                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4136


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

STEVEN D. MCCALLISTER,

                  Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:08-cr-00120-1)


Submitted:    September 9, 2009             Decided:   October 9, 2009


Before WILKINSON, NIEMEYER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Lisa G. Johnston, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Steven    D.   McCallister           pled    guilty     without    a     plea

agreement to unlawful possession of ammunition by a convicted

felon    in     violation     of    18    U.S.C.        § 922(g)(1)      (2006).         The

district       court    determined       that     McCallister        falsely     told    the

probation officer that the ammunition belonged to a friend, and

maintained that position throughout sentencing, in an attempt to

obtain     a     lower     sentence.              The      court     therefore        denied

McCallister’s          request     for    a    downward      variance     and     instead

imposed    a    seventy-five-month            sentence,      a     variance    above     the

guideline       range    of   51-63       months.          McCallister     appeals       his

sentence,       contending         that       the       district     court       committed

significant procedural error by increasing his sentence without

sufficient      explanation        and    failed      to    consider    either     the    18

U.S.C. § 3553(a) (2006) factors or the need to avoid sentencing

disparity.       We affirm.

               The ammunition was found in McCallister’s car when he

was arrested for a parole violation.                       McCallister’s girlfriend,

Teddi Rose, testified before the grand jury that she saw the

ammunition in the car that day and asked McCallister about it,

and that he said he was going to sell it to a friend.                              In his

interview with the probation officer, McCallister stated that

the ammunition did not belong to him and that he intended to

return it to the owner.             At sentencing, McCallister requested a

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downward variance from the advisory guideline range of 51-63

months   to     a    sentence     of   probation         or    a   minimal      term    of

imprisonment.        During the first sentencing hearing, the district

court adopted the presentence report and indicated that it would

be inclined to vary below the guideline range if McCallister’s

disclaimer of ownership were true, but was concerned about the

discrepancy between his statement and Rose’s testimony.                                The

court continued sentencing to allow the government to produce

Rose as a witness and to allow McCallister to cross-examine her.

The court warned McCallister that, if it should find that he had

“frivolously        contested   this    relevant         conduct   .   .   .   he   could

certainly suffer consequences as a result[.]”

              After Rose testified at the second sentencing hearing,

the   court    found     that   her    testimony         was   more    credible        than

McCallister’s        statement.        The       court    found    that    McCallister

“knowingly attempted to get this court to sentence [him] at a

lower range by providing essentially a false story.”                           The court

told McCallister that “[i]f someone takes [the] position that

you’ve taken in the proceeding . . . back in December, and again

today, and I believe it was falsely done, I think you have

earned [an] additional penalty.”                   The court declined to vary

downward as McCallister had requested, and instead imposed a

variance sentence above the guideline range, noting that the



                                             3
increase to a seventy-five-month term was the equivalent of a

two-level increase in his offense level.

              Appellate courts review a sentence for reasonableness,

applying an abuse of discretion standard, whether the sentence

is   inside     or    outside     the       guideline          range.         Gall      v.   United

States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007).                                     First, we

must “ensure that the district court committed no significant

procedural      error,     such       as    .   .       .    improperly       calculating          the

Guidelines      range.”          Id.       at   597;         United    States      v.      Osborne,

514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525

(2008).    Procedural errors also include “failing to consider the

§    3553(a)    factors,        selecting           a       sentence    based        on      clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”      Gall, 128 S. Ct. at 597.                       Further, a district court

must    provide      an   “individualized                   assessment”      based        upon    the

specific facts before it.                   “That is, the sentencing court must

apply     the       relevant      §        3553(a)           factors    to        the      specific

circumstances        of   the    case       before          it.”      Id.    at    598.       “Such

individualized         treatment           is    necessary            ‘to     consider           every

convicted person as an individual and every case as a unique

study in the human failings that sometimes mitigate, sometimes

magnify,      the    crime      and    the      punishment         to       ensue.’”         United

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

Gall, 128 S. Ct. at 597-98).                    In so doing, the district court

                                                4
must “‘set forth enough to satisfy the appellate court that he

has considered the parties’ arguments and has a reasoned basis

for exercising his own legal decisionmaking authority.’”                             Id.

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

            Only after determining that no significant procedural

error occurred will we review the substantive reasonableness of

the   sentence,       “taking    into    account      the      ‘totality       of    the

circumstances, including the extent of any variance from the

[g]uidelines range.’”           United States v. Pauley, 511 F.3d 468,

473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597).

            McCallister         maintains      that      the        district        court

procedurally erred by failing to make the necessary findings to

support a two-level increase under U.S. Sentencing Guidelines

Manual § 3C1.1 (Obstruction of Justice) (2008), without giving

him   notice     of   the   facts     warranting      the    enhancement       and     an

opportunity to refute them.            The district court was not required

to give notice before imposing a variance sentence, as it did,

rather than making an adjustment for obstruction of justice.

Irizarry    v.   United     States,     128   S.   Ct.      2198,    2202-03    (2008)

(holding that upward variances do not require Fed. R. Crim. P.

