                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           March 12, 2012
                                     TENTH CIRCUIT
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff – Appellee,
                                                            No. 11-6071
v.                                                  (D.C. No. 5:10-CR-00088-M-1)
                                                            (W.D. Okla.)
RICKY STONER, JR.,

             Defendant - Appellant.




                                 ORDER AND JUDGMENT*


Before MURPHY, HOLLOWAY, and O'BRIEN, Circuit Judges.


      Ricky Stoner, Jr., was convicted by a jury of being a felon in possession of a

firearm and ammunition and later sentenced to 51 months imprisonment. He claims

statements he made to a police officer were improperly admitted at trial and a sentencing

enhancement for obstruction of justice was wrongly applied. We affirm.

                            I.     FACTUAL BACKGROUND

      On February 2, 2010, security guards Terry Dodds and Marc Brown were


      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
patrolling an apartment complex in Oklahoma City. At approximately 8:20 p.m., while

on the second floor of one of the buildings in the complex, they heard a woman

screaming. When they looked out the window, they saw a woman sitting in a vehicle and

a man standing outside the vehicle. The woman was yelling at the man to “stop” and “get

in the car.” (R. Vol. 4 at 63.) The man, later identified as Stoner, was holding a gun. He

was waving the gun around and banging it on the ground. Dodds and Brown ran outside.

When they arrived, the woman, later identified as Stoner’s wife, was in the driver’s seat

with Stoner in the front passenger seat. Dodds and Brown approached the woman.

While they were talking to her, they observed Stoner was “really nervous” and reaching

for something on his right side. (R. Vol. 4 at 93.) Brown told Stoner to keep his hands

visible. Dodds went around the vehicle to the front passenger door and opened it.

Between the front passenger seat and door he noticed a gun, the muzzle pointing toward

him. Dodds grabbed Stoner and removed him from the vehicle.

       Stoner “ball[ed] up his fist[s] and lift[ed] his pants up in an aggressive manner.”

(R. Vol. 4 at 66.) Brown, with his taser drawn, joined Dodds. Several times Dodds and

Brown ordered Stoner to place his hands on the hood of the vehicle. Brown told Stoner

that if he did not comply, he would tase him. Stoner did not comply. Stoner then

reached for his waistband, pivoted and attempted to run. Brown tased him with 50,000

volts of electricity for five seconds; one prong hit Stoner in the lower back and the other

prong hit him in the left calf. Stoner collapsed to the ground. At some point during the

exchange, Dodds placed the gun on top of Stoner’s vehicle. It was a Hi-Point 9 mm

pistol with scuff marks, presumably from being banged against the ground.

                                            -2-
        Before long Officer Alex Edwards of the Oklahoma City Police Department

arrived on the scene.1 He handcuffed Stoner2 and walked him to his patrol car. He noted

several things about Stoner: he was slurring his words and sweating profusely; he was

erratic, meaning “he would calm down slightly, and then he would get real agitated real

quick”; and he had trouble standing on his own – Edwards had to hold him on the walk to

the patrol car. (R. Vol. 4 at 119.) Believing Stoner to be under the influence of

phencyclidine (PCP), Edwards asked: “Are you [all] right[?] . . . [W]hat are you on?

Man, are you on something?” (R. Vol. 4 at 230.) He then asked Stoner if he was on

“[w]ater” (the street name for PCP). (Id.) Stoner replied: “Yeah, a little bit.” (Id. at

230.)

        Once Stoner was secured in the patrol car, Edwards located the gun on the ground

in front of the front passenger door.3 It was loaded, but jammed. Edwards seized the

gun. He then returned to his patrol car and ran a records check on Stoner. Stoner asked

Edwards why he was being arrested. Edwards responded: “Well, you know, is that your

weapon?” (R. Vol. 4 at 231.) When Stoner did not respond, Edwards asked again, “Is

that your weapon?” (Id. at 232.) Stoner replied, “Well, it jammed on me.” (Id. at 232.)

Edwards said, “So your weapon jammed on you?” (Id.) Stoner responded, “It jammed


        1
        During the encounter with Stoner, Dodds reported the incident to his dispatcher,
who, in turn, called the Oklahoma City Police Department.
        2
       Dodds and Brown testified that they handcuffed Stoner. This factual discrepancy
is immaterial to our resolution of the case.
        3
            It may have fallen from the roof of the car, where Dodds placed it; the record is
unclear.


