UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4796

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

FABIAN DAVID SPARROW,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:13-cr-00022-RLV-DSC-2)

Submitted: October 31, 2016 Decided: November 29, 2016

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Eric A. Bach, Charlotte, North Carolina, for Appellant. Jill 

Westmoreland Rose, United States Attorney, Amy E. Ray, Assistant 

United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Fabian David Sparrow appeals from the sentence and 

restitution imposed after he pleaded guilty to one count of 

conspiring to defraud the United States by making false 

statements to a federal agency and submitting false statements 

to HUD and destruction of records in a federal investigation, in 

violation of 18 U.S.C. § 371 (2012). He received a belowGuidelines sentence of 41 months and was ordered to pay 

$4,175,435.71 in restitution. Finding no error, we affirm.

Sparrow contends that the district court clearly erred in

applying a sentencing enhancement for obstruction of justice

under U.S. Sentencing Guidelines Manual § 3C1.1 (2015) based on 

his failure to truthfully comply with grand jury questions and 

requests.* We review the imposition of an obstruction of justice 

enhancement for clear error. United States v. Andrews, 808 F.3d 

964, 969 (4th Cir. 2015), cert. denied, 136 S. Ct. 1392 (2016). 

The two-level enhancement is appropriate when a defendant 

“willfully . . . attempt[s] to obstruct or impede[] the 

administration of justice.” USSG § 3C1.1. To apply the 

enhancement based on perjury, see USSG § 3C1.1 cmt. n.4(F), the 

 * Sparrow’s brief also addresses the enhancement based on 

his travel to Qatar. However, because the court did not apply 

the enhancement on this basis, we address only the grand jury 

testimony and compliance issue.
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district court must find by a preponderance of the evidence that 

the defendant gave “false testimony concerning a material matter 

with the willful intent to provide false testimony,” United 

States v. Dunnigan, 507 U.S. 87, 94 (1993). If a court fails 

“to address each element of the alleged perjury in a separate 

and clear finding,” the application of the enhancement may be 

upheld as long as “the court makes a finding . . . that 

encompasses all of the factual predicates for a finding of 

perjury.” Id. at 95; see United States v. Perez, 661 F.3d 189, 

192-93 (4th Cir. 2011) (discussing “degree of specificity 

Dunnigan requires”). The adjustment also applies to a defendant 

who conceals “evidence that is material to an official 

investigation or judicial proceeding” or attempts to do so. 

USSG § 3C1.1 cmt. n.4(D).

Here, the district court found that Sparrow testified 

falsely before the grand jury by telling the grand jury that his 

accountant held the Eagle’s Nest records and that his accountant 

was deceased. The district court found that Sparrow attempted 

to conceal the location of the records. The court found that 

Sparrow “misrepresented the notion that the accountant who had 

the records was deceased, which was not the case; that he had 

the records; which was not the case.” The court continued that 

Sparrow’s statements were knowingly made and that Sparrow gave 

“false testimony concerning a material matter with the willful 
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intent to deceive.” The court satisfied the requirements of 

Dunnigan and its conclusions were based on factual testimony 

presented by the Government. Thus, we conclude that the court 

did not clearly err in applying the obstruction of justice 

enhancement.

Next, Sparrow challenges the $4.1 million restitution order 

on appeal. He contends that the Government did not prove a 

sufficient nexus between himself and the parties due 

restitution, that the additional named parties were not in the 

presentence report but in the Government’s sentencing exhibit 

only, that counsel objected to this lack of notice, and the 

Government cannot rely on additional filings that were not part 

of the PSR. Sparrow, however, entered into an agreement with 

the Government prior to sentencing regarding the amount of 

foreseeable loss to establish the offense level and the amount 

of restitution. The Government summarized the agreement:

For the purposes of the stipulation, and the 

concession that the defendant has agreed with regards 

to restitution, the government would agree that the 

loss is less than $550,000 contingent on the 

following. 1. That the defendant stipulates to the 

facts underlying the . . . presentence report which 

supports these loss numbers; and 2. That the defendant 

agree to the restitution numbers and figures that were 

presented to the [c]ourt yesterday in . . . document 

28-1. [The document] lists a number of loans that is 

consistent with the Victim Impact Statements in this 

case and would require a payment of total restitution 

in the amount of $4,175,435.71. So the bottom line is 

that the government—if the defendant concedes to the 

facts supporting these loss numbers, both in 
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restitution and in the guidelines, the government 

would concede that the offense level . . . should be a 

level 12.

J.A. 78. The judge asked defense counsel if the Government’s 

summary was “an accurate summary and rendition of the 

agreement.” And counsel replied that it was. 

As this court has recognized, “[a] waiver is the 

intentional relinquishment or abandonment of a known right.” 

United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014) 

(internal quotation marks omitted). “Waiver is to be 

distinguished from forfeiture, which is the failure to make the 

timely assertion of a right.” Id. (internal quotation marks 

omitted). “[W]hen a claim is waived, it is not reviewable on 

appeal, even for plain error.” Id. “Rather, a valid waiver 

means that there was no error at all.” Id. (internal quotation 

marks omitted). Where a party identifies an issue and then 

withdraws it, he has waived the issue, and his claim is not 

reviewable on appeal. Id. Whether a waiver is knowing and 

voluntary is determined based on the totality of the 

circumstances. Id. at 298-99. 

Here, Sparrow does not suggest that his agreement was not 

knowing and voluntary. The record supports that Sparrow 

intentionally relinquished the right to contest the restitution 

amount when he entered into an agreement with the Government. 

The Government agreed to support a reduced amount of loss and 
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resulting offense level and Sparrow agreed to the revised 

restitution amount. Thus, Sparrow has waived appellate review 

of the amount of restitution ordered in the judgment.

Accordingly, we affirm the judgment. 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