                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4076


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LINDA MCLAURIN BURNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (7:08-cr-00049-FL-1)


Submitted:   July 20, 2011                   Decided:    August 5, 2011


Before KING and    AGEE,     Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant.    George E. B. Holding, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Linda McLaurin Burney was indicted on six counts of

grand jury perjury, in violation of 18 U.S.C. § 1623 (2006).

Following a bench trial, the district court convicted Burney on

Counts One, Three, Five, and Six, acquitted her on Count Four,

and   dismissed       Count      Two      on    the     Government’s       motion.        The

district court departed downward from the advisory Guidelines

sentencing range and imposed concurrent sentences of three years

of imprisonment on each count.

            Counsel         filed        a      brief     pursuant     to        Anders    v.

California,     386       U.S.     738       (1967),    stating     that    he    found   no

meritorious issues for appeal, but arguing that the district

court should have granted Burney’s motion to suppress evidence

of her investigatory interview and should have acquitted Burney

due to insufficient evidence to sustain the perjury convictions.

Counsel   further         asserts        that    the     district    court       improperly

calculated Burney’s Guidelines range and imposed a substantively

unreasonable sentence.              We directed supplemental briefing from

the   parties       on     the     issues       of     whether    sufficient       evidence

supported     the        perjury    convictions          and     whether    the      perjury

charges were multiplicitous in violation of the Double Jeopardy

Clause.

            We review the factual findings underlying the district

court’s denial of a motion to suppress for clear error and the

                                                2
court’s legal conclusions de novo.                   United States v. Blake, 571

F.3d 331, 338 (4th Cir. 2009), cert. denied, 130 S. Ct. 1104

(2010).       A     factual       finding     is    clearly      erroneous       if     “the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.”                               United

States v. Harvey, 532 F.3d 326, 336-37 (4th Cir. 2008) (internal

quotation     marks       and    citations       omitted).        However,       “if     the

district court’s account of the evidence is plausible in light

of the record viewed in its entirety,” we will not reverse the

district     court’s      finding    even     if    we   would    have     “decided      the

fact[s] differently.”            United States v. Stevenson, 396 F.3d 538,

542 (4th Cir. 2005) (internal quotation marks, alteration, and

citation omitted).

             We    also     defer    to    the     district      court’s    credibility

determinations, “for it is the role of the district court to

observe witnesses and weigh their credibility during a pre-trial

motion to suppress.”              United States v. Abu Ali, 528 F.3d 210,

232   (4th    Cir.    2008)       (internal       quotation      marks     and   citation

omitted).         When a motion to suppress has been denied by the

district     court,    we       construe    the    evidence      in   the    light      most

favorable to the Government.                United States v. Farrior, 535 F.3d

210, 217 (4th Cir. 2008).

             Statements obtained from a defendant during custodial

interrogation are presumptively compelled in violation of the

                                             3
Fifth     Amendment,        unless      the      Government       shows        that      law

enforcement officers adequately informed the defendant of her

Miranda rights and obtained a waiver of those rights.                                United

States v. Cardwell, 433 F.3d 378, 388-89 (4th Cir. 2005).                                   To

determine whether a defendant was in custody for purposes of

Miranda,       courts     are   to    determine         “first,        what     were    the

circumstances surrounding the interrogation; and second, given

those circumstances, would a reasonable person have felt he or

she    was   not    at    liberty    to   terminate        the    interrogation         and

leave.”      Thompson v. Keohane, 516 U.S. 99, 112 (1995) (footnote

omitted).       In other words, “[a]n individual is in custody when,

under the totality of the circumstances, a suspect’s freedom

from    action     is    curtailed   to   a     degree    associated          with   formal

arrest.”       United States v. Colonna, 511 F.3d 431, 435 (4th Cir.

2007) (internal quotation marks and citation omitted).

               In the present case, Burney voluntarily agreed to the

interview,      which     occurred   at    her    place    of     employment         over   a

period    of     relatively     short     duration.         The    officers          assured

Burney that she was a witness, not a suspect, was not under

arrest, and could leave at anytime.                     Burney was not physically

restrained, and despite her attestation of nervousness and fear,

the record reflects that the tone of the interview was cordial

and non-threatening.            A reasonable person in Burney’s position

would    have      understood    that     she     was    free     to    terminate        the

                                           4
interview and was not in custody.                   Therefore, we conclude that

the district court did not err in denying Burney’s motion to

suppress.

              A   challenge     to    a   defect    in    the   indictment    must   be

brought      before    trial.        Fed.    R.   Crim.   P.    12(b)(3)(B);   United

States v. King, 628 F.3d 693, 699 (4th Cir. 2011).                     “Only upon a

showing of good cause can a defendant avoid waiving a forfeited

multiplicity claim.”            Fed. R. Crim. P. 12(e); King, 628 F.3d at

699.        Because Burney failed to raise a multiplicity challenge

prior to trial and has made no attempt to establish good cause

excusing her failure to raise the challenge, she has forfeited

appellate review of the issue.

