*

Judge Luttig was a member of the original panel but did not

participate in this decision. This opinion is filed by a quorum of

the panel pursuant to 28 U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4672

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK KEVIN MAYES,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 04-6861)

Submitted: April 10, 2006 Decided: May 31, 2006

 

Before WILKINSON, LUTTIG,* and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Terry N. Grimes, Roanoke, Virginia, for Appellant. John L.

Brownlee, United States Attorney, Anthony P. Giorno, Assistant

United States Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Mark Kevin Mayes was convicted by a jury of possession of

a firearm by a convicted felon, possession with intent to

distribute five or more grams of methamphetamine, and possession of

a firearm in furtherance of a drug trafficking crime, in violation

of 18 U.S.C. §§ 922(g)(1), 924(c)(1); 21 U.S.C. § 841 (2000).

Although Mayes denied at trial that the methamphetamine and

revolver found in a vehicle stop were his, he stipulated that the

quantity of the methamphetamine seized was thirty-three grams,

containing 7.6 grams of pure methamphetamine. At sentencing, the

district court sustained Mayes’s objection to being held

responsible for more than the drug quantity found in the search but

overruled his objection to an enhancement for obstruction of

justice based on his perjury during trial. Thus, Mayes’s total

offense level was twenty-eight. With his criminal history category

of VI, the guideline range for counts one and two was 140 to 175

months. The court imposed concurrent sentences of 160 months for

counts one and two and a consecutive sixty-month term for count

three.

We affirmed Mayes’s convictions and sentence. See United

States v. Mayes, 103 F. App’x 495 (4th Cir. 2004) (unpublished).

The Supreme Court thereafter granted Mayes’s petition for

certiorari, vacated this court’s judgment, and remanded to this

court for further consideration in light of United States v.
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Booker, 543 U.S. 220 (2005). Having reconsidered Mayes’s sentence

in light of Booker, we affirm.

On remand, Mayes asserts his sentence violated his Sixth

Amendment right to a trial by jury in light of Booker because the

sentence was enhanced by the district court based on Mayes’s

responsibility for 7.6 grams of pure methamphetamine and based on

his false testimony at trial. Moreover, he reasserts his arguments

that his testimony did not rise to the level necessary to

constitute obstruction of justice and that the district court did

not specifically make the necessary findings to support the

enhancement.

Because Mayes did not raise a Booker claim in the

district court, we review his sentence for plain error. See United

States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). To

demonstrate plain error, a defendant must establish that error

occurred, that it was plain, and that it affected his substantial

rights. United States v. Olano, 507 U.S. 725, 731-32 (1993). If

a defendant establishes these requirements, the court’s discretion

to correct the error “is appropriately exercised only when failure

to do so would result in a miscarriage of justice, such as when the

defendant is actually innocent or the error seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

Hughes, 401 F.3d at 555 (internal quotations and citation omitted).
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In Booker, the Supreme Court held that the mandatory

guidelines scheme, which provided for sentence enhancements based

on facts found by the court alone and not by the jury, “violated

the Sixth Amendment imperative that ‘[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by . . . a jury verdict

must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.’” Hughes, 401 F.3d at 546 (internal quotations

and citation omitted).

Mayes’s sentence based on his responsibility for 7.6

grams of pure methamphetamine was supported both by his admission

to that quantity and the jury’s verdict that he possessed the

methamphetamine with intent to distribute. Moreover, although

Mayes denied at trial that the methamphetamine and revolver were

his, the jury obviously did not believe him and necessarily

concluded he gave false testimony. Mayes does not dispute that his

testimony, relating to essential elements of the charges against

him, concerned a material matter. Instead, he suggests he “did

little more than testify at trial that he was drunk on the night in

question and did not remember what happened.” This assertion is

belied by the record. Mayes explicitly denied that he had

possessed the methamphetamine and revolver, but the jury found that

he had knowingly done so. Thus, we conclude that the district

court’s application of the obstruction enhancement in this case was
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not Booker error, because the jury “necessarily, albeit implicitly,

found that he had engaged in behavior that fits within § 3C1.1.”

See United States v. Rodriguez, 398 F.3d 1291, 1298-99 n.5 (11th

Cir.), cert. denied, 125 S. Ct. 2935 (2005).

Even if the district court’s enhancement constituted

Booker error, we would decline to notice the error because there

can be no question that the jury, having found that the offenses

were committed, would also have determined that Mayes willfully and

falsely testified about a material matter. See United States v.

Smith, 441 F.3d 254, 272-73 (4th Cir. 2006); see also Johnson v.

United States, 520 U.S. 461 (1997) (plain error in failing to

submit question of materiality to jury did not seriously affect the

fairness, integrity, or public reputation of judicial proceedings).

Based on the foregoing and the reasons stated in our

prior opinion, we affirm Mayes’s convictions 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 aid the decisional process.

AFFIRMED