                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4983


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

OBED ISSAC CHIRINOS, a/k/a Billy,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:10-cr-00298-D-2)


Submitted:   August 22, 2012                 Decided:   October 4, 2012


Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Samuel A. Forehand, LAW OFFICE OF SAMUEL A. FOREHAND, PA,
Raleigh, North Carolina, for Appellant.       Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Joshua L. Rogers, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            This criminal appeal stems from the armed robbery of a

convenience       store    in     Newton    Grove,          North     Carolina,          by    Obed

Chirinos     (Defendant)        and     three         coconspirators. 1                 Defendant

appeals     the     district          court’s         sentence            of     264     months’

imprisonment       imposed      after      he       pled    guilty        to    one     count    of

conspiracy to interfere with commerce by robbery (Count 1), in

violation of 18 U.S.C. § 1951; one count of aiding and abetting

the   interference         with     commerce          by        robbery        (Count    2),     in

violation of 18 U.S.C. §§ 2, 1951; and one count of aiding and

abetting    the    using     and    carrying         of     a    firearm        during    and   in

relation to a crime of violence (Count 3), in violation of 18

U.S.C.    §§ 2,    924(c).         Defendant          challenges          his     sentence      on

numerous    grounds.         Finding       no       merit       to   such      challenges,       we

affirm.



                                                I

                                                A

            On or about November 30, 2009, at the direction of

Defendant and Carlos Diaz (Diaz), Elvin Murillo (Murillo) drove

Defendant, Diaz, and a sixteen year-old juvenile identified in


      1
          The three coconspirators are not parties in the present
appeal.



                                                2
the record as FV to a convenience store named Warren’s Grocery

and Gas in Newton Grove, North Carolina.                       Murillo remained in

the   vehicle.        Defendant,      who   was       armed    with   a    .45    caliber

pistol, entered the store first.                  Diaz, who was armed with a

sawed-off shotgun, and FV, who was unarmed, followed.

              Upon entering the store, Defendant and Diaz brandished

their firearms and yelled, “‘Give me your money.’”                         (J.A. 346).

When the owners of the store, who were behind the counter, told

the three coconspirators that the money had already been taken

to    the    bank,    Defendant    pointed       his     firearm      at   them.         In

response, one of the two owners began throwing various items at

the   coconspirators      from    behind        the   counter,       including      a   box

containing a .22 caliber pistol.                The pistol fell out of the box

when it hit the floor.            FV picked up the pistol.                  One of the

owners      then    activated   the   store’s         alarm,    at    which      time   the

coconspirators fled to the getaway car with FV taking the .22

caliber pistol.



                                            B

              Defendant pled guilty to Counts 1, 2, and 3 on March

21, 2011. 2        On the same day, the district court set Defendant’s


      2
       Approximately five months earlier, Murillo pled “guilty to
Conspiracy to Interfere With Commerce by Robbery and Using and
Carrying Firearms During and in Relation to a Crime of Violence
(Continued)
                                            3
sentencing    hearing      for       July     5,   2011.          On    April    26,   2011,

Defendant     received         the      first      draft      of        his     presentence

investigation report prepared by the probation officer assigned

to his case.       On that same day, Defendant was notified that he

had to communicate any objections thereto by May 11, 2011.                                On

May   11,    2011,     Defendant        moved      to    extend        the     deadline    to

communicate his objections.                  The next day, the district court

granted Defendant’s motion and extended the deadline until June

1, 2011.

            On     June        1,     2011,        Defendant           communicated       his

objections, and, on June 21, 2011, the final version of the

presentence report (the PSR) was filed.                      Six days later, on June

27, 2011, Defendant moved to continue his sentencing hearing for

at least sixty days, asserting his need for additional time to

apply for writs of habeas corpus ad testificandum, to subpoena

witnesses,       and      to        avail     himself        of        Spanish-to-English

translation      services       with        respect     to    certain         documents    he

desired to offer in support of his PSR objections.                             The district




and Aiding and Abetting.”   (J.A. 346) (Defendant’s presentence
report).  Approximately one and one-half months after Defendant
entered his guilty plea in this case, Diaz pled guilty to one
count of aiding and abetting the using and carrying of a firearm
during and in relation to a crime of violence.       FV was not
indicted.



