UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4340

ANDREA RENEE MYERS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-95-1059)

Submitted: April 28, 1998

Decided: July 29, 1998

Before WILKINS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Mikell Ross Scarborough, GARRETT LAW OFFICES, Charleston,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Miller W. Shealy, Jr., Assistant United States Attorney, Charleston,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Andrea Renee Myers pled guilty to conspiracy to distribute and
possess with intent to distribute cocaine base ("crack") in violation of
21 U.S.C. § 846 (1994). She appeals her 262-month sentence, con-
tending that the district court clearly erred in finding that she
obstructed justice by lying at her guilty plea hearing, see USSG
§ 3C1.1, that she did not have a mitigating role, see USSG § 3B1.2,
and that she entered the conspiracy within two years of her release
from custody, see USSG § 4A1.1(e). She also challenges as an abuse
of discretion the district court's decision to depart upward by three
levels for her role in managing the conspiracy's money. See USSG
§ 3B1.1, comment. (n.2). We affirm.

From late 1992 to 1996, Myers lived with Theodore (Teddy) Jen-
kins, Jr., the leader of the conspiracy. She sold crack to several coop-
erating witnesses, once during a controlled purchase, and traveled
with Jenkins to New York, Florida, and Georgia to obtain cocaine
powder. Myers usually carried the cocaine on her person on the return
trip. The cocaine was then cooked into crack and packaged for sale.
In June 1995, Myers and Jenkins were stopped by police at LaGuardia
Airport in New York and $162,000 in cash was seized from Myers.
When she pled guilty, the district court questioned Myers about her
part in the conspiracy and Myers attempted to minimize her participa-
tion, stating that she had been uncertain whether Jenkins was engaged
in drug trafficking. She then retracted that statement, and admitted
accepting money owed to Jenkins, but denied taking an active part in
the conspiracy--to the point of denying portions of the government's
factual basis concerning her transportation of cocaine and sales of
crack. She said she claimed ownership of the bag containing the
$162,000 to protect Jenkins.

The probation officer recommended an offense level of 32 (50-150
grams of crack) with no adjustments, a criminal history category of

                    2
III (5 points), and a resulting guideline range of 151-188 months.
Because her offense involved more than 50 grams of crack and she
had a prior felony drug conviction, Myers was subject to a mandatory
sentence of 240 months, but at her sentencing the government with-
drew the notice of a prior conviction required for an enhanced sen-
tence under 21 U.S.C. § 851 (1994). In her interview with the
probation officer, Myers said she met Jenkins in the summer of 1993,
that their relationship became serious around the end of 1994, and that
he offered to take her shopping in New York in June 1995 (the trip
on which the money was seized). She admitted two trips to New York
but denied that drugs were transported on either trip. She admitted
accepting money owed to Jenkins occasionally, but denied any
involvement in transporting or distributing crack.

The government requested an adjustment for obstruction of justice
and an upward departure based on Myers' responsibility for managing
the property and assets of the conspiracy. Myers opposed an upward
departure and requested a downward departure on the grounds of
duress and diminished capacity and because she had a young child.
She also disputed the criminal history calculation and the lack of
adjustments for a mitigating role and acceptance of responsibility.

At the sentencing hearing, Teddy Jenkins testified that he first met
Myers while he was buying drugs from another dealer; Myers was the
dealer's girlfriend at the time. Jenkins became romantically involved
with Myers in late 1992 or early 1993. He said that Myers knew then
that he was selling drugs. He said that Myers accompanied him on
every trip he made to New York to buy cocaine, that she helped count
the money before the trip and before the purchase, went with him to
make the purchase, and later assisted in packaging crack for sale. Jen-
kins also testified that he and Myers controlled and doled out the
money to other conspirators, and that Myers paid all the bills from
that money. Pagers and cellular phones used by members of the con-
spiracy were in her name. John Albert Williams, who was Jenkins'
partner until they had an argument over money, testified that Myers
frequently helped Jenkins cook and bag crack. Myers did not testify
or present evidence. The district court found that Myers had a much
greater role in the offense than she was willing to admit and that she
had lied under oath at the plea hearing. The court granted the govern-
ment's request for an obstruction of justice adjustment.

