PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5699

ALVIN STOTTS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Richard L. Williams, Senior District Judge.
(CR-95-89-A)

Argued: March 7, 1997

Decided: May 9, 1997

Before MURNAGHAN and LUTTIG, Circuit Judges, and
BLACK, Senior United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Murnaghan wrote the opinion,
in which Judge Luttig and Senior Judge Black concurred.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Stuart Lazarsky, Alexandria, Virginia, for Appel-
lant. Carol Mieyoung Lee, Special Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
OPINION

MURNAGHAN, Circuit Judge:

A federal jury convicted Defendant-Appellant Alvin Stotts of
assaulting a correctional officer, in violation of D.C. Code Ann. § 22-
505(a) (1996). Stotts appeals his conviction on the ground that the
district court erred when it refused to give the self-defense jury
instruction that Stotts requested. He also appeals his sentence on the
ground that the district court erred when it granted the government's
motion for a two-level upward sentencing adjustment pursuant to
United States Sentencing Guidelines Manual ("U.S.S.G.") § 3C1.1
(1995). For the reasons stated below, we affirm.

I.

On January 18, 1995, Stotts was serving a sentence for a prior
offense at the Lorton Reformatory Correctional Complex in Lorton,
Virginia. On that day, the inmates were "on strike" to protest the
denial of their recreational time, and several inmates had thrown trays
and other garbage onto the tier area outside of their cells. The inmates
assigned to clean up the area refused to do so. Two correctional offi-
cers, Corporals Leonard Nelson and Omie Gladden, began to clean up
the area themselves. As they cleaned, an inmate hit them with a "milk
bath," a mixture of milk and urine. The milk bath was thrown from
a cell occupied by Reginald Jamison and Derrick Allen. Corporals
Nelson and Gladden were then ordered off the tier until a supervisor
arrived.

When the supervisor, Lieutenant Robert Graves, arrived, he
ordered several officers to remove Jamison and Allen from their cell
in order to separate them from the rest of the inmates. When Jamison
and Allen refused to cooperate, the officers sprayed mace into the cell
and forcibly removed them. Stotts and five other inmates testified that
they saw the officers beat Jamison on the tier after they removed him
from his cell. Stotts testified that two of the officers told Stotts,
"you['re] next." Stotts then threw a milk bath containing a mixture of
milk and feces at Sergeant Clarence Mack.

                    2
Lieutenant Graves, Sergeant Mack, and other correctional officers
then ordered Stotts and his cellmate, Yousef Rabb, to place their
hands outside their cell so that the officers could handcuff them.
When Stotts and Rabb refused to do so, Lieutenant Graves ordered
the officers to open the cell and remove them. The officers sprayed
the cell with mace and then entered it. The testimony at trial con-
flicted as to what happened next. Sergeant Anthony Zienda testified
that he grabbed Stotts around the waist and that Stotts hit him over
the head with a milk crate. Lieutenant Graves testified that Zienda
grabbed Rabb, not Stotts, and that Stotts then struck Sergeant Zienda
with the milk crate. Corporal Harvey Woods testified that Zienda
tripped and fell to the floor immediately after he entered the cell and
that Zienda "didn't have a chance to tackle anybody." Stotts testified
that he did not have a milk crate in his cell and that he did not assault
any of the officers. A fellow inmate, Darrell Mayo, testified that after
the officers removed Stotts and Rabb from their cell, he saw Lieuten-
ant Graves throw a milk crate into the cell and then lock the cell back
up. Sergeant Zienda later received fifteen to twenty stitches in his
head as a result of the incident.

