                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              November 8, 2007
                              No. 07-12251                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D. C. Docket No. 06-00106-CR-1-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

TYRUS LAMONT ADDISON,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                            (November 8, 2007)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

     Tyrus Lamont Addison appeals his 60-month sentence for possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). Addison argues that the district court’s application of an obstruction-

of-justice enhancement, pursuant to U.S.S.G. § 3C1.1, and the denial of an

acceptance-of-responsibility reduction, pursuant to U.S.S.G. § 3E1.1, (1) violated

his Fifth Amendment privilege against self-incrimination by effectively requiring

him to admit his guilt for another crime and (2) violated his Fourteenth

Amendment right to due process by effectively punishing him for a crime without

affording the procedural safeguards of indictment, arraignment, or trial. For the

reasons discussed below, we affirm.

      At Addison’s change-of-plea hearing, the government proffered the

following facts. Federal officials arrested Addison on the firearm possession

charge after state officials notified them that Addison had threatened a 17-year-old

girl with a firearm and that state police had found a loaded firearm in Addison’s

car when they stopped him to investigate the girl’s report. In response to the

government’s proffered facts, Addison admitted that he was a convicted felon and

had possessed a firearm and ammunition, but stated that he had not pointed the

firearm at, and did not know, the 17-year-old girl.

      In preparing a presentence investigation report, the probation officer applied

a 2-level obstruction-of-justice enhancement, pursuant to § 3C1.1, and declined to



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apply a 2-level acceptance-of-responsibility reduction, pursuant to § 3E1.1(a), on

the grounds that Addison had perjured himself at his change-of-plea hearing by

falsely denying his conduct toward the 17-year-old girl. In response, Addison

argued that the probation officer’s position effectively required him to waive his

right against self-incrimination and admit a crime, namely, aggravated assault, that

he denied committing and with which he had not been charged.1 The district court

notified Addison and the government that they should be prepared to offer further

evidence at sentencing as to Addison’s alleged conduct toward the girl.

       Accordingly, at the sentencing hearing, the 17-year-old girl and her mother

testified. The girl stated that she knew Addison because his brother was the father

of her sister’s child. She also stated that she had met Addison when she was 13,

when he had asked her for her phone number and she had refused. She then

explained that, as she was walking home one day, Addison approached her in his

car and accused her of telling his then-girlfriend that Addison and she had dated.

She explained that Addison called her “the B word,” tried to run over her with his

car, and then pulled out a firearm and said “I’ll kill you, I’ll kill you.” Addison


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          The probation officer also had applied a 4-level enhancement, pursuant to U.S.S.G.
§ 2K2.1(b)(6), because Addison possessed the firearm in connection with committing the felony
offense of aggravated assault. It is notable that Addison did not object to receiving this
enhancement before the district court, nor does he raise it on appeal. It also is notable that
Addison did not argue that he did not commit perjury at his change-of-plea hearing before the
district court or on appeal.

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cross-examined the 17-year-old girl on this testimony. The girl’s mother stated

that, after her daughter reported the incident to her, she followed Addison and saw

him exit his car with a firearm. Based on this testimony the district court adopted

the probation officer’s calculations.

      We review questions of constitutional law de novo. United States v. Chau,

426 F.3d 1318, 1321 (11th Cir. 2005).

      A. Fifth Amendment

      The Fifth Amendment to the United States Constitution provides that “no

person . . . shall be compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. The Supreme Court has held, however, that “neither the

text nor the spirit of the Fifth Amendment confers a privilege to lie” and that

“[p]roper invocation of the Fifth Amendment privilege against compulsory

self-incrimination allows a witness to remain silent, but not to swear falsely.”

Brogan v. United States, 522 U.S. 398, 404, 118 S.Ct. 805, 810, 139 L.Ed.2d 830

(1998) (quotation omitted).

      Pursuant to § 3C1.1, a district court may apply a two-level obstruction-of-

justice enhancement to a defendant’s base offense level if the defendant willfully

obstructs the investigation, prosecution, or sentencing of his offense of conviction,

in a manner related to his offense of conviction, relevant conduct, or a closely



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related offense. The commentary to § 3C1.1 provides a non-exhaustive list of

conduct to which the enhancement might apply, including perjury and “providing

materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1,

comment. (n.4(b) and (f)). The commentary to § 3C1.1 cautions, however, that the

provision “is not intended to punish a defendant for the exercise of a constitutional

right” and, therefore, does not apply to “[a] defendant’s denial of guilt (other than a

denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide

information to a probation officer, or refusal to enter a plea of guilty.” U.S.S.G.

§ 3C1.1, comment. (n.2). However, there is no constitutional right to commit

perjury, and when sentencing a defendant, the court constitutionally may take into

account its conclusion that the defendant committed perjury at trial. United States

v. Grayson, 438 U.S. 41, 54-55, 98 S.Ct. 2610, 2617-18, 57 L.Ed.2d 582 (1978).

      Pursuant to § 3E1.1(a), a district court can reduce a defendant’s base offense

level by two levels if the defendant demonstrates acceptance of responsibility for

his offense. In United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir. 1989),

this court held that § 3E1.1 was not unconstitutional with regard to the Fifth

Amendment right against self-incrimination because the provision was not

intended to punish defendants.

      After a thorough review of the record, we conclude that the district court



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properly sentenced Addison. First, the application of an obstruction-of-justice

enhancement did not violate Addison’s privilege against self-incrimination because

Addison’s statements at the change-of-plea hearing constituted a false denial of

guilt under oath, rather than a mere refusal to admit guilt. See U.S.S.G. § 3C1.1

comment. (n.2). Moreover, Addison had no right to lie under oath, and the

sentencing court properly considered such perjury at sentencing. See Grayson, 438

U.S. at 54-55.

      Second, the refusal to apply an acceptance-of-responsibility reduction did

not violate Addison’s privilege against self-incrimination because it did not impose

further punishment. See Henry, 883 F.2d at 1011-12.

      B. Fourteenth Amendment

      The Due Process Clause protects against deprivations of “life, liberty, or

property without due process of law.” U.S. Const. XIV. Specifically, “due process

assures the defendant he will be given adequate notice and an opportunity to

contest the facts relied upon to support his criminal penalty.” United States v.

Satterfield, 743 F.2d 827, 840 (11th Cir. 1984).

      Here, we conclude that the district court did not violate Addison’s right to

due process. The district court put both Addison and government on notice of the

need for further evidence regarding the girl’s contentions, gave Addison the



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opportunity to cross-examine her and her mother, and gave Addison the

opportunity to present his own evidence regarding the incident. Thus, there was no

constitutional error.

      For the foregoing reasons, we AFFIRM.




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