United States v. Hill

Opinion

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

- 2 - 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

- 3 - 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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