                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 03-4672



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


MARK KEVIN MAYES,

                                              Defendant - Appellant.


     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 04-6861)


Submitted:   April 10, 2006                   Decided:   May 31, 2006


Before WILKINSON, LUTTIG,* and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Terry N. Grimes, Roanoke, Virginia, for Appellant.       John L.
Brownlee, United States Attorney, Anthony P. Giorno, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




     *
      Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
PER CURIAM:

              Mark Kevin Mayes was convicted by a jury of possession of

a   firearm    by     a   convicted    felon,    possession    with     intent   to

distribute five or more grams of methamphetamine, and possession of

a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. §§ 922(g)(1), 924(c)(1); 21 U.S.C. § 841 (2000).

Although   Mayes      denied    at    trial    that   the   methamphetamine      and

revolver found in a vehicle stop were his, he stipulated that the

quantity of the methamphetamine seized was thirty-three grams,

containing 7.6 grams of pure methamphetamine.                At sentencing, the

district      court       sustained   Mayes’s     objection     to    being     held

responsible for more than the drug quantity found in the search but

overruled his objection to an enhancement for obstruction of

justice based on his perjury during trial.                  Thus, Mayes’s total

offense level was twenty-eight. With his criminal history category

of VI, the guideline range for counts one and two was 140 to 175

months.    The court imposed concurrent sentences of 160 months for

counts one and two and a consecutive sixty-month term for count

three.

              We affirmed Mayes’s convictions and sentence. See United

States v. Mayes, 103 F. App’x 495 (4th Cir. 2004) (unpublished).

The   Supreme       Court    thereafter       granted   Mayes’s      petition    for

certiorari, vacated this court’s judgment, and remanded to this

court for further consideration in light of United States v.


                                        - 2 -
Booker, 543 U.S. 220 (2005).              Having reconsidered Mayes’s sentence

in light of Booker, we affirm.

               On remand, Mayes asserts his sentence violated his Sixth

Amendment right to a trial by jury in light of Booker because the

sentence was enhanced by the district court based on Mayes’s

responsibility for 7.6 grams of pure methamphetamine and based on

his false testimony at trial. Moreover, he reasserts his arguments

that    his    testimony    did    not     rise   to    the    level    necessary    to

constitute obstruction of justice and that the district court did

not    specifically      make     the    necessary      findings   to    support     the

enhancement.

               Because    Mayes    did    not   raise    a    Booker    claim   in   the

district court, we review his sentence for plain error. See United

States    v.    Hughes,    401     F.3d    540,   547    (4th    Cir.    2005).      To

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights.       United States v. Olano, 507 U.S. 725, 731-32 (1993).                    If

a defendant establishes these requirements, the court’s discretion

to correct the error “is appropriately exercised only when failure

to do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotations and citation omitted).




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              In Booker, the Supreme Court held that the mandatory

guidelines scheme, which provided for sentence enhancements based

on facts found by the court alone and not by the jury, “violated

the Sixth Amendment imperative that ‘[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by . . . a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.’”      Hughes, 401 F.3d at 546 (internal quotations

and citation omitted).

              Mayes’s sentence based on his responsibility for 7.6

grams of pure methamphetamine was supported both by his admission

to that quantity and the jury’s verdict that he possessed the

methamphetamine with intent to distribute.                Moreover, although

Mayes denied at trial that the methamphetamine and revolver were

his,   the    jury   obviously   did    not    believe   him    and    necessarily

concluded he gave false testimony. Mayes does not dispute that his

testimony, relating to essential elements of the charges against

him, concerned a material matter.              Instead, he suggests he “did

little more than testify at trial that he was drunk on the night in

question and did not remember what happened.”                  This assertion is

belied   by    the   record.     Mayes    explicitly     denied       that   he   had

possessed the methamphetamine and revolver, but the jury found that

he had knowingly done so.          Thus, we conclude that the district

court’s application of the obstruction enhancement in this case was


                                       - 4 -
not Booker error, because the jury “necessarily, albeit implicitly,

found that he had engaged in behavior that fits within § 3C1.1.”

See United States v. Rodriguez, 398 F.3d 1291, 1298-99 n.5 (11th

Cir.), cert. denied, 125 S. Ct. 2935 (2005).

          Even if the district court’s enhancement constituted

Booker error, we would decline to notice the error because there

can be no question that the jury, having found that the offenses

were committed, would also have determined that Mayes willfully and

falsely testified about a material matter.     See United States v.

Smith, 441 F.3d 254, 272-73 (4th Cir. 2006); see also Johnson v.

United States, 520 U.S. 461 (1997) (plain error in failing to

submit question of materiality to jury did not seriously affect the

fairness, integrity, or public reputation of judicial proceedings).

          Based on the foregoing and the reasons stated in our

prior opinion, we affirm Mayes’s convictions and sentence. 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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