Vacated by Supreme Court, January 24, 2005

                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 03-4832



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


HENRY HILL, SR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Robert E. Payne, District
Judge. (CR-03-59)


Submitted:   April 28, 2004                 Decided:   July 29, 2004


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Craig W. Sampson, SAMPSON LAW FIRM, P.L.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Sara E. Flannery, Assistant United States Attorneys,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Henry Hill, Sr., appeals his conviction and sentence for

conspiracy to possess with intent to distribute and distribution of

cocaine base, in violation of 21 U.S.C. § 846 (2000).                  Hill argues

the district court erred by enhancing his sentence for obstruction

of justice based on perjury pursuant to U.S. Sentencing Guidelines

Manual § 3C1.1 (2002) and that his conspiracy conviction is not

supported by sufficient evidence.                We affirm.    Counsel also filed

a motion to withdraw from representation and for substitution of

counsel, and Hill filed a response in which he requests that this

Court compel his attorney to provide him a complete copy of his

legal file.

              We   review     a     district      court’s   application    of    the

sentencing guidelines with regard to factual determinations for

clear error, while legal conclusions are reviewed de novo.                     United

States   v.    Wilson,      

,    471   (4th   Cir.   1999).      The

determination of whether a defendant committed perjury is a factual

issue and, therefore, will be disturbed only if clearly erroneous.

United States v. Murray, 

, 1165 (4th Cir. 1995).

Perjury is established when it is found by a preponderance of the

evidence that a witness who testifies under oath or affirmation:

(1) gives false testimony; (2) concerning a material matter;

(3) with the willful intent to deceive, rather than as a result of

confusion or mistake.             United States v. Jones, 

, 428


                                          - 2 -
n.2 (4th Cir. 2002) (citing United States v. Dunnigan, 

,

92-98 (1993)), cert. denied, 

 (2003).                  Likewise, U.S.

Sentencing Guidelines Manual § 3C1.1 provides:

            If (A) the defendant willfully obstructed or
            impeded, or attempted to obstruct or impede,
            the administration of justice during the
            course of the investigation, prosecution, or
            sentencing   of   the   instant   offense   of
            conviction, and (B) the obstructive conduct
            related to (i) the defendant’s offense of
            conviction and any relevant conduct; or (ii) a
            closely related offense, increase the offense
            level by 2 levels.

(emphasis in original).        A matter is material if it “would tend to

influence    or    affect    the   issue   under      determination.”        United

States v. Quinn, 

, 681 (4th Cir. 2004) (quoting USSG §

3C1.1, comment. (n.6)).

            We find that because Hill willfully gave false testimony

at a sentencing hearing regarding material matters, the district

court did not clearly err by enhancing his sentence for obstruction

of justice based on perjury pursuant to USSG § 3C1.1.

            Hill    also    argues   there      is   insufficient     evidence     to

support his conspiracy conviction.              “The verdict of a jury must be

sustained if there is substantial evidence, taking the view most

favorable to the Government, to support it.”                     Glasser v. United

States, 

, 80 (1942).                 Substantial evidence is “that

evidence    which   ‘a     reasonable    finder      of   fact    could   accept   as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.’”              United States v. Newsome, 322

                                        - 3 -
F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos, 

, 862-63 (4th Cir. 1996) (en banc)).                        It is well-settled

that   facts     may    be    proven      by   both      circumstantial        and   direct

evidence.      Newsome, 322 F.3d at 334.

            To    prove       a     conspiracy      to      distribute    a    controlled

substance, the Government must establish that: (1) two or more

persons agreed to distribute the substance; (2) the defendant knew

of the conspiracy; and (3) the defendant knowingly and voluntarily

became part of the conspiracy.                 Burgos, 94 F.3d at 857.

            We    find       that    several      witnesses         provided    testimony

establishing Hill at least implicitly agreed to distribute crack

cocaine   with    his     son     and     nephew,     that     he   was   aware      of   the

conspiracy, and that he knowingly and voluntarily entered into it.

Thus, we conclude there is sufficient evidence to support Hill’s

conspiracy conviction.              Accordingly, we affirm Hill’s conviction

and sentence.          We deny counsel’s motion to withdraw and for

substitution of counsel and Hill’s motion to compel his attorney to

provide him a complete copy of his legal file.                        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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