                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4653



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ROBERT WASHINGTON,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
02-27-JFM)


Submitted:   February 28, 2006            Decided:   March 22, 2006


Before NIEMEYER, LUTTIG, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan R.L. Bussard, Towson, Maryland, for Appellant.        Rod J.
Rosenstein, United States Attorney, Michael J. Leotta, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Robert Washington appeals the 120-month sentence imposed

by the district court after his case was remanded for resentencing

consistent with United States v. Booker, 543 U.S. 220 (2005).                    See

United States v. Washington, 398 F.3d 306 (4th Cir.), cert. denied,

125 S. Ct. 2558 (2005).      Washington was convicted of being a felon

in possession of a firearm after Joseph Gilmore called the police

alleging that Washington had assaulted him.              Gilmore led Baltimore

City   Police   Officer   Todd     Tugya    to   Washington’s      home    at   3037

Monument Avenue.     At trial, Officer Tugya identified Washington as

the man who opened the door holding a loaded handgun, then dropped

the gun and fled.     Gilmore later recanted his statements to police

and his identification of Washington from a photo array, claiming

that he had been coerced by the police.            Mrs. Washington testified

at   trial    that   James   Hill,       another   man    with    whom    she   was

romantically    involved,    was    at    her    house   that    night    and   that

Washington had moved out some time earlier.                The district court

determined on remand, as at the first sentencing hearing, that

Washington obstructed justice by suborning his wife’s perjured

trial testimony. U.S. Sentencing Guidelines Manual § 3C1.1 (2004).

Washington contends that the district court erred in so finding.

For the reasons explained below, we affirm the district court’s

determination that Washington obstructed justice.




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            The government suggests that, in light of Booker, this

court need not review the district court’s decision to enhance

Washington’s sentence under § 3C1.1 because the ultimate sentence

was reasonable.      However, after Booker, “the district court must

consider     the    correct     guideline      range    before     imposing    a

sentence . . . .”        United States v. Hughes, 401 F.3d 540, 556 (4th

Cir. 2005).        Therefore, we will address the propriety of the

§ 3C1.1 adjustment.        We review the court’s fact finding concerning

obstruction of justice for clear error.              Hughes, 401 F.3d at 560.

            Obstruction of justice includes “committing, suborning,

or attempting to suborn perjury.” USSG § 3C1.1, comment. (n.4(b)).

Obstruction    of    justice     is   not     defined   in   the   guidelines.

Application Note 3 to § 3C1.1 states that “[o]bstructive conduct

can vary widely in nature, degree of planning, and seriousness.”

Application Note 4 provides a “non-exhaustive list of examples of

the types of conduct” to which the adjustment applies.                 The list

includes,    but    is   not   limited   to,    “committing,     suborning,    or

attempting to suborn perjury.”           USSG § 3C1.1, comment. (n.4(b)).

Subornation of perjury consists of three elements:                     (1) “the

suborner should have known or believed or have had good reason to

believe that the testimony given would be false;” (2) “should have

known or believed that the witness would testify willfully and

corruptly,    and   with    knowledge    of    the   falsity;”   and   (3)   have

“knowingly and willfully induced or procured the witness to give


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false testimony.”       Petite v. United States, 262 F.2d 788, 794 (4th

Cir. 1959), vacated on other grounds, 361 U.S. 529 (1960); see also

United   States    v.    Heater,      63   F.3d    311,    320    (4th   Cir.   1995)

(“Subornation of perjury consists of procuring or instigating

another to commit perjury.”).              On remand, Washington’s attorney

conceded, albeit reluctantly, that the first two elements “were

probably met.”

           The district court inferred that Washington took an

active part in procuring his wife’s false testimony, although there

was no direct evidence that Washington had instigated his wife’s

testimony. The court based its determination in part on its belief

that   Washington       knew   in     advance     that    she    would   give   false

testimony, in part on Washington’s marital relationship with his

wife, and in part on its belief that Washington had influenced

Gilmore to keep him from testifying for the government.

           We noted previously that the case presented a question

unresolved in this Circuit: “whether the calling of a witness whom

the    defendant    knows      will     testify     falsely      could   constitute

obstruction of justice under § 3C1.1,” Washington, 398 F.3d at 313

n.8. Several circuits have upheld an adjustment for obstruction of

justice in this circumstance, based in each case on an inference

that the defendant suborned the false testimony.                         See United

States v. Calderon-Avila, 322 F.3d 505, 507 (8th Cir. 2003); United

States v. Miller, 159 F.3d 1106, 1112-13 (7th Cir. 1998); United


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States v. Lowder, 148 F.3d 548, 552-53 (5th Cir. 1998).                          We

conclude     from     these       decisions      that   the   district      court’s

determination       that   Washington     obstructed     justice      by   knowingly

calling his wife to give perjured testimony could be affirmed if

the court’s factual finding is supported by the record.

           However, we need not reach the question of whether

Washington suborned his wife’s perjury.                 In the circumstances of

this case, the district court’s determination that Washington

knowingly based his defense on his wife’s perjured testimony is not

clearly erroneous and is sufficient to warrant the adjustment.

Washington’s wife’s testimony was central to his defense.                        The

defense attorney’s emphasis on Mrs. Washington’s testimony in his

opening statement indicates that he knew what her testimony would

be. The court’s conclusion that Washington also knew how she would

testify is not clearly erroneous.                 Mrs. Washington’s testimony

contradicted the testimony of Officer Tugya, who testified that the

door to Washington’s house was opened by a man who resembled

Washington    rather       than    her   description     of   James    Hill.    Her

testimony also contradicted Washington’s statement at arrest that

he lived at 3037 East Monument Street, and contradicted Gilmore’s

initial statements to the police and identification of Washington

as his assailant.          Even if Washington did not induce his wife’s

false testimony, when Washington knowingly presented her false




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testimony as his defense, he evinced a clear attempt to obstruct

the administration of justice.*

           Although the district court made the additional finding

that Washington suborned perjury, we may affirm the judgment for

any reason appearing by the record.    United States v. Swann, 149

F.3d 271, 277 (4th Cir. 1998); see also United States v. Garnett,

243 F.3d 824, 830 (4th Cir. 2001) (sentence enhancement may     be

affirmed on the basis of “‘any conduct [in the record] that

independently and properly should result in an increase in the

offense level’ by virtue of the enhancement.”      (quoting United

States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992)).

           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




     *
      Because of Gilmore’s decision to recant his prior statements,
Mrs. Washington’s failure to tell the police that her husband was
not home on November 11, 2001, and defense counsel’s focus on Mrs.
Washington’s testimony in his opening statement, this case is
distinguishable from United States v. Lesczynski, 86 F. App’x 551
(4th Cir. 2004) (No. 02-4431).

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