                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4108


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

BRENT GARDNER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (5:05-cr-01156-MBS-1)


Submitted:    March 25, 2009                 Decided:   April 10, 2009


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Kenneth M. Mathews, Columbia, South Carolina, for Appellant.
Mark C. Moore, Assistant United States Attorney, Columbia, South
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Brent Gardner pled guilty pursuant to a written plea

agreement * to one count of possession with intent to distribute

cocaine,    in   violation   of    21     U.S.C.      §    841(a)(1),    (b)(1)(C)

(2006), and was sentenced to 235 months in prison.                         Gardner

timely appealed.

             Counsel for Gardner filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), certifying that there

are no meritorious grounds for appeal, but questioning whether

the   district   court   properly       conducted         Gardner’s    guilty    plea

hearing and denied a reduction in sentence for acceptance of

responsibility.      Gardner      filed     a   pro       se   brief   raising    two

issues.    Finding no reversible error, we affirm.

            In the absence of a motion to withdraw a guilty plea

in the district court, we review for plain error the adequacy of

the guilty plea proceeding under Fed. R. Crim. P. 11.                       United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                           Our

examination of the record shows that the district court fully

complied with the requirements of Rule 11.                     Gardner’s plea was

      *
       Gardner’s plea agreement contained a waiver of appellate
rights.   However, because the Government does not invoke the
waiver, we decline to enforce it.         See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (where Anders
brief is filed, “the government is free to file a responsive
brief raising the waiver issue (if applicable) or do nothing,
allowing this court to perform the required Anders review”).



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knowingly, voluntarily and intelligently entered, and supported

by a factual basis.        We therefore find no error, let alone plain

error.

           Gardner next contends the district court erred when it

refused to deduct three levels from his guidelines calculation

for   acceptance      of        responsibility       under        U.S.   Sentencing

Guidelines Manual § 3E1.1 (2007).                 As a condition of his plea

agreement,     Gardner     agreed     to       provide     full,    complete,    and

truthful information about all unlawful activities.                        However,

Gardner failed to give the Government truthful information and

failed a polygraph test concerning relevant conduct.                     In view of

Gardner’s untruthfulness, the district court did not err when it

refused   to    reduce      his     offense        level    for     acceptance   of

responsibility.       See USSG § 3E1.1 cmt. 1(a) (“In determining

whether a defendant qualifies [for the reduction], appropriate

considerations include . . . truthfully admitting or not falsely

denying any . . . relevant conduct . . . .”).

           Finally,        we     have         reviewed     Gardner’s      pro   se

supplemental brief and find the issues raised therein to lack

merit.    In accordance with Anders, we have reviewed the record

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

We therefore affirm the district court’s judgment.                       This court

requires that counsel inform Gardner, in writing, of the right

to petition the Supreme Court of the United States for further

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review.    If    Gardner      requests   that    a    petition     be    filed,    but

counsel believes that such a petition would be frivolous, then

counsel    may    move   in    this   court     for   leave   to   withdraw       from

representation.      Counsel’s motion must state that a copy thereof

was served on Gardner.

            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




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