              Nevertheless,          we     may    exercise      our   discretionary

remedial power to correct the district court if it committed

plain error.          United States v. Olano, 507 U.S. 725, 734 (1993);

United States v. Robinson, 627 F.3d 941, 954 (4th Cir. 2010).

Before we notice plain error, we must find (1) error was made,

(2)    is    plain,    and   (3)     affected     Burney’s      substantial    rights.

United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).                         Even

if Burney makes this showing, we may exercise our discretion to

correct the error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.                             Id.

We conclude that Burney’s observations of Reese (Counts One and

Five), their conversations (Count Three), and Burney’s provision

                                             5
of   a    list   of     names      to    investigating            officers       (Count    Six),

required proof of sufficiently distinct facts to support four

separate convictions.

             We review the district court’s denial of a motion for

a judgment of acquittal de novo.                        United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010).                   “In assessing the sufficiency of

the evidence presented in a bench trial, we must uphold a guilty

verdict if, taking the view most favorable to the Government,

there is substantial evidence to support the verdict.”                                    United

States v. Armel, 585 F.3d 182, 184 (4th Cir. 2009) (internal

quotation marks and citation omitted).                        “Substantial evidence is

evidence     that       a    reasonable        finder    of       fact    could     accept     as

adequate and sufficient to support a conclusion of a defendant’s

guilt     beyond    a       reasonable        doubt.”        Green,       599    F.3d     at   367

(internal quotation marks and citation omitted).

             In determining whether substantial evidence supports

the verdict, we “must consider circumstantial as well as direct

evidence, and allow the government the benefit of all reasonable

inferences       from        the     facts     proven        to    those     sought       to   be

established.”         United States v. Cameron, 573 F.3d 179, 183 (4th

Cir.     2009)   (internal         quotation         marks    and       citations   omitted).

“Credibility determinations are within the sole province of the

[fact     finder]       and    are      not    susceptible         to    judicial       review.”

United    States      v.      Lowe,     65    F.3d    1137,       1142    (4th    Cir.    1995).

                                                6
“Appellate reversal on grounds of insufficient evidence                        . . .

will be confined to cases where the prosecution’s failure is

clear.”    Green,      599   F.3d     at    367   (internal       quotation   marks,

alteration, and citation omitted).                “A defendant challenging the

sufficiency of the evidence to support his conviction bears a

heavy burden.”        United States v. Beidler, 110 F.3d 1064, 1067

(4th Cir. 1997) (internal quotation marks and citation omitted).

           To     convict    Burney    of      grand   jury      perjury    under    18

U.S.C. § 1623, the Government was required to prove beyond a

reasonable doubt:

     (1) that the defendant gave false testimony to the
     grand jury under oath; (2) that the testimony was
     false; (3) that the false testimony was given
     knowingly; and (4) that the subject matter of the
     testimony   was  material  to   the  grand   jury’s
     investigation.

United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998).

A defendant is not guilty of perjury if the false testimony

resulted   from      confusion,     mistake,      or   faulty     memory.     United

States v. Dunnigan, 507 U.S. 87, 94 (1993); Sarihifard, 155 F.3d

at 306.    The parties stipulated to materiality.                    Our review of

the record leads us to conclude that the evidence was sufficient

to establish the remaining elements of perjury.

           We     review     Burney’s          sentence     for     an     abuse     of

discretion.     Gall v. United States, 552 U.S. 38, 51 (2008).                      The

first   step    in    this   review    requires        us   to    ensure    that    the


                                           7
district       court        committed      no       significant         procedural             error.

United    States       v.    Evans,     526     F.3d    155,      161       (4th    Cir.       2008).

“Procedural errors include failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory,         failing     to     consider        the       [18    U.S.C.]           §    3553(a)

factors, or failing to adequately explain the chosen sentence–

including an explanation for any deviation from the Guidelines.”

United    States       v.    Carter,      564    F.3d      325,       328    (4th    Cir.          2009)

(internal citation and quotation marks omitted).                                    The district

court must make an individualized assessment based on the facts

presented      by    applying       the   relevant         §    3553(a)       factors          to   the

circumstances of the case.                    Gall, 552 U.S. at 51.                      The court

then considers the substantive reasonableness of the sentence,

taking into account the totality of the circumstances. Id.

              We     conclude         that      the        district         court            did     not

procedurally         or     substantively        err       in   sentencing          Burney.          The

court properly calculated the Guidelines range, considered the

relevant § 3553(a) factors, made an individualized assessment

based    on    the     facts    presented,           and    adequately         explained            its

reasons       for    the      chosen      sentence         well       below        the       properly

calculated Guidelines range.                    Accordingly, we affirm Burney’s

convictions and sentences.

              In accordance with Anders, we have reviewed the entire

record and found no other meritorious issues for appeal.                                            This

                                                8
court   requires   counsel    to    inform   Burney,    in    writing,    of    the

right to petition the Supreme Court of the United States for

further review.        If she 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 Burney.         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




                                        9
