                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-1577
                                      _____________

                            UNITED STATES OF AMERICA

                                              v.

                                 KENNETH TOWNSEND,
                                               Appellant
                                   _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (W.D. Pa. No. 2-12-cr-00125-003)
                        District Judge: Honorable Cathy Bissoon
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  November 3, 2016

        Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.

                                (Filed: November 17, 2016)
                                     _______________

                                        OPINION
                                     _______________

JORDAN, Circuit Judge.

       Kenneth Townsend was convicted of drug offenses and sentenced as a career

criminal, but the District Court gave him a downward variance from the recommended

       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
guidelines range. We vacated his sentence in light of Supreme Court precedent that

invalidated portions of the Armed Career Criminal Act. Johnson v. United States, 135 S.

Ct. 2551 (2015). On remand, the District Court granted the government’s request to

enhance Townsend’s sentence for obstruction of justice, and the Court resentenced him to

the full length of his original sentence. On appeal, Townsend challenges the Court’s

reliance on the remarks of an accomplice made in a proffer to the Federal Bureau of

Investigation. We conclude that the Court did not clearly err in crediting those remarks

and will therefore affirm.

I.     Background

       A.     Arrest and Trial

       In late 2011 and early 2012, the FBI and law enforcement officers in Pittsburgh,

Pennsylvania conducted an investigation into local heroin trafficking. Through a wiretap,

they determined that Damon Boyd and Carter Gaston were dealing cocaine and heroin.

The investigators also became suspicious of Townsend after they observed Boyd and

Gaston repeatedly entering and exiting from Townsend’s residence.

       Soon after, the agents learned of a cocaine transaction happening there. They

followed Boyd and Gaston as those two drove away from the home. The agents stopped

them and arrested Boyd on an outstanding warrant. While conducting a standard

inventory search of the vehicle, they discovered crack cocaine. The cocaine was still wet,

indicating that it had been recently processed. The agents obtained a search warrant for

Townsend’s home and promptly conducted a search. There they found cocaine and items

associated with the processing of crack.

                                            2
       Townsend was convicted of possession with intent to distribute less than 500

grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), and of possession with intent to

distribute 28 grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1). He was also

charged with, but not convicted of, conspiracy to distribute 28 grams or more of cocaine,

in violation of 21 U.S.C. § 846. During trial, he testified that the only time that he had

ever processed cocaine for Boyd was on the day he was arrested. The jury could not

reach a decision on the conspiracy charge and that charge was dismissed.

       B.     Sentencing and Appeal

       Townsend was sentenced as a career offender pursuant to the United States

Sentencing Guidelines § 4B1.1. He had two prior offenses that contributed to his status

as a career offender: possession with intent to deliver cocaine (a controlled substance

offense) and fleeing a police officer (which at the time was considered a crime of

violence).1 The Sentencing Guidelines recommended a prison sentence of 360 months to

life, but the District Court granted Townsend’s request for a downward variance and

sentenced him to 200 months in prison. In explaining its decision to grant the variance,

the Court noted that Townsend’s “record is light with respect to violent tendencies” and

that Townsend “has shown some inclination toward bettering himself and learning a trade

both before and after his arrest.” (Suppl. App. at 102.) The District Court therefore

concluded that the sentence was “sufficient but not greater than necessary to meet the

goals of [18 U.S.C.] Section 3553.” (Id. at 103.)


       1
       As explained herein, we later determined that Supreme Court precedent
undermined the conclusion that his conviction for flight was a crime of violence.
                                              3
       The government had argued that Townsend qualified for an obstruction of justice

enhancement pursuant to U.S.S.G. § 3C1.1. It claimed that he had offered false

testimony when he claimed that he had only cooked crack cocaine for Boyd on a single

occasion. Because Townsend qualified as a career criminal, and therefore already faced

an elevated recommended sentence, the District Court did not resolve whether an

obstruction of justice enhancement was proper.

       Townsend appealed his sentence, raising a variety of arguments about whether

there was probable cause to search his home and whether he had been denied his right to

confront a witness. United States v. Townsend, 638 F. App’x. 172, 175-77 (3d Cir.

2015). We determined those arguments to be meritless and affirmed his conviction. Id.

But, in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015), we concluded that Townsend’s prior conviction for eluding a police officer no

longer qualified as a crime of violence, Townsend, 638 F. App’x at 178, and therefore

Townsend no longer qualified as a career criminal. Accordingly, we vacated his sentence

and remanded to the District Court for resentencing.

       C.     Resentencing

       On remand, the District Court held a new sentencing hearing. The government

argued for imposing the obstruction of justice enhancement that had been passed over

during the first sentencing. It also urged the Court to impose the same sentence that had

originally been imposed because, while “Mr. Townsend may no longer be a career

offender in terms of the legal definition, he is a career offender by every other

definition.” (App. at 87a.)

                                              4
       Townsend responded that Gaston’s statements were unreliable because he made

them out of a self-serving desire to reduce his own sentence. Townsend also noted that

Boyd at one point had called Gaston to ask for Townsend’s number, which, Townsend

claimed, undermined the assertion that Boyd worked with Townsend on numerous

occasions. Moreover, according to Townsend, his earlier interactions with Boyd only

involved marijuana, not cocaine.

       The Court evaluated the record from the original sentencing hearing, as well as

supplemental information, the guidelines, and the parties’ arguments. It credited

Gaston’s statement as being believable and noted that there were “other indicia that Mr.

Townsend and Mr. Boyd had a relationship including Mr. Townsend’s knowledge of Mr.

