United States v. Tiffany Jones ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIFFANY NICOLE JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:11-cr-00011-JPB-DJJ-1)
Submitted: June 29, 2012 Decided: July 6, 2012
Before DUNCAN and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated and remanded in part by unpublished
per curiam opinion.
Nicholas J. Compton, Assistant Federal Public Defender,
Martinsburg, West Virginia, for Appellant. William J.
Ihlenfeld, II, United States Attorney; Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tiffany Nicole Jones appeals her conviction for
distribution of cocaine base (“crack”), in violation of 21
U.S.C. § 841 (2006), and sentence of sixty months’ imprisonment.
We affirm the conviction, but vacate the sentence and remand for
resentencing.
First, Jones challenges her conviction, arguing that
the district court’s evidentiary ruling related to the
admissibility of a witness’s prior conviction was error. We
review a district court’s evidentiary rulings for abuse of
discretion. United States v. Byers, 649 F.3d 197, 206 (4th
Cir.), cert. denied, 132 S. Ct. 468 (2011). After reviewing the
record, we conclude that the district court did not abuse its
discretion in finding that the evidence was inadmissible. We
therefore affirm Jones’s conviction.
Jones next challenges her sentence, asserting that she
was improperly denied the benefit of the Fair Sentencing Act of
2010 (“FSA”). In light of Dorsey v. United States, 567 U.S. ,
2012 WL 2344463 (U.S. June 21, 2012), we agree. Jones’s offense
conduct occurred in 2008, before the enactment of the FSA, but
she was sentenced in 2011 — after the enactment of the FSA.
Under Dorsey, Jones is within the class of defendants to whom
the FSA applies. Because the FSA applies to Jones’s sentence,
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it was error for the district court to apply the pre-FSA’s
statutory mandatory minimum of sixty months’ imprisonment.
Jones also asserts error in the district court’s
imposition of a two-level enhancement for obstruction of
justice. We review a sentence for reasonableness using a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In determining procedural
reasonableness, we initially consider whether the court properly
calculated the Guidelines range. Id. at 49-51. We conclude
that the district court committed procedural error in its
imposition of the enhancement.
A defendant’s offense level may be increased two
levels 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.” U.S. Sentencing Guidelines
Manual § 3C1.1 (2011). We recently held in United States v.
Perez, 661 F.3d 189, 192 (4th Cir. 2011), that to impose the
enhancement based on perjury, “the sentencing court must find
that the defendant (1) gave false testimony; (2) concerning a
material matter; (3) with willful intent to deceive.” Id. at
192 (internal quotation marks and alteration omitted). “If a
district court does not make a specific finding as to each
element of perjury, it must provide a finding that clearly
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establishes each of the three elements.” Id. at 193 (emphasis
original). The district court’s explanation does not clearly
establish each of the required elements. * We thus conclude that
the district court procedurally erred in applying the
enhancement.
Accordingly, we affirm Jones’s conviction. We vacate
her sentence and remand for resentencing in light of Dorsey
and Perez. 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 IN PART,
VACATED AND REMANDED IN PART
*
We express no opinion as to whether the facts of this case
support the enhancement, but merely conclude that the district
court failed to make the findings required by Perez. On remand,
the court is free to consider anew whether the enhancement is
applicable.
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