                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            AUG 5 1999
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
             Plaintiff-Appellee,                        No. 98-4183
 v.                                               (D.C. No. 98-CR-73-W)
 PATRICK J. JONES,                                       (D. Utah)
             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Patrick J. Jones was convicted of possession of a

firearm by a convicted felon under 18 U.S.C. § 922(g)(1). At sentencing, the

district court adjusted Defendant’s sentence upward two levels for obstruction of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
justice and two levels for reckless endangerment during flight pursuant to United

States Sentencing Guidelines §§ 3C1.1 and 3C1.2, and it denied an acceptance of

responsibility adjustment pursuant to U.S.S.G. § 3E1.1. Having applied the two

2-level enhancements, the district court calculated Defendant’s total offense level

at 28 and his criminal history category at VI, qualifying him for a sentence of 140

to 175 months. The statutory maximum for Defendant’s offense, however, was

120 months. See 18 U.S.C. § 924(a)(2). The district court conceded that the two

enhancements were “arguable points” but reasoned that even if Defendant’s

conduct did not merit the enhancements it warranted the greatest sentence

possible within the otherwise applicable guideline range of 100 to 125 months

(total offense level of 24 and criminal history category of VI), which was still

five months greater than the statutory maximum. R., Vol. III at 7. The district

court concluded that Defendant had “no realistic chance” of receiving a sentence

below the statutory maximum, id., and sentenced Defendant to 120 months.

      Defendant appeals the district court’s application of the obstruction of

justice adjustment under U.S.S.G. § 3C1.1 (1997). Without that adjustment,

Defendant would have qualified for a sentence of 120 to 150 months (total

offense level of 26 and criminal history category of VI) instead of a sentence of

140 to 175 months. See U.S.S.G. Ch. 5 Pt. A. We exercise jurisdiction over this

appeal under 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.


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       Defendant argues that he never took the affirmative action required by

§ 3C1.1 to incur the penalty of an obstruction of justice enhancement. He also

contends that the district court erred in finding that the trial testimony of defense

witness Carrie Lee Derbin was false and untruthful and that the district court

erred in attributing Ms. Derbin’s testimony to him for purposes of the obstruction

of justice enhancement. We review the district court’s interpretation of the

Sentencing Guidelines de novo. See United States v. Hankins, 127 F.3d 932, 934

(10th Cir. 1997). However, we review the district court’s factual determinations

only for clear error and “give due deference to the district court’s application of

the guidelines to the facts.” 18 U.S.C. § 3742(e); see also Hankins, 127 F.3d at

934.

       Defendant first argues that the district court misinterpreted § 3C1.1 by

applying it to his passive participation in Ms. Derbin’s testimony. He believes

that a defendant “must take some affirmative action to incur the penalty of

[§] 3C1.1.” Appellant’s Br. at 13. Section 3C1.1 provides: “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, increase the offense level by 2 levels.” U.S.S.G. § 3C1.1

(1997). Application Note 3(b) of § 3C1.1 includes “committing, suborning, or

attempting to suborn perjury” in its non-exhaustive list of examples of the types


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of conduct to which the enhancement applies. Id. § 3C1.1 comment. (n.3(b)).

Application Note 8 instructs that “the defendant is accountable for his own

conduct and for the conduct that he aided or abetted, counseled, commanded,

induced, procured, or willfully caused.” Id. § 3C1.1 comment. (n.8). There does

not appear to be an active/passive act distinction in the language of the guideline

as Defendant suggests. Cf. United States v. Sergio, 734 F. Supp. 842, 846 (N.D.

Ind. 1990) (“[T]here may be cases in which a defendant’s passive conduct may

warrant enhancement.”). However, without deciding whether the guideline does

in fact provide for such a distinction, we conclude that the district court did not

limit its characterization of Defendant’s conduct during trial to passive

participation. At sentencing, the district court faulted Defendant for subpoenaing

Ms. Derbin and allowing her to lie while on the witness stand. The court further

determined that there was “no way” Ms. Derbin could have come up with her

“false story” without the Defendant’s participation. R., Vol. III at 6-7. We

conclude that the district court did not misinterpret § 3C1.1.

      Defendant also asserts that Ms. Derbin’s testimony was not perjurious. 1


      1
        The district court did not explain whether Ms. Derbin’s testimony satisfied
all the elements of perjury. Section 3C1.1, however, does not require any
particular conclusion of law as to the testimony or obstruction in question. See
United States v. Beaulieu, 900 F.2d 1531, 1535 (10th Cir. 1990) (holding that
“[t]he Guidelines do not require ‘findings’ for adjustments more specific than”
general findings of fact). The application notes merely illustrate the type of
conduct to which the enhancement is intended to apply, supplying also a list of

                                          -4-
The district court, however, determined that the testimony Ms. Derbin presented

at trial was not only false but was completely inconsistent with the story

Defendant gave to the FBI after his arrest and with his post-conviction admission

to the U.S. Probation Officer who compiled his presentence report. In those two

statements, Defendant admitted that he knew the gun was in the car he was

driving when officers attempted to arrest him on an outstanding warrant, that he

handled the gun, and that he was the one who placed it in the car. 2 See id., Vol.

