UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4136

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee, 

 v. 

STEVEN D. MCCALLISTER, 

 Defendant – Appellant. 

Appeal from the United States District Court for the Southern 

District of West Virginia, at Huntington. Robert C. Chambers, 

District Judge. (3:08-cr-00120-1) 

Submitted: September 9, 2009 Decided: October 9, 2009 

Before WILKINSON, NIEMEYER, and KING, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

W. Michael Frazier, FRAZIER & OXLEY, L.C., Huntington, West 

Virginia, for Appellant. Charles T. Miller, United States 

Attorney, Lisa G. Johnston, Assistant United States Attorney, 

Huntington, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 Steven D. McCallister pled guilty without a plea 

agreement to unlawful possession of ammunition by a convicted 

felon in violation of 18 U.S.C. § 922(g)(1) (2006). The 

district court determined that McCallister falsely told the 

probation officer that the ammunition belonged to a friend, and 

maintained that position throughout sentencing, in an attempt to 

obtain a lower sentence. The court therefore denied 

McCallister’s request for a downward variance and instead 

imposed a seventy-five-month sentence, a variance above the 

guideline range of 51-63 months. McCallister appeals his 

sentence, contending that the district court committed 

significant procedural error by increasing his sentence without 

sufficient explanation and failed to consider either the 18 

U.S.C. § 3553(a) (2006) factors or the need to avoid sentencing 

disparity. We affirm. 

 The ammunition was found in McCallister’s car when he 

was arrested for a parole violation. McCallister’s girlfriend, 

Teddi Rose, testified before the grand jury that she saw the 

ammunition in the car that day and asked McCallister about it, 

and that he said he was going to sell it to a friend. In his 

interview with the probation officer, McCallister stated that 

the ammunition did not belong to him and that he intended to 

return it to the owner. At sentencing, McCallister requested a 

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downward variance from the advisory guideline range of 51-63 

months to a sentence of probation or a minimal term of 

imprisonment. During the first sentencing hearing, the district 

court adopted the presentence report and indicated that it would 

be inclined to vary below the guideline range if McCallister’s 

disclaimer of ownership were true, but was concerned about the 

discrepancy between his statement and Rose’s testimony. The 

court continued sentencing to allow the government to produce 

Rose as a witness and to allow McCallister to cross-examine her. 

The court warned McCallister that, if it should find that he had 

“frivolously contested this relevant conduct . . . he could 

certainly suffer consequences as a result[.]” 

 After Rose testified at the second sentencing hearing, 

the court found that her testimony was more credible than 

McCallister’s statement. The court found that McCallister 

“knowingly attempted to get this court to sentence [him] at a 

lower range by providing essentially a false story.” The court 

told McCallister that “[i]f someone takes [the] position that 

you’ve taken in the proceeding . . . back in December, and again 

today, and I believe it was falsely done, I think you have 

earned [an] additional penalty.” The court declined to vary 

downward as McCallister had requested, and instead imposed a 

variance sentence above the guideline range, noting that the 

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increase to a seventy-five-month term was the equivalent of a 

two-level increase in his offense level. 

 Appellate courts review a sentence for reasonableness, 

applying an abuse of discretion standard, whether the sentence 

is inside or outside the guideline range. Gall v. United 

States, 552 U.S. 38, ___, 128 S. Ct. 586, 591 (2007). First, we 

must “ensure that the district court committed no significant 

procedural error, such as . . . improperly calculating the 

Guidelines range.” Id. at 597; United States v. Osborne, 

514 F.3d 377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 

(2008). Procedural errors also include “failing to consider the 

§ 3553(a) factors, selecting a sentence based on clearly 

erroneous facts, or failing to adequately explain the chosen 

sentence.” Gall, 128 S. Ct. at 597. Further, a district court 

must provide an “individualized assessment” based upon the 

specific facts before it. “That is, the sentencing court must 

apply the relevant § 3553(a) factors to the specific 

circumstances of the case before it.” Id. at 598. “Such 

individualized treatment is necessary ‘to consider every 

convicted person as an individual and every case as a unique 

study in the human failings that sometimes mitigate, sometimes 

magnify, the crime and the punishment to ensue.’” United 

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting 

Gall, 128 S. Ct. at 597-98). In so doing, the district court 

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must “‘set forth enough to satisfy the appellate court that he 

has considered the parties’ arguments and has a reasoned basis 

for exercising his own legal decisionmaking authority.’” Id. 

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)). 

 Only after determining that no significant procedural 

error occurred will we review the substantive reasonableness of 

the sentence, “taking into account the ‘totality of the 

circumstances, including the extent of any variance from the 

[g]uidelines range.’” United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007) (quoting Gall, 128 S. Ct. at 597). 

 McCallister maintains that the district court 

procedurally erred by failing to make the necessary findings to 

support a two-level increase under U.S. Sentencing Guidelines 

Manual § 3C1.1 (Obstruction of Justice) (2008), without giving 

him notice of the facts warranting the enhancement and an 

opportunity to refute them. The district court was not required 

to give notice before imposing a variance sentence, as it did, 

rather than making an adjustment for obstruction of justice. 

Irizarry v. United States, 128 S. Ct. 2198, 2202-03 (2008) 

(holding that upward variances do not require Fed. R. Crim. P. 

