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United States v. Mercer , 834 F.3d 39 ( 2016 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 15-1343
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    CRAIG MERCER,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. George Z. Singal, U.S. District Judge]
    Before
    Torruella, Lynch, and Barron,
    Circuit Judges.
    K. Hayne Barnwell for appellant.
    Margaret D. McGaughey, Assistant United States Attorney, with
    whom Thomas E. Delahanty II, United States Attorney, was on brief,
    for appellee.
    August 17, 2016
    BARRON, Circuit Judge.                 Craig Mercer challenges his
    conviction and sentence for possession of cocaine with intent to
    distribute.        Mercer raises a number of issues on appeal.                             They
    relate to the District Court's denial of a pre-trial motion to
    suppress, the conduct of the trial proceedings, and the District
    Court's sentencing determinations.                  Finding no errors, we affirm.
    I.
    On September 20, 2013, police pulled over the gold Saturn
    that   Mercer      was   driving,     arrested           Mercer   on     the       basis     of
    outstanding     warrants,      and    recovered,         among    other       things,      two
    ounces of cocaine from a search of the car.                            Authorities then
    charged   Mercer     with   one      count     of    possession        with    intent        to
    distribute    cocaine,      in   violation          of   
    21 U.S.C. §§ 841
    (a)(1),
    (b)(1)(C).
    Prior to trial, Mercer filed a motion to suppress the
    cocaine evidence on the ground that it was the fruit of an
    unconstitutional seizure of the Saturn.                   The District Court denied
    the motion to suppress on May 29, 2014.                       A jury trial was then
    held, resulting in Mercer's conviction.
    The    District     Court    sentenced           Mercer    to     a    term     of
    imprisonment of 41 months.            The District Court's sentence was at
    the top end of the range that the pre-sentence report ("PSR")
    calculated under the United States Sentencing Guidelines (the
    "Guidelines" or "U.S.S.G").            The PSR based that range on a total
    - 2 -
    offense level of 18, which included enhancements for obstruction
    of justice, U.S.S.G. §3C1.1, and possession of a dangerous weapon
    during the offense, U.S.S.G. §2B1.1(b)(1).           The District Court
    also sentenced Mercer to a term of supervised release of five years
    and assessed monetary penalties.       This appeal followed.
    II.
    We start with Mercer's challenge to the District Court's
    denial of his motion to suppress.              Mercer contends that the
    District Court erred in ruling that the stop of the Saturn was
    lawful.     On a suppression motion, we review findings of fact for
    clear     error   and   legal   conclusions,    including   the   ultimate
    reasonable suspicion determination, de novo.        See United States v.
    Chhien, 
    266 F.3d 1
    , 5 (1st Cir. 2001).             We conclude that the
    District Court did not err.
    Mercer concedes, as he must, that the stop was lawful if
    law enforcement had reasonable grounds to suspect that Mercer was
    in possession of drugs at the time that police made the stop.          See
    United States v. Arvizu, 
    534 U.S. 266
    , 273 (2002) ("[I]n brief
    investigatory stops of persons or vehicles, the Fourth Amendment
    is satisfied if the officer's action is supported by reasonable
    suspicion to believe that criminal activity 'may be afoot.'"
    (quoting United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989))).            But
    Mercer contends that the only basis law enforcement had for
    suspecting that Mercer would be in possession of such contraband
    - 3 -
    was his association with one man -- Richard Magee -- who law
    enforcement had reason to suspect was engaged in drug trafficking.
    And Mercer further contends that his mere association with Magee
    was not enough to justify the stop of the Saturn.    See Ybarra v.
    Illinois, 
    444 U.S. 85
    , 90-91 (1979) (holding that officers "had no
    reason to believe" that patron of tavern "had committed, was
    committing, or was about to commit" any crime, where officers "knew
    nothing in particular about [patron], except that he was present,
    along with several other customers, in a public tavern at a time
    when the police had reason to believe that the bartender would
    have heroin for sale"); cf. Sibron v. New York, 
    392 U.S. 40
    , 62
    (1968) ("The inference that persons who talk to narcotics addicts
    are engaged in the criminal traffic in narcotics is simply not the
    sort of reasonable inference required to support an intrusion by
    the police upon an individual's personal security.").
