), the Global Language Authoring System
(GLAS), and the Maximum Efficiency Language Trainer (MELT).
However, the agent testified that Dyer had learned about the
programs when he was temporarily assigned to the Office of Special
Technology in Washington, D.C. The agent also said that an Army
Special Forces language expert testified at Amy Dyer’s trial that
the language programs she had supposedly been evaluating had
already been evaluated and rejected as unusable by the Army, and
that Amy Dyer would not have been competent to work on the project,
had it still existed, without knowledge of a language such as
Arabic or Chinese. The agent further testified that, although Dyer
was an engineer, he worked as a program manager at Dam Neck, with
the authority to monitor projects and task orders and to allocate
funds to task orders or contracts. He described the evidence at
Amy Dyer’s trial which established that all the funding for SD-184
was ordered by Dyer.
The district court determined that, in his additions to
the statement of facts at the Rule 11 hearing, Dyer made four
statements that were “patently false,” were material to his
prosecution and sentencing, and were “a willful attempt to obstruct
justice.” Having presided over Amy Dyer’s trial, the court found
that James Whiddon was a credible witness, and that Dyer’s
statement that Whiddon suggested hiring Amy Dyer was false. The
court found that SD-184 was never a legitimate project, as Dyer
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said it was, and that Dyer, not Carleton, directed funding for
SD-184. Finally, the court found false Dyer’s statement that Amy
Dyer was not part of the conspiracy. The court decided that Dyer’s
false statements were material to his sentencing because, if
believed, they would have influenced the sentencing court’s
assessment of the nature and circumstances of the offense and the
need to promote respect for the law. The court determined that
Dyer had obstructed justice and added a two-level adjustment under
§ 3C1.1. The court then found that Dyer had not accepted
responsibility and that his case was not an extraordinary one in
which the defendant could receive an adjustment for both
obstruction of justice and acceptance of responsibility. See USSG
§ 3E1.1, comment. (n.4). The court calculated Dyer’s offense level
as 24. Because he was in criminal history category I, his advisory
guideline range was 63-78 months. The court imposed a sentence of
63 months imprisonment on Counts 1 and 10, 60 months (the statutory
maximum) on Counts 2-9 and 11, and 24 months (the statutory
maximum) on Count 12. Dyer was also ordered to pay restitution of
$81,373.89.
We first conclude that the district court did not err in
deciding that Dyer obstructed justice during his prosecution. An
adjustment for obstruction of justice may be made if the government
shows by a preponderance of the evidence that the defendant
“willfully obstructed or impeded, or attempted to obstruct or
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impede, the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of
conviction . . . .” USSG § 3C1.1. Application Note 4(f) states
that providing materially false information to a judge constitutes
obstruction of justice. “Material” information is defined in
Application Note 6 as that which, “if believed, would tend to
influence or affect the issue under determination.” However,
“[t]he threshold for materiality is conspicuously low.” United
States v. Gormley, 201 F.3d 290, 294 (4th Cir. 2000) (citation and
internal quotation omitted). The district court’s factual findings
in connection with the adjustment are reviewed for clear error, and
its legal determinations are reviewed de novo. United States v.
Sun, 278 F.3d 302, 313 (4th Cir. 2002).
Dyer contends as he did in the district court that, even
if the statements he added to the statement of facts were false,
they were not material to the court’s acceptance of his guilty
plea, which was the only relevant “issue under determination.” We
disagree. Dyer’s false statements were material to his sentencing
because they minimized both the scope of the conspiracy charged in
Count 1 and Dyer’s role in it.3 The district court stated that, if
3
Moreover, as the government observed at sentencing, if
believed, Dyer’s statements exonerated Amy Dyer of any complicity
in the conspiracy and could be viewed as an attempt by Dyer to
affect his wife’s prosecution. Section 3C1.1 provides that
obstructive conduct may apply either to the defendant’s offense of
conviction or to a closely-related offense. United States v.
Jones, 308 F.3d 425, 428 (4th Cir. 2002).
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believed, Dyer’s statements would have affected not only the
guideline calculation, which included a leadership role adjustment,
but the court’s determination of the sentence in light of the 18
U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) factors. Therefore,
the district court did not err in concluding that § 3C1.1 applied.
A defendant who receives an adjustment for obstruction of
justice generally may not receive an adjustment for acceptance of
responsibility, but in an extraordinary case, both adjustments may
apply. USSG § 3E1.1, comment. (n.4). The defendant has the burden
of showing that his circumstances are extraordinary. United
States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001).
Dyer asserts that the district court clearly erred in
denying him the adjustment because the court erred in finding that
he had obstructed justice, and argues that he showed his acceptance
of responsibility by pleading guilty to all twelve counts,
expressing remorse, and taking full responsibility for his
offenses. We are satisfied that the court did not clearly err in
finding that Dyer’s case was not an extraordinary one where both
adjustments may be applied because Dyer attempted to minimize the
offense and his role in it at the same time that he was pleading
guilty, and continued this stance through the sentencing hearing.
Finally, Dyer contends that his sentence is unreasonable
because the district court erroneously determined his guideline
range. As discussed above, the court did not err in this respect.
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The sentence is within a correctly calculated guideline range and
is thus presumptively reasonable. United States v. Green, 436 F.3d
449, 456-57 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). Dyer
has not presented any other information to rebut the presumption.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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