UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5081
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM H. BURNETTE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-05-17)
Submitted: April 23, 2007 Decided: May 29, 2007
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Reginald M. Barley, Richmond, Virginia, for Appellant. Sara
Elizabeth Flannery, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William H. Burnette, Jr., appeals from his seventy-one
month sentence imposed following his guilty plea to one count of
assault resulting in serious bodily injury, in violation of 18
U.S.C. § 113(a)(6) (2000). Burnette’s counsel filed a brief
pursuant to Anders v. California, 286 U.S. 738, 744 (1967), stating
that there were no meritorious issues for appeal, but suggesting
that the district court erred in sentencing Burnette. Burnette was
informed of his right to file a pro se supplemental brief but
elected not to do so.
A presentence investigation report (PSR) calculated a
base offense level of nineteen. After applying a two-level
adjustment for a minor role in the offense pursuant to U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 3B1.2(b) (2004),
Burnette’s adjusted offense level was seventeen. The PSR also
reduced the offense level by three for acceptance of
responsibility. Based on an offense level of fourteen and a
criminal history category of III, the PSR established an advisory
guideline range of twenty-one to twenty-seven months’ imprisonment.
The Government objected to Burnette receiving a reduction for
acceptance of responsibility.
At the sentencing hearing, the district court found sua
sponte that Burnette was entitled neither to the minor role in
offense adjustment under U.S.S.G. § 3B1.2(b), nor to the reduction
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for acceptance of responsibility. Rather, the court found sua
sponte that Burnette’s false statements to the probation officer
warranted a two-level obstruction of justice enhancement.
Additionally, the district court found that Burnette’s criminal
history score under-represented the seriousness of his criminal
history. Accordingly, the court departed upward and increased the
criminal history category level from III to IV. Based on this
category and a newly-established offense level of twenty-one, the
advisory guideline range was fifty-seven to seventy-one months’
imprisonment. The court sentenced Burnette to seventy-one months’
imprisonment.
Burnette first argues that an upward departure was not
warranted in this case. “If reliable information indicates that
the defendant’s criminal history category substantially
under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other
crimes, an upward departure may be warranted.” U.S.S.G.
§ 4A1.3(a)(1). We have noted that “[s]ection 4A1.3 was drafted in
classic catch-all terms for the unusual but serious situation where
the criminal history category does not adequately reflect past
criminal conduct or predict future criminal behavior.” United
States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003).
Our review of the record reveals that the district court
explained in detail its decision that an upward departure was
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appropriate in this case. We conclude that, under either a
reasonableness or abuse of discretion standard of review, the
district court did not err in its decision to depart upward, or in
its selection of the ultimate sentence in this case.
Burnette also questions whether the district court erred
in enhancing his offense level for obstruction of justice. The
Sentencing Guidelines provide for a two-level increase in a
defendant’s offense level “[i]f (A) the defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction,
and (B) the obstructive conduct related to (I) the defendant’s
offense of conviction and any relevant conduct.” U.S.S.G. § 3C1.1.
“[P]roviding materially false information to a probation
officer in respect to a presentence or other investigation for the
court,” or “providing materially false information to a judge or
magistrate,” are specifically listed as examples of conduct for
which the enhancement is appropriate. U.S.S.G. § 3C1.1, comment.
(n.4(f) and (h)). “To apply the obstruction-of-justice
enhancement, the district court must find that a defendant
consciously act[ed] with the purpose of obstructing justice.”
United States v. Stewart, 256 F.3d 231, 253 (4th Cir. 2001)
(internal quotation marks and citation omitted). The district
court imposed the enhancement based on Burnette’s statement that
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the victim had a “shank,” but no evidence of a knife or similar
weapon was ever found. Our review of the record demonstrates that
the facts supporting the enhancement were sufficiently established.
Finally, Burnette questions whether the district court
erred in denying a reduction in his base offense level for having
a minor role in the offense. The standard of review for factual
determinations, such as whether the appellant’s conduct warrants a
minor-role sentencing reduction, is clear error. United States v.
Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989). A defendant who is
only a “minor participant” in a criminal activity may have his
offense level reduced by two levels. U.S.S.G. § 3B1.2(b). This
applies to a defendant “who is less culpable than most other
participants, but whose role could not be described as minimal.”
USSG § 3B1.2(b), comment. (n.5). Here, the district court
reasonably found that Burnette was not a minor participant in the
offense, as the evidence established that Burnette held the victim
down as his co-defendants beat the victim. Accordingly, the
district court did not clearly err in denying Burnette a minor
participant adjustment.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the
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client requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on the client. 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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