    The record shows, however, that the officers knew, at
    the time of the stop, that:
       Magee supplied cocaine to a person by the name of David
    Jones;
       Magee and Jones would sometimes consummate drug deals at
    Ruski's, a restaurant in Portland, Maine;
       Magee planned to supply cocaine to Jones at Ruski's on
    September 20, 2013;
    - 4 -
       Magee told Jones, in the course of an intercepted phone
    conversation that occurred on September 20, that he was
    running late to Ruski's, that Jones might want to come to
    Magee's house to consummate the drug deal, and that Jones
    should tell "Craig" to wait at Ruski's because he was still
    planning to go there;
       Magee at some point left his house and went to Ruski's,
    where agents observed a man -- whom we now know to be
    Mercer -- who "appeared to be waiting for someone" and who
    was "kind of pacing up and down the sidewalk";
       Magee,   upon   arriving    at     Ruski's,   approached   Mercer's
    Saturn, conversed with Mercer, and at one point "leaned
    inside the driver's window [of the Saturn], which was down,
    just for a moment";
       Magee then went inside Ruski's, gave a package to a female
    bartender, exited Ruski's, and conversed with Mercer yet
    again, at one point "leaning on the passenger door window"
    of the Saturn;
       Mercer shortly thereafter departed in his Saturn, without
    ever having entered Ruski's or interacted with anyone
    besides Magee; and
       Magee interacted with no one else at Ruski's.
    - 5 -
    We have little trouble concluding that law enforcement reasonably
    suspected a relatively close association between Mercer and Magee,
    given   the    content    of   the    September    20   conversation   and   the
    interactions between Mercer and Magee at Ruski's.                  We also have
    little trouble concluding further that, based on the circumstances
    under   which     Magee    and       Mercer    interacted,   law    enforcement
    reasonably suspected that Magee transferred cocaine to Mercer at
    Ruski's and that, accordingly, Mercer possessed cocaine at the
    time of the stop.
    In this regard, we note that while, on their own, the
    reference to "Craig" in the September 20 conversation and Mercer's
    behavior at Ruski's "could admit of several potentially innocent
    explanations," United States v. Tiru-Plaza, 
    766 F.3d 111
    , 121 (1st
    Cir. 2014), such facts could also "reasonably give rise to a
    suspicion" of criminal activity when taking into account the
    totality of the circumstances, 
    id.
                    The record shows that the
    reference to "Craig" was made in the context of a drug-related
    conversation (albeit between Magee and Jones) and that Magee
    instructed Jones to have "Craig" wait for him at Ruski's, a place
    where Magee had dealt drugs in the past.                 Moreover, the record
    shows that Magee briefly "leaned inside" the window of Mercer's
    Saturn and that Mercer never went inside Ruski's (which one might
    reasonably expect him to do if the visit were simply a social one).
    When viewed in context, then, the facts collectively establish
    - 6 -
    reasonable suspicion to believe that Mercer and Magee were engaged
    in a drug transaction at Ruski's.                    See United States v. Arnott,
    
    758 F.3d 40
    ,       44   (1st    Cir.    2014)       (stating    that   "reasonable
    suspicion      .    .    .    deals   with    degrees      of   likelihood,    not   with
    certainties or near certainties," and allows "police officers to
    draw    upon       their      experience       and    arrive     at    inferences     and
    deductions").
    In contending that law enforcement lacked reasonable
    suspicion to stop the Saturn, Mercer notes that officers did not
    actually observe any transfer of drugs and that the officer who
    testified      at       the   suppression     hearing       "never    testified   [that]
    Magee's hands or torso went inside the Saturn," which one might
    expect if there had been a transfer of drugs.                        But the officer at
    the suppression hearing testified that the observing officers'
    vantage points prevented them from being able to see either the
    interior of the Saturn or Magee hand anything off to Mercer.                         And
    the officer testified that it was "normal" for officers not to see
    the drugs involved in a drug deal.                         As nothing in the record
    renders this testimony incredible, we conclude that the features
    that    Mercer       emphasizes       do     not,    as    Mercer     contends,   negate
    - 7 -
    reasonable suspicion of a drug transfer.        See Arnott, 758 F.3d at
    44.1
    In sum, Mercer is not like the "unwitting tavern patron"
    in Ybarra.    Wyoming v. Houghton, 
    526 U.S. 295
    , 304 (1999).2             Nor
    was the interaction between Magee and Mercer one for which law
    enforcement   would   have   been   justified   in   suspecting    only   an
    innocent purpose.     Rather, law enforcement reasonably suspected
    that Mercer was going to Ruski's to participate in a drug deal and
    that a drug exchange actually occurred at Ruski's.                Thus, the
    District Court did not err in denying the suppression motion.