                                               -3-
on me.” (Id.) A few minutes later Edwards learned of Stoner’s prior felony conviction;

at that time he placed Stoner under arrest.

       Because Stoner had been tased and was apparently under the influence of PCP,

Edwards drove him to the hospital and then to the county jail. During transport, Edwards

detected the smell of PCP emanating from Stoner.

                           II.   PROCEDURAL BACKGROUND

       Stoner was indicted for being a felon in possession of a firearm and ammunition in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).4 At trial, during Edwards’ direct

examination, the government attempted to elicit his testimony concerning Stoner’s

statements about using PCP and possession of the gun. Stoner objected claiming the

statements were inadmissible because they were taken in violation of his Miranda rights.5

The government argued Miranda did not apply because Stoner was not in custody at the

time the statements were made, but it nevertheless abandoned the inquiry and the

statements did not come in at that time.

       Stoner testified as follows: On the day of the incident, he was supposed to pick up

his wife from work at 5:30 p.m. but did not arrive until 5:45 p.m. She was angry and

acting “hysterical” because he was late. (R. Vol. 4 at 145.) She grabbed the car keys

from him and told him to get out of the car. He complied and began walking. She

eventually drove up to him and told him to get in the car, which he did. She drove to a

convenience store where he bought cigars and cigarettes. She then drove to another

       4
           The indictment also included a forfeiture count which is not at issue here.
       5
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                              -4-
convenience store where she took the keys, got out of the car and started walking down

the street. Because he was tired, Stoner decided to take a nap in the car. His wife later

returned to the vehicle and drove to the apartment complex. When he woke up, he asked,

“What are we doing here?” (R. Vol. 4 at 147.) His wife was still “hysterical.” (Id. at

148.) Because he had $3000 in his pockets (allegedly from a tax refund), he decided to

walk to his grandmother’s house, which was nearby, in order to avoid being robbed.

When he got out of the vehicle, he was tased. He did not remember anything after being

tased except for briefly waking up in the patrol car and then later at the hospital. He also

remembered officers at the county jail throwing him in a room and stripping him naked.

When he was released from jail his money was missing. He believed his wife took him

to the apartment complex so he could be robbed.

       During cross-examination, the government asked Stoner whether he was under the

influence of PCP at the time of the incident. He said no. When asked whether there was

gun in the car on the day of the incident, he replied, “No, sir, not to my knowledge.” (R.

Vol. 4 at 166.) Based on these denials, the government sought to impeach him with the

statements he made to Edwards.

       The court held a Jackson v. Denno6 hearing out of the jury’s presence to determine

whether Stoner’s statements were voluntary. Edwards’ hearing testimony established the



       6
         See Jackson v. Denno, 378 U.S. 368, 380 (1964) (“A defendant objecting to the
admission of a confession is entitled to a fair hearing in which both the underlying factual
issues and the voluntariness of his confession are actually and reliably determined.”); see
also 18 U.S.C. § 3501(a) (“Before [a] confession is received in evidence, the trial judge
shall, out of the presence of the jury, determine any issue as to voluntariness.”).

                                            -5-
following: (1) Stoner never complained of pain from being tased (even though the taser’s

prongs were still in his back and leg when he made the statements) or from being

handcuffed; (2) Edwards used a calm voice in asking Stoner if he was under the influence

of PCP; (3) Stoner in no way indicated an unwillingness to speak to Edwards and

appeared competent to answer Edwards’ questions; (4) Edwards used no physical force,

threats or other forms of coercion against Stoner, nor did he draw his weapon, or even

have his hand on it, during the encounter; and (5) other responding officers did not arrive

until after Stoner was in Edwards’ patrol car and were not around Stoner when he made

the statements. Edwards described his conversation with Stoner as “two guys on the

street” talking. (R. Vol. 4 at 187.)

       The court decided Stoners’ statements were voluntary. Despite acknowledging

that Stoner had been tased, had not been Mirandized, was not free to leave, was in the

back of the patrol car at the time he made incriminating statements and other officers

were in the vicinity, it determined the statements were not coerced or compelled. It

considered Edwards to be a credible witness.

