UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4552

MARK EDWARD FOGARTY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CR-99-46)

Submitted: April 27, 2000

Decided: May 4, 2000

Before NIEMEYER and MOTZ, Circuit Judges,
and BUTZNER, Senior Circuit Judge.

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Affirmed in part and dismissed in part by unpublished per curiam
opinion.

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COUNSEL

J. Daniel Kilgore, Wise, Virginia, for Appellant. Robert P. Crouch,
Jr., United States Attorney, S. Randall Ramseyer, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Mark Edward Fogarty pled guilty to possession of a firearm while
being a convicted felon, see 18 U.S.C.A.§ 922(g)(1) (West Supp.
1999), possession of a stolen firearm, see 18 U.S.C.A. § 922(j) (West
Supp. 1999), and stealing a firearm from a licensed dealer, see 18
U.S.C.A. § 922(u) (West Supp. 1999). Fogarty contests the 51-month
sentence he received, alleging that the district court clearly erred in
finding that he obstructed justice by giving perjured testimony at his
guilty plea hearing, see U.S. Sentencing Guidelines Manual § 3C1.1
(1998), and in finding that he had not accepted responsibility for his
criminal conduct. See USSG § 3E1.1. Fogarty also contends that the
district court erred in not departing downward based on his dimin-
ished capacity. See USSG § 5K2.13, p.s. We affirm in part and dis-
miss in part.

On August 18, 1998, Fogarty went into a pawn and gun shop and
told the manager that he had locked his car keys in his car and
urgently needed help in unlocking the car. The manager understood
that Fogarty had prescription medicine for his mother in the car which
he needed to deliver to her, although Fogarty later denied that he had
said this. The manager went out of the room to use the phone. A
security video showed that Fogarty immediately reached across the
counter and removed a Ruger .22 caliber revolver from a gun case.
He took off the price tag, concealed the gun in his pants, and walked
out of the store. Fogarty was arrested the same day by state authorities
and charged with grand larceny. The gun was not recovered, but
Fogarty had $100 in cash. After seeing the security video, Fogarty
admitted taking the gun, but said he had left it in the store. Federal
authorities became involved the next day. On August 24, 1998,
Fogarty returned the gun to the pawn and gun shop, and told his law-
yer that, on the day of the crime, he had been drinking beer with
friends, one of whom put a Xanax tablet in his beer. He said he did

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not remember taking the gun. Fogarty was charged with federal fire-
arms offenses and pled guilty.

At the guilty plea hearing, Fogarty continued to maintain that he
did not remember taking the gun and that he had done it without
knowing what he was doing. However, he insisted that he wished to
plead guilty. Fogarty had been psychologically evaluated and found
to be of limited intelligence, but not suffering from any mental illness.
The court found that Fogarty's plea was knowing and voluntary
despite his contention that he did not clearly remember committing
the offense. At sentencing, the government sought an adjustment for
obstruction of justice, alleging that Fogarty had perjured himself at
the guilty plea hearing. The government also asked that Fogarty be
denied a reduction for acceptance of responsibility.

Fogarty testified at some length, discussing among other things his
lack of memory, how a friend had put pills in his beer, and how he
had paid $150 to get the gun back from the man who had it so he
could return it. He pointed out that the stolen gun was not particularly
valuable.

In its findings, the court noted that Fogarty's actions on the video
were "purposeful and coherent," that the psychological report
described Fogarty's memory impairment as apparently self-serving,
and that Fogarty's limited intelligence did not prevent him from testi-
fying capably, making arguments in his own behalf, and pointing out
weaknesses in the government's position. The court decided that
Fogarty had intentionally lied under oath at the guilty plea hearing
and at sentencing about a material matter--his knowledge that he
stole the gun and his condition at the time--and had thus committed
perjury. See United States v. Dunnigan, 507 U.S. 87, 94 (1993) (per-
jury is willful false testimony concerning a material matter). We can-
not say that the court clearly erred in finding that Fogarty had
committed perjury at both hearings or in finding that he had
obstructed justice by doing so. Fogarty's false testimony was material
because it could have affected the court's decision to accept his guilty
plea and its later determination concerning acceptance of responsibil-
ity.

Because of Fogarty's perjury, the district court did not clearly err
in finding that he had not accepted responsibility for his criminal con-

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duct. See USSG § 3E1.1, comment. (n.4). Fogarty did not request a
downward departure for diminished capacity, and we lack jurisdiction
to review the district court's failure to depart on this ground sua
sponte. See United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997).

We therefore affirm the sentence, but dismiss that portion of the
appeal which contests the district court's failure to depart. We dis-
pense 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 IN PART, DISMISSED IN PART

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