                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-5045


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TERRON MCALLISTER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
District Judge. (7:06-cr-00044-D-1)


Submitted:   May 7, 2010                        Decided:    May 28, 2010


Before WILKINSON and       GREGORY,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant.    Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Pursuant         to        a       written       plea      agreement,           Terron

McAllister pled guilty to possession with intent to distribute

crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (2006), and

using and carrying a firearm during and in relation to a drug

trafficking         offense,         in       violation       of    18   U.S.C.       § 924(c)(1)

(2006).     The district court sentenced him to 180 months on the

drug charge and a mandatory consecutive 60-month term on the

firearm charge.           Counsel has filed a brief pursuant to Anders v.

California,      386      U.S.       738      (1967),      stating       that,   in      his    view,

there    are    no    meritorious             issues      for      appeal,   but    raising      the

issues of whether there was ineffective assistance of counsel or

prosecutorial misconduct warranting setting aside the judgment,

whether    the       district        court        properly         calculated      the    advisory

guideline       range,      and       whether           the     court    erred     in     upwardly

departing from the advisory guideline range.                              Counsel also noted

additional issues concerning the adequacy of the court’s notice

that it was contemplating an upward departure, whether the court

erred by denying McAllister’s request to reopen the evidence at

sentencing,         and    whether            the       government       violated        the    plea

agreement      by    arguing         for      a   higher      guideline      range       than   that

agreed    to     in       the    plea          agreement,          and   whether      there      was

sufficient evidence to support the district court’s findings at

sentencing.         In a pro se supplemental brief, McAllister asserted

                                                    2
that his criminal history was improperly computed, the district

court improperly enhanced his sentence based on a drug quantity

not admitted to by him, and that the evidence on which the court

made sentencing findings was not sufficiently reliable.                    Finding

no reversible error, we affirm.

            In the plea agreement, the Government and McAllister

stipulated that he would be accountable for between three and

four   grams    of    crack   cocaine.        At   sentencing,     the   Government

presented      witnesses      who    testified      that   McAllister      directed

members of a violent gang to threaten and assault two witnesses

who had planned to testify against McAllister.                    Upon questioning

by the court, one witness explained that he had paid McAllister

4.5 ounces of cocaine every month for a year in exchange for

McAllister     providing      security       for   him.    The     district     court

continued the sentencing hearing to allow the probation officer

to   recompute       the   advisory    guideline     range   taking      this   drug

quantity into account.              The district court also provided oral

and written notice that it was considering an upward departure

from the resulting guideline range based on McAllister’s conduct

of obstructing justice and committing perjury.

             McAllister thereafter moved the court to allow him to

present   additional       evidence     in    rebuttal.      At    the   reconvened

sentencing hearing, the court accepted a proffer of evidence

from McAllister and, considering the proffer, determined that it

                                         3
did not alter the court’s findings that McAllister committed

perjury      and     obstructed     justice.         The      court      adopted     the

sentencing computation in the revised presentence report, and

thereafter upwardly departed a total of four offense levels from

the   redetermined          advisory       guideline      range       and     sentenced

McAllister to 180 months on the drug charge and a mandatory

consecutive 60-month term on the firearm charge.

             Initially, we note that, although not challenged by

McAllister, we find that his guilty plea is valid.                       The district

court fully complied with the mandates of Fed. R. Crim. P. 11 in

accepting his guilty plea and ensured that McAllister entered

his   plea    knowingly       and   voluntarily         and   that     the    plea   was

supported by an independent factual basis.                    See United States v.

DeFusco,      949     F.2d     114,    116,      119-20       (4th      Cir.     1991).

Accordingly, we affirm McAllister’s convictions.

             Although counsel raises the possibility of ineffective

assistance of counsel, our review of the record discloses no

evidence     of    this.      Accordingly,       that    issue    is    not    properly

addressed on direct appeal.                See United States v. Baldovinos,

434   F.3d    233,    239    (4th   Cir.    2009)   (holding      that       court   will

“address     [claims    of    ineffective       assistance]      on    direct    appeal

only if the lawyer’s ineffectiveness conclusively appears from

the record”).