On February 21, 1995, a federal grand jury in the Eastern District
of Virginia named Stotts in counts 1 and 4 of a four-count indictment.
Count 1 charged Stotts with assault on a correctional officer with a
deadly weapon, in violation of D.C. Code Ann. § 22-505(b), and
count 4 charged Stotts with assault on a correctional officer, in viola-
tion of D.C. Code Ann. § 22-505(a).1 A jury trial commenced on May
_________________________________________________________________
1 Section 22-505 provides in pertinent part:

           (a) Whoever without justifiable and excusable cause,
          assaults . . . any officer or employee of any penal or correctional
          institution of the District of Columbia . . . whether such institu-
          tion . . . is located within the District of Columbia or elsewhere,
          while engaged in or on account of the performance of his or her
          official duties, shall be fined not more than $5,000 or imprisoned
          not more than 5 years, or both. It is neither justifiable nor excus-
          able cause for a person to use force to resist an arrest when such
          arrest is made by an individual he or she has reason to believe
          is a law enforcement officer, whether or not such arrest is lawful.

           (b) Whoever in the commission of any such acts uses a
          deadly or dangerous weapon shall be imprisoned not more than
          10 years.

D.C. Code Ann. § 22-505.

                     3
2, 1995. At the end of the trial, the district court instructed the jury
on the justifications for use of force to resist a correctional officer
under section 22-505. The district court denied Stotts's request for a
standard self-defense instruction. On May 3, 1995, the jury convicted
Stotts on count 1 of the lesser included offense of assault on a correc-
tional officer, in violation of D.C. Code § 22-505(a). The jury acquit-
ted him of the same charge in count 4.

The district court sentenced Stotts on August 22, 1995. The court
imposed a two-level upward adjustment pursuant to U.S.S.G. § 3C1.1
for obstruction of justice on the ground that "Mr. Stotts falsely testi-
fied at trial." The court ultimately calculated Stotts's offense level at
232 and his criminal history category at VI, resulting in a guideline
range of 92 to 115 months of imprisonment. However, since section
22-505 provides a maximum sentence of 60 months imprisonment,
the district court only sentenced Stotts to 60 months.

II.

Stotts first contends that the district court erred in denying his pro-
posed self-defense jury instruction. We review a district court's denial
of a requested jury instruction only for abuse of discretion. See United
States v. Russell, 971 F.2d 1098, 1107 (4th Cir. 1992).

Stotts asked the district court to give a standard self-defense
instruction.3 We have held that a district court should give the instruc-
_________________________________________________________________
2 The base offense level for aggravated assault is 15. In addition to the
two-level upward adjustment for obstruction of justice, the district court
imposed a three-level enhancement pursuant to U.S.S.G.
§ 2A2.2(b)(3)(D) because the victim sustained bodily injury and another
three-level upward adjustment pursuant to U.S.S.G.§ 3A1.2 because the
victim was a law enforcement officer.
3 Specifically, Stotts sought to charge the jury as follows:

           The defendant has offered evidence of having acted in self[-]
          defense. Use of force is justified when a person believes with
          good reason that it is necessary to use such force for the defense
          against immediate use of unlawful force against himself or oth-
          ers. The law recognizes the right of a person who is not the

                     4
tion that a criminal defendant requests as to any defense as long as
the instruction: 1) has an evidentiary foundation; and 2) accurately
states the law applicable to the charged offense. See United States v.
Sloley, 19 F.3d 149, 153 (4th Cir. 1994); United States v. Dornhofer,
859 F.2d 1195, 1199 (4th Cir. 1988). Stotts argues only that he pres-
ented sufficient evidence to support his requested self-defense instruc-
tion. However, regardless of whether Stotts presented sufficient
evidence of self-defense, his proposed instruction does not accurately
state the law applicable to the charged offense.

Section 22-505(a) prohibits assaults on correctional officers
undertaken "without justifiable and excusable cause." D.C. Code Ann.
§ 22-505(a). Section 22-505(a) further provides that "[i]t is neither
justifiable nor excusable cause for a person to use force to resist an
arrest when such arrest is made by an individual he or she has reason
to believe is a law enforcement officer, whether or not such arrest is
lawful." Id. Thus, a defendant generally cannot invoke self-defense to
justify an assault on a police or correctional officer. See Robinson v.
United States, 649 A.2d 584, 587 (D.C. 1994); Nelson v. United
States, 580 A.2d 114, 117 (D.C. 1990). A standard self-defense
instruction therefore does not apply to such cases.
_________________________________________________________________
           aggressor to stand his ground and use force to defend himself.
           That is to say the defendant has no duty to retreat and may stand
           his ground against unlawful force. The defendant may, however,
           use only such force as reasonably necessary to defend himself
           against the imminent use of unlawful force by another.

