IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-21140 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRAVIS BYRD,

Defendant-Appellant.

Appeals from the United States District Court for the Southern District of Texas USDC No. H-00-339

November 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Travis Byrd was convicted by a jury of aiding and abetting the

possession with intent to distribute 500 grams or more of cocaine.

He appeals his conviction and sentence on multiple grounds.

We find that the district court did not abuse its discretion

by denying Byrd's request for a continuance after the district

court granted his motion to substitute counsel on the first day of

trial. "Generally, a district court's refusal to continue a case

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. to accommodate an attorney brought in at the last minute is not an

abuse of discretion."1 Byrd has not demonstrated that the denial

resulted in specific and compelling or serious prejudice based on

a purported lack of time for his new counsel to investigate alleged

fact issues or to locate unidentified, out-of-state witnesses.2

Because the district court did not arbitrarily or unreasonably

refuse to grant a continuance, Byrd's conviction is AFFIRMED.3

Byrd's argument that the district court committed an Apprendi

error by sentencing him for a quantity of drugs not proven to the

jury beyond a reasonable doubt which resulted in a penalty above

the prescribed statutory maximum is without merit. Byrd was

indicted for aiding and abetting the possession with intent to

distribute 500 grams or more of cocaine in violation of

(a)(1) and 841(b)(1)(B)(ii) and

, and the

quantity issue was submitted to the jury. Byrd was sentenced to

235 months' imprisonment, but the statutory maximum under

1 United States v. Pollani,

(5th Cir. 1998). 2 See United States v. Barnett,

(5th Cir. 1999), cert. denied,

(2000); United States v. Hughey,

(5th Cir. 1998); United States v. Krout,

(5th Cir. 1995). 3 See Hughey,

.

2 841(b)(1)(B)(ii) is 40 years.4 As such, there can be no Apprendi

error in his sentence.5

Where Byrd put the government to its proof at trial, the

district court did not clearly err in denying Byrd's requested

offense-level reduction for acceptance of responsibility.6 That

Byrd "accepted" the jury's verdict and cooperated with the

probation officer during the interview conducted to prepare the PSR

does not alter this conclusion.7

Finally, we reject Byrd's contention that the district court

erred by increasing his offense level by two points for obstruction

of justice based on his perjury at trial. The district court

adopted the PSR and thereby adopted the findings therein, including

that Byrd made statements at trial which proved to be untrue, and

Byrd failed to proffer adequate rebuttal evidence, relying entirely

on his unsworn objection to the obstruction of justice

enhancement.8 The district court also made a finding by orally

4

(b)(1)(B). 5 United States v. Garcia,

(5th Cir. 2001). 6 United States v. Brenes,

(5th Cir. 2001); United States v. Anderson,

(5th Cir. 1999); United States v. Crow,

(5th Cir. 1999). 7 See Brenes,

; United States v. Fox,

(5th Cir. 2001). 8 See United States v. Huerta,

(5th Cir. 1999); United States v. Cabral-Castillo,

(5th Cir. 1994).

3 rejecting Byrd's objection to the PSR's recommendation that a two-

point enhancement for obstruction of justice be imposed.9

The district court did not clearly err in its finding that

Byrd obstructed justice by lying on the stand. Contrary to Byrd's

claims, the district court was not required to identify specific

perjurious statements.10 "Although the district court made no

explicit findings as to the materiality of the perjurious

statements, it is clear to us, as a matter of law, that those

statements were material."11 Moreover, insofar as Byrd failed to

object to the district court's failure to make explicit findings of

perjury or, more specifically, materiality and specific intent to

obstruct justice or willful intent to provide false testimony, we

review only for plain error.12 We conclude that the district

court's finding of obstruction of justice in this case was not

clear error, much less plain error.13 The finding of obstruction

of justice based on perjury is plausible in the light of the record

9 United States v. Thomas,

, 1368 n.32 (5th Cir. 1994). 10 United States v. Gonzalez,

(5th Cir. 1998). 11 United States v. Haas,

(5th Cir. 1999); see also United States v. Como,

(5th Cir. 1995). 12 Huerta,

. 13 See id.; Haas,

; United States v. Powers,

(5th Cir. 1999); United States v. Morris,

(5th Cir. 1997).

4 as a whole, and the application of the enhancement to Byrd's

sentence did not result in a miscarriage of justice. Accordingly,

Byrd's sentence is AFFIRMED.

5