                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4982


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

YONEL ASTELLO-POSADA, a/k/a Johnny B, a/k/a Spike,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:08-cr-00010-RLV-DSC-5)


Submitted:   January 25, 2011             Decided:   February 10, 2011


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tony E. Rollman, Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Yonel Astello-Posada was convicted by a jury of one

count of conspiracy to possess with intent to distribute cocaine

and methamphetamine, in violation of 21 U.S.C. § 846 (2006).             He

was   sentenced   to   188   months’   imprisonment.      Astello-Posada’s

counsel filed a brief pursuant to Anders v. California, 386 U.S.

738, 744 (1967), stating that there were no meritorious issues

for appeal, but questioning whether the district court erred in

enhancing     Astello-Posada’s    offense    level   by   two   levels   for

obstruction of justice, pursuant to U.S. Sentencing Guidelines

Manual (“USSG”) § 3C1.1 (2008).            Astello-Posada was advised of

his right to file a pro se supplemental brief but did not do so.

We affirm.

             According to USSG § 3C1.1, a defendant’s base offense

level is to be increased two levels for obstruction of justice

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 (i) the defendant’s offense of conviction[.]

USSG § 3C1.1.      The application notes for § 3C1.1 specifically

include the commission of perjury by defendant as grounds for

the enhancement.       USSG § 3C1.1 cmt. n.4(b).          For purposes of

§ 3C1.1, the Supreme Court has defined perjury in the following


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manner: “[a] witness testifying under oath or affirmation” and

“false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of

confusion,       mistake,    or   faulty      memory.”       United    States     v.

Dunnigan, 507 U.S. 87, 94 (1993).

               After a thorough review of the record, we find there

was     substantial        evidence   that      Astello-Posada        gave    false

testimony on a material matter — whether he withdrew his consent

to the search of his residence — and there is no evidence that

the false testimony was the result of confusion, mistake, or

faulty memory.          Therefore, we hold that the district court’s

enhancement for obstruction of justice was not in error.

               In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We    therefore    affirm    Astello-Posada’s       conviction   and     188-month

sentence.           This      court     requires      that     counsel       inform

Astello-Posada, in writing, of his right to petition the Supreme

Court     of     the    United    States      for    further     review.          If

Astello-Posada requests that a petition be filed, but counsel

believes that such a petition would be frivolous, counsel may

move in this court for leave to withdraw from representation.

Counsel’s motion must state that a copy thereof was served on

Astello-Posada.         We   dispense    with    oral    argument     because     the

facts    and    legal   conclusions     are    adequately    presented       in   the

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materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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