                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-4486


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

CARL CUTRO,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
Senior District Judge. (3:10-cr-00034-nkm-1)


Submitted:    September 8, 2011            Decided:   December 20, 2011


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant.     Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia; Ronald M. Huber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Carl    Cutro     challenges          both      a     two-level     obstruction

enhancement          and   a     denial        of     a     two-level          acceptance        of

responsibility         reduction        of     his       sentence       stemming       from     his

assault    on     a     government        informant            Cutro        believed    provided

information leading to his arrest.                        For the reasons that follow,

we affirm.



                                               I.

                                               A.

               During      the        summer        of     2010,        Cutro      was        under

investigation for theft of guns and merchandise from a Greene

County, Virginia pawnshop.                   At the same time, Keith Marks--a

friend of Cutro’s--was cooperating with a local drug task force,

serving as a confidential informant and making undercover buys.

               On August 31, 2010, Cutro was arrested and charged

with   being     a    felon      in   possession          of     a    firearm.         After    his

arrest, Cutro admitted to his involvement in various gun thefts.

During    questioning,         Cutro      was       asked      about        certain    sawed-off

shotguns that he and Marks had attempted to sell.                                The question

led    Cutro    to    conclude        that     Marks       had       been    cooperating       with

authorities.

               On September 27, 2010, Cutro pleaded guilty to three

charges: being a felon in possession of a firearm, in violation

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of 18 U.S.C. § 922(g)(1) (Count One); the theft of firearms from

a Federal Firearms Licensee, in violation of 18 U.S.C. § 922(u)

(Count     Two);      and    the     interstate          transportation          of    stolen

merchandise, in violation of 18 U.S.C. § 2314 (Count Three).

While awaiting sentencing, Cutro was confined at the Central

Virginia     Regional       Jail     in    the       Western   District    of     Virginia,

where    Marks     was   also      being    held.         Cutro    was    able    to    enter

Marks’s      cellblock         and    assault          him.        Marks     later       told

investigators that during the assault, Cutro repeatedly said,

“You had better not testify against me.”                              S.J.A. 107.        When

investigators subsequently interviewed Cutro he admitted that he

gained access to Marks’s cellblock by falsely telling a jail

guard    that    he    belonged      there.           Cutro    also    admitted       that    he

struck Marks, causing him to fall to the ground, and continued

to assault Marks until help arrived.

             On November 10, 2010, a federal grand jury returned a

two-count indictment, charging Cutro with causing bodily injury

to   Marks      with     the     intent      to        retaliate       against    him        for

information he provided to law enforcement, in violation of 18

U.S.C. 1513(b)(2) (Count One); and assault with the intent to

influence, delay, and prevent testimony of Marks in an official

proceeding, in violation of 1512(a)(2)(A) (Count Two).

             On March 7, 2011, Cutro pleaded guilty to Count One in

exchange for the dismissal of Count Two.                              The plea agreement

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provided that Cutro would be incarcerated for 24 months on Count

One.



                                             B.

                 On April 18, 2011, a combined sentencing hearing was

held before the district court where Cutro was to be sentenced

on     the       original     firearms      convictions      and    the    retaliation

conviction.          For the firearms convictions, the district court

determined         Cutro’s     criminal     history      category     to   be   IV    and

calculated his offense level as 24.                    This offense level included

a two-level enhancement for obstruction of justice for Cutro’s

attack on Marks.              Also as a result of the attack, Cutro was

denied       a    reduction    in     his   offense     level   for    acceptance      of

responsibility.             Cutro’s    sentencing       guidelines    range     for   the

firearms convictions was between 77 and 96 months’ imprisonment.

The district court sentenced Cutro to 84 months’ imprisonment on

the firearms convictions.

                 For the retaliation conviction, Cutro was sentenced to

24 months incarceration, pursuant to the plea agreement, to run

consecutively         with    the   sentence      on   the   firearms      convictions.

This appeal followed.




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                                           II.

               The     issues    before    us     on    appeal    are    whether       the

district court erred in imposing a two-level enhancement for

obstruction of justice and denying Cutro a two-level adjustment

for    acceptance       of    responsibility       in    calculating         his   offense

level for the firearms convictions.                     We consider each issue in

turn.



                                            A.

               We first consider Cutro’s argument that the district

court erred in imposing a two-level enhancement for obstruction

of justice in calculating his guidelines range for the firearms

conviction.          The     district     court’s      ultimate    determination       of

whether    particular         conduct   constitutes        obstruction        of   justice

pursuant to U.S.S.G. § 3C1.1 is a legal question we review de

novo.     United States v. Saintil, 910 F.2d 1231, 1232 (4th Cir.