       After the Jackson v. Denno hearing, the government resumed its cross-

examination of Stoner. He again stated he did not use PCP or possess a gun the day of

the incident. He also said he did not recall any conversations with Edwards regarding

whether he had used PCP or whether the gun was his. In rebuttal, the government again

called Edwards who recounted the statements Stoner had made to him and the conditions

under which they were made. The jury found Stoner guilty.

       A presentence report (PSR) was prepared. It calculated the base offense level to

                                           -6-
be 20 because the offense was committed subsequent to a felony conviction for a

controlled substance offense. See USSG §2K2.1(a)(4).7 It added two levels for

obstruction of justice based on Stoner having committed perjury at trial when he denied

possessing a firearm. See USSG §3C1.1. It determined Stoner’s Criminal History

Category to be III. With that criminal history and a total offense level of 22, the advisory

guideline range was 51 to 63 months imprisonment.

       Stoner objected to the obstruction of justice enhancement. As to his testimony

denying the use of PCP, he argued that possibly being under the influence of PCP was

not material to a weapons offense. With respect to his testimony denying he possessed a

weapon, he claimed it was merely a denial of guilt, which cannot be used as an

obstruction of justice enhancement. He also moved for a downward variance under the

18 U.S.C. § 3553(a) factors, claiming: (1) he was 35 years old and “a productive

individual”; (2) he needed mental8 and substance abuse treatment; and (3) he was

committed to his family. (R. Vol. 1 at 170.) He also argued that “[t]he facts,

characteristics and circumstance of this case, taken in their entirety, distinguish this case

as sufficiently atypical and warrant a sentence lower than called for under the

       7
      Stoner was sentenced under the 2010 edition of the United States Sentencing
Commission Guidelines Manual, which we reference unless otherwise indicated.
       8
         Prior to trial, Stoner’s attorney filed an unopposed motion for a psychiatric
evaluation in order to determine (1) whether Stoner was currently suffering from a mental
disease or defect rendering him unable to understand the nature and consequences of the
proceedings or to properly assist in his defense and (2) whether, at the time of the
offense, he was suffering from a severe mental disease or defect which rendered him
unable to appreciate the nature and quality of the wrongfulness of his acts. The district
court ordered a psychiatric evaluation. It revealed Stoner to be competent at the time of
the offense and competent to stand trial.

                                             -7-
guidelines.” (Id.)

       At sentencing, Stoner’s counsel expounded on the objection to the obstruction of

justice enhancement, saying

       I truly believe that Mr. Stoner believes the facts that he testified to at trial. I
       honestly believe that was his reference point. I don’t believe it rose to the
       level of being perjurious . . . . I believe . . . that he was basically denying
       his guilt in this case. Simply a denial of guilt does not rise to the level of
       perjury.

       (R. Vol. 4 at 256.)
       The district court overruled Stoner’s objection to the obstruction of justice

enhancement:

       The Court is familiar, certainly, with the matter at issue before us. The
       Court sat through the same trial that all of you sat through. I am aware that
       under the Sentencing Guidelines there is an application note, which is kind
       of an escape clause for someone receiving points under this section of the
       guidelines for obstruction. But the Court believes that the weight of both
       the authority and certainly the facts in this case -- I mean, he said over and
       over at the trial that he didn’t have a gun. The jury didn’t believe him, and
       it is not my job to go behind them in that instance. The Court finds that the
       enhancement for obstruction is appropriate. I’m going to leave these two
       points, I’m not going to take away the two points . . . .

(R. Vol. 4 at 257-58.) It denied Stoner’s request for a downward variance and sentenced

Stoner to 51 months imprisonment. A 51-month sentence was appropriate under the §

3553(a) factors, the court said, because it accounted for Stoner’s extensive criminal

history (which included violence), afforded an adequate deterrence from future criminal

behavior, protected the public and allowed Stoner adequate time to receive substance

abuse treatment while incarcerated.

                                    III.   DISCUSSION

       We now address the issues Stoner raises on appeal: (1) his statements to Edwards

                                              -8-
concerning his use of PCP and possession of the gun should not have been admitted and

(2) since he did not obstruct justice his sentence was improperly enhanced.

