                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4174


UNITED STATES OF AMERICA,

                  Plaintiff –Appellee,

             v.

DANILO QUESADA-GUERRERO,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00043-NCT-1)


Submitted:    February 6, 2009              Decided:   February 18, 2009


Before MICHAEL and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Charles L. White, Greensboro, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Randall S. Galyon,
Assistant United States Attorney, Greensboro, North Carolina,
for Appellant.


Unpublished opinions are not binding precedent in this circuit.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

               Danilo Quesada-Guerrero pled guilty to conspiracy to

distribute cocaine hydrochloride, 21 U.S.C. § 846 (2006) (Count

1),   and      possession      of    a     firearm    in       furtherance      of    a     drug

trafficking crime, 18 U.S.C.A. § 924(c) (West 2000 & Supp. 2008)

(Count 3).          He received a sentence of life imprisonment for the

conspiracy conviction and a consecutive five-year sentence for

the § 924(c) conviction.              Quesada-Guerrero appeals the sentence,

arguing     that      the    district         court   erred      in     failing      to     make

adequate findings to support its enhancement for obstruction of

justice, U.S. Sentencing Guidelines Manual § 3C1.1 (2007), based

on    perjury,       and    erred        in     denying    him     an     adjustment         for

acceptance of responsibility, USSG § 3E1.1.                       We affirm.

               In the spring of 2006, Quesada-Guerrero and several

co-conspirators         were       under        surveillance      for     suspected         drug

trafficking, during which time they were observed removing bags

from a tractor trailer with a California license plate that was

parked    at    a    trailer   park        in    Greensboro,      North    Carolina,         and

later    refueling      the    tractor          trailer    at   the     park.        When    the

tractor     trailer         left    Greensboro,           it    was     stopped       on     the

interstate highway and searched, but no contraband was found.

After he was released, the driver of the tractor trailer called

Quesada-Guerrero three times in quick succession.



                                                 2
          Later that morning, Quesada-Guerrero and others under

surveillance were observed driving from various addresses they

frequented      to   Quesada-Guerrero’s    residence,      taking   evasive

measures as they did so.        Quesada-Guerrero then drove away with

two men in his Nissan Titan pickup truck.                When a Greensboro

police   unit    attempted    to   stop   the   truck,    Quesada-Guerrero

refused to stop and fled at high speed, eventually crashing the

truck into a tree. 1         A police officer, Corporal Gill, chased

Quesada-Guerrero on foot through a residential area.            Carrying a

handgun, Quesada-Guerrero approached Jeanne Thilo, who was in

her driveway packing her van for a trip, and tried to carjack

the vehicle. Thilo pushed him away and Quesada-Guerrero again

fled, with Corporal Gill ordering him to stop.            Quesada-Guerrero

turned toward Gill and pointed his gun at Gill, who took cover.

When other police officers arrived, Quesada-Guerrero was located

hiding under a boat behind a neighboring house.              A loaded .38

caliber revolver was on the ground near him and he had a loaded

.25 caliber pistol in his pocket.         One of the passengers in the

truck, Amado Sosa-Dominguez, was also apprehended.              The other,

Arley Lovaina, escaped.

     1
       Beside the crashed truck, police found two semi-automatic
assault rifles.      Inside the truck, they found packages
containing a total of 7.762 kilograms of powder cocaine, bags
containing an additional 214.03 grams of powder cocaine, 1.8
grams of cocaine base, $13,020 in cash, and a digital scale.


                                     3
             According to information contained in the presentence

report,     Quesada-Guerrero         waived         his     Miranda 2      rights        and

acknowledged that the driver of the tractor trailer called him

when the trailer was stopped and searched.                      He said the trailer

was carrying money in payment for thirty kilograms of cocaine,

which had not been discovered, and that the trailer initially

brought 100 kilograms of cocaine to Greensboro which had been

stored at the trailer park, but was no longer there.

