                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4772



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


JOHN A. DYER,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:05-cr-00069-RBS)


Submitted:   March 21, 2007                   Decided:   May 23, 2007


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Acting Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Stephen W.
Haynie, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              John A. Dyer appeals the sixty-three-month sentence he

received after he pled guilty to conspiracy to present false

claims, 18 U.S.C. § 286 (2000) (Count 1), making false claims, 18

U.S.C. § 287 (2000) (Counts 2-9), embezzlement of public money, 18

U.S.C.A. § 641 (West Supp. 2006) (Count 10), conspiracy, 18 U.S.C.

§ 371 (2000) (Count 11), and acceptance of a gratuity by a public

official, 18 U.S.C. § 201 (2000) (Count 12).                Dyer contends that

the district court clearly erred in making an adjustment for

obstruction of justice, U.S. Sentencing Guidelines Manual § 3C1.1

(2005),   and    in    denying     him    an   adjustment   for    acceptance   of

responsibility, USSG § 3E1.1, and further maintains that his

sentence is unreasonable because the court’s errors resulted in an

incorrectly calculated guideline range.               We affirm.

              While Dyer was working as a Combat Directions Systems

Activity (CDSA) program manager with the Naval Sea Systems Command

in Dam Neck, Virginia, he conspired with Scott Carleton, another

CDSA employee, to create SD-184, a fictitious project.                 His wife,

Amy   Dyer,    was    hired   by   Star    Digital,   a   staffing    agency    for

government contracts, to work on the project.                 At the time, Amy

Dyer was employed full time with the Chesapeake public schools.

From March 2000 through the end of the year, Amy Dyer was paid

$81,373.89 for work on several language translation programs, work




                                         - 2 -
she did not perform.    John and Amy Dyer were charged in Counts 1

through 10 with conspiracy, making false claims, and embezzlement.1

            During the same period, Dyer began an affair with Gina

McCoy, a graphic arts student who operated a business from her

home.    Dyer helped McCoy obtain work as a subcontractor for Global

Technical Systems (GTS), a Virginia Beach company that provided

services to CDSA and ACS Systems & Engineering (ACS), a similar

company. Dyer told McCoy to inflate her invoices, and provided her

with a laptop computer which was designated for use on other

government projects.    Dyer demanded and received from McCoy over

$10,000 of the money she received.      Dyer was charged in Counts 11

and 12 with conspiracy and with seeking and receiving a gratuity

for official acts.2

            At Dyer’s guilty plea hearing, after the government

presented its statement of facts supporting the guilty plea, the

government attorney informed the court that Dyer agreed with the

facts stated, with certain exceptions.     These were: that Dyer was

an engineer, not a program manager; that Dyer’s supervisor, James

Whiddon, originally suggested hiring Dyer’s wife; that Amy Dyer was



     1
      Amy Dyer went to trial in April 2006. She testified that she
had been duped by her husband into believing that she had been
hired part-time to review lesson plans for remedial English courses
for soldiers.   The jury was unable to reach a verdict, and the
government moved to dismiss the charges against her.
     2
      McCoy pled guilty to willfully giving a gratuity to a public
official, 18 U.S.C. § 201(c)(1)(A) (2000).

                                - 3 -
initially hired for a legitimate project and was unaware that Dyer

and Carleton subsequently extended the project from September to

December 2000 and increased the number of hours she billed; that

Amy Dyer was not part of the conspiracy between Dyer and Carleton;

that Dyer destroyed and/or doctored the time sheets Amy Dyer gave

him to send to Star Digital by forging her signature to new time

sheets or having her sign blank time sheets and filling them in

later; that Amy Dyer performed the legitimate work for which she

billed; that her work was given to Carleton; that Dyer saw copies

of her work on Carleton’s desk; and that Carleton directed the

funding of SD-184 with Dyer’s knowledge.

           Although the probation officer recommended that Dyer had

earned   an     adjustment    for     acceptance      of   responsibility,       the

government      objected,    asserting      that   Dyer     should     receive   an

adjustment     for    obstruction     of    justice   because     he   made   false

statements in the statement of facts during the guilty plea hearing

and   should    not    be   awarded    an    adjustment     for   acceptance      of

responsibility.

           At    the   sentencing      hearing,    the     government    presented

testimony from the lead investigative agent, who said that Whiddon

testified at Amy Dyer’s trial that he did not suggest that she be

hired, and was unaware she was working on SD-184 until near the end

of the conspiracy.          Whiddon was not familiar with the language

training programs that were the subject of SD-184: the Military


                                       - 4 -
Language Trainer (MILT), the Global Language Authoring System

(GLAS),   and    the    Maximum       Efficiency   Language   Trainer      (MELT).

However, the agent testified that Dyer had learned about the

programs when he was temporarily assigned to the Office of Special

Technology in Washington, D.C.             The agent also said that an Army

Special Forces language expert testified at Amy Dyer’s trial that

the language programs she had supposedly been evaluating had

already been evaluated and rejected as unusable by the Army, and

that Amy Dyer would not have been competent to work on the project,

had it still existed, without knowledge of a language such as

Arabic or Chinese. The agent further testified that, although Dyer

was an engineer, he worked as a program manager at Dam Neck, with

the authority to monitor projects and task orders and to allocate

funds to task orders or contracts.              He described the evidence at

Amy Dyer’s trial which established that all the funding for SD-184

was ordered by Dyer.

