United States v. Hill ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4832
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HENRY HILL, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-03-59)
Submitted: April 28, 2004 Decided: July 29, 2004
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, SAMPSON LAW FIRM, P.L.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Sara E. Flannery, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Henry Hill, Sr., appeals his conviction and sentence for
conspiracy to possess with intent to distribute and distribution of
cocaine base, in violation of 21 U.S.C. § 846 (2000). Hill argues
the district court erred by enhancing his sentence for obstruction
of justice based on perjury pursuant to U.S. Sentencing Guidelines
Manual § 3C1.1 (2002) and that his conspiracy conviction is not
supported by sufficient evidence. We affirm. Counsel also filed
a motion to withdraw from representation and for substitution of
counsel, and Hill filed a response in which he requests that this
Court compel his attorney to provide him a complete copy of his
legal file.
We review a district court’s application of the
sentencing guidelines with regard to factual determinations for
clear error, while legal conclusions are reviewed de novo. United
States v. Wilson, 198 F.3d 467, 471 (4th Cir. 1999). The
determination of whether a defendant committed perjury is a factual
issue and, therefore, will be disturbed only if clearly erroneous.
United States v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995).
Perjury is established when it is found by a preponderance of the
evidence that a witness who testifies under oath or affirmation:
(1) gives false testimony; (2) concerning a material matter;
(3) with the willful intent to deceive, rather than as a result of
confusion or mistake. United States v. Jones, 308 F.3d 425, 428
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n.2 (4th Cir. 2002) (citing United States v. Dunnigan, 507 U.S. 87,
92-98 (1993)), cert. denied, 537 U.S. 1241 (2003). Likewise, U.S.
Sentencing Guidelines Manual § 3C1.1 provides:
If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice during the
course of 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 offense
level by 2 levels.
(emphasis in original). A matter is material if it “would tend to
influence or affect the issue under determination.” United
States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004) (quoting USSG §
3C1.1, comment. (n.6)).
We find that because Hill willfully gave false testimony
at a sentencing hearing regarding material matters, the district
court did not clearly err by enhancing his sentence for obstruction
of justice based on perjury pursuant to USSG § 3C1.1.
Hill also argues there is insufficient evidence to
support his conspiracy conviction. “The verdict of a jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is “that
evidence which ‘a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant’s
guilt beyond a reasonable doubt.’” United States v. Newsome, 322
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F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 94
F.3d 849, 862-63 (4th Cir. 1996) (en banc)). It is well-settled
that facts may be proven by both circumstantial and direct
evidence. Newsome, 322 F.3d at 334.
To prove a conspiracy to distribute a controlled
substance, the Government must establish that: (1) two or more
persons agreed to distribute the substance; (2) the defendant knew
of the conspiracy; and (3) the defendant knowingly and voluntarily
became part of the conspiracy. Burgos, 94 F.3d at 857.
We find that several witnesses provided testimony
establishing Hill at least implicitly agreed to distribute crack
cocaine with his son and nephew, that he was aware of the
conspiracy, and that he knowingly and voluntarily entered into it.
Thus, we conclude there is sufficient evidence to support Hill’s
conspiracy conviction. Accordingly, we affirm Hill’s conviction
and sentence. We deny counsel’s motion to withdraw and for
substitution of counsel and Hill’s motion to compel his attorney to
provide him a complete copy of his legal file. 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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