           The question is: Would a reasonable person[,] faced with the
          same facts and circumstances which confronted the defendant at
          the time of their occurrence, have believed that he was in immi-
          nent danger of grievous bodily injury such that it was necessary
          for him to use in his defense in order to avoid such injury the
          force which it is alleged the defendant used[?]

           The government has the burden of proving the defendant did
          not act in self[-]defense. For you to find the defendant guilty of
          Counts one and two, the government must prove that it was not
          reasonable for the defendant to think that it was necessary to
          defend himself against an immediate threat. If you have a rea-
          sonable doubt whether or not the defendant acted in self-defense,
          your verdict must be not guilty.

                    5
However, a limited right of self-defense does arise if the defendant
presents evidence that the officer used excessive force in carrying out
his official duties. See Robinson, 649 A.2d at 587; Nelson, 580 A.2d
at 117. A defendant who responds to an officer's use of excessive
force with force reasonably necessary for self-protection under the
circumstances has acted with "justifiable and excusable cause" and
therefore does not violate section 22-505. See Robinson, 649 A.2d at
587; Nelson, 580 A.2d at 117. Thus, section 22-505 limits the self-
defense right of a defendant who assaults a correctional officer to
defense against excessive force only, and a jury charged with decid-
ing whether a defendant's assault upon the officer was justified must
be so instructed. See Speed v. United States, 562 A.2d 124, 127 (D.C.
1989). The court must, however, explicitly instruct the jury that the
government bears the burden of disproving the defendant's limited
claim of self-defense or justification beyond a reasonable doubt. Id.
at 128.

The district court in the instant case properly instructed the jury in
accordance with section 22-505. The court charged the jury as fol-
lows:

           If you find the Government has proven the elements of
          count one beyond a reasonable doubt, then you must con-
          sider whether the defendant acted with justifiable or excus-
          able cause. This involves special rules that I will now
          explain to you.

           A Correctional Officer may stop or detain an inmate for
          a legitimate purpose, and the Correctional Officer may use
          the amount of force that appears reasonably necessary to
          make or maintain the stop. This is the amount of force that
          an ordinarily careful and intelligent person in the officer's
          position would think necessary.

           If the Correctional Officer uses only the force that
          appears reasonably necessary, the person stopped may not
          interfere with the Correctional Officer even if the stop later
          turns out to have been unlawful. If the person stopped does
          interfere, he acts without justifiable or excusable cause.

                     6
           If the Correctional Officer uses more force than appears
          reasonably necessary, the person stopped may defend
          against the excessive force, using only the amount of force
          that appears reasonably necessary for his protection. But if
          that person uses more force than is reasonably necessary for
          protection, he acts without justifiable or excusable cause.

           The Government must prove beyond a reasonable doubt
          that the defendant acted without justifiable or excusable
          cause.

           If you find that the Government has proven beyond a rea-
          sonable doubt the elements of the offense and that the defen-
          dant acted without justifiable or excusable cause, then it is
          your duty to find the defendant guilty of assault with a dan-
          gerous weapon on a Correctional Officer.

           If the Government has failed to prove beyond a reason-
          able doubt any of the elements of the offense or has failed
          to prove beyond a reasonable doubt that the defendant acted
          without justifiable or excusable cause, then you must find
          the defendant not guilty of assault with a dangerous weapon
          on a Correctional Officer.

The court's charge properly explains the limited exception to the gen-
eral rule that a defendant cannot invoke self-defense to justify an
assault on a correctional officer. Thus, since Stotts's proposed self-
defense instruction did not accurately state the law of self-defense as
it applies to an assault on a correctional officer under section 22-505,
the district court did not abuse its discretion in denying the proposed
charge.

III.