    1
    Mercer also notes that Magee did not actually refer to any
    drug deal at Ruski's besides the one with Jones (which apparently
    ended up taking place at Magee's house) and that officers did not
    observe Mercer engage in any obvious drug activity.       But the
    absence of these circumstances does not negate reasonable
    suspicion, given the picture created by the evidence as a whole.
    2
    This case is also a far cry from Reid v. Georgia, 
    448 U.S. 438
     (1980), on which Mercer also relies. There, the DEA stopped
    an individual in a Florida airport based on the fact that the
    person "appeared to . . . fit the so-called 'drug courier profile,'
    a somewhat informal compilation of characteristics believed to be
    typical of persons unlawfully carrying narcotics." 
    Id. at 440
    .
    The Court concluded that the circumstances underlying that profile
    were so general that they "describe[d] a very large category of
    presumably innocent travelers."     
    Id.
      Law enforcement did not,
    however, rely on a profile in this case. Rather, law enforcement
    relied on an "emerging tableau" of events that sufficed to create
    individualized reasonable suspicion. Chhien, 
    266 F.3d at 6
    .
    - 8 -
    III.
    Mercer's next challenge to his conviction concerns the
    government's purported violation of Fed. R. Crim. P. 16(a)(1)(B),
    a mandatory discovery rule.          That rule provides in relevant part:
    Upon a defendant's request, the government must disclose
    to the defendant . . . any relevant written or recorded
    statement by the defendant if the statement is within the
    government's possession, custody, or control; and the
    attorney for the government knows -- or through due
    diligence could know -- that the statement exists.
    
    Id.
        Mercer contends that the prosecution violated this rule by
    turning over too late a batch of Mercer's phone records.                   Mercer
    thus       seeks   reversal   on   the    ground   that   the   District   Court
    improperly permitted the prosecution to use a piece of the late
    disclosed evidence -- namely, a potentially incriminating text
    message -- in its rebuttal.
    "To succeed in obtaining a reversal on appeal [for a
    Rule 16 discovery violation], a defendant must prove both an abuse
    of discretion and prejudice."            United States v. Alvarez, 
    987 F.2d 77
    , 85 (1st Cir. 1993).            The government does not contest that a
    discovery violation occurred.3            Proceeding on the assumption that
    3
    The parties agree that a violation of the discovery rule
    occurred, but the record does not reveal when Mercer requested the
    relevant material, or when the District Court requested that the
    government provide such material in accordance with Fed. R. Crim.
    P. 16(a)(1)(B).   Nor does the record disclose by what date the
    government was supposed to provide such material to Mercer.
    Further, it is not clear from the record when the government
    actually disclosed the phone records. Mercer contends that the
    - 9 -
    one did occur, we nevertheless conclude that the District Court
    did not abuse its discretion in permitting the use of the text
    message.
    In deciding whether to permit the use of the text
    message, the District Court expressly asked trial counsel about
    prejudice.    Trial counsel's assertions of prejudice -- "my defense
    preparation     would   have       been    different"       and    "it   fundamentally
    changes in some way whether I would move toward, for example,
    recommending a plea disposition" -- were very generalized.                         See
    United States v. Arboleda, 
    929 F.2d 858
    , 864 (1st Cir. 1991)
    (noting, in finding no prejudice as would justify reversal on
    appeal,     that     trial     counsel's           generalized       allegations    of
    prejudice     --    that     the    defense        would    have     been   conducted
    "differently" -- were insufficient); United States v. Gladney, 
    563 F.2d 491
    , 494-95 (1st Cir. 1977) (concluding that the defendant's
    claim of prejudice, which "boil[ed] down to the argument that had
    his   [trial]      counsel   learned       earlier     of    the    [late   disclosed
    evidence] he might have advised a guilty plea and would, in any
    event, have insisted that his client not discredit himself by
    telling an obvious lie," was not "of sufficient moment to justify
    evidence was turned over five to seven business days before trial.
