UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
court imposed a sentence of 105 months’ imprisonment. Barley
appeals this sentence, specifically challenging the district
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. We affirm.
Barley contends that the district 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.” USSG § 3C1.1. The enhancement applies to a
defendant who commits perjury. 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
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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)). The district court may
either make findings on each element of perjury or make a
finding that encompasses all the factual predicates for a
finding of perjury. Id. A district court’s application of the
Guidelines’ enhancement for obstruction of justice will be
overturned only if clearly erroneous. United States v. Puckett,
61 F.3d 1092, 1095 (4th Cir. 1995).
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. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Further, as Barley had objected to the presentence report’s
enhancement of his base offense level for possession of a
firearm and testified at sentencing in support of that
objection, the question of whether Barley possessed the firearm
in connection with his offense is clearly material; Barley does
not suggest otherwise. See United States v. Gormley, 201 F.3d
290, 294 (4th Cir. 2000) (providing that the threshold for
materiality is conspicuously low). Moreover, the court made a
finding that Barley’s false testimony was willfully given.
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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
States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001). To
merit the reduction, the defendant bears the burden of showing
that his circumstances are extraordinary. Hudson, 272 F.3d at
264. Barley, however, does not suggest the presence of
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. 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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