UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4442

MICHAEL NEWKIRK,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Matthew J. Perry, Jr., Senior District Judge.

(CR-95-697)

Submitted: February 27, 1997

Decided: March 13, 1997

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Herbert W. Louthian, LOUTHIAN & LOUTHIAN, Columbia, South

Carolina, for Appellant. Nancy Elizabeth Caldwell, Assistant United

States Attorney, Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Newkirk pleaded guilty to armed robbery of a vehicle in

violation of 18 U.S.C. §§ 2, 2119 (1996), and possession of a firearm

during the robbery in violation of 18 U.S.C. § 924(c)(1)-(2) (1996).

The court sentenced Newkirk to forty-six months for the armed robbery count and the mandatory sixty months for the firearm count. The

court also ordered Newkirk to make restitution in the amount of

$562.66. Newkirk appeals his conviction and sentence. Newkirk's

attorney filed a brief in accordance with Anders v. California, 386

U.S. 738 (1967), raising two issues but asserting that, in his view,

there are no meritorious grounds for appeal. Newkirk was informed

of his right to file a pro se supplemental brief, which he failed to file.

Newkirk complains that he received a sentence disproportionate in

severity to that of co-defendants with more culpability and greater

criminal histories. Thus, he claims that the district court erred by not

departing downward from the applicable sentencing range. Sentencing courts are not required to consider the sentences of co-defendants.

See United States v. Foutz, 865 F.2d 617, 621 (4th Cir. 1989). Furthermore, this court will not review a refusal to depart downward. See

United States v. Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).

Newkirk also asserts that the district court erred by enhancing his

sentence with an upward adjustment for obstruction of justice. A district court's findings of fact in the sentencing process must be sustained if they are supported by a preponderance of the evidence, see

United States v. Urrego-Linares, 879 F.2d 1234, 1237 (4th Cir. 1989),

and the court's application of the guidelines when the issue is largely

factual is reviewed under the clearly erroneous standard, see United

States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). We conclude

that the evidence supports the district court's finding that Newkirk

indirectly threatened co-defendant Vanover. The court's findings are

based on crediting Latosha Nichole Vanover's testimony that

Newkirk called her and made a threat against her brother, a codefendant, and taking into account the fact that after the threat the

Government requested that the two co-defendants be separated. We

also find that the district court's determination that the guidelines cal-

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led for an upward adjustment when such a threat is made is not

clearly erroneous. An indirect threat against a witness is a sufficient

ground for an obstruction of justice enhancement. See USSG § 3C1.1,

comment. (n.3).

In accordance with the requirements of Anders , we have examined

the entire record and find no meritorious issues for appeal. Accordingly, Newkirk's convictions and sentence are affirmed. This court

requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the

client requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel's motion must state

that a copy thereof was served on the client.

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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