At sentencing, the district court imposed a two-level upward
adjustment pursuant to U.S.S.G. § 3C1.1 on the ground that "Mr.
Stotts falsely testified at trial." Stotts contends that the district court
erred in imposing the adjustment because it did not make the specific
factual findings that the Supreme Court requires.

                     7
Section 3C1.1 provides that the sentencing court may impose a
two-level upward adjustment "if the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing of the
instant offense." U.S.S.G. § 3C1.1. In United States v. Dunnigan, 507
U.S. 87, 92-98 (1993), the Supreme Court held that the sentencing
court may impose an adjustment pursuant to section 3C1.1 if it finds
that the defendant committed perjury during the proceedings. A wit-
ness that testifies under oath or affirmation commits perjury if he:
1) gives false testimony; 2) concerning a material matter; 3) with the
willful intent to deceive, rather than as a result of confusion or mis-
take. See id. at 94; United States v. Smith, 62 F.3d 641, 646 (4th Cir.
1995).

If the defendant objects to such an adjustment, the district court
"must review the evidence and make independent findings necessary
to establish a willful impediment to, or obstruction of, justice, or an
attempt to do the same, under the perjury definition" set out above.
See Dunnigan, 507 U.S. at 95. The district court should address each
element of the alleged perjury in a separate finding. Id. However, the
district court's decision to adjust the defendant's sentence will suffice
as long as "the court makes a finding of an obstruction of, or impedi-
ment to, justice that encompasses all of the factual predicates for a
finding of perjury." Id.

In Dunnigan, the district court had stated:

          The court finds that the defendant was untruthful at trial
          with respect to material matters in this case.[B]y virtue of
          her failure to give truthful testimony on material matters
          that were designed to substantially affect the outcome of the
          case, the court concludes that the false testimony at trial
          warrants an upward adjustment by two levels.

Dunnigan, 507 U.S. at 95 (quoting district court opinion) (alteration
in original). The Supreme Court concluded that the district court's
finding sufficiently encompassed all of the factual predicates for a
perjury finding, and the Court therefore affirmed the district court's
adjustment. Id.

                     8
We applied Dunnigan's holding in United States v. Keith, 42 F.3d
234 (4th Cir. 1994). In that case, we held that the district court's fac-
tual findings sufficed to justify an adjustment pursuant to section
3C1.1. Id. at 241. The district court had stated:

          I find with respect to the obstruction of justice that Mr.
          Keith was testifying under oath[,] that . . . he gave false tes-
          timony concerning a material matter, in particular the own-
          ership of the car, . . . and that his testimony was given with
          the willful intent to provide the false testimony rather than
          as a result of any confusion or mistake or accident or a
          faulty memory[;] and therefore the two-point enhancement
          for obstruction of justice has been established by a prepon-
          derance of the evidence.

Id. at 240-41 (quoting district court opinion) (emphasis added) (alter-
ation in original). We held that the district court's finding clearly
complied with Dunnigan's requirements, and we therefore affirmed
the district court's judgment. Id.

In United States v. Smith, 62 F.3d 641 (4th Cir. 1995), however,
we vacated the district court's upward adjustment pursuant to section
3C1.1. In that case, the district court asked the government to justify
its requested section 3C1.1 adjustment. Id. at 647. In its response, the
government argued that the defendant had perjured himself by deny-
ing any involvement in the offense at issue, by denying that he had
confessed to the offense, and by denying that the cash that the police
had seized was the proceeds of drug trafficking. Id. The district court
then simply stated, "All right. Well, I will deny the objection to the
increase for obstruction of justice." Id. (quoting district court).

On appeal, we held that the district court "did not comply with the
Supreme Court's directive in Dunnigan." Smith, 62 F.3d at 647. Spe-
cifically, we held that the district court did not make specific findings
as to the elements of perjury and that the court also did not make "a
single global finding" that encompassed all three of the perjury ele-
ments. Id. We further held that we "join[ed] other circuits that have
declined to infer such findings when they were not made with the
specificity stated in Dunnigan." Id. at 647-48. We therefore remanded
for resentencing. Id.

