UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 98-4274

TERESA MAYS, a/k/a Toreatha A.

Beaty,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Dennis W. Shedd, District Judge.

(CR-97-105)

Submitted: November 30, 1998

Decided: December 21, 1998

Before MURNAGHAN and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Russell Doyle Ghent, LEATHERWOOD, WALKER, TODD &

MANN, P.C., Greenville, South Carolina, for Appellant. J. Rene

Josey, United States Attorney, Scarlett A. Wilson, Assistant United

States Attorney, Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Teresa Mays pled guilty to conspiracy to possess marijuana,

cocaine, and cocaine base (crack) with intent to distribute, see 21

U.S.C. § 846 (1994), and to being a felon in possession of a firearm,

see 18 U.S.C.A. § 922(g) (West Supp. 1994). She appeals the 210-

month sentence she received, contending that the district court clearly

erred in finding that she possessed a firearm during a drug offense,

erred in finding that she had no right of self-defense against unknown

intruders, and erred in considering the results of her polygraph test

without stating to what extent it was a factor in the court's determination of her credibility. Mays also disputes the district court's decision

to apply U.S. Sentencing Guidelines Manual§ 2A2.1(a)(1) (1997)

(Assault with Intent to Commit Murder or Attempted Murder) pursuant to the cross reference in USSG § 2K2.1(c)(1)(A), and to increase

her sentence for obstruction of justice based on perjury. See USSG

§ 3C1.1. We affirm.

After a confidential informant made a controlled purchase of marijuana from Mays, Detective John Sutherland and other officers from

the Fairfield County, South Carolina, Sheriff's Department executed

a search warrant at Mays' residence before dawn on July 28, 1995.

As Sutherland entered the house, Mays fired a shot which hit the door

frame above the officer's head. Sutherland returned fire but did not

hit Mays. Sutherland then turned on the light and saw Mays drop to

the floor and throw down a pistol. In the bedroom from which Mays

fired at Sutherland, the officers found a loaded revolver, $1685 in

cash (part of which was the marked money used by the informant),

.95 grams of crack, 44.3 grams of marijuana, twenty-seven unidentified white tablets, eleven and a half Xanax tablets, and various items

of drug paraphernalia, including a set of hanging letter scales and a

hemostat. Both Mays and her roommate, Kay Phillis, were arrested.

After their release on bond, Mays and Phillis continued to sell crack,

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cocaine, and marijuana to the informant. They also sold him a firearm. Mays was eventually indicted on federal drug and firearm

charges and entered a guilty plea to one count of conspiracy and to

possessing a firearm after being convicted of a felony.

The probation officer placed both counts in one group to calculate

the offense level. See USSG § 3D1.2. In computing the offense level

for the drug conspiracy count, the probation officer recommended a

two-level enhancement for possession of a firearm during a drug

offense. See USSG § 2D1.1(b)(1). However, the final offense level

was determined by the felon-in-possession offense. The probation

officer recommended application of the cross reference in USSG

§ 2K2.1(c)(1)(A), which provides that, if the defendant used the firearm in connection with the commission or attempted commission of

another offense, USSG § 2X1.1 should be applied, which in turn provides for application of the guideline for the underlying conduct. The

probation officer recommended that, in Mays' case, the underlying

conduct was assault with intent to commit murder or attempted murder, which yielded a base offense level of 28. See USSG

§ 2A2.1(a)(1). Three levels were added because the victim was a law

enforcement officer, see USSG § 3A1.2(b), raising the recommended

offense level to 31.

Mays objected to the application of the cross reference, alleging

that she did not hear the police announce themselves, that she fired

in self defense, and that she had purposely aimed high to avoid injuring the supposed intruders. Of her own volition, Mays took a polygraph test before she was sentenced. She was asked the following

questions: "On the day of the shooting incident did you know the people that were shot at were police officers?" and"On the day of the

shooting incident did you hear the police identify themselves?" Mays'

answers indicated deception. At a pre-sentencing hearing, the district

court warned the government that it could not depend on the polygraph test results to prove at sentencing that Mays had knowingly

fired at police officers because the questions were too imprecise. The

government indicated that it would rely instead on the testimony of

the officers who executed the search warrant.

At the sentencing hearing, Sutherland and two of the other officers

who were present during the search testified that Sutherland knocked

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on the door of Mays' small house and called loudly,"Sheriff's

Department, search warrant," three times before he forced open the

door and entered the house. Sutherland testified that the house was

dark but that the television was on in the bedroom to his left. In the

faint light, he saw someone stand up near the end of the bed, heard

a shot, and saw a bright flash. He fired at the flash. The government

also presented a video of the interior of the house which showed

where Sutherland's and Mays' bullets had lodged. In response to a

question from the court, Sutherland testified that a right-handed person's first, hurried shot is usually high and to the right of the intended

target. The other two officers testified that Sutherland announced their

presence three times before entering. Investigator Adam Roberson

further stated that Mays' bedroom window was close to the front

door.

