United States v. Rita Nzeribe Udom ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13612 JUNE 8, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00016-CR-1-DHB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RITA NZERIBE UDOM,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 8, 2005)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Rita Nzeribe Udom appeals her conviction and sentence for
unlawfully dispensing controlled substances, in violation of 21 U.S.C. § 841(a)(1).
On appeal, she challenges (1) her two-level enhancement for obstruction of justice
and (2) her sentence under the guidelines pursuant to United States v. Booker, 543
U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).
I.
Udom argues that the district court failed to make specific findings to
support an obstruction of justice enhancement, which was insufficient for
imposition of the enhancement. She asserts that she made specific objections to
each allegation of obstruction and requested that the district court make
particularized findings, which the district court failed to do.
“This Court reviews the district court’s interpretation and application of the
sentencing guidelines de novo.” United States v. Machado, 333 F.3d 1225, 1227
(11th Cir. 2003). When reviewing the application of U.S.S.G. § 3C1.1, we have
determined
Where the district court must make a particularized assessment of the
credibility or demeanor of the defendant, we accord special deference to
the district court’s credibility determinations, and we review for clear
error. Conversely, where the defendant’s credibility or demeanor is not
at issue, and the defendant’s conduct can be clearly set forth in detailed,
non-conclusory findings, we review de novo the district court’s
application of the enhancement.
United States v. Amedeo, 370 F.3d 1305, 1318 (11th Cir. 2004) (citations and
quotations omitted). Section 3C1.1 provides that a two-level enhancement may be
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applied to the base offense level if “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 . . .” U.S.S.G. § 3C1.1. The
commentary to § 3C1.1 cites “committing, suborning, or attempting to suborn
perjury” and “providing materially false information to a judge or magistrate” as
examples of conduct to which the enhancement applies. See id., cmt. n.4(b), (f).
“[T]he threshold for materiality under the commentary to § 3C1.1 is
‘conspicuously low.’” United States v. Odedina, 980 F.2d 705, 707 (11th Cir.
1993) (quoting United States v. Dedeker, 961 F.2d 164 (11th Cir. 1992)).
The Supreme Court has held that
if a defendant objects to a sentence enhancement resulting from her trial
testimony, a district court must review the evidence and make
independent findings necessary to establish a willful impediment to or
obstruction of justice, or an attempt to do the same, under the perjury
definition we have set out. When doing so, it is preferable for a district
court to address each element of the alleged perjury in a separate and
clear finding. The district court’s determination that enhancement is
required is sufficient, however, if . . . the court makes a finding of an
obstruction of, or impediment to, justice that encompasses all of the
factual predicates for a finding of perjury.
United States v. Dunnigan, 507 U.S. 87, 95, 113 S. Ct. 1111, 1117, 122 L. Ed. 2d
445 (1993) (citations omitted). “[C]ourts must not speculate concerning the
existence of a fact which would permit a more severe sentence under the
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guidelines.” United States v. Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999)
(quotation omitted).
After reviewing the record, we conclude that the district court did not err by
enhancing Udom’s sentence for obstruction of justice. While the district court
viewed the entirety of Udom’s conduct as warranting the enhancement, it
specifically pointed to her encouraging her assistant to lie to the grand jury as
sufficient conduct for the enhancement. The district court did not have to
speculate regarding Udom’s suborning or attempt to suborn the perjury, as the
government produced a tape of the relevant conversation at trial. Because the
conduct did not result from her trial testimony, it was not necessary for the district
court to make specific factual findings. Additionally, Udom’s untruthful
statements to the magistrate judge regarding her children and the conditions of her
bond were cited as the factual basis for the enhancement. The record supports the
conclusion that Udom lied to the magistrate judge. This conduct was sufficient to
impose an obstruction of justice enhancement. Therefore, the district court did not
err by enhancing Udom’s sentence for obstruction of justice.
II.
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Udom argues that the district court plainly erred under Booker by
“calculating her sentence pursuant to the Federal Sentencing Guidelines in
violation of the Sixth Amendment.”
A timely constitutional objection, such as one referring to the Sixth
Amendment, Apprendi or other related cases, or the right to have the jury decide
the disputed fact, or raise a challenge to the role of the judge as factfinder with
regard to sentencing, is necessary to preserve Booker error. See United States v.
Dowling, 403 F.3d 1242, 1246-47 (2005). “An appellate court may not correct an
error the defendant failed to raise in the district court unless there is: (1) error, (2)
that is plain, and (3) that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 1247 (citations and quotations omitted).
Under Booker, the first two prongs are satisfied where “under a mandatory
guidelines system, [a defendant’s] sentence was enhanced as a result of findings
made by the judge that went beyond the facts admitted by the defendant or found
by the jury” and the error is plain at the time of appeal. United States v.
Rodriguez, 398 F.3d 1291, 1298-99 (11th Cir.), petition for cert. filed, No. 04-
1148 (U.S. Feb. 23, 2005) (emphasis in original). As to the third prong, “the
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defendant bears the burden of persuasion with respect to prejudice, and that he
cannot survive plain error analysis unless he can show there is a reasonable
probability of a different result if the guidelines had been applied in an advisory
instead of binding fashion by the sentencing judge in this case.” Dowling, 403
F.3d at 1247 (quotation omitted). We have generally held that absent evidence in
the record that the district court might have imposed a different sentence under the
new advisory guidelines regime, the defendant cannot satisfy the third prong. See,
e.g., id.; United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005); United
States v. Duncan, 400 F.3d 1297, 1302-04 (11th Cir. 2005).
We conclude from the record that the district court did not violate Booker
by sentencing Udom under the guidelines. Udom did not object on constitutional
grounds at sentencing, but on the factual basis, making plain error the standard of
review. Under Booker, the first two prongs of plain error are satisfied. However,
Udom failed to establish the third prong. She did not point to any evidence in the
record demonstrating “a reasonable probability of a different result if the
guidelines had been applied in an advisory instead of binding fashion by the
sentencing judge in this case.” Dowling, 403 F.3d at 1247. A review of the
sentencing transcript does not reveal any indication that the district court would
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have imposed a lower sentence had the guidelines been advisory. Therefore, the
district court did not plainly err by sentencing Udom under the guidelines.
For the foregoing reasons, we affirm Udom’s sentence.
AFFIRMED.
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