                                            4
              McAllister       asserts     that      the     Government      may    have

breached      the     plea     agreement       or     engaged       in    prosecutorial

misconduct by arguing at sentencing for a greater drug quantity

than that stipulated in the plea agreement and by changing its

position      on     McAllister’s        eligibility         for    the     three-level

reduction for acceptance of responsibility.                        However, after the

district court made explicit findings that McAllister perjured

himself during the sentencing hearing and influenced members of

a   gang   in      prison    to    threaten     and       assault    two    cooperating

witnesses, the Government asked the court to find that, in light

of his conduct, the Government was no longer bound by the agreed

position with respect to sentencing factors.                       The district court

made   this     finding      and   therefore,       the    Government’s      change    of

position was justified in light of the change of circumstances

wrought by McAllister’s conduct.

              McAllister      also    questions        the    sufficiency      of     the

court’s notice pursuant to Fed. R. Crim. P. 32(h) that it was

considering upwardly departing.                We find the notice was clearly

sufficient.         The court notified the parties during the initial

sentencing hearing of the bases upon which it was considering

departing.         The court also continued the sentencing hearing to

provide written notice and to allow McAllister the opportunity

to provide evidence on the departure issue.                     This was sufficient

notice.    See Burns v. United States, 501 U.S. 129, 138 (1991).

                                           5
               McAllister also questions whether the court erred in

refusing to reopen the evidentiary portion of the sentencing to

allow    him    to     present    rebuttal            evidence.       The    court    accepted

McAllister’s         proffer     of        evidence      and,     even      considering      the

evidence       proffered         by        McAllister,        the     court        found     that

McAllister did, in fact, obstruct justice by requesting the gang

members        to     assault         and        threaten       cooperating         witnesses.

McAllister cannot show that he was prejudiced by the court’s

refusal to allow additional witnesses to testify in support of

the proffer.

               Next,      McAllister              contends        that      the       guideline

sentencing range was improperly calculated.                           He asserts that the

base offense level should have been 20 based on the stipulated

drug quantity in the plea agreement.                          He also contends that he

should have received a three-level reduction for acceptance of

responsibility.            However,          after       an     evidentiary        hearing     at

sentencing, the court found that McAllister was accountable for

a significantly greater drug quantity and directed the probation

officer to prepare a new presentence report including the 4.5

ounces    (127.58       grams)        of    cocaine       per    month      that    McAllister

received       from     Perez         as     payment      for       McAllister       providing

security.       The district court credited Perez’s testimony, which

supports       this     quantity,          and    therefore       this      finding    is    not

clearly erroneous.

                                                  6
            McAllister        contends     that     the     criminal    history      was

improperly computed, asserting that he should not have received

a   criminal      history       point   for       his    “driving     while      license

suspended/reckless driving to endanger” conviction for which he

received a forty-five day sentence.                     This offense was properly

attributed a criminal history point under USSG § 4A1.1(c).                            See

USSG § 4A1.2(c)(1), (2).

            McAllister also contends that the district court erred

in enhancing his sentence based on facts not admitted to by him

in the plea agreement or the plea hearing.                       This argument lacks

merit.     See United States v. Booker, 543 U.S. 220, 246 (2005);

United States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).

            McAllister        also      challenges        the     district       court’s

factual    findings      in     support    of     the    obstruction       of    justice

enhancements.         We find no merit to this challenge.                  See United

States v. Layton, 564 F.3d 330, 334 (4th Cir. 2009) (affording

great deference to district court’s credibility determinations)

(quoting United States v. Feurtado, 191 F.3d 420, 424 n.2 (4th

Cir. 1999)).