II at 81-82; Addendum to Presentence Report at 2. Contrary to Defendant’s

statements, Ms. Derbin testified at trial that she both purchased the gun in



less serious conduct to which the enhancement may not apply, but which may
sanction a greater sentence within the otherwise applicable guideline range. In
the record, the district court referred to perjury and suborning perjury when
describing the guideline for the obstruction of justice enhancement. Though the
district court did not call Ms. Derbin’s testimony perjury, it treated the testimony
as if it were perjury or at least fit into the non-exhaustive list of more serious
conduct which would warrant an obstruction of justice enhancement. The district
court also concluded that Defendant participated in Ms. Derbin’s testimony.
Although it never called Defendant’s participation suborning perjury, the court
treated his involvement as if it were the suborning of perjury, or at least fit into
the same non-exhaustive list of more serious conduct which would warrant the
obstruction of justice enhancement.
      2
        We note that Defendant’s two statements are not necessarily consistent
with each other. To the FBI agent, Defendant admitted that he placed the gun in
the car. See R., Vol. II at 82. The probation officer reported, however, that while
Defendant admitted his guilt after he was convicted, he stated that he knew the
gun was in the car but did not know who put it there. See Addendum to the
Presentence Report at 2. The discrepancy between the statements is
inconsequential to the issue at hand because Ms. Derbin’s testimony is
inconsistent with both statements.

                                         -5-
question the day before Defendant was arrested and had left it hidden in the car

Defendant was driving when officers attempted to arrest him. See R., Vol. II, at

90, 92-93, 100. These inconsistencies constitute ample evidence to suggest that

Ms. Derbin’s testimony was concocted. The district court did not clearly err in

finding that Ms. Derbin’s testimony was false and perjurious. See, e.g., Beaulieu,

900 F.2d at 1535 (indicating that evidence at trial contradicting defendant’s

testimony is a valid basis for affirming obstruction of justice determination).

      Finally, Defendant argues that the district court’s findings concerning his

participation in Ms. Derbin’s testimony were not supported by sufficient and

reliable evidence. During sentencing, the district court admitted the lack of any

specific evidence that the Defendant had asked Ms. Derbin to tell her false story,

see R., Vol. III at 6, and conceded that its application of the obstruction of justice

enhancement was an “arguable point[].” Id. at 7. The district court attributed the

procuring of Ms. Derbin’s testimony to the Defendant, however, on the evidence

of the close relationship that existed between them, their commiseration while

Ms. Derbin shielded the Defendant during a five- or six-hour police standoff, and

because Defendant then subpoenaed Ms. Derbin from Washington to testify at his

trial. Id. at 6-7. “Circumstantial evidence is a sufficient basis on which the

district court may impose an obstruction of justice enhancement under § 3C1.1.”

United States v. Sisti, 91 F.3d 305, 313 (2d Cir. 1996); see also United States v.


                                          -6-
Cody, 7 F.3d 1523, 1527 (10th Cir. 1993) (“A sentencing court may consider any

reliable source of information that has some minimum indicia of reliability.”).

The facts necessary to support an obstruction of justice enhancement need be

proven only by a preponderance of the evidence. See United States v. Pelliere, 57

F.3d 936, 938 (10th Cir. 1995) (“The government must prove by a preponderance

of the evidence any sentence enhancement it asserts the court should grant.”).

After reviewing the record, we believe that the evidence relied upon by the

district court was clearly strong enough to support the finding that Defendant

participated in and suborned Ms. Derbin’s false testimony.

      In conclusion, we point out the futility of Defendant’s arguments. The

district court made it clear during sentencing that Defendant’s conduct warranted

the greatest sentence possible. See R., Vol. III at 7 (discussing the applicability

of application note 4 to § 3C1.1 which states that “[s]ome types of conduct

ordinarily do not warrant application of this enhancement but may warrant a

greater sentence within the otherwise applicable guideline range”). The district

court correctly observed, however, that the statutory maximum trumps the upper

range of the otherwise applicable guidelines. See id. Even if we were to

conclude that the district court erred in adjusting Defendant’s offense level

upward two levels for obstruction of justice, we cannot say that the court erred in

sentencing Defendant to the statutory maximum of 120 months.


                                         -7-
AFFIRMED.

                  Entered for the Court



                  Monroe G. McKay
                  Circuit Judge




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