United States v. Withers , 12 F. App'x 183 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4835
MICHAEL WITHERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-00-14)
Submitted: April 20, 2001
Decided: June 25, 2001
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Scott C. Brown, LAW OFFICE OF FRANK A. JACKSON, Whee-
ling, West Virginia, for Appellant. Melvin W. Kahle, Jr., United
States Attorney, Paul T. Camilletti, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WITHERS
OPINION
PER CURIAM:
Michael Withers appeals his 100-month sentence for being a felon
in possession of a firearm in violation of 18 U.S.C.A. §§ 922(g)(1),
(g)(9), 924(a)(2) (West 2000). Withers argues the district court clearly
erred in enhancing his sentence for obstruction of justice pursuant to
U.S. Sentencing Guidelines Manual § 3C1.1 (1998) and in denying
him a downward adjustment for acceptance of responsibility pursuant
to USSG § 3E1.1. We affirm.
Withers first argues the Government did not carry its burden to
prove he obstructed justice. We review factual findings concerning
the Guidelines for clear error, United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989), but do not review the district court’s estima-
tion of the witnesses’ credibility, see United States v. Saunders, 886
F.2d 56, 60 (4th Cir. 1989). Following a thorough review of the
record, we find the district court did not clearly err in determining that
Withers attempted to obstruct justice by threatening a witness and
attempting to convince the witness not to testify. See USSG § 3C1.1,
comment. (n.4(a)).
Next, Withers argues the district court erred by denying him a
reduction in his offense level for acceptance of responsibility based
upon unrelated criminal conduct that occurred before he pled guilty
to the offense. A district court’s decision to grant or deny an adjust-
ment for acceptance of responsibility pursuant to USSG § 3E1.1 is a
factual determination reviewed for clear error. United States v. Miller,
77 F.3d 71, 74 (4th Cir. 1996). We find the district court did not
clearly err in relying on conduct that occurred before Withers signed
the plea agreement. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir.
1993). Nor was it clear error to rely on criminal conduct not related
to the offense of conviction. See, e.g., United States v. Ceccarani, 98
F.3d 126, 129-30 (3d Cir. 1996).
We affirm Withers’ conviction and sentence. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
UNITED STATES v. WITHERS 3
aid the decisional process.
AFFIRMED