    But the record provides some indication that the evidence was
    turned over on October 21, 2014, which was two weeks -- or about
    ten business days -- before trial. Finally, the record does not
    reveal how much evidence was belatedly disclosed to Mercer.
    - 10 -
    a   reversal").         Moreover,      trial    counsel        never    requested     a
    continuance when confronted with the late disclosed evidence,
    which lends support to the conclusion that the District Court did
    not abuse its discretion.           Cf. Gladney, 563 F.2d at 494 ("[T]he
    district court did not abuse its discretion by admitting the [late
    disclosed evidence] after first inquiring about a continuance and
    being   advised    by     [the   defendant]     that     none     was    desired.").
    Finally, any prejudicial impact of the text message was undercut,
    as the properly disclosed evidence of Mercer's dealings with Magee
    arguably played a similar role as the text message in terms of
    refuting Mercer's defense to the cocaine possession count (which
    was based on an absence of knowledge of the cocaine). We therefore
    conclude that the District Court did not abuse its discretion in
    permitting the use of the text message.
    Mercer does also contend that the government acted in
    bad faith in disclosing the evidence when it did.                         See United
    States v. Delgado-Marrero, 
    744 F.3d 167
    , 198 (1st Cir. 2014).                       But
    even    assuming    the    government's        bad     faith    could     alter     our
    conclusion, the record does not support Mercer's contention in
    that regard.
    To be sure, it appears that the prosecutor could have
    discovered and disclosed the evidence earlier.                         But that fact
    alone    --     which     is     all    that     the     record        affirmatively
    supports -- does not itself establish bad faith.                   See 
    id.
     at 494
    - 11 -
    (contrasting lack of due diligence, which may or may not constitute
    bad faith, with the deliberate withholding of information, which
    is the prototypical example of bad faith).      And we have special
    reason to reject Mercer's claim of bad faith, as trial counsel not
    only did not allege bad faith, but also expressly conceded that
    the prosecutor was an "honest man" who legitimately communicated
    that he would not use the late disclosed evidence in his case-in-
    chief.   See Arboleda, 
    929 F.2d at 864
     ("No allegations that the
    government delayed production in bad faith were made by the
    defendants to the district court.      In fact, early on at trial[,]
    counsel for [one of the defendants] made clear he did not mean to
    impugn the government's motives, and he expressed no change in
    this opinion as the trial went on and disclosures increased.").4
    4  Relatedly, Mercer contends that his trial counsel was
    ineffective in failing to review the contents of the late disclosed
    evidence before trial and in failing to move for a continuance at
    trial once the government sought to exploit the late disclosed
    evidence in rebuttal. But there are significant uncertainties in
    the record that bear on whether trial counsel's performance was
    deficient and whether trial counsel's performance prejudiced
    Mercer. See, e.g., supra note 3. Accordingly, we follow our usual
    course and decline to decide this question on direct appeal,
    leaving any consideration of it to a collateral challenge, should
    Mercer choose to make one. See United States v. Kenney, 
    756 F.3d 36
    , 48-49 (1st Cir. 2014); United States v. Santiago-González, ___
    F.3d ___, 
    2016 WL 3162813
    , at *3 (1st Cir. 2016) (concluding that
    the record was too "undeveloped" to render the Court able to
    "reconstruct the circumstances of counsel's challenged conduct,
    and to evaluate the conduct from counsel's perspective at the time"
    (quoting Strickland v. Washington, 
    466 U.S. 668
    , 689 (1984))).
    Mercer may request that the District Court appoint counsel for
    him.
    - 12 -
    IV.
    Mercer's next challenge to his conviction is that the
    prosecutor improperly questioned him about facts not in evidence
    and thus violated his Sixth Amendment rights to confrontation and
    to an impartial jury.        Specifically, Mercer challenges the fact
    that the prosecutor questioned him about the extent of his phone
    interactions with Magee without having first developed a proper
    evidentiary foundation, such as by entering the underlying phone
    records into evidence.        See United States v. Ofray-Campos, 
    534 F.3d 1
    , 18 (1st Cir. 2008) ("The Sixth Amendment requires that the
    jury's verdict must be based solely upon the evidence developed at
    trial.").