            The district court determined that, in his additions to

the statement of facts at the Rule 11 hearing, Dyer made four

statements     that    were   “patently     false,”    were   material     to   his

prosecution and sentencing, and were “a willful attempt to obstruct

justice.”      Having presided over Amy Dyer’s trial, the court found

that   James    Whiddon   was     a    credible    witness,   and   that    Dyer’s

statement that Whiddon suggested hiring Amy Dyer was false.                     The

court found that SD-184 was never a legitimate project, as Dyer


                                        - 5 -
said it was, and that Dyer, not Carleton, directed funding for

SD-184.       Finally, the court found false Dyer’s statement that Amy

Dyer was not part of the conspiracy.                    The court decided that Dyer’s

false statements were material to his sentencing because, if

believed,       they      would   have     influenced         the      sentencing     court’s

assessment of the nature and circumstances of the offense and the

need to promote respect for the law.                       The court determined that

Dyer had obstructed justice and added a two-level adjustment under

§   3C1.1.          The   court    then    found       that     Dyer    had   not    accepted

responsibility and that his case was not an extraordinary one in

which     the       defendant     could        receive     an    adjustment         for   both

obstruction of justice and acceptance of responsibility.                             See USSG

§ 3E1.1, comment. (n.4). The court calculated Dyer’s offense level

as 24.    Because he was in criminal history category I, his advisory

guideline range was 63-78 months.                     The court imposed a sentence of

63 months imprisonment on Counts 1 and 10, 60 months (the statutory

maximum) on Counts 2-9 and 11, and 24 months (the statutory

maximum) on Count 12.             Dyer was also ordered to pay restitution of

$81,373.89.

              We first conclude that the district court did not err in

deciding that Dyer obstructed justice during his prosecution.                              An

adjustment for obstruction of justice may be made if the government

shows    by     a   preponderance         of    the    evidence     that      the   defendant

“willfully obstructed or impeded, or attempted to obstruct or


                                               - 6 -
impede, the administration of justice during the course of the

investigation, prosecution, or sentencing of the instant offense of

conviction . . . .”    USSG § 3C1.1.      Application Note 4(f) states

that providing materially false information to a judge constitutes

obstruction of justice.      “Material” information is defined in

Application Note 6 as that which, “if believed, would tend to

influence or affect the issue under determination.”           However,

“[t]he threshold for materiality is conspicuously low.”         United

States v. Gormley, 201 F.3d 290, 294 (4th Cir. 2000) (citation and

internal quotation omitted). The district court’s factual findings

in connection with the adjustment are reviewed for clear error, and

its legal determinations are reviewed de novo.       United States v.

Sun, 278 F.3d 302, 313 (4th Cir. 2002).

            Dyer contends as he did in the district court that, even

if the statements he added to the statement of facts were false,

they were not material to the court’s acceptance of his guilty

plea, which was the only relevant “issue under determination.”      We

disagree.   Dyer’s false statements were material to his sentencing

because they minimized both the scope of the conspiracy charged in

Count 1 and Dyer’s role in it.3    The district court stated that, if


     3
      Moreover, as the government observed at sentencing, if
believed, Dyer’s statements exonerated Amy Dyer of any complicity
in the conspiracy and could be viewed as an attempt by Dyer to
affect his wife’s prosecution.      Section 3C1.1 provides that
obstructive conduct may apply either to the defendant’s offense of
conviction or to a closely-related offense.      United States v.
Jones, 308 F.3d 425, 428 (4th Cir. 2002).

                                  - 7 -
believed, Dyer’s statements would have affected not only the

guideline calculation, which included a leadership role adjustment,

but the court’s determination of the sentence in light of the 18

U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) factors.                Therefore,

the district court did not err in concluding that § 3C1.1 applied.

            A defendant who receives an adjustment for obstruction of

justice generally may not receive an adjustment for acceptance of

responsibility, but in an extraordinary case, both adjustments may

apply.   USSG § 3E1.1, comment. (n.4).        The defendant has the burden

of showing that his circumstances are extraordinary.                     United

States v. Hudson, 272 F.3d 260, 263 (4th Cir. 2001).

            Dyer asserts that the district court clearly erred in

denying him the adjustment because the court erred in finding that

he had obstructed justice, and argues that he showed his acceptance

of   responsibility   by    pleading      guilty   to   all   twelve    counts,

expressing    remorse,     and   taking    full    responsibility      for   his

offenses.    We are satisfied that the court did not clearly err in

finding that Dyer’s case was not an extraordinary one where both

adjustments may be applied because Dyer attempted to minimize the

offense and his role in it at the same time that he was pleading

guilty, and continued this stance through the sentencing hearing.

            Finally, Dyer contends that his sentence is unreasonable

because the district court erroneously determined his guideline

range.   As discussed above, the court did not err in this respect.


                                    - 8 -
The sentence is within a correctly calculated guideline range and

is thus presumptively reasonable. United States v. Green, 436 F.3d

449, 456-57 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).   Dyer

has not presented any other information to rebut the presumption.

           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 argument would not aid the decisional process.


                                                           AFFIRMED




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