                                              4
court granted this motion the next day, continuing Defendant’s

sentencing hearing until September 6, 2011.

               Defendant waited a month after the time the district

court     granted       Defendant      his    requested       continuance       to      file

applications for writs of habeas corpus ad testificandum with

respect to Diaz and Murillo, who were both in federal custody.

The    district     court     issued    the       requested      writs   on   August    30,

2011.     The next day, Defendant moved to continue his sentencing

hearing       for   a   second     time.      This    time,      Defendant    sought     to

continue his sentencing hearing from September 6, 2011 “to a

session of court that convenes at least 21 days later in order

to provide the United States Marshals Service sufficient time to

execute       the   writs     of    habeas        corpus    ad    testificandum”        the

district court issued with respect to Diaz and Murillo.                                (J.A.

87).    According to Defendant’s written motion, he sought to have

Diaz    and    Murillo     “testify     at    his    sentencing      hearing      as   fact

witnesses whose testimonies relate to [his] factual objections

to the [PSR].”          (J.A. 86).

               At the beginning of Defendant’s sentencing hearing on

September 6, 2011, the district court heard oral argument from

both sides regarding Defendant’s pending motion to continue the

hearing for an additional twenty-one days.                       Notably, Diaz and FV

were available to testify at the September 6 hearing.                          This left

Defendant       with    the   argument       that     the   district      court      should

                                              5
further continue his sentencing hearing so that he could have

the opportunity to call Murillo to the stand.                    Specifically,

Defendant told the district court that he had the right to cross

examine Murillo about Murillo’s statements regarding Defendant’s

role in the offense upon which the PSR relies in recommending

that    Defendant      receive   a   2    level    enhancement   in    his   total

offense level under § 3B1.1(c) of the United States Sentencing

Guidelines,      United    States        Sentencing    Commission,     Guidelines

Manual (USSG), for his leadership role in the robbery.

              After hearing from the government, the district court

denied the motion.         The district court had already noted that

under Fourth Circuit precedent, the Confrontation Clause does

not apply at sentencing, and therefore, Defendant did not have a

right    to    cross    examine      Murillo      about   statements    he    made

regarding Defendant’s role in the offense.                See United States v.

Powell, 650 F.3d 388, 393 (4th Cir.) (Confrontation Clause does

not apply at sentencing), cert. denied, 132 S. Ct. 350 (2011).

Moreover, the district court reasoned:

       Mr. Diaz is here prepared to testify, the minor is
       here prepared to testify. The defense counsel has the
       statements, and I’ll let him introduce them, of
       Murillo and others. . . .

       And I do think that there comes                a time when a case
       needs to move forward.   And I do              think that there is
       certainly ample evidence that the              defense can present
       in connection with these issues                that are raised as
       objections and likewise for the                Government and the


                                           6
     Court will carefully listen to and consider all of
     these during the course of the sentencing here.

(J.A. 103-04).

           Diaz,   FV,     and    Defendant   each    testified      during     the

sentencing hearing.        Thereafter, the district court heard oral

argument on both sides.           With respect to Count 1 and Count 2,

the district court calculated Defendant’s total offense level

under the Sentencing Guidelines at 27 and his criminal history

category at I, resulting in an advisory guideline range of 70 to

87 months’ imprisonment.         Of relevance to the present appeal, in

arriving at the total offense level of 27, the district court

increased Defendant’s base level of 20:               (1) by 1 level, under

USSG § 2B1.1(b)(6), based upon its finding that a firearm was

taken during and from the scene of the robbery; (2) by 2 levels,

under USSG § 3B1.1(c), based upon its finding that Defendant was

an organizer of and leader in the robbery; and (3) by 2 levels,

under USSG § 3C1.1, for obstruction of justice based upon its

findings   that:     (a)     Defendant     threatened    to   kill    FV   if    he