    There was no objection to this line of questioning below,
    and so the parties agree that we review for plain error.             See
    United States v. Ríos-Hernández, 
    645 F.3d 456
    , 462 (1st Cir. 2011)
    ("A party seeking to survive the onerous challenge of plain error
    review 'must show: (1) that an error occurred (2) which was clear
    and obvious and which not only (3) affected the defendant's
    substantial rights, but also (4) seriously impaired the fairness,
    integrity,     or   public   reputation    of   judicial   proceedings.'"
    (quoting United States v. Ahrendt, 
    560 F.3d 69
    , 76 (1st Cir.
    2009))).    We find none.
    Given the other evidence tying Mercer to Magee, such as
    the officers' observations of the two acting suspiciously in the
    - 13 -
    immediate run-up to Mercer's arrest, Mercer's bare assertion that
    the jury was likely influenced by the line of questioning at issue
    is   insufficient      to   show    that     his     substantial   rights    were
    prejudiced.      See United States v. Rodríguez, 
    525 F.3d 85
    , 97 (1st
    Cir. 2008) ("The mere possibility that the jury may have speculated
    [about the insinuations created by evidence that should not have
    been admitted] does not rise to the level of plain error.").
    V.
    We now turn to Mercer's challenges to his sentence. None
    have merit.
    A.
    Magee first contends that the District Court erred by
    applying      the      sentencing          enhancement       set    forth        in
    U.S.S.G.     §2D1.1(b)(1)     --     the      so-called      dangerous      weapon
    enhancement.        Under   the    terms    of     that   enhancement,   "[i]f    a
    dangerous weapon (including a firearm) was possessed" in the
    offense, the defendant's base offense level is increased by two
    levels.    Id.      Here, Mercer was in possession of a padlock in a
    bandana ("padlock-bandana") at the time of the arrest.                   On that
    basis, the District Court applied the dangerous weapon enhancement
    to Mercer.
    Mercer objected to the application of the enhancement
    below.    We thus review the District Court's legal determinations,
    including the applicability of the enhancement, de novo, and we
    - 14 -
    review the District Court's factual determinations, which must be
    supported by a preponderance of the evidence, for clear error.
    United States v. Lagasse, 
    87 F.3d 18
    , 21 (1st Cir. 1996).                           We
    conclude that the District Court did not err.
    We set forth the framework for applying the enhancement
    in United States v. McDonald, 
    121 F.3d 7
     (1st Cir. 1997).                      Once
    the government proves that "a [weapon] possessed by the defendant
    was present during the commission of the offense," "the burden
    shifts   to    the     defendant    to     persuade   the     factfinder     that   a
    connection between the weapon and the crime is clearly improbable."
    
    Id. at 10
    .
    Mercer    asks   us   to     "reconsider"      the   burden-shifting
    framework     in   McDonald    because      he    contends    that   it   "unfairly
    relieves    the    Government       from    proving   this     enhancement     by    a
    preponderance of the evidence, violating due process."                    But "[w]e
    are precluded from considering that argument by the law of the
    circuit[,] under which we are 'bound by a prior panel decision,
    absent any intervening authority.'"                United States v. Oliveira,
    
    493 F. App'x 145
    , 146 (1st Cir. 2012) (quoting United States v.
    Grupee, 
    682 F.3d 143
    , 149 (1st Cir. 2012)); United States v.
    Napolitan, 
    762 F.3d 297
    , 309-10 (3d Cir. 2014).
    Mercer    does    not      challenge     the     District      Court's
    conclusion      that    a   padlock-bandana        constitutes       a    "dangerous
    weapon."      Nor does Mercer contest that he was in possession of a
    - 15 -
    padlock-bandana at the time of his arrest.                The only question for
    us, then, is whether the District Court clearly erred in concluding
    that   Mercer    did    not   "demonstrat[e]     the      existence    of   special
    circumstances that would render it 'clearly improbable' that the
    weapon's presence has a connection" to the offense of conviction.
    United States v. Corcimiglia, 
    967 F.2d 724
    , 728 (1st Cir. 1992);
    United   States    v.    Preakos,       
    907 F.2d 7
    ,    9    (1st   Cir.   1990)
    (identifying the standard as one of clear error).                  We cannot say
    that the District Court did.