                     9
In the instant case, Stotts objected to the section 3C1.1 adjustment
at sentencing. The district court simply stated that"Mr. Stotts falsely
testified at trial and, therefore, the offense level is increased by two
levels pursuant of Section 3C1.1." Thus, the district court clearly did
not address each element of Stotts's alleged perjury in a separate find-
ing. Nor did the court's limited finding "encompass[ ] all of the fac-
tual predicates for a finding of perjury." Dunnigan, 507 U.S. at 95.
The court's finding encompassed only the first factual predicate for
a perjury finding, namely, that Stotts gave false testimony. The dis-
trict court did not specify the testimony in question, did not address
whether the testimony related to a material matter, and did not address
whether Stotts willfully intended to give false testimony or whether
the false testimony resulted from confusion or mistake.

The government seems to concede that the district court did not
make sufficient factual findings at the sentencing hearing. The gov-
ernment points, however, to statements that the district court judge
made in a sidebar during the trial. Stotts testified in his own defense
at trial. During cross-examination, the prosecutor asked Stotts
whether he had told the correctional officers attempting to remove
him from his cell that he "had assaulted [Vince] Morehead in Dormi-
tory 6." In response, Stotts claimed that he had not assaulted anyone
and that he did not even know Morehead. The government then
sought to introduce a disciplinary report regarding an assault by Stotts
on Morehead. During a sidebar to discuss Stotts's objections, the fol-
lowing exchange took place:

           [DEFENSE COUNSEL]: . . . My client has answered
          he doesn't know Morehead, he didn't do this.

          THE COURT: He's flat-out lied.

          [DEFENSE COUNSEL]: He's not lying, Your Honor.

           THE COURT: But when he flat-out lies, it opens all
          sorts of things. I warned you early on that I was going to
          keep all this sort of stuff out. But when you put him on, you
          obviously risked enhancing any penalty that he gets by two
          points for obstruction of justice. Anytime you get on the

                    10
          stand and lie, the system demands that you are exposed. He
          has lied, it's open season on him.

The government claims that the court's statement during the side-
bar suggests that the court found that Stotts intentionally testified
falsely because a "flat-out lie" is not the result of confusion or mis-
take. However, the district court did not specify at the sentencing
hearing that its finding that Stotts "falsely testified at trial" referred
to the incident quoted above. Moreover, the court's sidebar statements
hardly seem to constitute the "independent findings necessary to
establish a willful impediment to, or obstruction of, justice" that the
district court must make after "review[ing] the evidence." See
Dunnigan, 507 U.S. at 95. Furthermore, even if we could consider the
district court's trial statements, the district court still failed to address
whether Stotts's false testimony concerned a material matter. At most,
the court's trial statements only addressed Stotts's willful intent.

Thus, since the district court failed to make the factual findings
necessary to support an adjustment pursuant to section 3C1.1, we
would ordinarily vacate the adjustment and remand to the district
court for resentencing. However, section 22-505(a), the statute that
the jury convicted Stotts of violating, provides a maximum term of
imprisonment of 60 months. See D.C. Code Ann. § 22-505(a). Conse-
quently, the district court sentenced Stotts to a 60 month term of
imprisonment. Even if the district court declined to impose the section
3C1.1 upward adjustment on remand, Stotts's guideline range would
still exceed the statutory maximum of 60 months. 4 The sentencing
guidelines clearly provide that when the statutorily authorized maxi-
mum sentence is less than the minimum of the guideline range, the
district court must defer to the statutory maximum. See U.S.S.G.
§ 5G1.1(a). Thus, since the statutory maximum would constrain the
district court to provide the same sentence on remand, we hold that
the district court's error in imposing the section 3C1.1 adjustment was
harmless.
_________________________________________________________________

4 Without the two-level section 3C1.1 upward adjustment, Stotts would
face a guideline range of 77 to 96 months of imprisonment.

                      11
IV.

Accordingly, Stotts's conviction and sentence are

AFFIRMED.

                    12