cooperated with authorities; (b) Defendant threatened to have

fellow prison inmates physically harm Diaz if he cooperated with

authorities,     including       testifying   at     Defendant’s     sentencing

hearing; and (c) Defendant perjured himself while testifying on

his own behalf during the sentencing hearing.                  Moreover, the

district court refused to reduce Defendant’s offense level by 3


                                       7
levels, under USSG § 3E1.1, for acceptance of responsibility as

recommended in the PSR.          The district court also noted that the

§ 924(c) offense, Count 3, carried a ten year minimum term of

imprisonment     to     run     consecutive          to      any     other       term      of

imprisonment.      Having      fully    considered        all      of    the    18   U.S.C.

§ 3553(a) factors, the district court believed that the advisory

guideline range was too low to “account for the serious nature

of the crime, the obstruction of justice, the multitude of forms

of it, the repeated perjury.”                    (J.A. 282).            Ultimately, the

district court sentenced Defendant to 264 months’ imprisonment

(120   months’   imprisonment      attributable           to    Count      3)    and      five

years of supervised release.



                                          II

           We    review    Defendant’s            sentence     for      reasonableness,

applying   the   abuse    of    discretion         standard.            Gall    v.   United

States,    552   U.S.     38,     51     (2007).             Our     review       requires

consideration      of     both      the          procedural        and         substantive

reasonableness of his sentence.              Id.



                                         III

           Defendant      raises       six       challenges     to      the     procedural

reasonableness    of     his    sentence.          The    first      pertains        to    the

district court’s denial of his second motion to continue his

                                             8
sentencing    hearing.        The    next   four   pertain    to   the    district

court’s calculation of his advisory guideline range.                     The sixth

challenge    pertains    to    the    adequacy     of   the   district     court’s

explanation regarding the applicability of 18 U.S.C. § 3553(a)’s

sentencing factors.      We address each challenge in turn.



                                        A

            Defendant first challenges his sentence on the ground

that the district court abused its discretion by denying his

second motion for a continuance of his sentencing hearing in

order that he may procure the presence of Murillo to testify

during the hearing.      Defendant’s challenge is without merit.

            We review a district court’s denial of a defendant’s

motion for a continuance of his sentencing hearing for an abuse

of discretion.     United States v. Speed, 53 F.3d 643, 644 (4th

Cir. 1995).     “Because a district court has broad discretion in

scheduling the sentencing proceeding, absent a showing both that

the denial was arbitrary and that it substantially impaired the

defendant’s opportunity to secure a fair sentence, we will not

vacate a sentence because a continuance was denied.”                       Id. at

644-45 (internal quotation marks and alteration marks omitted).

            Here, the record reflects that the district court’s

denial of Defendant’s second motion to continue his sentencing

hearing was not arbitrary, but rather thoughtful and considered.

                                        9
First, the district court correctly acknowledged that, contrary

to Defendant’s argument, the Confrontation Clause does not apply

at sentencing, and therefore, Defendant did not have a right to

cross     examine       Murillo       about        statements      he    made       to     law

enforcement regarding Defendant’s role in the offense.                               Powell,

650    F.3d    at     393.         Second,   the     district      court      was    rightly

cognizant of the fact that it had already granted Defendant a

substantial continuance of his sentencing hearing and Defendant

had nonetheless delayed in applying for a                      writ of habeas corpus

ad     testificandum         with    respect       to    Murillo      until    one       month

thereafter.          Third and finally, the district court acknowledged

that both Diaz and FV were present at the September 6 sentencing

hearing and ready to testify as desired by Defendant.                               In sum,

Defendant has not shown the required arbitrariness on the part

of the district court.

              Defendant has equally failed to show that the district

court’s refusal to continue his sentencing hearing for a second

time    in    order    to    secure     Murillo’s        testimony      at    the    hearing

substantially impaired Defendant’s opportunity to secure a fair

sentence.        Although the PSR’s account of Defendant’s offense

conduct       came    directly       from     law       enforcement     debriefings         of

Murillo, Defendant never identified for the district court the

specific testimony            he    sought    to    extract     from    Murillo      on    the

witness stand in support of any of his objections to the PSR.

