United States v. Richard Naylor, Jr. , 952 F.2d 398 ( 1991 )

952 F.2d 398

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard NAYLOR, Jr., Defendant-Appellant.

No. 91-5760.

United States Court of Appeals, Fourth Circuit.

Submitted Dec. 5, 1991.
Decided Dec. 26, 1991.

Appeal from the United States District Court for the District of Maryland, at Baltimore. (CR-90-187-S), Frederic N. Smalkin, District Judge.

Fred Warren Bennett, Federal Public Defender, Mary French, Assistant Federal Public Defender, Baltimore, Md., for appellant.

Richard D. Bennett, United States Attorney, Susan M. Ringler, Assistant United States Attorney, Baltimore, Md., for appellee.

D.Md.

SENTENCE VACATED AND REMANDED.

Before DONALD RUSSELL, MURNAGHAN and NIEMEYER, Circuit Judges.

OPINION

PER CURIAM:

1

Richard Naylor, Jr., was convicted by a jury of stealing government property in violation of 18 U.S.C. §§ 641 and 2 (1988). At his trial, he took the stand and testified that he acted on orders from his superior in transporting materials belonging to the Navy to a local scrap yard, and that he had no knowledge that government property was being stolen or sold. The sentencing court found that Naylor had committed perjury in this testimony and increased Naylor's base offense level by two levels for obstruction of justice under U.S.S.G. § 3C1.1. This Court has recently decided that denial of guilt under oath is not a proper basis for an obstruction of justice adjustment. United States v. Dunnigan, --- F.2d ----, No. 90-5668 (4th Cir. Aug. 30, 1991). In light of the decision in Dunnigan, we vacate Naylor's sentence and remand for resentencing. We dispense with oral argument because the facts and legal contentions are adequately presented and argument would not aid the decisional process.

2

SENTENCE VACATED AND REMANDED.