             However,    in     written    objections           to   the    presentence

report, Quesada-Guerrero challenged the recommended adjustments.

He denied making the statement about money hidden in the tractor

trailer,     attempting       the   carjacking,       and       pointing      a    gun   at

Corporal     Gill.      At     sentencing,         Thilo,    Gill,      and       Detective

Williams, who took Quesada-Guerrero’s post-arrest statement, all

testified    about    his     conduct.        In    his   own    testimony         Quesada-

Guerrero repeated his denials.                Finding that Quesada-Guerrero’s

testimony raised the possibility that he had given knowingly

false     testimony     concerning        material        matters,         and      thereby

obstructed    justice,       calling     into      question      his    acceptance       of

responsibility, the district court continued the sentencing for

several days to allow the parties time to prepare to address

these issues.        When sentencing recommenced, the court determined

     2
         Miranda v. Arizona, 384 U.S. 436 (1966).



                                          4
that Quesada-Guerrero had given perjured testimony.                         The court

added an adjustment for obstruction of justice, and denied him

an adjustment for acceptance of responsibility.                          The court’s

decision    increased        the    advisory      guideline         range    to      life

imprisonment.       The court decided that none of the 18 U.S.C. §

3553(a)    (2006)     factors      would     support    a     sentence      below    the

guideline range.          The court imposed a life sentence for Count 1,

followed by a consecutive five-year sentence for Count 3.

            On   appeal,      Quesada-Guerrero         first     argues      that    the

adjustment for obstruction of justice was made without adequate

findings.    The district court’s factual findings supporting the

§ 3C1.1    obstruction       of    justice     enhancement      are    reviewed       for

clear error.        United States v. Kiulin, 360 F.3d 456, 460 (4th

Cir.   2004).       The    adjustment      applies     when   the     district      court

determines that a defendant committed perjury.                          USSG § 3C1.1

comment. (n.4(b)); see also United States v. Dunnigan, 507 U.S.

87, 94 (1993).            The court must find that the defendant gave

false testimony under oath “concerning a material matter with

the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.”                         Id.; United

States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995).                        When the

sentencing court finds that a defendant has committed perjury,

it is preferable for the court to address all the elements of

perjury separately and clearly, but a finding that “encompasses

                                           5
all   of   the   factual    predicates        for    a    finding      of    perjury”   is

sufficient.      Dunnigan, 507 U.S. at 95.

            Quesada-Guerrero         contends       that     the      district   court’s

findings were inadequate because it found only that he testified

falsely, but did not find that his false testimony was material

or intended to deceive.            In fact, the district court identified

the issue at the first sentencing hearing as whether Quesada-

Guerrero    testified      falsely      and    knowingly         concerning      material

matters    by    denying   the     conduct      and       statements        described   by

Williams, Thilo and Gill.           Dunnigan did not require the court to

repeat its conclusion that the false testimony was material and

willfully deceptive at the second hearing.

            Quesada-Guerrero also claims that the district court

failed to identify in what way his testimony was false, and

wrongly believed that Thilo testified that Quesada-Guerrero had

put a gun into her side. 3              However, we are satisfied that the

district    court    did     not     clearly        err     in     accepting      Thilo’s

testimony that Quesada-Guerrero had attempted to take her van at

gunpoint and rejecting Quesada-Guerrero’s blanket denial.

            With    respect        to    the        denial       of     acceptance      of

responsibility, a defendant generally is not eligible for the

      3
       Thilo testified, “I felt something on the side of me,”
turned and “saw a person standing next to the van and he had a
gun . . . .”



                                          6
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, comment. (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.        Id.    Quesada-Guerrero contends that it was error

to require him to show that his case was extraordinary when the

district   court’s      finding          of    obstruction      of    justice      was   not

valid.       Because        the        district       court   did     not   err    in    its

determination of obstruction of justice, this claim is without

merit.

           We therefore affirm the sentence.                          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




                                                7