            In    the    Anders      brief,       counsel    also     addresses       the

reasonableness of the court’s upward departure from the advisory

guideline range established at sentencing due to the court’s

findings    that       McAllister       obstructed        justice    and        committed

perjury.         We    review     for     clear     error    a     district      court’s

                                           7
determination    that       a    defendant        obstructed      justice.        United

States v. Hughes, 401 F.3d 540, 560 (4th Cir. 2005).                           Here, the

district court found that McAllister committed perjury during

the sentencing hearing.           This finding is sufficient to support

the obstruction of justice enhancement.                   USSG § 3C1.1, comment.

(n.4(b)).     Also,     an      enhancement       for    obstruction       of    justice

“ordinarily     indicates        that      a     defendant      has      not    accepted

responsibility        for       his     criminal         conduct,”         except     in

“extraordinary cases in which adjustments under both §§ 3C1.1

and 3E1.1 may apply.”           USSG § 3E1.1, cmt. n.4.               We find this is

not such an extraordinary case as would allow McAllister the

benefit of acceptance of responsibility in spite of his perjury

and other obstructive conduct.                 See United States v. Hudson, 272

F.3d 260, 263 (4th Cir. 2001).

            We also uphold the district court’s upward adjustments

to   McAllister’s     offense      level       under    USSG    §§ 5K2.0(a)(1)       and

5K2.2 based on the severity of his obstructive conduct and the

seriousness     and     extent        of       physical        injury.          Notably,

McAllister’s conduct resulted in five separate assaults--verbal

or physical--of two cooperating witnesses.                      Perez was left with

a visible scar over his eye following one attack, and McAllister

repeatedly    perjured       himself       during       the    sentencing       hearing.

These findings are sufficient to warrant an upward departure.

See United States v. Scheetz, 293 F.3d 175, 191 (4th Cir. 2002)

                                           8
(upholding departure under USSG § 5K2.1 and USSG § 5K2.2 because

defendant       “help[ed]      put    into        motion       a    chain       of    events       that

risk[ed]       serious      injury    or       death”        and    because       the    defendant

“should have foreseen the possibility of serious physical harm

to   another     as    a    result        of    his     actions”);            United    States      v.

Ventura, 146 F.3d 91, 97-98 (2d Cir. 1998) (justifying departure

based     on    multiple,         unrelated           acts    of        obstruction);          United

States v.       Furkin,      119     F.3d        1276,       1283-85          (7th     Cir.     1997)

(approving upward departure for multiple acts of obstruction,

including threatening witnesses).

               Finally,      we      find       that        McAllister’s             sentence      was

reasonable.        We review a sentence for reasonableness under an

abuse-of-discretion standard.                     Gall v. United States, 552 U.S.

38, 51 (2007), considering both the procedural and substantive

reasonableness of a sentence.                     Id.        We find that the district

court     correctly          determined           McAllister’s                guideline       range,

appropriately considered the 18 U.S.C. § 3553(a) (2006) factors,

addressed       the        arguments           presented           by     the     parties,          and

sufficiently explained the selected sentence.                                 Gall, 552 U.S. at

49-50.          Additionally,          we       find        that        the     district        court

appropriately         provided       an     individualized               explanation          of   the

reasons    for     the      sentence        and       for    the        departures      above      the

advisory guidelines range.                  See United States v. Lynn, 592 F.3d

572, 576 (4th Cir. 2010) (“[A]n individualized explanation must

                                                  9
accompany every sentence.”); United States v. Engle, 592 F.3d

495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551

U.S. 338, 356 (2007)); United States v. Carter, 564 F.3d 325,

330 (4th Cir. 2009).

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We therefore affirm McAllister’s convictions and his

sentences    of   180   months    on   the   drug    charge    and    a    60-month

consecutive    sentence   on     the   firearms     charge.     See       18   U.S.C.

§ 924(c).     This court requires that counsel inform McAllister,

in writing, of the right to petition the Supreme Court of the

United States for further review.            If McAllister 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 McAllister.                   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




                                       10
