                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4303


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

KEVIN L. NAVARRO,

                    Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia,
at Elkins. John Preston Bailey, District Judge. (2:17-cr-00002-JPB-MJA-4)


Submitted: November 26, 2018                                Decided: December 12, 2018


Before GREGORY, Chief Judge, KEENAN and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tracy Weese, Sheperdstown, West Virginia, for Appellant. Stephen D. Warner,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      In accordance with a written plea agreement, Kevin L. Navarro pled guilty to

possession with intent to distribute methamphetamine and aiding and abetting the same,

18 U.S.C. § 2, 21 U.S.C. § 841(a)(1) (2012). He was sentenced to 240 months in prison.

Navarro appeals, raising three issues related to the calculation of his Guidelines range.

We affirm.

                                            I.

      Navarro first contends that the district court should have applied base offense level

26, rather than base offense level 32. While the parties stipulated in the plea agreement

that the base offense level was 26 (at least 200 grams but less than 350 grams of

methamphetamine, U.S. Sentencing Guidelines Manual § 2D1.1(c)(7) (2016)), the

agreement further provided that “[t]he Court is not bound by any stipulation contained in

this plea agreement and the Court is not required to accept any stipulation.” At his

hearing conducted pursuant to Federal Rule of Criminal Procedure 11, Navarro

acknowledged under oath that he had read and signed the plea agreement and understood

its provisions. The court specifically inquired whether Navarro understood that the

stipulation about the base offense level was not binding on the court, and Navarro

responded that he did.

      Following execution of the plea agreement, laboratory testing disclosed that the

seized methamphetamine was 100% pure. Therefore, under the Guidelines, the substance

qualified as “ice,” rather than methamphetamine, see USSG § 2D1.1(c) n.(C) (2016), and

Navarro’s base offense level increased to 32. See USSG § 2D1.1(c)(4).

                                            2
       “In assessing whether a sentencing court has properly applied the Guidelines, we

review factual findings for clear error and legal conclusions de novo.” United States v.

Thompson, 874 F.3d 412, 414 (4th Cir. 2017) (internal quotation marks omitted), cert.

denied, 138 S. Ct. 1179 (2018). In light of the clear directive of the Guidelines and the

nonbinding nature of the stipulation in the plea agreement, we discern no error in the

court’s finding that base offense level 32 was appropriate.

                                            II.

       Navarro next contends that the district court erred when it applied a two-level

enhancement based on obstruction of justice. Under USSG § 3C1.1, the enhancement is

proper if the sentencing court finds “that the defendant (1) gave false testimony;

(2) concerning a material matter; (3) with willful intent to deceive.” United States v.

White, 810 F.3d 212, 229-30 (4th Cir. 2016) (internal quotation marks omitted). To

apply the adjustment based on perjury, the 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); see USSG § 3C1.1 cmt. n.4(F).

       At his Rule 11 hearing, Navarro admitted that he and an associate picked up a box

containing methamphetamine that had been shipped from California to West Virginia.

He said that he knew that the box contained the drug because his associate showed it to

him. However, when Navarro testified at the trial of his brother on various drug charges

related to Navarro’s offense, he said that he did not know what the box contained. The

district court determined that, in an attempt to effect his brother’s acquittal, Navarro

                                             3
testified falsely on a material matter. We conclude that application of the enhancement

was appropriate on this basis.

                                            III.

       Finally, Navarro argues that the district court erred in not reducing his offense

level based on acceptance of responsibility, USSG § 3E1.1. “Conduct resulting in an

enhancement under [USSG] § 3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct. There may, however, be extraordinary

cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply.” USSG § 3E1.1,

cmt. n.4. Navarro’s is not such an extraordinary case, and we hold that the district court

did not err when it failed to give Navarro a reduction under the Guideline.

                                           IV.

       We accordingly affirm. 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




                                             4
