              Vacated by Supreme Court, January 24, 2005




                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 03-4788
JAMES PHILLIP BOOHER,
               Defendant-Appellant.
                                       
            Appeal from the United States District Court
         for the Western District of Virginia, at Abingdon.
                  James P. Jones, District Judge.
                            (CR-03-42)

                      Submitted: March 12, 2004

                       Decided: April 9, 2004

   Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Jay H. Steele, Lebanon, Virginia, for Appellant. John L. Brownlee,
United States Attorney, R. Lucas Hobbs, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. BOOHER
                              OPINION

PER CURIAM:

   James Phillip Booher pled guilty to possession of a firearm and
ammunition by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and
was sentenced to 100 months imprisonment. He appeals his sentence,
contending that the district court clearly erred in finding that he
obstructed justice by suborning his girlfriend’s perjury before the
grand jury, U.S. Sentencing Guidelines Manual § 3C1.1 (2002), and
in denying him an adjustment for acceptance of responsibility. USSG
§ 3E1.1. We affirm.

   On the day Booher was arrested, the police found a firearm in
Stephanie Fitzpatrick’s purse. Fitzpatrick told the police in a written
statement that the gun was not hers, that Booher had been carrying
her purse when they left her apartment, and that she had seen him put
something into the purse. However, when she testified before a grand
jury in April 2003, Fitzpatrick claimed that the gun was hers. She
later recanted her testimony and gave a written statement to the police
in which she said she had lied before the grand jury because Booher
instructed her to lie and told her that she might be in danger if she did
not. She also said Booher had written her a letter telling her what to
say to the grand jury. In June 2003, Fitzpatrick again testified before
the grand jury. This time she said the gun did not belong to her, con-
sistent with her two statements to the police. She said that Booher had
initially told her to lie, but changed his mind and told her to tell the
truth when he learned that he could be prosecuted for possessing the
two bullets he had in his pocket when he was arrested. When Booher
was sentenced, the government introduced transcripts of Fitzpatrick’s
April and June grand jury testimony and her May 15 written state-
ment and requested an adjustment for obstruction of justice. The dis-
trict court agreed that the evidence established that Booher had
suborned Fitzpatrick’s perjury and that the adjustment was warranted.

   On appeal, Booher argues that Fitzpatrick’s testimony did not con-
stitute reliable evidence from which the court could conclude that he
suborned her perjury because it established only that she was willing
to lie, not on which occasion she lied. In his reply brief, he further
claims that only introduction of the letter from Booher that Fitzpatrick
                       UNITED STATES v. BOOHER                         3
said she received before her first grand jury testimony, would have
justified the adjustment.

   We disagree. Even without the letter, the reliability of Fitzpatrick’s
June testimony before the grand jury was supported by the fact that
it was consistent with the statement she gave to the police the day of
Booher’s arrest and her second statement to the police on May 15,
2003. Moreover, her June testimony that the gun belonged to Booher
was supported by information given to the police the day of the arrest
by Timothy Dougherty and a woman who witnessed an altercation
between Booher and Dougherty, both of whom said Booher possessed
a firearm during the altercation, and by Booher’s statement to the pro-
bation officer that he drew a gun on Dougherty in self defense shortly
before his arrest. These indicia of reliability support the district
court’s decision to credit Fitzpatrick’s assertion in her June testimony
that Booher had induced her to lie when she testified in April. There-
fore, the district court did not clearly err in finding that Booher had
obstructed justice by suborning Fitzpatrick’s perjured testimony
before the grand jury in April.

   A defendant who receives an adjustment for obstruction of justice
generally has not demonstrated acceptance of responsibility and may
receive an adjustment under § 3E1.1 only in an extraordinary case.
USSG § 3E1.1, comment. (n.4). The district court determined that
Booher’s case was not an extraordinary one where both adjustments
might apply. Because the court did not clearly err on the obstruction
issue, it did not clearly err in denying Booher the adjustment for
acceptance of responsibility. United States v. Ruhe, 191 F.3d 376, 388
(4th Cir. 1999) (stating standard of review).

   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 argu-
ment would not aid the decisional process.

                                                            AFFIRMED
