United States of America v. Yonel Astello-Posada, a/k/a Johnny B, a/k/a Spike

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4982
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YONEL ASTELLO-POSADA, a/k/a Johnny B, a/k/a Spike,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:08-cr-00010-RLV-DSC-5)
Submitted: January 25, 2011 Decided: February 10, 2011
Before DUNCAN, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Tony E. Rollman, Asheville, North Carolina, for Appellant. Amy
Elizabeth 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Unpublished opinions are not binding precedent in this circuit.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:
Yonel Astello-Posada was convicted by a jury of one
count of conspiracy to possess with intent to distribute cocaine
and methamphetamine, in violation of 21 U.S.C. § 846 (2006). He
was sentenced to 188 months’ imprisonment. Astello-Posada’s
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738, 744 (1967), stating that there were no meritorious issues
for appeal, but questioning whether the district court erred in
enhancing Astello-Posada’s offense level by two levels for
obstruction of justice, pursuant to U.S. Sentencing Guidelines
Manual (“USSG”) § 3C1.1 (2008). Astello-Posada was advised of
his right to file a pro se supplemental brief but did not do so.
We affirm.
According to USSG § 3C1.1, a defendant’s base offense
level is to be increased two levels for obstruction of justice
if
the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of
justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and . . . the obstructive conduct related
to (i) the defendant’s offense of conviction[.]
USSG § 3C1.1. The application notes for § 3C1.1 specifically
include the commission of perjury by defendant as grounds for
the enhancement. USSG § 3C1.1 cmt. n.4(b). For purposes of
§ 3C1.1, the Supreme Court has defined perjury in the following

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manner: “[a] witness testifying under oath or affirmation” and
“false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993).
After a thorough review of the record, we find there
was substantial evidence that Astello-Posada gave false
testimony on a material matter — whether he withdrew his consent
to the search of his residence — and there is no evidence that
the false testimony was the result of confusion, mistake, or
faulty memory. Therefore, we hold that the district court’s
enhancement for obstruction of justice was not in error.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Astello-Posada’s conviction and 188-month
sentence. This court requires that counsel inform
Astello-Posada, in writing, of his right to petition the Supreme
Court of the United States for further review. If
Astello-Posada requests that a petition be filed, but counsel
believes that such a petition would be frivolous, counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Astello-Posada. We dispense with oral argument because the
facts and legal conclusions are adequately presented in the

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materials before the court and argument would not aid the
decisional process.
AFFIRMED

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