Mays testified that she never heard the officers identify themselves.

She said that Phillis, who was sleeping in the same bed, woke her and

told her someone was breaking in. Mays said she asked Phillis where

the gun was and was told it was under the pillow. Mays said she could

not find it, so Phillis located it and handed it to her. She said she then

got on her knees near the head of the bed and, when she saw someone

enter through the front door, she fired a warning shot above the bedroom doorway.* Under cross-examination, Mays added that she

yelled, "Who is it?" twice before the officers entered, but that she did

not receive an answer. Recalled by the court, Sutherland and the other

officers all testified that they did not hear anyone call to them before

they entered.

The district court found that Mays' account was not credible

because it conflicted with the officers' testimony and with the physical evidence, which showed that Sutherland's bullet hit the wall

between the window and the wardrobe, just where he said he saw the

flash from Mays' gun, and not where she said she was when she fired.

The court found that, if Mays was awake before the officers entered

long enough to have the discussion with Phillis that she described, she

would have heard them knocking and calling out. The court further

found that Mays had fired with premeditation, intending to hit the per-

_________________________________________________________________

*Defense counsel called Phillis as a witness to corroborate Mays'

account, but Phillis asserted her Fifth Amendment right not to testify.

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son coming through the bedroom door. Consequently, the court found

that the cross reference to the guideline for attempted murder was correct. Finally, the court determined that Mays had obstructed justice by

giving perjured testimony during the sentencing hearing and that she

had not accepted responsibility for her criminal conduct. This raised

the offense level to 33. With a criminal history category of III, Mays'

guideline range was increased to 168-210 months. The court imposed

a sentence of 210 months.

On appeal, Mays first contests the enhancement for possession of

a firearm during a drug offense, see USSG§ 2D1.1(b)(1), arguing that

the government failed to prove that she possessed the weapon before

the officers' entry. Because Mays did not object to this enhancement

in the district court, we review the issue for plain error. See United

States v. Olano, 507 U.S. 725, 732 (1993). Undisputed information in

the presentence report described how Mays sold marijuana to the

informant the night before the search. Additional drugs were present

in her bedroom when the officers searched it the next morning. For

the enhancement to apply, the firearm need only be present in a place

where a drug conspiracy is carried on. See United States v. Apple, 962

F.2d 335, 338 (4th Cir. 1992). We find no plain error in the district

court's adoption of the recommended enhancement which, in any

case, did not affect the final offense level.

Next, Mays contends that the district court erred in concluding that

she had no right to defend herself against persons whom she believed

to be intruders but who were in fact law enforcement officers. Her

argument fails because the district court did not so find. Rather, the

court first found that Mays' testimony was not credible and then made

a factual finding that she knew she was shooting at officers from the

Sheriff's Department. While we do not review a district court's credibility determination, see United States v. Saunders, 886 F.2d 56, 60

(4th Cir. 1989), we review the district court's factual findings for

clear error. See United States v. Perrin, 45 F.3d 869, 871 (4th Cir.

1995). All three officers testified that Detective Sutherland loudly

knocked and announced their presence several times before they

entered Mays' house, and that one of the officers testified that they

were standing close to her bedroom window at the time. Moreover,

none of the officers heard Mays respond as she said she did. We can-

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not find that the district court clearly erred in concluding that Mays

knew she was shooting at law enforcement officers.

Next, Mays contends that the district court erred in considering the

results of the polygraph test at sentencing without making a finding

as to the reliability of the test results or explaining to what degree the

polygraph test results affected its decision as to her credibility. Our

review of the record discloses that the court did not consider the polygraph test in determining Mays' sentence. After the court found that

Mays' self-defense claim was not credible, that application of the

cross reference to USSG § 2A2.1 was appropriate, and that Mays had

not accepted responsibility, the district court made the following

statement:

I would note that the polygraph, while we question whether

or not those questions--the polygraph results don't lend any

credence to her version of the story, none whatsoever, the

amount of proof they are to add to the government's case is,

you know, open to dispute, I guess. I think it does help the

government's case some. I would note without any doubt it

doesn't credit her version of the facts.

These comments were an aside which had no bearing on the court's

finding concerning Mays' claim of self-defense. The court had

already made its finding. Moreover, the government did not introduce

the polygraph test results at sentencing or make any argument based

on the test because the district court had already determined, before

the sentencing hearing, that the questions asked were too imprecise

to be useful. We find no error in the court's gratuitous comments

about the test.

Finally, Mays argues that, because the district court erred in finding

that she did not shoot in self-defense, it also erred in applying the

cross reference to USSG § 2A2.1(a)(1) and in finding that she

obstructed justice by perjuring herself at sentencing. For the reasons

already discussed, we find no error in the court's use of the cross reference or finding of perjury.

We therefore affirm the sentence. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

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materials before the court and argument would not aid the decisional

process.

AFFIRMED

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