A.     Trial—Admission of Involuntary Confession

       The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. CONST. amend. V. In Miranda, the

Supreme Court held the Fifth Amendment privilege against self-incrimination prohibits

the admission of statements given by a suspect during “custodial interrogation” without a

prior warning. 384 U.S. at 444. However, that rule applies only to the admission of such

statements in the government’s case-in-chief; the government is allowed to use

statements taken in violation of Miranda to impeach the credibility of a defendant. See

Harris v. New York, 401 U.S. 222, 224 (1971); see also Oregon v. Hass, 420 U.S. 714,

722 (1975) (“[T]he shield provided by Miranda is not to be perverted to a license to

testify inconsistently, or even perjuriously, free from the risk of confrontation with prior

inconsistent utterances.”). There is one caveat, however: in order for statements taken in

violation of Miranda to be used for impeachment, the statements must have been made

voluntarily. Hass, 420 U.S. at 722; see also Mincey v. Arizona, 437 U.S. 385, 398

(1978). “A coerced or involuntary statement, which violates a suspect’s rights under the

Fifth Amendment, is not admissible at trial for any purpose.” United States v. Guerro,

983 F.2d 1001, 1003 (10th Cir. 1993); see also Mincey, 437 U.S. at 398 (“[A]ny criminal

trial use against a defendant of his involuntary statement is a denial of due process of law,

even though there is ample evidence aside from the confession to support the

conviction.”) (quotations omitted).

                                            -9-
       As the government only used Stoner’s statements to impeach him, the only issue is

whether the statements were made voluntarily. The district court answered in the

affirmative. “The issue of voluntariness is reviewed de novo, but the factual findings of

the district court are reviewed under the clearly erroneous standard.”9 Guerro, 983 F.2d

at 1003.

       In support of his involuntariness argument, Stoner tells us the arrest and

handcuffing of a defendant is presumptively coercive. Therefore, “it’s no doubt safe to

assume that handcuffing and forcing a suspect to walk to a police car after he was tased

with 50,000 volts of electricity is coercive as well.” (Appellant’s Reply Br. at 2.)

Moreover, he had “two taser prongs sticking out of him[,] . . . [h]is speech was slurred, he

exhibited erratic movements, he would go from calm to agitation, and he was sweating

profusely.” (Appellant’s Opening Br. at 19.) He also “had so much trouble standing on

his own, that Officer Edwards had to hold him up to get him to the car.” (Id. at 19-20.)

According to Stoner, these circumstances rendered his statements “not the product of free



       9
         In his opening brief and again at oral argument, Stoner claimed the standard of
review is de novo. He relies on Mincey which said: “In making [a determination of
whether a defendant’s statements were voluntary], we are not bound by the [underlying
court’s] holding that the statements were voluntary. Instead, this Court is under a duty to
make an independent evaluation of the record.” 437 U.S. at 398. We do not view this
statement as inconsistent with Guerro that we review the overall issue of voluntariness de
novo and the district court’s underlying factual findings for clear error. Indeed, the cases
Mincey cites in support of its statement clarify this. See Davis v. North Carolina, 384
U.S. 737, 741-42 (1966) (declining to review factual findings but stating it had duty “to
examine the entire record and make an independent determination of the ultimate issue of
voluntariness”) (emphasis added); Haynes v. Washington, 373 U.S. 503, 515-16 (1963)
(stating reviewing court will defer to trial court or jury regarding resolution of evidentiary
conflicts but will make an independent determination as to voluntariness).

                                            - 10 -
will and a sound mind.”10 (Id. at 20.)

       We are not called upon to decide whether statements to the police are well

considered or even accurate, only whether they are voluntary. And the constitutional

aspect of the voluntariness inquiry has an even more significant limitation. “[C]oercive

police activity is a necessary predicate to the finding that a confession is not ‘voluntary’

within the meaning of the Due Process Clause of the Fourteenth Amendment.” Colorado

v. Connelly, 479 U.S. 157, 167 (1986);11 see also Guerro, 983 F.2d at 1004 (“[The Fifth


