                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-5041


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DELMONTA RASHEED JOHNSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00152-NCT-1)


Submitted:   August 30, 2013             Decided:   September 12, 2013


Before KING, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Patrick Michael Megaro, BROWNSTONE, P.A., Winter Park, Florida,
for Appellant.    Ripley Rand, United States Attorney, T. Nick
Matkins, Special Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Delmonta Rasheed Johnson pled guilty to being a felon

in     possession    of   a   firearm,   in      violation   of     18    U.S.C.

§ 922(g)(1) (2006), and was sentenced to 120 months in prison.

Johnson asserts that the district court’s judicial fact-finding

at sentencing, which resulted in a nine-level increase in his

total offense level, violated his right to a jury trial and

United States v. Booker, 543 U.S. 220 (2005), as well as his

Eighth Amendment right to be free from excessive punishment.

Finding no error, we affirm.

            Although claims of constitutional error are reviewed

de novo, United States v. Malloy, 568 F.3d 166, 180 (4th Cir.

2009),     we   review    the    district     court’s     factual        findings

underlying its application of a sentencing enhancement for clear

error, and its legal conclusions de novo.                 United States v.

Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).

            We reject Johnson’s argument that his right to a jury

trial was violated by the district court’s judicial fact-finding

at sentencing.       Because Johnson was sentenced to the statutory

maximum applicable to his offense, none of the enhancements to

Johnson’s base offense level resulted in a sentence greater than

that    authorized   by   his   guilty   plea.      18   U.S.C.   § 924(a)(2)

(2006).     Accordingly, the district court did not violate the

Sixth Amendment or Booker in applying the enhancements.                      See

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Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing

that     the    Supreme        Court’s    “Sixth          Amendment        cases    do     not

automatically         forbid    a     sentencing      court     to    take     account       of

factual matters not determined by a jury and to increase the

sentence in consequence”); Booker, 543 U.S. at 232-44 (holding

that judge-found sentence enhancements mandatorily imposed under

the    Guidelines      that     result    in    a    sentence        greater      than     that

authorized       by    the     jury    verdict       or     facts     admitted       by     the

defendant violate the Sixth Amendment’s guarantee of the right

to trial by jury); United States v. Benkahla, 530 F.3d 300, 312

(4th Cir. 2008) (holding that, as long as the Guidelines range

is treated as advisory, a sentencing court may consider and find

facts by a preponderance of the evidence, provided that those

facts do not increase a sentence beyond the statutory maximum);

United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007)

(stating       that   the    district     court      did    not      violate      the     Sixth

Amendment by imposing a sentence based on facts not found by a

jury).

               Although      Johnson     also       complains       that    the    district

court was not authorized to deny him credit for acceptance of

responsibility         based     on     conduct       the    district        court        found

relevant to the underlying conviction, the Guidelines make clear

that “a defendant who falsely denies, or frivolously contests,

relevant conduct that the court determines to be true has acted

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in a manner inconsistent with acceptance of responsibility[.]”

U.S. Sentencing Guidelines Manual (“USSG”) § 3E1.1 cmt. n.1(A)

(2011).      The    Guidelines       also      make    clear      that   committing,

suborning, or attempting to suborn perjury—which the district

court explicitly found Johnson did—are examples of conduct that

warrant    the    obstruction      of    justice       enhancement.         See     USSG

§ 3C1.1 cmt. n.4(B) (2011).             Accordingly, we discern no error in

the district court’s decision to deny Johnson a reduction in his

offense level for acceptance of responsibility, and to increase

the offense level because he obstructed justice by committing

perjury and allowing others to do so in his defense.

            Johnson    also     asserts       that    the   district     court     erred

when it determined that his cocaine possession constituted a

drug trafficking crime justifying a four-level enhancement under

USSG § 2K2.1(b)(6)(B), because he argues he was not convicted of

cocaine    possession,     and   because       the    district     court    allegedly

made   erroneous      factual      findings.          It     is   well-established,

however, “that a sentencing court may consider uncharged and

acquitted conduct in determining a sentence, as long as that

conduct is proven by a preponderance of the evidence.”                            United

States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).

            Moreover,      we    review        a     district     court’s     factual

findings    for    clear   error    and     afford     the    “highest     degree    of

appellate deference” to those factual findings when they are

                                          4
based on assessments of witness credibility.                          See United States

v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009).                              In this case,

the district court explicitly stated it was rejecting Johnson’s

version    of    the      events    because       it   believed       his       version         was

fabricated.          We    defer    to     the    district         court’s          credibility

determination.

               We also reject Johnson’s argument that his sentence

violates the Eighth Amendment.                   In this regard, Johnson claims

that his sentence is excessive because it was increased based on

“extraneous culpability for facts [with which he] was neither

charged,       nor     conceded,      nor     convicted[,]”           and       because          he

summarily claims the sentence failed to take into account his

life and characteristics.             To the extent that Johnson’s argument

could     be    construed      as    suggesting         he        received          a    sentence

disproportionate          to   others       convicted        of     being       a       felon   in

possession      of   a    firearm,        “proportionality          review          [under      the

Eighth Amendment] is not available for any sentence less than

life imprisonment without the possibility of parole.”                                      United

States    v.    Ming      Hong,     242    F.3d     528,     532     (4th       Cir.       2001).

Moreover, and Johnson’s argument to the contrary, the record

establishes that the district court fully considered Johnson’s

individual      circumstances        and     justified        why     it     believed           the

statutory      maximum      sentence       should      be    imposed       in       this    case.

Because the district court was authorized to increase Johnson’s

                                             5
offense level based on facts it found by a preponderance of the

evidence, and since the district court imposed the statutory

maximum applicable to Johnson’s crime and adequately justified

that   sentence   under      the    Guidelines         and   relevant     18    U.S.C.A.

§ 3553(a)    (West    2000    &    Supp.       2013)    factors,     we   discern    no

procedural,   substantive          or   constitutional        error     in     Johnson’s

sentence.

            We have considered Johnson’s arguments and affirm the

district    court’s   judgment.          We     dispense      with    oral      argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                                AFFIRMED




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