                                              10
Likewise, Defendant has failed to do so on appeal.                      We also note

that two of Defendant’s three coconspirators were present and

ready   to    testify    at    his   sentencing         hearing   as     desired       by

Defendant.

             In   sum,   Defendant    has       failed   to    show     the   district

court abused its discretion in denying his second motion for a

continuance of his sentencing hearing.



                                           B

             Defendant    contends        the    district     court     procedurally

erred by increasing his offense level by 1 level under USSG

§ 2B3.1(b)(6)     for    his   participation       in    a    robbery    in    which    a

firearm was taken, because, according to Defendant, the taking

of a firearm during the robbery by one of his coconspirators was

not reasonably foreseeable to him.                We hold the district court

did   not    procedurally      err   in    this    regard.        Based       upon   the

undisputed evidence in the record, Defendant reasonably foresaw

that the convenience store owner would have a gun and that it

would be stolen during the course of the robbery by one of his

coconspirators.



                                           C

             Defendant    contends        the   district      court     procedurally

erred by increasing his offense level by 2 levels under USSG

                                          11
§ 3B1.1(c) for being an organizer of and leader in the robbery.

Defendant’s contention is without merit.

          Under   USSG    § 3B1.1(c),     a   defendant’s     offense   level

should be increased by 2 levels if he was an “organizer, leader,

manager, or supervisor” of at least one other person in any

criminal activity that did not involve five or more participants

and was not otherwise extensive, USSG § 3B1.1(c).             United States

v. Rashwan, 328 F.3d 160, 166 (4th Cir. 2003); United States v.

Sayles, 296 F.3d 219, 226 (4th Cir. 2002).           We review a district

court’s finding regarding a defendant’s role in the offense for

purposes of applying a USSG § 3B1.1(c) enhancement for clear

error.   Here, the record contains ample evidence to support, by

a preponderance of the evidence, the district court’s finding

that Defendant “fit the bill” of an organizer and leader within

the framework of USSG § 3B1.1(c).         (J.A. 260).       Accordingly, we

uphold this enhancement.



                                     D

          Defendant      contends   the   district    court    procedurally

erred by increasing his offense level by 2 levels under USSG

§ 3C1.1 for obstruction of justice.           The obstruction of justice

enhancement applies:

     If (1) the defendant willfully obstructed or impeded,
     or attempted to obstruct or impede, the administration
     of   justice  with   respect  to   the  investigation,

                                    12
       prosecution, or sentencing of the instant offense of
       conviction, and (2) the obstructive conduct related to
       (A) the defendant’s offense of conviction and any
       relevant conduct; or (B) a closely related offense
       . . . .

USSG § 3C1.1.            Defendant argues the enhancement does not apply

because,      assuming       arguendo        that     he     willingly     gave      false

testimony     during       his     sentencing       hearing,    the    district      court

failed   to    make       specific     findings       that    the   subject     of    such

testimony concerned matters material to his sentencing.

              We    hold     the    district        court    properly     applied      the

obstruction of justice enhancement.                     First, Defendant does not

take   issue       with    the     district    court’s       factual    findings      that

Defendant obstructed justice by threatening to kill FV if he

cooperated with authorities and by threatening to have fellow

prison inmates physically harm Diaz if he testified against him

at his sentencing hearing.                   These two findings alone support

application of the obstruction of justice enhancement.

              Alternatively,         the   record     establishes        that   although

the district court did not specifically find that Defendant’s

willfully false testimony on numerous subjects was material to

his    sentencing,          the      district       court      provided     sufficient

explanation to permit us to conclude that such testimony was

material to his sentencing.                   See United States v. Quinn, 359

F.3d 666, 681 (4th Cir. 2004) (affirming obstruction of justice

enhancement        for    perjury     even     though      district    court    did    not

                                              13
specifically find defendant’s false testimony was material, but

did provide sufficient explanation to permit appellate court to

conclude it was).         For example, when discussing its rationale

for     applying    the   obstruction       of    justice      enhancement,        the

district court stated:          “He lied again when he said he never

threatened anyone in this case.             I think [he] absolutely did do

that and he’s a perjurer.”        (J.A. 264).