    The    District       Court    reasonably      found    that     Mercer's
    contention that he carried the padlock-bandana for purposes of his
    job providing security services for escorts and not for purposes
    of drug trafficking "merely indicates [that Mercer] uses [the
    padlock-bandana] for multiple purposes."                  See United States v.
    Quiñones-Medina, 
    553 F.3d 19
    , 24 (1st Cir. 2009) ("The presence of
    an alternative basis for the possession of a weapon does not render
    a finding of a protection-related purpose clearly erroneous.");
    United   States    v.    Ruiz,    
    905 F.2d 499
    ,      508   (1st   Cir.   1990)
    (concluding that the connection between a weapon and a drug offense
    was not vitiated solely by the fact that the defendant "was
    compelled to carry the [weapon] by virtue of his employment" as a
    law enforcement officer). The District Court also reasonably found
    that drug dealers use weapons "to protect themselves and the drugs
    from outside parties" and thus that Mercer's friendly relationship
    - 16 -
    with his drug trafficking partners did not negate the connection
    between the padlock-bandana and the offense of conviction.                  See
    Preakos, 
    907 F.2d at 9
     (concluding that "the district court was
    permitted to make the reasonable inference that defendant used one
    or more of the firearms [found] to protect his drug operation,"
    where the defendant was involved in a long-standing conspiracy to
    distribute cocaine with several other partners); cf. Quiñones-
    Medina, 
    553 F.3d at 24
     (noting that the presence of a weapon is
    made more foreseeable by the fact that the value of the contraband
    is "substantial").      Finally, the District Court reasonably found
    that Mercer's weapon of choice -- a padlock-bandana as opposed to
    a firearm -- did not undermine the application of the enhancement,
    as Mercer concedes that he used the padlock-bandana for at least
    some protection purposes (namely, the protection of escorts as
    part of a security job). Thus, Mercer's challenge to the dangerous
    weapon enhancement fails.
    B.
    Mercer also contends that the District Court erred in
    applying     the     sentencing       enhancement         set     forth      in
    U.S.S.G.    §3C1.1      --   the    so-called       obstruction-of-justice
    enhancement -- to him.       That enhancement applies "[i]f (1) the
    defendant   willfully    obstructed       or   impeded,   or    attempted    to
    obstruct or impede, the administration of justice . . . , and (2)
    the obstructive conduct related to . . . the defendant's offense
    - 17 -
    of conviction."       Id.     The obstruction-of-justice enhancement "is
    not   intended   to    punish       a   defendant    for   the   exercise      of    a
    constitutional right."            U.S.S.G. §3C1.1, cmt. 2.       The enhancement
    does apply, however, if a defendant exercises his right to testify
    at trial but commits perjury in the process.                Id. cmt. 4.
    The parties agree that, if Mercer has not waived this
    claim,   we   review        the    District      Court's   application    of    the
    enhancement for plain error, given the absence of an objection
    below.   We conclude that the District Court did not plainly err.
    In concluding that the enhancement applied, the District
    Court found that Magee "perjured himself during trial."                             In
    reaching this conclusion, the District Court adopted the PSR's
    account as to the manner in which Magee committed perjury.                      The
    PSR provided in relevant part:
    During   his  trial,   Mercer   testified   untruthfully.
    Specifically, he asserted that he never received drugs
    from Richard Magee.        The evidence in this case
    established that Magee did supply drugs to Mercer. Based
    on the foregoing, since the defendant provided materially
    false information during his trial, he is subject to [the
    enhancement].
    Mercer contends that the District Court erred by not
    independently making the findings necessary to warrant application
    of the enhancement.         But the District Court was free to accept the
    undisputed portions of the PSR as findings of fact.                 See Fed. R.
    Crim. P. 32(i)(3) (providing that district courts "may accept any
    undisputed portion of the presentence report as a finding of
    - 18 -
    fact").   And, to the extent that Magee means to contend that the
    District Court did not make the findings necessary to support the
    finding that perjury occurred, we disagree.