       10
          In his opening brief, Stoner relies in part on his use of PCP as a circumstance
negating the voluntariness of his statements, stating he was “high on PCP.” (Appellant’s
Opening Br. at 19.) However, at oral argument, his counsel said the use of PCP is not
relevant to the voluntariness inquiry as Stoner has denied using PCP that day. Taking
Stoner at his word, we eliminate PCP use as a voluntariness factor in this case. See
United States v. Yelloweagle, 643 F.3d 1275, 1278 n.1 (10th Cir. 2011) (accepting
government’s concession at oral argument which corrected an argument made in its brief
which was not supported by the record); Korth v. Zion’s Savings Bank & Trust Co., 148
F.2d 170, 171 (10th Cir. 1945) (accepting parties’ concession at oral argument as to
decisive question in case which eliminated need of court to consider other issues).
        Even if we were to assume Stoner was high on PCP at the time of his statements,
we would nevertheless find them voluntary given the absence of any evidence suggesting
Edwards exploited Stoner’s PCP use to coerce a confession. See Colorado v. Connelly,
479 U.S. 157, 165 (1986) (while the defendant’s mental state is relevant to an
individual’s susceptibility to police coercion, there must be a link between the coercive
activity and the resulting confession); see also Guerro, 983 F.2d 1001, 1004 (10th Cir.
1993) (“While the defendant’s mental condition is an important consideration, to find a
statement involuntary, the police must somehow overreach by exploiting a weakness or
condition known to exist.”).
       11
         Connelly approached a police officer and confessed to killing a young girl.
Connolly 479 U.S. at 160-61. The next day, he became visibly disoriented and alleged
“voices” had told him to confess. Id. at 161. Subsequent testing revealed Connelly
suffered from chronic schizophrenia and was in a psychotic state at the time he
confessed. Id. Despite finding no wrongdoing by the police, the Colorado state courts
concluded Connelly’s mental condition rendered his statements and waiver of his rights
involuntary. Id. at 162-63. The Supreme Court reversed, holding that while a
defendant’s mental condition is a factor in the voluntariness inquiry, “coercive police

                                            - 11 -
Amendment due process] guarantee does not protect against conduct by private parties

nor does it protect a defendant from his own compulsions or internally-applied pressures

which are not the product of police action.”). It bears repeating, the narrow issue

presented is whether coercive police conduct overcame Stoner’s free will.12

         A statement is voluntary if it is “the product of a rational intellect and a free will.”

Mincey, 437 U.S. at 398 (quotations omitted). Voluntariness depends on the totality of

the circumstances. Id. at 226. Relevant factors are: (1) the suspect’s age, intelligence,

and education; (2) the length of the detention and questioning; (3) the use or threat of

physical punishment; (4) whether the Miranda warnings were administered; (5) the

accused’s physical and mental characteristics; (6) the location of the interrogation; and

(7) the conduct of the police. United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir.

1993).

         While it is, admittedly, a close call, we cannot say it was error for the district court

to conclude Stoner’s statements were not coerced. Edwards summed up his conversation

with Stoner as “two guys on the street” talking. (R. Vol. 4 at 187.) That summary seems

more than a little understated, considering the facts. But his testimony was mostly

concerned with facts and circumstances. And the court found him credible, a finding we

cannot ignore. See United States v. Miller, 987 F.2d 1462, 1465 (10th Cir. 1993) (“We

activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within
the meaning of the Due Process Clause of the Fourteenth Amendment.” Id. at 164, 167.
         12
         Of course, the police cannot exploit an obvious vulnerability. Guerro, 983 F.2d
at 1004 (“While the defendant’s mental condition is an important consideration, to find a
statement involuntary, the police must somehow overreach by exploiting a weakness or
condition known to exist.”).

                                              - 12 -
must rely on the district court’s findings regarding witness credibility unless they are

clearly erroneous.”). He candidly admitted damaging facts – Stoner was handcuffed in a

police car and was not advised per the Miranda decision, two potent considerations.

Moreover, Stoner had just been tased and was disoriented. But our precedent, as well as

that of the Supreme Court, establishes that while arresting and handcuffing are coercive

acts, the statements of a handcuffed detainee can nevertheless be voluntary, even when

Miranda warnings are not given. See United States v. Silva-Arzeta, 602 F.3d 1208, 1215

(10th Cir. 2010); see also United States v. Watson, 423 U.S. 411, 424 (1976) (“[T]he fact

of custody alone has never been enough in itself to demonstrate a coerced confession or

consent to search.”); United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999) (finding

defendant’s consent to search voluntary where there was no evidence of physical

mistreatment, threats or trickery even though consent given while defendant was in

custody in an interrogation room and without the Miranda warnings).

