                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4733


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

WILLIAM ANTHONY RAY JOLIN, a/k/a William A. Jolin,

                     Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina, at
Statesville. Richard L. Voorhees, Senior District Judge. (5:16-cr-00043-RLV-DCK-1;
5:17-cr-00015-RLV-DCK-1)


Submitted: August 21, 2018                                        Decided: August 28, 2018


Before NIEMEYER, TRAXLER, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North Carolina,
for Appellant. R. Andrew Murray, United States Attorney, Anthony J. Enright, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       William Anthony Ray Jolin pled guilty, pursuant to a plea agreement, to conspiracy

to distribute and possess with intent to distribute 50 grams or more of a mixture and

substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C.

§ 846 (2012). The district court sentenced Jolin to 135 months’ imprisonment, the bottom

of his advisory Sentencing Guidelines range. On appeal, Jolin argues that the Government

engaged in misconduct when it moved for the application of the two-level enhancement

for obstruction of justice based on his statements during the suppression hearing. See U.S.

Sentencing Guidelines Manual § 3C1.1 (2016). We affirm.

       To prevail on his prosecutorial misconduct claim, Jolin must demonstrate both that

the prosecutor’s conduct was improper and that the conduct prejudicially affected his

substantial rights. United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010). The

relevant inquiry is whether “the government’s improper conduct so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” United States v.

Chavez, 894 F.3d 593, 602 (4th Cir. 2018) (internal quotation marks omitted), petition for

cert. filed, ___ U.S.L.W. ___ (U.S. Aug. 9, 2018) (No. 18-5527). Because Jolin did not

raise a prosecutorial misconduct claim in the district court, our review is for plain error.

United States v. Woods, 710 F.3d 195, 202 (4th Cir. 2013); see Henderson v. United States,

568 U.S. 266, 272-73 (2013) (describing plain error review).

       Initially, we find no merit to Jolin’s claim that he was tricked into pleading guilty

when the Government did not disclose that it planned to move for the application of the

obstruction enhancement. The plain terms of the plea agreement allowed the parties to

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argue at sentencing for the application of any reductions, enhancements, and adjustments

to Jolin’s Guidelines range.

         We further conclude that the Government did not act out of bounds by basing its

argument for the obstruction enhancement on Jolin’s testimony at the suppression hearing.

The Supreme Court has held that “a defendant’s right to testify does not include a right to

commit perjury” and has upheld the application of the obstruction enhancement when a

defendant committed perjury during his trial. United States v. Dunnigan, 507 U.S. 87, 96

(1993); see id. at 98. And we have upheld the application of the obstruction enhancement

based on a defendant’s false testimony during a suppression hearing. See, e.g., United

States v. Jones, 356 F.3d 529, 537 (4th Cir. 2004). Thus, because it is at the very least

arguable that Jolin’s testimony at the suppression hearing earned him the obstruction

enhancement, the Government did not engage in misconduct by arguing that the

enhancement should apply. See United States v. Savage, 885 F.3d 212, 225 (4th Cir. 2018)

(stating elements of obstruction enhancement), petition for cert. filed, ___ U.S.L.W. ___

(U.S. July 12, 2018) (No. 18-5225).

         Finally, we conclude that the district court’s decision to apply the downward

adjustment for acceptance of responsibility and its failure to specifically find that Jolin

committed perjury do not support Jolin’s prosecutorial misconduct claim. Put simply, the

court’s acts are not Government acts upon which a prosecutorial misconduct claim can be

built.

         Because Jolin has not established that the Government acted improperly by

advocating for the application of the two-level enhancement for obstruction of justice, we

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affirm the district court’s judgment. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

                                                                             AFFIRMED




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