                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4935


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

MARCUS DORAN BARLEY,

                  Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:07-cr-00200-NCT-17)


Submitted:    August 31, 2009             Decided:   September 11, 2009


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Benjamin D. Porter, MORROW ALEXANDER PORTER & WHITLEY, PLLC,
Winston-Salem, North Carolina, for Appellant.       Anna Mills
Wagoner, United States Attorney, Sandra J. Hairston, Assistant
United   States Attorney,   Greensboro,  North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Marcus    Doran    Barley    pled      guilty       to    one     count   of

conspiracy to distribute cocaine hydrochloride, in violation of

21   U.S.C.    §§    841(a)(1), (b)(1)(A), 846           (2006).          The    district

court imposed a sentence of 105 months’ imprisonment.                              Barley

appeals   this       sentence,    specifically       challenging          the    district

court’s application of an enhancement for obstruction of justice

under U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2007),

based on perjury, and its denial of a downward adjustment for

acceptance of responsibility, see USSG § 3E1.1.                        We affirm.

              Barley    contends    that       the   district       court       erred   in

finding that he willfully obstructed justice when he testified

falsely   at    sentencing       concerning      whether     he    had     possessed      a

firearm in connection with his drug offense.                       Section 3C1.1 of

the Sentencing Guidelines provides for a two-level increase in a

defendant’s      base    offense    level       “[i]f    .   .     .    the     defendant

willfully obstructed or impeded, or attempted to obstruct or

impede,   the       administration    of       justice    with      respect       to    the

investigation, prosecution, or sentencing of the instant offense

of conviction.”         USSG § 3C1.1.           The enhancement applies to a

defendant      who     commits     perjury.          Id.,     comment.          (n.4(b)).

Application of the enhancement is appropriate if the sentencing

court finds that “the defendant when testifying under oath (1)

gave false testimony; (2) concerning a material matter; (3) with

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the willful intent to deceive . . . .”                         United States v. Jones,

308 F.3d 425, 428 n.2 (4th Cir. 2002) (citing United States v.

Dunnigan, 507 U.S. 87, 92-98 (1993)).                             The district court may

either    make      findings         on    each    element        of     perjury      or    make       a

finding      that       encompasses         all    the      factual         predicates          for    a

finding of perjury.                Id.     A district court’s application of the

Guidelines’         enhancement           for    obstruction           of     justice      will       be

overturned only if clearly erroneous.                         United States v. Puckett,

61 F.3d 1092, 1095 (4th Cir. 1995).

             The district court concluded that Barley’s testimony

at sentencing concerning whether he had possessed a firearm in

connection        with       his     drug       offense     was      unworthy       of      belief.

Evaluation of witness credibility is reserved for the finder of

fact and generally is not subject to review by this court.                                        See

United    States        v.   Saunders,           886   F.2d    56,       60    (4th Cir. 1989).

Further,     as     Barley         had    objected     to     the      presentence         report’s

enhancement        of    his       base     offense      level      for       possession         of   a

firearm      and     testified            at     sentencing         in      support        of     that

objection, the question of whether Barley possessed the firearm

in connection with his offense is clearly material; Barley does

not suggest otherwise.                   See United States v. Gormley, 201 F.3d

290,   294    (4th       Cir.      2000)       (providing      that         the   threshold       for

materiality is conspicuously low).                        Moreover, the court made a

finding      that       Barley’s         false    testimony         was       willfully         given.

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Accordingly, we conclude that the district court did not clearly

err in applying the obstruction enhancement.

            A   defendant       generally      is        not    eligible         for    the

acceptance of responsibility adjustment under USSG § 3E1.1 when

he   receives   an   upward     adjustment         for   obstruction        of    justice

under USSG § 3C1.1.         See USSG § 3E1.1, comment. (n.4); United

States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001).                                   To

merit the reduction, the defendant bears the burden of showing

that his circumstances are extraordinary.                      Hudson, 272 F.3d at

264.       Barley,   however,     does       not    suggest       the      presence      of

extraordinary circumstances meriting the acceptance reduction.

Because the district court did not err in its determination of

obstruction     of   justice,    it   also     did       not    err   in    denying      an

adjustment under § 3E1.1.

            We therefore affirm the district court’s 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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