       There is no evidence Edwards threatened or otherwise coerced Stoner into

confessing. Edwards asked only two questions – one legitimately relating to Stoner’s

well-being and the other as to the gun. The statement concerning PCP use occurred

shortly after Edwards arrived on scene and handcuffed Stoner; the statement concerning

the gun approximately five or six minutes later. Thus, the length of detention and the

questioning itself were brief. Edwards spoke to Stoner in a calm and conversational

manner. While Stoner was clearly detained at the time of questioning, he was not

formally arrested until a records check later revealed a felony conviction. The detention

was reasonable given the presence of the gun and evidence of an attempt to use it (the

                                           - 13 -
gun was jammed). Given those circumstances, Edwards was justified in detaining and

restraining Stoner to secure the scene and render it safe.13 Significantly, Edwards did not

tase Stoner. Rather, he was tased by two private security guards. Such private action

does not violate the due process clause. See Connelly, 479 U.S. at 166 (“The most

outrageous behavior by a private party seeking to secure evidence against a defendant

does not make that evidence inadmissible under the Due Process Clause.”) (collecting

cases). In any event, despite the tasing, Edwards considered Stoner sufficiently

competent to answer a couple of pressing and relevant questions.14 Stoner did not

complain of pain from being tased or handcuffed. While other police officers were in the

vicinity, they were not part of the questioning.

       The circumstances thus show a brief, necessary conversation about a recent

volatile situation in the quiet of a patrol car between one officer and Stoner and the

complete absence of any physical or psychological coercion by the officer. Our review is

de novo but we review factual findings for clear error. Edwards’ credibility is a key

factual finding and for reasons stated is not clearly erroneous. His description of

circumstances (but not necessarily his conclusions) is compelling in our analysis. The

district court did not err.


       13
         Before arriving at the scene, Edwards was informed by dispatch that two
security guards were detaining a suspect who was possibly armed.
       14
          Edwards testified that he had been tased as part of his training. He stated the
tasing did not incapacitate him or otherwise render him unable to competently carrying
on an intelligent conversation. Security Officer Brown had also been tased as part of his
training. He testified he had the “typical[]” reaction to being tased – his muscles
stiffened –- and he fell to the ground. (R. Vol. 4 at 84.)

                                           - 14 -
B.     Sentencing—Obstruction of Justice Enhancement

       Stoner complains that the court failed to specify which portion of his testimony

was false and whether that testimony was material and willful, both necessary elements

of perjury. But he did not register his concerns with the court at a time when deficient

fact finding or explanation could be corrected. He also claims the evidence was

insufficient to support a finding of perjury, as he testified to an inability to recall making

any statements to Edwards and this lack of recall was consistent with the fact he had just

been tased.

       USSG §3C1.1 reads:
       If (A) the defendant willfully obstructed or impeded, or attempted to
       obstruct or impede, the administration of justice with respect to the
       investigation, prosecution, or sentencing of the instant offense of
       conviction, and (B) the obstructive conduct related to (i) the defendant’s
       offense of conviction and any relevant conduct; or (ii) a closely related
       offense, increase the offense level by 2 levels.

       The commentary provides:
       This provision is not intended to punish a defendant for the exercise of a
       constitutional right. 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 is not a
       basis for application of this provision. In applying this provision in respect
       to alleged false testimony or statements by the defendant, the court should
       be cognizant that inaccurate testimony or statements sometimes may result
       from confusion, mistake, or faulty memory and, thus, not all inaccurate
       testimony or statements necessarily reflect a willful attempt to obstruct
       justice.

USSG §3C1.1, comment. n.2. The guideline applies to “committing, suborning, or

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

court did not explicitly so state, it obviously concluded that Stoner committed perjury at

trial, its justification for imposing the obstruction of justice enhancement.

                                            - 15 -
       “[A] defendant’s right to testify does not include a right to commit perjury.”

United States v. Dunnigan, 507 U.S. 87, 96 (1993). However, “[t]he mere fact that a

defendant testifies to his or her innocence and is later found guilty by the jury does not

automatically warrant a finding of perjury.” United States v. Markum, 4 F.3d 891, 897

(10th Cir. 1993). Perjury occurs when “[a] witness testifying under oath or

affirmation . . . gives false testimony concerning a material matter with the willful intent

to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” Dunnigan, 507 U.S. at 94; see also United States v. Smith, 81 F.3d 915, 918

(10th Cir. 1996) (“The factual predicates of perjury are that a witness (1) gives false

testimony under oath (2) concerning a material matter (3) with willful intent to provide

false testimony, rather than as a result of confusion, mistake, or faulty memory.”).