32(h) notice).        Nor would it have been required to give notice

before     determining      that    an    adjustment         applied     under        the

sentencing guidelines.           McCallister also argues that the court

failed to make a finding of the elements of perjury to justify

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the increase under United States v. Dunnigan, 507 U.S. 87, 94-95

(1993).      Dunnigan does not apply because the increase was not

based on perjured testimony by McCallister, but rather on his

false statement to the probation officer.

              However,       McCallister’s                  conduct          did     warrant      an

adjustment for obstruction of justice under § 3C1.1 based on the

district court’s finding that he knowingly and falsely told the

probation officer he did not own the ammunition found in his car

and persisted in that falsehood through two sentencing hearings

with the intention of obtaining a reduced sentence.                                     Providing

materially false information to a probation officer with respect

to a presentence report, or to a judge, is conduct covered by

USSG    §   3C1.1.        See    USSG        §       3C1.1,       comment.         (n.4(f),    (h)).

Material information, as used in § 3C1.1, means “information

that, if believed, would tend to influence or affect the issue

under    determination.”              USSG       §       3C1.1,       comment.      (n.6);    United

States      v.    Gormley,      201    F.3d          290,       294-95       (4th    Cir.     2000).

McCallister’s        false   information                 was    certainly        material.       The

district         court   explicitly          stated            that     it   would     have     been

inclined to vary below the guideline range if, as McCallister

maintained, the ammunition in his car did not belong to him and

he intended to return it to the owner.




                                                     6
             If the defendant engaged in conduct that warrants an

adjustment,       the    sentencing          court     is   obligated        to       make    the

adjustment.            United       States    v.      Ashers,   968        F.2d       411,    414

(4th Cir.    1992).           Because        the     district   court       did       not     give

McCallister       an     adjustment        for       obstruction     of     justice          after

making findings that supported such an adjustment, the court did

not    properly    calculate         the     guideline      range.         The       court    thus

committed a significant procedural error.                       Gall, 128 S. Ct. at

597.

             However,         the    error     benefited      McCallister.              If     the

court had given McCallister an adjustment for obstruction of

justice, it likely would not have given him an adjustment for

acceptance of responsibility because Application Note 4 to USSG

§ 3E1.1 provides that “conduct resulting in an enhancement under

§ 3C1.1 . . . ordinarily indicates that the defendant has not

accepted responsibility for his criminal conduct.”                               A two-level

increase     for       obstruction      of     justice,      without        a     three-level

reduction for acceptance of responsibility, would have resulted

in a total offense level of 22 and a guideline range of 84-105

months.      The government has not raised the error on appeal.

Therefore,    we       are    precluded       from     noticing      it.         Greenlaw       v.

United States, 128 S. Ct. 2559 (2008) (holding that, when the

government    has       not     appealed      or      cross-appealed,           an    appellate


                                                 7
court    may    not   increase         a    defendant’s          sentence     because     of   an

error that benefited the defendant).

               McCallister        also      contends           that    the    district     court

erred    in    not    discussing           the    § 3553(a)          factors.      The   record

discloses that the district court did not refer to § 3553(a) at

either sentencing hearing.                  However, we conclude that the court

did consider and “apply the relevant § 3553(a) factors to the

specific circumstances of the case before it.”                               Carter, 564 F.3d

at    328     (quoting      Gall,      128       S.    Ct.      at    598).       The    reasons

articulated by the district court for a given sentence need not

be “couched in the precise language of § 3553(a),” so long as

the     “reasons      can    be     matched           to   a    factor       appropriate       for

consideration . . . and [are] clearly tied [to the defendant’s]

particular situation.”              United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).

               Here, the court was most concerned with the nature and

circumstances of the offense; that is, McCallister’s reason for

having ammunition in his car.                          The court indicated that, if

indeed the ammunition had been left there by his friend and he

intended to do nothing with it but return it to the owner, then

a downward variance might be warranted.                              On the other hand, if

McCallister        intended       to       sell       or     trade     the      ammunition,     a

guideline sentence would be appropriate.                              Ultimately, when the

court decided that McCallister had presented a false story to

                                                  8
the court in an attempt to obtain a lower sentence, the court

focused on the characteristics of the defendant, that is, his

persistence in attempting to deceive the court, and on the need

to provide just punishment for the offense.                   The court explained

that, because McCallister was more than a passive possessor of

the   ammunition,       a    downward    variance     not     warranted,    and     his

attempt    to   deceive      the    court   justified     a   sentence     above    the

guideline range, as calculated by the court.

            The court also specifically considered McCallister’s

history in connection with his last argument, that the district

court refused to consider the lenient sentence imposed on rapper

Clifford    Harris.          McCallister’s      contention      is   without    merit

because McCallister has not established that the rapper was a

similarly       situated      defendant.            The     court    explained       to

McCallister      that   he    was    facing     a   longer    sentence   than      many

defendants convicted of the same offense because of his serious

criminal history.

            On balance, we conclude that the court did not commit

any significant procedural error in explaining its reasons for

the sentence chosen.               Further, the sentence was substantively

reasonable because the upward variance punished McCallister to

the same extent that an adjustment for obstruction of justice

would have.      In fact, as discussed above, in all likelihood the

sentence is shorter than it would have been had the court given

                                            9
McCallister an adjustment for obstruction of justice instead of

varying above the guideline range as calculated by the court.

          For   the   reasons   discussed,   we   affirm   the   sentence

imposed by the district court.         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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