Boyd’s street name, his knowledge of Mr. Boyd’s voice, and the manner in which they

conversed.” (App. at 98a.) It found that Townsend’s claim that he had only

manufactured crack on one occasion was “a perjured statement by a preponderance of the

evidence.” (App. at 98a.) The Court therefore concluded that an obstruction of justice

enhancement was appropriate.

       As a result of that sentence enhancement and Townsend’s criminal history, the

recommended guidelines range became 135 to 168 months imprisonment. The Court

agreed with the government’s argument that Townsend’s criminal history category did

not “appropriately reflect the seriousness of [Townsend’s] criminal record” or “the

likelihood of recidivism in this case.” (App. at 100a-01a, 110a.) And the Court

emphasized that, when imposing the original sentence it had “varied downward from the

guidelines … to achieve a sentence in that case that balanced the very serious nature of

                                            5
this drug trafficking offense, [Townsend’s] criminal history, and the needs for just

punishment, deterrence, and rehabilitation.” (App. at 110a.) Additionally, because the

Court had “discount[ed] … [Townsend’s] career offender status,” the fact that Townsend

was “no longer considered a career offender” did not “change what [the Court] believe[d]

to be the appropriate sentence in this case.” (App. at 110a-111a.) It thus re-imposed the

original sentence of 200 months.

       Townsend appeals that sentence.

II.    Discussion2

       According to Townsend, the District Court erred when it granted the government’s

motion for a two-point enhancement for obstruction of justice. We review for clear error

the District Court’s factual determination that Townsend falsely testified under oath,

United States v. Napolitan, 762 F.3d 297, 312 (3d Cir. 2014), and we review the decision

to apply the sentencing enhancement for abuse of discretion. United States v. Fumo, 655

F.3d 288, 314 (3d Cir. 2011). The defense has two arguments. First, that the Court erred

in considering Gaston’s hearsay testimony, and second, that the Court did not sufficiently

address each of the elements of perjury. We reject both.

       As for Gaston’s hearsay statements, it is well established that out-of-court

statements may be relied upon during sentencing as long as they have “sufficient indicia

of reliability.” United States v. Brothers, 75 F.3d 845, 848 (3d Cir. 1996) (internal

quotation marks and citation omitted). Here, there were sufficient indicia of reliability


       2
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
                                             6
and the Court did not err in crediting Gaston’s remarks. Gaston spoke to the FBI as part

of his “safety-valve” proffer pursuant to 18 U.S.C. § 3553(f). That provision allows a

court to sentence a defendant without regard to statutory minimums, when certain

conditions are met. In particular, the defendant must have “truthfully provided to the

Government all information and evidence the defendant has concerning the offense or

offenses that were part of the same course of conduct or a common scheme or plan.” Id.;

see also United States v. Sabir, 117 F.3d 750, 751 (3d Cir. 1997) (describing the

requirement of truthfulness). Satisfying the truthfulness element requires candor and

openness. Sabir, 117 F.3d at 754; see also United States v. Aidoo, 670 F.3d 600, 607 (4th

Cir. 2012) (“The defendant’s burden under the safety valve is a true burden of proof that

rests, at all times, on the defendant. To carry his burden, the defendant must persuade the

district court that he has made full, truthful disclosure of information required by the

safety valve.”). Gaston therefore had a strong incentive to be forthright.

       Furthermore, satisfying the truthfulness element does not depend on providing

novel information that furthers an investigation or leads to another’s conviction. 18

U.S.C. § 3553(f)(5) (noting that “the fact that the defendant has no relevant or useful

other information to provide or that the Government is already aware of the information

shall not preclude a determination by the court that the defendant has complied with this

requirement”). So, Gaston did not need to falsely implicate Townsend. Indeed, if his

remarks were proven false, he would have been denied the benefits of the safety valve.

       There were also other indicia of reliability that the District Court noted, such as

Townsend’s knowledge of Boyd’s street name, his ability to recognize Boyd’s voice, and

                                              7
the familiarity with which he treated Boyd. In addition, the police had observed Boyd at

Townsend’s home on at least one other occasion. Townsend’s familiarity with Boyd

gave added credibility to Gaston’s assertion that Townsend had cooked cocaine for Boyd

before. Thus, the District Court could properly rely on Gaston’s remarks.

       In contrast, Townsend’s remarks were highly self-serving because they reduced

the likelihood that the jury would find him guilty of conspiracy to distribute cocaine – a

tactic that bore fruit in the form of a hung jury and dismissal of the conspiracy charge.

While there is some evidence cutting in favor of Townsend, such as Boyd not knowing

Townsend’s telephone number, the District Court did not clearly err in finding Gaston’s

account more credible.3 Therefore, the Court did not err when it concluded that

Townsend had perjured himself on the stand.

       Townsend also obliquely attacks the District Court for not being sufficiently

thorough in its analysis of the other elements of perjury. It is clearly “preferable for a

district court to address each element of the alleged perjury in a separate and clear

finding.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). But it is enough for a court

to “make[] a finding of an obstruction of, or impediment to, justice that encompasses all

of the factual predicates for a finding of perjury.” Id. That was the case here, as the

Court noted that Townsend’s statements “were intentional misrepresentations on material

matters and contrary to other evidence.” (App. at 97a-98a.) The Court therefore did not



       3
          Townsend admitted to having sold cocaine for several years to numerous other
individuals. That was consistent with Gaston’s account that Townsend was known for
his skill with cocaine manufacture and distribution.
                                              8
abuse its discretion when it found that Townsend had committed perjury and applied the

sentencing enhancement.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s sentencing decision.




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