UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4965

ALEXANDER VONZELL CLARK,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
N. Carlton Tilley, Jr., District Judge.
(CR-96-69)

Submitted: July 8, 1997

Decided: August 19, 1997

Before HALL, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Tamura D. Coffey, WILSON & ISEMAN, L.L.P., Winston-Salem,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Paul A. Weinman, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Alexander Clark was convicted upon his guilty plea to one count
of conspiring to distribute cocaine and crack, 21 U.S.C. § 846 (1994),
for which he was sentenced to 210 months imprisonment. He appeals,
claiming that the district court clearly erred in imposing a two-level
enhancement for obstruction of justice, USSG § 3C1.1.1 We affirm.

Clark was indicted in April 1996 along with Andre Paul Gaston.
Before his indictment and while Clark was in state custody awaiting
trial on state drug charges, he was approached by a representative of
Gaston's attorney and asked to sign an affidavit exonerating Gaston.
Clark signed the affidavit in which he stated that he (Clark) was
solely responsible for the drugs at issue and that Gaston "did not
know about the cocaine. . . . It belonged to me." The affidavit was
never used, however, and was apparently not properly notarized under
applicable state law.2 The affidavit was discovered by the Govern-
ment during pre-trial discovery. At sentencing, the district court
imposed a two-level enhancement under USSG § 3C1.1, finding that
Clark had made "a knowing false statement . . . for the purpose of
influencing the action of a judicial officer."

Gaston claims that the district court erred in imposing the enhance-
ment because: (1) he did not "willfully" obstruct justice; (2) the affi-
davit was never actually used; (3) the information was not "material;"
(4) the false information did not relate to Clark's offense; (5) the affi-
davit was invalid under North Carolina law; and (6) the adjustment
in these circumstances is "inherently unfair and unjust" (Brief of
Appellant, p. 22) because Gaston's attorney behaved in an unethical
manner in approaching Clark.

We review the district court's factual findings for clear error. See
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1 United States Sentencing Commission, Guidelines Manual, § 3C1.1
(Nov. 1995).
2 The law clerk who witnessed Clark's signature was not the notary
who attested to the signature in the notary acknowledgment.

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United States v. Puckett, 61 F.3d 1092, 1095 (4th Cir. 1995). The
court's determination that particular conduct qualifies for the adjust-
ment is reviewed de novo. United States v. Saintil, 910 F.2d 1231,
1232 (4th Cir. 1990). Section 3C1.1 provides for a two-level increase
if the defendant "willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the investiga-
tion, prosecution, or sentencing of the instant offense." USSG
§ 3C1.1. "A wide range of conduct falls within the parameters of this
section." See United States v. Hicks, 948 F.2d 877, 883 (4th Cir.
1991). The commentary to USSG § 3C1.1 contains a non-exhaustive
list of examples of the types of conduct covered by the guideline,
including "providing materially false information to a judge or magis-
trate." USSG § 3C1.1, comment. (n.3(f)).

Clark first claims that he did not "willfully" obstruct or impede the
investigation because, as he testified at his sentencing hearing, he did
not know what Gaston knew or did not know and that he expressed
concern to the law clerk about the affidavit's accuracy. The district
court took into consideration Clark's testimony, the affidavit itself,
the testimony of Gaston's attorney, and a tape recording of a conver-
sation among Clark, Gaston, and another individual clearly showing
Gaston's involvement in the conspiracy. The district court found
Clark's testimony not credible and that finding is not subject to
review. See United States v. Saunders, 886 F.2d 56 (4th Cir. 1989).

Next, Clark contends that Application Note 3(f) does not apply
because the affidavit was never actually used--i.e., it was never pres-
ented to a judge, magistrate, or the prosecutor handling Gaston's case.
However, USSG § 3C1.1 specifically includes attempts within its def-
inition of obstruction of justice. At the time he signed the affidavit,
Clark was told that it would be presented to the court the following
day for the purpose of obtaining Gaston's release on bond. As the dis-
trict court properly concluded, Clark signed the affidavit "with the
intent of making a statement he knew was false at the time for the
purpose of assisting his friend Mr. Gaston in getting out of jail."

Third, Clark claims that the information included in the affidavit
was not "material" to the issue under determination because no judge
or magistrate ever considered the affidavit, and because it was not rel-
evant to Gaston's bond hearing. We have already concluded that

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Clark's execution of the affidavit constituted an attempt within the
meaning of USSG § 3C1.1. Further, the information in the affidavit
concerned the criminal culpability of Clark's codefendant and was,
therefore, clearly "material" to Gaston's criminal proceedings.

Clark's fourth claim is that the adjustment does not apply because
the false information contained in the affidavit did not relate to
Clark's crime, but to Gaston's. However, the adjustment may be
applied where the defendant lied about another's involvement in the
crime. See United States v. Dyer, 910 F.2d 530, 533 (8th Cir. 1990)
(upholding adjustment where defendant "freely admitted her own
crimes on the witness stand" but lied about another's involvement).

Clark's fifth claim is based on his assertion that the affidavit was
presumptively invalid under North Carolina law. However, he has
provided no authority--and we are not aware of any--that would
make the validity of the affidavit a prerequisite to finding that Clark
attempted to obstruct justice.

Finally, Clark asserts that application of the enhancement is "inher-
ently unfair and unjust" because Gaston's attorney behaved unethi-
cally in obtaining the affidavit. We find this claim without merit. The
attorney's behavior aside, Clark made a knowingly false statement
that he believed would be presented in state court to obtain Gaston's
release from jail.

Accordingly, we find that the district court did not clearly err in
enhancing Clark's sentence under USSG § 3C1.1. His sentence is
therefore affirmed. 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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