1990).         We    review     the   district      court’s      underlying        factual

findings for clear error.               United States v. Daughtrey, 874 F.2d

213,     217    (4th    Cir.     1989).         However,    where,      as    here,    the

defendant failed to object to the enhancement in the district

court, this court reviews for plain error.                         United States v.

Wells, 163 F.3d 889, 900 (4th Cir. 1998).

               Cutro challenges the two-level increase because he had

already pleaded guilty on the firearms charges--all the charges

                                            5
for which Marks could have been a witness.                 Because Marks could

no longer be a witness against him, Curtro argues, the assault

did not obstruct justice.

            A defendant may receive a two-point enhancement to his

offense level if he obstructs or impedes justice pursuant to

U.S.S.G § 3C1.1, which states:

     If (A) 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, and (B) the obstructive conduct related to
     (i) the defendant’s offense of conviction and any
     relevant conduct; or (ii) a closely related offense,
     increase the level by 2 levels.

Application Note 3 of § 3C1.1 states:

     Obstructive conduct can vary widely in nature. . . .
     Application Note 4 sets forth examples of the types of
     conduct to which this adjustment is intended to apply.
     Application Note 5 sets forth examples of less serious
     forms of conduct to which this enhancement is not
     intended to apply. . . .      Although the conduct to
     which this adjustment applies is not subject to
     precise definition, comparison of the examples set
     forth in Application Notes 4 and 5 should assist the
     court in determining whether application of this
     adjustment is warranted in a particular case.

The examples in note 4 include “threatening, intimidating, or

otherwise    unlawfully    influencing     a   .   .   .    witness.   .   .   or

attempting    to   do     so,”   and   “other      conduct     prohibited      by

obstruction of justice provisions under Title 18, United States

Code (e.g., 18 U.S.C. §§ 1510, 1511).”             U.S.S.G. § 3C1.1 n.4(A),




                                       6
(I) (2011).     The examples in note 5 consist of various types of

false statements and fleeing from arrest.

           Comparing     the    examples       of    conduct       to    which   the

enhancement    applies   to    the   examples       of   conduct    to   which   the

enhancement does not apply, we conclude that Cutro’s assault on

Marks subjects him to enhancement under § 3C1.1.                         First, the

evidence shows that Cutro assaulted Marks because Marks was a

potential witness against him. 1           This behavior constitutes an

attempt   to   unlawfully     influence    a   witness.        Second,     for   the

assualt on Marks, Cutro pleaded guilty to violating 18 U.S.C.

1513--retaliating against a witness--one of the “obstruction of

justice provisions” referred to in note 4. 2              Accordingly, we find



     1
       It is of no moment that the assault took place after Cutro
was convicted of the crimes for which Marks could be a witness
to.   Indeed, the guidelines specifically contemplate that the
enhancement would be applied to activity taking place after
conviction.    See U.S.S.G. §     3C1.1 (covering activity that
relates “to the investigation, prosecution, or sentencing”
(emphasis added)). In addition, there is always the possibility
that Marks could be called to testify later should Cutro’s
convictions be vacated. Cutro appears to have considered such a
possibility when he said to Marks, while striking him, “You had
better not testify against me.”
     2
       In making a similar argument, the government quotes the
guidelines as stating that obstruction of justice includes
“conduct prohibited by 18 U.S.C. §§ 1501-1516.”    Appellee’s Br.
10.   We could, at first, not locate the quoted language in §
3C1.1. After some investigation, we discovered why: the quoted
language was removed from the guidelines by amendment in 1997.
See U.S.S.G. Appendix C n.566.      We take this opportunity to
remind the government of the importance of accurate citation.



                                       7
no error in the district court’s application of the obstruction

of justice enhancement.



                                       B.

             We next consider Cutro’s argument that the district

court committed procedural error by refusing to grant Cutro a

two-level     reduction      for   acceptance        of       responsibility      in

calculating his guidelines range for the firearm convictions.

This challenge is subject to de novo review.                   See United States

v. Layton, 564 F.3d 330, 334 (4th Cir. 2009).

             Cutro     argues   that    the    district            court    committed

procedural     error    by   concluding     that    it       was    precluded   from

simultaneously       imposing   both   acceptance       of    responsibility     and

obstruction of justice adjustments.                This argument is without

merit.   Although it would have been error for the district court

to find itself so precluded--see U.S.S.G. § 3E1.1(a) n.4; United

States v. Hargrove, 478 F.3d 195, 202 (4th Cir. 2007)--Cutro

points to nothing in the record--nor do we find anything on

independent review--to suggest that the district court came to

any   such    conclusion.       Accordingly,       we     affirm      the   district

court’s denial of an acceptance of responsibility adjustment.




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                                  III.

          For   the   foregoing    reasons,   the   judgment    of   the

district court is

                                                               AFFIRMED.




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