United States v. Montoya-Carmona

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4706
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LUIS FERNANDO MONTOYA-CARMONA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-05-8)
Submitted: November 17, 2006 Decided: January 4, 2007
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Kurt J. Mayer,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Darryl J. Mitchell, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Fernando Montoya-Carmona (“Defendant”) was convicted of
various drug-related offenses. At sentencing, the district court
assessed a two-level obstruction-of-justice enhancement for perjury
pursuant to United States Sentencing Guidelines (“Guidelines”)
§ 3C1.1, sentencing Defendant to eighty-four months' imprisonment.
On appeal, Defendant challenges the perjury enhancement. Because
the district court made the independent findings of fact necessary
to sustain the enhancement, we affirm.
I.
The critical facts underlying Defendant’s conviction are
undisputed. Defendant’s niece received a package containing a
bicycle from Defendant’s son in Colombia. The bicycle had heroin
hidden in its frame and previously had been intercepted by law
enforcement agents at customs. When confronted by agents,
Defendant’s niece agreed to cooperate and contacted Defendant to
collect the package according to their pre-arranged plan. After
Defendant arrived at his niece’s house, the package was opened and
Defendant was arrested.
Once in custody, Defendant admitted that he had received a
similar bicycle shipment from his son several months earlier. He
had been contacted after receipt of the first package by an unknown
person and arranged to exchange the bicycle for $400. Defendant
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stated that he assumed he would be asked to perform a similar
“favor” for his son in connection with the second bicycle. J.A.
399. He insisted that he did not know that there were drugs hidden
in the second bicycle.
At Defendant’s trial for various drug charges, he testified
that he did not know that the bicycle contained drugs and that he
harbored no suspicions that his son might be conducting criminal
activity. The district court offered a willful blindness
instruction to the jury, which in turn returned a guilty verdict on
all counts. At the subsequent sentencing hearing, the district
court found that Defendant had perjured himself by denying
knowledge of the presence of drugs in the bicycle. The court
calculated Defendant’s Guidelines range by applying, over
Defendant’s objection, a § 3C1.1 enhancement for obstruction of
justice based on his perjured testimony at trial. The district
court then imposed a sentence of eighty-four months’ imprisonment,
within the Guidelines range of seventy-eight to ninety-seven
months. Defendant now appeals the application of the § 3C1.1
enhancement to his sentence.
II.
The factual findings of the district court supporting the
§ 3C1.1 enhancement are reviewed for clear error. United States v.
Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). Legal issues regarding
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proper application of the enhancement, however, are reviewed de
novo. United States v. Williams, 152 F.3d 294, 302 (4th Cir.
1998).
Section 3C1.1 of the Guidelines requires a sentencing court to
impose a two-level enhancement to a defendant's offense level if:
(A) 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 of the instant offense of
conviction, and
(B) the obstructive conduct related to (I) the
defendant's offense of conviction and any relevant
conduct; or (ii) a closely related offense[.]
U.S.S.G. § 3C1.1 (2005).1 The adjustment applies, for instance,
when a defendant "commit[s] . . . perjury." U.S.S.G. § 3C1.1, cmt.
n.4(b); see also United States v. Dunnigan, 507 U.S. 87, 94 (1993).
A defendant commits perjury when he "[1] gives false testimony [2]
concerning a material matter [3] with the willful intent to provide
false testimony." Dunnigan, 507 U.S. at 94. The government
carries the burden of persuading the court by a preponderance of
the evidence that the enhancement should apply in a particular
case. United States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995).
The enhancement does not apply merely because a defendant is
convicted, however. For example, a defendant may testify
truthfully but "the jury may nonetheless find the testimony
1
Section 3C1.1 was amended on November 1, 2006. See U.S.S.G.
app. C, amendment 693. We cite to the Guidelines, however, that
were “in effect on the date that the defendant [was] sentenced.”
See U.S.S.G. § 1B1.11.
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insufficient to excuse criminal liability or prove lack of intent."
Dunnigan, 507 U.S. at 95. The district court should "preferabl[y]
address each element of the alleged perjury in a separate and clear
finding" but must at least "make[] a finding of an obstruction of
. . . justice that encompasses all of the factual predicates for a
finding of perjury." Id. These findings must be express and
independent of the jury's verdict. Smith, 62 F.3d at 647 n.3.
That is, the district court must "itself be convinced" that the
defendant perjured himself, regardless of whether the jury returned
a conviction. Id.III.
Defendant’s primary contention is that the district court
impermissibly relied on the jury verdict to support its finding of
perjury, in contravention of Dunnigan and Smith. This argument
misreads the district court’s explanation at the sentencing
hearing.
The district court repeated the central holding of Dunnigan,
stating that “an obstruction enhancement does not apply
automatically every time a defendant who testifies is convicted.”
J.A. 548. The court then found that “[i]n testifying as to his
complete lack of knowledge that the bicycle contained drugs and
that he had no suspicions of his son’s criminal activity, the Court
may find that the defendant willfully gave false testimony
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concerning a material matter.” J.A. 551. Although it might have
been preferable to have the benefit of further elaboration on this
explanation, we nevertheless conclude that the district court
“itself [was] convinced” that the defendant perjured himself,
independent of the jury verdict. See Smith, 62 F.3d at 647 n.3.
Nevertheless, Defendant highlights other statements made by
the district court as evidence of its alleged improper reliance on
the jury verdict. For example, the district court found at
sentencing that Defendant’s “testimony is at odds with the finding
by the jury . . . that the defendant was guilty.” J.A. 551. Even
if such statements would violate Smith standing alone, however, the
district court concluded by making its own independent finding of
perjury. See 62 F.3d at 647 n.3. Viewed as a whole, the district
court’s explanation of its finding of perjury is sufficient to
support the obstruction-of-justice enhancement.2
2
Defendant also argues that the district court failed to make
an adequate factual finding of perjury. It is sufficient, however,
for the district court to “make a single global finding that
encompasse[s] the three essential elements” of perjury. See Smith,
62 F.3d at 647. Here, the district court “f[ou]nd that the
defendant willfully gave false testimony concerning a material
matter [and] . . . that the government has met its burden by a
preponderance of the evidence.” J.A. 551. This finding easily
qualifies as a “single global finding that encompasse[s] the three
essential elements” of perjury and does not constitute clear error.
See Smith, 62 F.3d at 647.
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IV.
We have considered Defendant’s other arguments and find them
to be without merit. Accordingly, we affirm the sentence imposed
by the district court.
AFFIRMED
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