UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4796
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FABIAN DAVID SPARROW,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:13-cr-00022-RLV-DSC-2)
Submitted: October 31, 2016 Decided: November 29, 2016
Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eric A. Bach, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Fabian David Sparrow appeals from the sentence and
restitution imposed after he pleaded guilty to one count of
conspiring to defraud the United States by making false
statements to a federal agency and submitting false statements
to HUD and destruction of records in a federal investigation, in
violation of 18 U.S.C. § 371 (2012). He received a below-
Guidelines sentence of 41 months and was ordered to pay
$4,175,435.71 in restitution. Finding no error, we affirm.
Sparrow contends that the district court clearly erred in
applying a sentencing enhancement for obstruction of justice
under U.S. Sentencing Guidelines Manual § 3C1.1 (2015) based on
his failure to truthfully comply with grand jury questions and
requests. * We review the imposition of an obstruction of justice
enhancement for clear error. United States v. Andrews, 808 F.3d
964, 969 (4th Cir. 2015), cert. denied, 136 S. Ct. 1392 (2016).
The two-level enhancement is appropriate when a defendant
“willfully . . . attempt[s] to obstruct or impede[] the
administration of justice.” USSG § 3C1.1. To apply the
enhancement based on perjury, see USSG § 3C1.1 cmt. n.4(F), the
*Sparrow’s brief also addresses the enhancement based on
his travel to Qatar. However, because the court did not apply
the enhancement on this basis, we address only the grand jury
testimony and compliance issue.
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district court must find by a preponderance of the evidence that
the defendant gave “false testimony concerning a material matter
with the willful intent to provide false testimony,” United
States v. Dunnigan, 507 U.S. 87, 94 (1993). If a court fails
“to address each element of the alleged perjury in a separate
and clear finding,” the application of the enhancement may be
upheld as long as “the court makes a finding . . . that
encompasses all of the factual predicates for a finding of
perjury.” Id. at 95; see United States v. Perez, 661 F.3d 189,
192-93 (4th Cir. 2011) (discussing “degree of specificity
Dunnigan requires”). The adjustment also applies to a defendant
who conceals “evidence that is material to an official
investigation or judicial proceeding” or attempts to do so.
USSG § 3C1.1 cmt. n.4(D).
Here, the district court found that Sparrow testified
falsely before the grand jury by telling the grand jury that his
accountant held the Eagle’s Nest records and that his accountant
was deceased. The district court found that Sparrow attempted
to conceal the location of the records. The court found that
Sparrow “misrepresented the notion that the accountant who had
the records was deceased, which was not the case; that he had
the records; which was not the case.” The court continued that
Sparrow’s statements were knowingly made and that Sparrow gave
“false testimony concerning a material matter with the willful
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intent to deceive.” The court satisfied the requirements of
Dunnigan and its conclusions were based on factual testimony
presented by the Government. Thus, we conclude that the court
did not clearly err in applying the obstruction of justice
enhancement.
Next, Sparrow challenges the $4.1 million restitution order
on appeal. He contends that the Government did not prove a
sufficient nexus between himself and the parties due
restitution, that the additional named parties were not in the
presentence report but in the Government’s sentencing exhibit
only, that counsel objected to this lack of notice, and the
Government cannot rely on additional filings that were not part
of the PSR. Sparrow, however, entered into an agreement with
the Government prior to sentencing regarding the amount of
foreseeable loss to establish the offense level and the amount
of restitution. The Government summarized the agreement:
For the purposes of the stipulation, and the
concession that the defendant has agreed with regards
to restitution, the government would agree that the
loss is less than $550,000 contingent on the
following. 1. That the defendant stipulates to the
facts underlying the . . . presentence report which
supports these loss numbers; and 2. That the defendant
agree to the restitution numbers and figures that were
presented to the [c]ourt yesterday in . . . document
28-1. [The document] lists a number of loans that is
consistent with the Victim Impact Statements in this
case and would require a payment of total restitution
in the amount of $4,175,435.71. So the bottom line is
that the government—if the defendant concedes to the
facts supporting these loss numbers, both in
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restitution and in the guidelines, the government
would concede that the offense level . . . should be a
level 12.
J.A. 78. The judge asked defense counsel if the Government’s
summary was “an accurate summary and rendition of the
agreement.” And counsel replied that it was.
As this court has recognized, “[a] waiver is the
intentional relinquishment or abandonment of a known right.”
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(internal quotation marks omitted). “Waiver is to be
distinguished from forfeiture, which is the failure to make the
timely assertion of a right.” Id. (internal quotation marks
omitted). “[W]hen a claim is waived, it is not reviewable on
appeal, even for plain error.” Id. “Rather, a valid waiver
means that there was no error at all.” Id. (internal quotation
marks omitted). Where a party identifies an issue and then
withdraws it, he has waived the issue, and his claim is not
reviewable on appeal. Id. Whether a waiver is knowing and
voluntary is determined based on the totality of the
circumstances. Id. at 298-99.
Here, Sparrow does not suggest that his agreement was not
knowing and voluntary. The record supports that Sparrow
intentionally relinquished the right to contest the restitution
amount when he entered into an agreement with the Government.
The Government agreed to support a reduced amount of loss and
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resulting offense level and Sparrow agreed to the revised
restitution amount. Thus, Sparrow has waived appellate review
of the amount of restitution ordered in the judgment.
Accordingly, we affirm the 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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