                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-4731


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN EDWARD VANLUE GARRETT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:07-cr-01394-JFA-l)


Submitted:   August 31, 2010             Decided:   September 23, 2010


Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


T. Kirk Truslow, TRUSLOW LAW FIRM, LLC, North Myrtle Beach,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, Mark C. Moore, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            John Edward Vanlue Garrett pled guilty to conspiracy

to possess with intent to distribute five kilograms or more of

cocaine and fifty grams or more of cocaine base (crack), 21

U.S.C. § 846 (2006) (Count 1); attempting to traffic in cocaine

within 1000 feet of a playground, 21 U.S.C. §§ 846, 860 (2006)

(Count 2); using and carrying a firearm during and in relation

to and in furtherance of a drug trafficking crime, 18 U.S.C.A.

§ 924(c) (West 2000 & Supp. 2010) (Count 4); aiding and abetting

armed    robbery,     18    U.S.C.    §§    1951,      2   (2006)     (Count      5);    and

possession     of    a     firearm    by    a     convicted       felon,     18    U.S.C.

§ 922(g)(1) (Count 7).           He was sentenced to a term of 276 months

imprisonment        for    the    drug      and       firearm     offenses,        and     a

consecutive    five-year         sentence       for    the   § 924(c)        conviction.

Garrett contends on appeal that the district court clearly erred

in finding that he obstructed justice by threatening his co-

defendant, William Holley, and clearly erred by denying him a

reduction    for    acceptance       of    responsibility.            U.S.    Sentencing

Guidelines Manual §§ 3C1.1, 3E1.1 (2008).                    We affirm.

            Garrett was arrested with Holley and Rodney Pettigrew

while they were in the act of buying two kilograms of cocaine

from several Mexican drug dealers.                    Holley cooperated with law

enforcement    authorities        after     his    arrest       and   was    interviewed

twice.     At his second interview, Holley informed them that he

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had not been fully forthcoming in his first interview out of

fear of Garrett.               According to Holley, he saw Garrett through a

glass separator when they were both being held in the county

detention       center.              Garrett       pointed      at     Holley,       then     put    his

fingers    to       his       head    and    gestured          as    though     shooting       a    gun.

Holley took this as a threat.                               He also said he and his co-

defendants intended to rob the Mexicans and that Garrett had

told him, just after their arrests, that he would likely have

shot one of the Mexicans.                    Both Garrett and Pettigrew were armed

when    they        were      arrested.             Based       on    this     information,          the

probation officer recommended an adjustment for obstruction of

justice, with no reduction for acceptance of responsibility.

               At    the       sentencing          hearing,         both     Holley    and    Garrett

testified.          Garrett denied making any threat.                          His lawyer argued

that,     if    Garrett          did        make        a    gesture,        Holley    might        have

misinterpreted it.               The district court accepted Holley’s version

of   events     and       his    representation               that    he     felt    threatened       by

Garrett’s gesture, and overruled Garrett’s objections.

               The     sentencing            guidelines          provide       for    a     two-level

adjustment       to       a    defendant’s          offense          level    if     the    defendant

“willfully obstructed or impeded, or attempted to obstruct or

impede,    the        administration               of       justice    with     respect       to     the

investigation, prosecution, or sentencing of the instant offense

of   conviction,           and . . .         the        obstructive        conduct         related    to

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(i) the    defendant’s         offense    of        conviction        and   any       relevant

conduct;    or    (ii)    a    closely    related          offense.”        USSG      § 3C1.1.

Obstructive conduct within the meaning of § 3C1.1 includes, but

is   not   limited       to,   “threatening,          intimidating,         or     otherwise

unlawfully       influencing         a   co-defendant,           witness,        or     juror,

directly or indirectly, or attempting to do so.”                                   Id., cmt.

n.4(a).      Whether a defendant obstructed justice is a factual

question reviewed for clear error.                    United States v. Kiulin, 360

F.3d 456, 460 (4th Cir. 2004).

            Garrett contends that the gesture he allegedly made to

Holley was ambiguous, and that the court decided that it was a

threat based solely on Holley’s subjective interpretation of it.

Garrett claims that, without some evidence to support Holley’s

interpretation       that      the    gesture        was    a   threat,     and       that   it

related to Garrett’s instant offense or one closely related, the

adjustment was clearly erroneous.

            The    district          court’s        decision     to    accept         Holley’s

testimony that Garrett threatened him by means of a gesture was

a    credibility     determination,            to     which     the    appellate         court

generally defers.           See United States v. Griffin, 589 F.3d 148,

151 n.1 (4th Cir. 2009) (“[I]t is the role of the district court

to observe witnesses and weigh their credibility.”) (internal

quotation    and     citation        omitted).         The      district     court       found

Holley a credible witness.               We conclude that its determination

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that Garrett had obstructed justice by attempting to intimidate

a co-defendant was not clearly erroneous.

               A     defendant        generally            is    not    eligible        for   the

acceptance of responsibility adjustment under USSG § 3E1.1 when

he    receives       an    upward     adjustment           for   obstruction       of    justice

under USSG § 3C1.1.            See USSG § 3E1.1 cmt. n.4; United States v.

Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001).                                The defendant has

the burden of showing that his circumstances are extraordinary,

in which case both adjustments might apply.                              USSG § 3E1.1 cmt.

n.4.

               Garrett       did     not    file       a    written      objection       to   the

probation          officer’s       failure       to    recommend        an     adjustment     for

acceptance of responsibility, but at the sentencing hearing the

government informed the court that Garrett was objecting to the

lack of a reduction for acceptance of responsibility.                                   However,

the     evidence          presented    and        the       parties’     argument        focused

exclusively on Garrett’s alleged obstruction of justice.                                      He

made no attempt to show that his case was an extraordinary one

where     he        might     receive        a        reduction        for     acceptance      of

responsibility even though the district court found that he had

obstructed justice.             Moreover, the record does not disclose any

basis for such a claim.                    Consequently, the district court did

not clearly err in denying Garrett an adjustment under § 3E1.1.



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              We   therefore    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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