United States v. Obayanju

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4369
AKINOLA OBAYANJU,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-96-453)
Submitted: September 29, 1998
Decided: October 23, 1998
Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Phillip M. Sutley, Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Andrew C. White, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Akinola Obayanju was convicted by a jury of three counts of
assaulting a federal officer in violation of 18 U.S.C.A. § 111 (West
Supp. 1998). He was sentenced to a term of eighty-four months
imprisonment and appeals his sentence. Obayanju contends that the
district court erred in applying a four-level enhancement for use of an
automobile as a dangerous weapon, see USSG§ 2A2.2(b)(2)(B),1
erred in applying a three-level adjustment for assaulting a law
enforcement officer in a manner which created a substantial risk of
serious bodily injury, see USSG § 3A1.2(b), and clearly erred in find-
ing that he obstructed justice by giving perjured testimony at trial, see
USSG § 3C1.1. We affirm.
At Obayanju's trial, the government produced evidence that Obay-
anju was under surveillance by four agents from the Baltimore Fraud
Task Force in July 1996 when he picked up mail, including a fraudu-
lently obtained credit card, at a house where he did not live. As Obay-
anju returned to his car, which still had the engine running, Secret
Service agents Gregory Tate and Vincent O'Neill pulled their
unmarked car in front of Obayanju's car. Postal inspector Francis
Brown and Baltimore Police Detective David Wimmer drove another
unmarked police car behind Obayanju's car. Brown had activated the
flashing lights and red and blue strobe lights on the front of the police
car. Tate and O'Neill approached Obayanju with badges displayed
and weapons drawn. Tate was wearing a vest clearly marked "Police"
and "Secret Service" on the front. Both agents yelled, "Police! . . .
Freeze!" several times. Ignoring their commands, Obayanju got into
his car. While the door was still open, Tate grabbed Obayanju's shirt.
Still ignoring the agents' commands, Obayanju revved the engine, put
the car in reverse, and rammed the car behind him. Obayanju then
drove forward at high speed straight at O'Neill, who lunged out of the
way. The agents pursued Obayanju. After a high-speed chase of over
a mile and a half through residential streets and alleys, during which
Tate and O'Neill activated the flashing lights and the siren on their
vehicle, Obayanju abandoned his car in an alley and fled on foot.
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual (1995).
2
When Tate caught up with him, Obayanju turned and tried to tackle
Tate. They struggled until O'Neill arrived and helped to subdue and
handcuff Obayanju. A search of Obayanju's car disclosed evidence of
credit card fraud.
Obayanju testified at trial that he did not realize the agents were
law enforcement officers. He said he had been robbed once before
and thought he was being robbed again when he saw the agents' guns.
He testified that he did not hear the agents identify themselves as
police and did not see the flashing lights or hear the sirens on their
vehicles. He said that, when Tate was chasing him in the alley, he
heard Tate say "police," and at that point, he got down on his knees
and put his hands behind his head. He also testified that he was pick-
ing up mail for a friend, and that neither the car he was driving nor
the twenty credit reports found in the car belonged to him. The jury
convicted Obayanju of assaulting Tate, O'Neill, and Brown.
At sentencing, over Obayanju's objections, the district court found
that Obayanju's use of a dangerous weapon, his car, to assault Brown
and O'Neill necessitated a four-level enhancement under USSG
§ 2A2.2(b)(2)(B).2 The court decided that an adjustment for perjury
was warranted under USSG § 3C1.1 because Obayanju lied about
material matters during his trial testimony when he testified that he
had an innocent reason for picking up mail, denied any connection
with credit card fraud, and testified that he did not see the flashing
lights on the police cars or hear the sirens. The court also determined
that making an official victim adjustment under USSG§ 3A1.2 did
not result in double counting even though the officers' official status
was an essential element of the offense of conviction.
On appeal, Obayanju first argues that the dangerous weapon
enhancement constituted impermissible double counting because his
_________________________________________________________________
2 The district court determined that the assault on Tate in the alley was
a simple assault, while the assaults on O'Neill and Brown were aggra-
vated assaults because Obayanju had used a dangerous weapon--his car.
The three counts were placed in separate groups for sentence calculation
because each involved a different victim. See USSG § 3D1.2. The aggra-
vated assault counts produced the higher combined adjusted offense level
(26) which governed the sentence.
3
use of the car as a dangerous weapon increased his offense level
twice: first, by triggering the application of the aggravated assault
guideline and, second, as the basis for the four-level enhancement for
use of a dangerous weapon. Obayanju acknowledges that we rejected
the same argument in United States v. Williams , 954 F.2d 204, 205-
08 (4th Cir. 1992), but urges reconsideration of our holding in light
of United States v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992) (dis-
agreeing with Williams). We decline to reconsider Williams and we
note that all other circuits which have addressed the issue since
Hudson have found its reasoning flawed and agreed with Williams.
See United States v. Duran, 127 F.3d 911, 917-18 (10th Cir. 1997),
cert. denied, 118 S. Ct. 1389 (1998); United States v. Johnstone, 107
F.3d 200, 211 (3d Cir. 1997) (listing cases). Consequently, we find
no error on the part of the district court.
Obayanju makes a similar argument with respect to the three-level
adjustment for assaulting a person who he knew or had reason to
know was an "official victim"--here, a law enforcement officer. He
claims that application of the adjustment under USSG§ 3A1.2
resulted in double counting because his offense of conviction, assault-
ing a federal officer or employee, see 18 U.S.C.A. § 111, necessarily
involved official victims. This argument fails because the applicable
guideline, USSG § 2A2.2, covers any aggravated assault and does not
reflect the status of official victims. See United States v. Kleinbreil,
966 F.2d 945, 955 (5th Cir. 1992). Obayanju's argument "fails to dis-
tinguish between elements of an offense and specific offense charac-
teristics under the Guidelines." Id. That the guidelines clearly
envision use of the official victim adjustment in a case such as this
is evidenced by Application Note 1 to USSG § 2A2.4 (Obstructing or
Impeding Officers), which directs that an adjustment for official vic-
tim should not be applied unless the offense is an aggravated assault
requiring that the offense level be determined under the cross-
reference to USSG § 2A2.2. See United States v. Valdez-Torres, 108
F.3d 385, 390 (D.C. Cir. 1997).
Finally, Obayanju contests the district court's determination that he
committed perjury during his trial testimony because a number of his
statements which the court found to be lies were not material to the
issue before the jury. The district court found that Obayanju:
4
lied specifically in the Court's view about what he was
doing at the house picking up mail. He lied about the owner-
ship of the car. He lied about the credit report. He lied in
connection with that chase, which is an integral part of the
case. He says he didn't hear sirens or lights. I think that was
in the Court's view a lie.
An adjustment for obstruction of justice based on perjury may be
made if the district court finds that the defendant gave "false testi-
mony concerning a material matter with the willful intent to provide
false testimony, rather than as a result of confusion, mistake or faulty
memory." United States v. Dunnigan, 507 U.S. 87, 94 (1993). Here,
because Obayanju's defense at trial was that he did not know the per-
sons confronting him were law enforcement officers, the issue before
the jury was whether Obayanju in fact knew that he was assaulting
law enforcement officers, not robbers. The district court found that
Obayanju willfully gave false testimony about whether he knew he
was dealing with law enforcement officers when he"lied in connec-
tion with that chase" and in saying he was unaware of the sirens and
lights. This finding was adequate under Dunnigan and was not clearly
erroneous. Therefore, even though the district court also found that
Obayanju lied about other matters which arguably were not material
to the issue for which he was being tried, we find that the adjustment
was not error.
The sentence is accordingly affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
5