                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4796


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FABIAN DAVID SPARROW,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:13-cr-00022-RLV-DSC-2)


Submitted:   October 31, 2016             Decided:   November 29, 2016


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric A. Bach, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Fabian        David      Sparrow        appeals        from       the      sentence             and

restitution     imposed         after    he       pleaded        guilty    to    one       count       of

conspiring      to        defraud     the     United         States       by     making             false

statements to a federal agency and submitting false statements

to HUD and destruction of records in a federal investigation, in

violation     of     18    U.S.C.     § 371       (2012).          He     received         a    below-

Guidelines      sentence         of     41    months        and     was     ordered            to     pay

$4,175,435.71 in restitution.                 Finding no error, we affirm.

      Sparrow contends that the district court clearly erred in

applying    a   sentencing          enhancement            for    obstruction         of       justice

under U.S. Sentencing Guidelines Manual § 3C1.1 (2015) based on

his failure to truthfully comply with grand jury questions and

requests. *     We review the imposition of an obstruction of justice

enhancement for clear error.                  United States v. Andrews, 808 F.3d

964, 969 (4th Cir. 2015), cert. denied, 136 S. Ct. 1392 (2016).

The   two-level          enhancement         is       appropriate         when    a     defendant

“willfully      .    .     .    attempt[s]            to   obstruct        or    impede[]             the

administration        of       justice.”           USSG      § 3C1.1.            To    apply         the

enhancement based on perjury, see USSG § 3C1.1 cmt. n.4(F), the



      *Sparrow’s brief also addresses the enhancement based on
his travel to Qatar.   However, because the court did not apply
the enhancement on this basis, we address only the grand jury
testimony and compliance issue.



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district court must find by a preponderance of the evidence that

the defendant gave “false testimony concerning a material matter

with   the     willful    intent      to   provide        false    testimony,”           United

States v. Dunnigan, 507 U.S. 87, 94 (1993).                          If a court fails

“to address each element of the alleged perjury in a separate

and clear finding,” the application of the enhancement may be

upheld   as     long    as    “the     court      makes    a    finding       .    .    .    that

encompasses      all     of   the     factual      predicates      for    a       finding      of

perjury.”      Id. at 95; see United States v. Perez, 661 F.3d 189,

192-93    (4th    Cir.        2011)    (discussing         “degree       of       specificity

Dunnigan requires”).           The adjustment also applies to a defendant

who    conceals        “evidence      that        is   material      to       an       official

investigation      or    judicial       proceeding”        or     attempts        to    do    so.

USSG § 3C1.1 cmt. n.4(D).

       Here,    the     district      court       found    that     Sparrow        testified

falsely before the grand jury by telling the grand jury that his

accountant held the Eagle’s Nest records and that his accountant

was deceased.          The district court found that Sparrow attempted

to conceal the location of the records.                         The court found that

Sparrow “misrepresented the notion that the accountant who had

the records was deceased, which was not the case; that he had

the records; which was not the case.”                      The court continued that

Sparrow’s statements were knowingly made and that Sparrow gave

“false testimony concerning a material matter with the willful

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intent to deceive.”           The court satisfied the requirements of

Dunnigan and its conclusions were based on factual testimony

presented by the Government.           Thus, we conclude that the court

did   not   clearly    err    in   applying   the    obstruction      of   justice

enhancement.

      Next, Sparrow challenges the $4.1 million restitution order

on appeal.      He contends that the Government did not prove a

sufficient     nexus     between      himself       and   the    parties       due

restitution, that the additional named parties were not in the

presentence report but in the Government’s sentencing exhibit

only, that counsel objected to this lack of notice, and the

Government cannot rely on additional filings that were not part

of the PSR.      Sparrow, however, entered into an agreement with

the   Government      prior   to   sentencing   regarding       the   amount   of

foreseeable loss to establish the offense level and the amount

of restitution.       The Government summarized the agreement:

      For   the  purposes    of   the   stipulation,  and  the
      concession that the defendant has agreed with regards
      to restitution, the government would agree that the
      loss   is  less   than    $550,000   contingent  on  the
      following. 1. That the defendant stipulates to the
      facts underlying the . . . presentence report which
      supports these loss numbers; and 2. That the defendant
      agree to the restitution numbers and figures that were
      presented to the [c]ourt yesterday in . . . document
      28-1. [The document] lists a number of loans that is
      consistent with the Victim Impact Statements in this
      case and would require a payment of total restitution
      in the amount of $4,175,435.71. So the bottom line is
      that the government—if the defendant concedes to the
      facts   supporting   these    loss   numbers,   both  in

                                        4
     restitution and in the guidelines, the government
     would concede that the offense level . . . should be a
     level 12.

J.A. 78.      The judge asked defense counsel if the Government’s

summary     was     “an    accurate        summary       and    rendition       of    the

agreement.”       And counsel replied that it was.

     As     this     court    has     recognized,          “[a]     waiver      is    the

intentional       relinquishment      or    abandonment        of   a   known   right.”

United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)

(internal     quotation      marks         omitted).           “Waiver     is    to    be

distinguished from forfeiture, which is the failure to make the

timely assertion of a right.”                   Id. (internal quotation marks

omitted).     “[W]hen a claim is waived, it is not reviewable on

appeal, even for plain error.”                   Id.     “Rather, a valid waiver

means that there was no error at all.”                    Id. (internal quotation

marks omitted).           Where a party identifies an issue and then

withdraws it, he has waived the issue, and his claim is not

reviewable on appeal.           Id.        Whether a waiver is knowing and

voluntary     is     determined       based       on     the      totality      of    the

circumstances.       Id. at 298-99.

     Here, Sparrow does not suggest that his agreement was not

knowing     and    voluntary.         The       record    supports       that   Sparrow

intentionally relinquished the right to contest the restitution

amount when he entered into an agreement with the Government.

The Government agreed to support a reduced amount of loss and

                                            5
resulting   offense   level   and   Sparrow   agreed   to   the   revised

restitution amount.     Thus, Sparrow has waived appellate review

of the amount of restitution ordered in the judgment.

     Accordingly, we affirm the judgment.       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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