                                        E

            Defendant     contends   the     district        court    procedurally

erred by failing to lower his offense level by 3 levels for

acceptance of responsibility under USSG § 3E1.1.                       Defendant’s

contention is without merit.

            An enhancement for obstruction of justice “ordinarily

indicates that the defendant has not accepted responsibility for

his criminal conduct,” outside of “extraordinary cases in which

adjustments” for both obstruction of justice and acceptance of

responsibility may be applicable.            USSG § 3E1.1, comment. (n.4).

Here,     Defendant’s     conduct    underlying         his    enhancement         for

obstruction    of    justice     confirms        that   he    has    not    accepted

responsibility      for   his   criminal    conduct      and   this    is    not    an

extraordinary case in which both an enhancement for obstruction

of justice and acceptance of responsibility should apply.



                                      14
                                           F

            Defendant      contends        the       district       court      failed   to

explain   the    extent    to    which    the       18    U.S.C.    § 3553(a)     factors

supported       its     sentencing       him        to     a     264-month      term    of

imprisonment, and therefore, imposed a procedurally unreasonable

sentence.     Defendant’s contention is without merit.                         Our review

of the record discloses the district court met its obligations

of    procedural      reasonableness       with      respect       to   the     § 3553(a)

factors by placing on the record an individualized assessment of

the    § 3553(a)       factors    based        on    the       particular       facts   of

Defendant’s      case     and    explaining          the       extent   to     which    the

§ 3553(a)     factors     supported       its       chosen       sentence      above    his

advisory range under the Guidelines in a manner sufficient to

permit us to conduct meaningful appellate review.                              See United

States v. Carter, 564 F.3d 325, 329-30 (4th Cir. 2009) (district

court need not robotically tick through every § 3553(a) factor;

conversely,      talismanic      recitation          of    every    § 3553(a)      factor

without     application     to    defendant          being       sentenced      does    not

demonstrate reasoned decision-making or provide adequate basis

for   appellate       review;    rather,       district         court   must    place   on

record individualized assessment based on particular facts of

case at hand; such assessment need not be elaborate or lengthy,

but must provide rationale tailored to particular case at hand

and adequate to permit meaningful appellate review).

                                          15
                                                   IV

                 Having concluded Defendant’s sentence is procedurally

reasonable,           we     now     review        for     abuse        of     discretion      its

substantive           reasonableness,             examining       the        totality    of   the

circumstances,             including        the    extent    of    the       district    court’s

upward      variance          from    Defendant’s          advisory          range    under    the

Guidelines.           See United States v. Morace, 594 F.3d 340, 345-46

(4th       Cir.       2010)     (in     reviewing           sentence          for     substantive

reasonableness, appellate court must take into account totality

of    the    circumstances,           including         extent     of    any    variance      from

defendant’s advisory guideline range).                             We have reviewed the

record      and       conclude       that    the       district    court       considered     the

parties’ arguments and fully explained its decision pursuant to

the    §    3553(a)        factors,     particularly         Defendant’s            extraordinary

behavior         in    threatening           to    murder     a        cooperating      juvenile

witness, his repeated perjury during the sentencing hearing, the

substantial need for deterrence, and the need to protect the

public from Defendant.                 Defendant has failed to demonstrate an

abuse       of    discretion.               Accordingly,          we     uphold      Defendant’s

sentence as substantively reasonable.



                                                   V

                 For the reasons stated herein, we affirm Defendant’s

sentence.         We dispense with oral argument because the facts and

                                                   16
legal    contentions   are   adequately    presented    in   the    materials

before   the   court   and   argument    would   not   aid   the   decisional

process.

                                                                     AFFIRMED




                                    17