    A finding of perjury is sufficiently supported where a
    sentencing court makes findings that "encompass all the elements
    of perjury -- falsity, materiality, and willfulness."                      United
    States v. Matiz, 
    14 F.3d 79
    , 84 (1st Cir. 1994).                   "A sentencing
    court, however, is not required to address each element of perjury
    in a separate and clear finding.           In fact, the [Supreme] Court in
    [United States v. Dunnigan, 
    507 U.S. 87
     (1993)] affirmed a district
    court's finding [of perjury] that did not use the term willful."
    
    Id.
     (citation omitted).
    Here,   the   District     Court   found    that     Magee     provided
    "materially false" testimony when "he asserted that he never
    received drugs from Richard Magee."            The nature of the material
    falsehood in this case is not one in which the willfulness of the
    falsehood could reasonably be questioned.          We thus do not perceive
    any basis for concluding that the District Court, relying on the
    PSR and its assessment of the defendant's testimony, failed to
    make the requisite findings to support a finding of perjury.                  See
    Matiz, 
    14 F.3d at 84
     (affirming district court's finding of perjury
    even   though   "the   court   was   not    explicit   as     to   whether   [the
    defendant's]     testimony     was    material"       because      "the    record
    demonstrate[d]" that the testimony was material).
    - 19 -
    Mercer      also   contends     that   the    District     Court's
    application of the enhancement impermissibly punished him for
    testifying and presenting his defense. But Mercer has no protected
    right to provide testimony that qualifies as perjury, see United
    States v. Shinderman, 
    515 F.3d 5
    , 20 (1st Cir. 2008), and Mercer
    does not contest the District Court's perjury finding.                      Thus,
    Mercer's    challenge      to   the   obstruction-of-justice        enhancement
    fails.
    C.
    That brings us to Mercer's contention that the District
    Court erred in relying upon dismissed charges in sentencing Mercer.
    The parties agree that we review for plain error, as there was no
    objection below.
    The   District     Court   referred    to    Mercer's    dismissed
    charges at two points during Mercer's sentencing proceeding.                 The
    District Court first referred to dismissed charges in the context
    of   concluding       that      Mercer's     criminal     history     was     not
    overrepresented and thus that Mercer was not entitled to a downward
    departure    in    his    criminal    history   category.      See     U.S.S.G.
    §4A1.3(b).    In that regard, the District Court stated:
    And then I look at other criminal conduct here, multiple
    charges of -- though I understand they're dismissed,
    including in 2012 an unlawful possession of a scheduled
    drug. And that's an interesting charge. The time -- the
    conduct indicates he was detained for speeding and
    operating a motorcycle recklessly in a residential
    neighborhood. He tells the policeman that he has a knife
    - 20 -
    in his pocket. Now, this is in spite of the fact he had
    a long history of weapons offenses. And the policeman
    takes the knife, thinking that the white residue is
    cocaine. Defendant admitted to law enforcement that he
    was a cocaine user, which indicates that he was in
    possession of cocaine, clearly, again another violation
    of the law. Apparently the white substance turned out
    to be lidocaine, not cocaine. This is not an individual
    who apparently learns from experiences.
    The District Court then stated: "And then going into dismissed
    conduct, we've got the knife again in 2012 and this offense in
    2013."
    At no point, however, did the District Court rely on
    Mercer's dismissed charges.     The District Court instead merely
    referred to Mercer's dismissed charges in the course of relying on
    certain conduct that took place in connection with the dismissed
    charges. Because that conduct was set forth in undisputed portions
    of the PSR, the District Court was entitled to rely on that conduct
    when sentencing Mercer.    See Fed. R. Crim. P. 32(i)(3); United
    States v. Cortés-Medina, 
    819 F.3d 566
    , 570 (1st Cir. 2016).      We
    thus perceive no plain error.      See United States v. Paneto, 
    661 F.3d 709
    , 716 (1st Cir. 2011).5
    VI.
    For the reasons given, we affirm.
    5 Mercer's argument that the Fifth and Sixth Amendments of
    the U.S. Constitution require that the facts comprising the
    dangerous weapon enhancement and the obstruction-of-justice
    enhancement be found by a jury beyond a reasonable doubt is
    foreclosed by our precedent. See United States v. Rivera-Rivera,
    
    555 F.3d 277
    , 292 (1st Cir. 2009).
    - 21 -