United States v. Powers

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11162
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee-Cross-Appellant,
versus
ERVIN EARL POWERS, JR.,
Defendant-Appellant-Cross-Appellee.
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Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-367-1-H
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November 2, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Ervin Earl Powers, Jr., appeals from his convictions for
various counts of money laundering and mail fraud. Powers
contends that the evidence was insufficient to sustain his
convictions for money laundering. In particular, Powers argues
that there was no evidence of his involvement in the concealment
of funds. We have reviewed the record and the briefs submitted
by the parties and find that the jury’s verdicts on the money
laundering counts were supported by the evidence and there was no
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-11162
-2-
manifest miscarriage of justice. United States v. Burns, 162
F.3d 840, 849 (5th Cir. 1998); United States v. Laury, 49 F.3d
145, 151 (5th Cir. 1995). Accordingly, Powers’ convictions are
AFFIRMED.
The Government cross-appeals, arguing that the district
court erred in failing to add two levels to Powers’ base offense
level for obstruction of justice under U.S.S.G. § 3C1.1. The
record reveals that the district court failed to make a specific
finding of perjury and instead overruled the Government’s
obstruction of justice objection on policy considerations. When
the government moves for an obstruction of justice enhancement,
the district court has an obligation to determine whether perjury
occurred. United States v. Humphrey, 7 F.3d 1186, 1190 (5th Cir.
1993). We therefore VACATE Powers’ sentence and REMAND to the
district court for a specific perjury finding and resentencing.
Id. at 1191. If the district court finds that Powers did commit
perjury, it must impose a two-level enhancement to his sentence.
Id.