32(h) notice). Nor would it have been required to give notice 

before determining that an adjustment applied under the 

sentencing guidelines. McCallister also argues that the court 

failed to make a finding of the elements of perjury to justify 

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the increase under United States v. Dunnigan, 507 U.S. 87, 94-95 

(1993). Dunnigan does not apply because the increase was not 

based on perjured testimony by McCallister, but rather on his 

false statement to the probation officer. 

 However, McCallister’s conduct did warrant an 

adjustment for obstruction of justice under § 3C1.1 based on the 

district court’s finding that he knowingly and falsely told the 

probation officer he did not own the ammunition found in his car 

and persisted in that falsehood through two sentencing hearings 

with the intention of obtaining a reduced sentence. Providing 

materially false information to a probation officer with respect 

to a presentence report, or to a judge, is conduct covered by 

USSG § 3C1.1. See USSG § 3C1.1, comment. (n.4(f), (h)). 

Material information, as used in § 3C1.1, means “information 

that, if believed, would tend to influence or affect the issue 

under determination.” USSG § 3C1.1, comment. (n.6); United 

States v. Gormley, 201 F.3d 290, 294-95 (4th Cir. 2000). 

McCallister’s false information was certainly material. The 

district court explicitly stated that it would have been 

inclined to vary below the guideline range if, as McCallister 

maintained, the ammunition in his car did not belong to him and 

he intended to return it to the owner. 

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 If the defendant engaged in conduct that warrants an 

adjustment, the sentencing court is obligated to make the 

adjustment. United States v. Ashers, 968 F.2d 411, 414 

(4th Cir. 1992). Because the district court did not give 

McCallister an adjustment for obstruction of justice after 

making findings that supported such an adjustment, the court did 

not properly calculate the guideline range. The court thus 

committed a significant procedural error. Gall, 128 S. Ct. at 

597. 

 However, the error benefited McCallister. If the 

court had given McCallister an adjustment for obstruction of 

justice, it likely would not have given him an adjustment for 

acceptance of responsibility because Application Note 4 to USSG 

§ 3E1.1 provides that “conduct resulting in an enhancement under 

§ 3C1.1 . . . ordinarily indicates that the defendant has not 

accepted responsibility for his criminal conduct.” A two-level 

increase for obstruction of justice, without a three-level 

reduction for acceptance of responsibility, would have resulted 

in a total offense level of 22 and a guideline range of 84-105 

months. The government has not raised the error on appeal. 

Therefore, we are precluded from noticing it. Greenlaw v. 

United States, 128 S. Ct. 2559 (2008) (holding that, when the 

government has not appealed or cross-appealed, an appellate 

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court may not increase a defendant’s sentence because of an 

error that benefited the defendant). 

 McCallister also contends that the district court 

erred in not discussing the § 3553(a) factors. The record 

discloses that the district court did not refer to § 3553(a) at 

either sentencing hearing. However, we conclude that the court 

did consider and “apply the relevant § 3553(a) factors to the 

specific circumstances of the case before it.” Carter, 564 F.3d 

at 328 (quoting Gall, 128 S. Ct. at 598). The reasons 

articulated by the district court for a given sentence need not 

be “couched in the precise language of § 3553(a),” so long as 

the “reasons can be matched to a factor appropriate for 

consideration . . . and [are] clearly tied [to the defendant’s] 

particular situation.” United States v. Moulden, 478 F.3d 652, 

658 (4th Cir. 2007). 

 Here, the court was most concerned with the nature and 

circumstances of the offense; that is, McCallister’s reason for 

having ammunition in his car. The court indicated that, if 

indeed the ammunition had been left there by his friend and he 

intended to do nothing with it but return it to the owner, then 

a downward variance might be warranted. On the other hand, if 

McCallister intended to sell or trade the ammunition, a 

guideline sentence would be appropriate. Ultimately, when the 

court decided that McCallister had presented a false story to 

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the court in an attempt to obtain a lower sentence, the court 

focused on the characteristics of the defendant, that is, his 

persistence in attempting to deceive the court, and on the need 

to provide just punishment for the offense. The court explained 

that, because McCallister was more than a passive possessor of 

the ammunition, a downward variance not warranted, and his 

attempt to deceive the court justified a sentence above the 

guideline range, as calculated by the court. 

 The court also specifically considered McCallister’s 

history in connection with his last argument, that the district 

court refused to consider the lenient sentence imposed on rapper 

Clifford Harris. McCallister’s contention is without merit 

because McCallister has not established that the rapper was a 

similarly situated defendant. The court explained to 

McCallister that he was facing a longer sentence than many 

defendants convicted of the same offense because of his serious 

criminal history. 

 On balance, we conclude that the court did not commit 

any significant procedural error in explaining its reasons for 

the sentence chosen. Further, the sentence was substantively 

reasonable because the upward variance punished McCallister to 

the same extent that an adjustment for obstruction of justice 

would have. In fact, as discussed above, in all likelihood the 

sentence is shorter than it would have been had the court given 

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McCallister an adjustment for obstruction of justice instead of 

varying above the guideline range as calculated by the court. 

 For the reasons discussed, we affirm the sentence 

imposed by the district court. 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