                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-5081



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WILLIAM H. BURNETTE, JR.,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-05-17)


Submitted:   April 23, 2007                   Decided:   May 29, 2007


Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Reginald M. Barley, Richmond, Virginia, for Appellant. Sara
Elizabeth Flannery, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           William H. Burnette, Jr., appeals from his seventy-one

month sentence imposed following his guilty plea to one count of

assault resulting in serious bodily injury, in violation of 18

U.S.C. § 113(a)(6) (2000).             Burnette’s counsel filed a brief

pursuant to Anders v. California, 286 U.S. 738, 744 (1967), stating

that there were no meritorious issues for appeal, but suggesting

that the district court erred in sentencing Burnette. Burnette was

informed of his right to file a pro se supplemental brief but

elected not to do so.

             A presentence investigation report (PSR) calculated a

base   offense   level   of   nineteen.       After   applying    a     two-level

adjustment for a minor role in the offense pursuant to U.S.

Sentencing     Guidelines     Manual    (U.S.S.G.)     §     3B1.2(b)     (2004),

Burnette’s adjusted offense level was seventeen.                 The PSR also

reduced   the     offense     level     by    three    for     acceptance     of

responsibility.     Based on an offense level of fourteen and a

criminal history category of III, the PSR established an advisory

guideline range of twenty-one to twenty-seven months’ imprisonment.

The Government objected to Burnette receiving a reduction for

acceptance of responsibility.

           At the sentencing hearing, the district court found sua

sponte that Burnette was entitled neither to the minor role in

offense adjustment under U.S.S.G. § 3B1.2(b), nor to the reduction


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for acceptance of responsibility.                 Rather, the court found sua

sponte that Burnette’s false statements to the probation officer

warranted        a    two-level     obstruction        of    justice      enhancement.

Additionally, the district court found that Burnette’s criminal

history score under-represented the seriousness of his criminal

history.    Accordingly, the court departed upward and increased the

criminal history category level from III to IV.                        Based on this

category and a newly-established offense level of twenty-one, the

advisory guideline range was fifty-seven to seventy-one months’

imprisonment.         The court sentenced Burnette to seventy-one months’

imprisonment.

            Burnette first argues that an upward departure was not

warranted in this case.            “If reliable information indicates that

the   defendant’s             criminal     history         category    substantially

under-represents         the    seriousness      of    the    defendant’s    criminal

history or the likelihood that the defendant will commit other

crimes,     an       upward    departure    may       be    warranted.”       U.S.S.G.

§ 4A1.3(a)(1).         We have noted that “[s]ection 4A1.3 was drafted in

classic catch-all terms for the unusual but serious situation where

the criminal history category does not adequately reflect past

criminal conduct or predict future criminal behavior.”                         United

States v. Lawrence, 349 F.3d 724, 730 (4th Cir. 2003).

            Our review of the record reveals that the district court

explained in detail its decision that an upward departure was


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appropriate in this case.          We conclude that, under either a

reasonableness or abuse of discretion standard of review, the

district court did not err in its decision to depart upward, or in

its selection of the ultimate sentence in this case.

          Burnette also questions whether the district court erred

in enhancing his offense level for obstruction of justice.                The

Sentencing    Guidelines   provide   for    a     two-level   increase   in   a

defendant’s     offense   level   “[i]f    (A)    the   defendant    willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation,

prosecution, or sentencing of the instant offense of conviction,

and (B) the obstructive conduct related to (I) the defendant’s

offense of conviction and any relevant conduct.” U.S.S.G. § 3C1.1.

          “[P]roviding materially false information to a probation

officer in respect to a presentence or other investigation for the

court,” or “providing materially false information to a judge or

magistrate,” are specifically listed as examples of conduct for

which the enhancement is appropriate. U.S.S.G. § 3C1.1, comment.

(n.4(f)   and    (h)).      “To    apply     the     obstruction-of-justice

enhancement,     the   district   court    must    find   that   a   defendant

consciously act[ed] with the purpose of obstructing justice.”

United States v. Stewart, 256 F.3d 231, 253 (4th Cir. 2001)

(internal quotation marks and citation omitted).                 The district

court imposed the enhancement based on Burnette’s statement that


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the victim had a “shank,” but no evidence of a knife or similar

weapon was ever found.     Our review of the record demonstrates that

the facts supporting the enhancement were sufficiently established.

            Finally, Burnette questions whether the district court

erred in denying a reduction in his base offense level for having

a minor role in the offense.       The standard of review for factual

determinations, such as whether the appellant’s conduct warrants a

minor-role sentencing reduction, is clear error.         United States v.

Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989).       A defendant who is

only a “minor participant” in a criminal activity may have his

offense level reduced by two levels.       U.S.S.G. § 3B1.2(b).        This

applies to a defendant “who is less culpable than most other

participants, but whose role could not be described as minimal.”

USSG   §   3B1.2(b),   comment.   (n.5).   Here,   the    district    court

reasonably found that Burnette was not a minor participant in the

offense, as the evidence established that Burnette held the victim

down as his co-defendants beat the victim.               Accordingly, the

district court did not clearly err in denying Burnette a minor

participant adjustment.

            As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.             We therefore

affirm the district court’s judgment.       This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review.               If the


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client 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 the client.        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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