United States v. Timothy Eugene Heidt , 141 F. App'x 498 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2484
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Timothy Eugene Heidt, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: May 11, 2005
Filed: July 12, 2005
___________
Before MORRIS SHEPPARD ARNOLD, MURPHY, and BENTON, Circuit Judges.
___________
PER CURIAM.
Timothy Heidt appeals his sentence on two counts of making a false statement
to a licensed firearms dealer, see 18 U.S.C. §§ 922(a)(6), 924(a)(2), and one count of
possessing firearms and ammunition while being an unlawful user of marijuana, see
18 U.S.C. §§ 922(g)(3), 924(a)(2). We affirm.
Mr. Heidt first argues that the district court1 erred by increasing his offense
level for obstructing justice by perjuring himself at trial. See U.S.S.G. § 3C1.1. His
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
offense conduct included falsely answering "no" on two occasions to a question on
ATF Form 4473 that asked whether he was an unlawful user of marijuana. At trial,
Mr. Heidt testified that he had stopped using marijuana before he completed the ATF
forms, and that the dealer from whom he purchased the firearms told him that, under
those circumstances, he should deny that he was an unlawful user of marijuana. But
the government introduced into evidence a written statement that appeared to be
signed by Mr. Heidt and included an admission that he had used marijuana for one
year longer than the period to which he testified at trial, which would mean that he
still was using marijuana when he completed the ATF forms. Although Mr. Heidt
testified that he had not signed the statement and he disputed its accuracy, according
to the testimony of a police officer who interviewed him, the challenged statement
was the original of a document that Mr. Heidt had signed in the officer's presence.
Last, the dealer from whom Mr. Heidt purchased firearms testified that he never
advises customers about how to answer questions on the ATF forms other than to tell
them to answer honestly. In light of the contradictions between Mr. Heidt's testimony
and other evidence admitted at trial, the district court did not err when it found that
Mr. Heidt had perjured himself and thereby obstructed justice. See United States v.
Harris, 352 F.3d 362, 366-67 (8th Cir. 2003).
Mr. Heidt also contends that the district court violated his sixth amendment
rights by finding facts that resulted in an obstruction-of-justice adjustment to his
sentence. Because Mr. Heidt raises this issue for the first time on appeal, we review
for plain error. See United States v. Pirani, 406 F.3d 543, 548-50 (8th Cir. 2005) (en
banc). The district court sentenced Mr. Heidt before the Supreme Court's decision
in United States v. Booker, 125 S. Ct. 738 (2005), and erred by not sentencing him
under the advisory-guidelines scheme set out in that case. Nevertheless, Mr. Heidt
has not "demonstrated a reasonable probability that he would have received a more
favorable sentence with the Booker error eliminated," Pirani, 406 F.3d at 551;
nothing in the record indicates that the district court had any qualms about the
-2-
sentence that it imposed. Mr. Heidt therefore does not qualify for relief. See id. at
550-53.
Finally, Mr. Heidt argues that the district court violated his sixth amendment
rights by finding facts by a preponderance of the evidence instead of beyond a
reasonable doubt. As we held in Pirani, however, "[n]othing in Booker suggests that
sentencing judges are required to find sentencing-enhancing facts beyond a
reasonable doubt under the advisory Guidelines regime." Id. at 551 n.4. We
therefore conclude that the district court did not err.
Affirmed.
______________________________
-3-