                    3
On appeal, Myers first suggests that the adjustment is unconstitu-
tional because it was based on compelled testimony--answers she
gave in response to the district court's questions at the guilty plea
hearing--and thus chills a defendant's right to testify. This claim is
baseless. A defendant who pleads guilty waives the right to remain
silent. See United States v. Hicks, 948 F.2d 877, 885-86 (4th Cir.
1991). Myers was informed of this fact at the beginning of the Fed.
R. Crim. P. 11 hearing. Moreover, she was warned that she was under
oath and that false statements would subject her to the penalties for
perjury.

Second, Myers argues that the factual finding of obstruction was
clearly erroneous because she admitted the essential facts of her
offense and her denials were simply the result of confusion about
legal terms such as "role in the offense" and"trafficking." A person
testifying under oath commits perjury by willfully giving false testi-
mony on a material matter; confused or mistaken testimony is not per-
jury. See United States v. Dunnigan, 507 U.S. 87, 94 (1993); see also
USSG § 3C1.1, comment. (n.3(f)) (obstruction includes willfully pro-
viding false material information to judge). At sentencing, however,
the district court went through Myers' testimony in detail, pointing
out numerous statements in which she misrepresented the level of her
participation in the conspiracy. Our review of her testimony discloses
that the district court did not clearly err in finding that Myers'
answers were dishonest rather than confused.

Next, Myers maintains that the evidence showed she was entitled
to a mitigating role adjustment and a downward departure because she
simply took orders from and was controlled by Jenkins. In fact, as the
district court found, the evidence revealed that she voluntarily took an
active and significant part in the conspiracy. We therefore find that
the district court did not clearly err in finding that Myers had more
than a minimal or minor role in the offense. See United States v.
Harriott, 976 F.2d 198, 202 (4th Cir. 1992) (standard of review). We
do not review the district court's decision not to depart downward on
the ground that Myers' participation was the result of duress. See
United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).

The district court's upward departure based on Myers' role in the
conspiracy is reviewed for abuse of discretion. See Koon v. United

                    4
States, 518 U.S. 81, ___ (1996); United States v. Brock, 108 F.3d 31,
34 (4th Cir. 1997). A defendant does not qualify for an aggravated
role adjustment unless he led, organized, managed or supervised
another participant. See USSG § 3B1.1, comment. (n.2). However, the
commentary specifically states that a departure may be warranted for
a defendant who did not lead or manage other participants but who
"exercised management responsibility over the property, assets, or
activities of a criminal organization." Id.

Myers contends, first, that the departure was unreasonable because
Jenkins and other co-defendants received lower sentences and, second
(in her reply brief), that the evidence did not warrant a departure. Sen-
tencing disparity is not a basis for departure. See, e.g., United States
v. Hall, 977 F.2d 861, 863-64 (4th Cir. 1992). Similarly, it is not a
reason to forego a departure which is otherwise warranted. Here, the
district court found Jenkins' testimony about Myers' role credible, a
determination we do not review. See United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989). Based on Jenkins' testimony, the court's
finding that Myers managed property and money for the conspiracy
was not clearly erroneous. See Rybicki, 96 F.3d at 757 (standard of
review). The management of property and assets is an encouraged
factor for departure and not one which is otherwise taken into account
under USSG § 3B1.1. Because the district court's decision to depart
was based on its factual finding that Myers had a mangerial role, our
review is for clear error. See Rybicki, 96 F.3d at 758. We cannot say
that the district court clearly erred here. Therefore, we conclude that
the departure was not an abuse of discretion.

Finally, Myers argues that the district court clearly erred in finding
that her participation in the conspiracy began less than two years after
her release from custody and awarding two additional criminal history
points as a result. See USSG § 4A1.1(e). Myers was released on April
30, 1991. Jenkins testified that he and Myers were dating by the end
of 1992, that he was selling crack at the time, that he made his first
trip to New York with Myers in early 1993, but made several trips to
Georgia to buy crack before that, and that Myers went to Georgia
with him more than once. On this evidence, the district court did not
clearly err in finding that Myers was involved in the conspiracy dur-
ing 1992, within two years of her release from custody.

                    5
For the reasons discussed, we affirm the sentence imposed. 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

                    6