       “[I]f a defendant objects to a sentence enhancement resulting from her trial

testimony, a 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.” Dunnigan, 507 U.S. at 95. “When doing so,

it is preferable for a district court to address each element of the alleged perjury in a

separate and clear finding.” Id. However, the district court’s determination that an

enhancement is required will be sufficient if “the court makes a finding of an obstruction

of, or impediment to, justice that encompasses all of the factual predicates for a finding of

perjury.” Id.

       In addition to the Dunnigan requirements, we also require the court “be explicit

about which representations by the defendant constituted perjury.” United States v.

                                            - 16 -
Flonnory, 630 F.3d 1280, 1287 (10th Cir. 2011). “The court need not recite the false

statements verbatim, but must generally identify the testimony at issue so that when we

review the transcript we can evaluate the Dunnigan findings of the elements of perjury

against an identified line of questions and answers without having simply to speculate on

what the district court might have believed was the perjurious testimony.” Id. (quotations

omitted).

       Here, the court’s comments—Stoner “said over and over at that trial that he didn’t

have gun”—adequately identify that statement as the testimony the court found to amount

to perjury; there is no need to speculate. In his testimony Stoner did claim not to be able

to recall his statements to Edwards, but he also explicitly denied possession of a gun.

Contrary to Stoner’s claim, it was not his inability to recall that was perjurious; it was his

explicit denial.

       Similarly, while the court did not expressly find the statement denying knowledge

of the gun to be material, it implicitly did so in noting that Stoner had said “over and over

at the trial that he didn’t have a gun” and “the jury didn’t believe him.” (R. Vol. 4 at

258.) In other words, the court implicitly found the jury would not have convicted him of

being a felon in possession of a firearm and ammunition had it believed his testimony. It

implicitly found the statement to be material.15



       15
          The elements of felon in possession of a firearm and ammunition are: (1) the
defendant was convicted of a felony; (2) he thereafter knowingly possessed a firearm and
ammunition; and (3) the possession was in or affecting interstate commerce. United
States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996). The parties stipulated that Stoner had
a prior felony conviction and the government’s evidence that the firearm and ammunition

                                            - 17 -
       It is troubling that the district court failed to expressly make findings clearly

establishing that Stoner’s statement was false16 and made “with the willful intent to

provide false testimony, rather than as a result of confusion, mistake, or faulty memory.”

But that does not require reversal if the error was harmless.

       As the record overwhelmingly demonstrates, Stoner lied about his possession of

the gun. Indeed, his testimony seems contrived, even when most charitably regarded. At

trial he unequivocally testified that he did not have a gun His testimony contradicted that

of Dodd and Brown. They testified to observing Stoner waving the gun and pounding it

on the ground and to finding the gun between the front passenger door and the front

passenger seat where Stoner was sitting. It also contradicted Edwards’ testimony (which

the district court found to be credible) that when he asked Stoner if the gun was his, he

twice said it had jammed on him. This evidence, and the absence of any evidence that

Stoner was confused, mistaken or suffering from a faulty memory at the time of trial,

supports a reasonable inference that his testimony was willfully false. See United States



had traveled in interstate commerce was not contested at trial. Therefore, the crucial
issue at trial was whether Stoner knowingly possessed the firearm and ammunition.
Thus, his denial of knowledge of the gun was material. See USSG §3C1.1, comment.
(n.6) (“‘Material’ evidence . . . means evidence . . . that, if believed, would tend to
influence or affect the issue under determination.”).
       16
          The district court did say the jury did not believe Stoner. But it also said it was
not its “job to go behind [the jury] in that instance.” (R. Vol. 4 at 258.) Therefore, the
court itself never expressly concluded Stoner’s statement was false. See Markum, 4 F.3d
at 897 (“An automatic finding of untruthfulness, based on the verdict alone, would
impinge upon the constitutional right to testify on one’s own behalf. To impose the two-
level enhancement under §3C1.1, the district court must specifically find that the
defendant committed perjury.”). It may not be necessary to accentuate the obvious, but
doing so clearly informs the record.

                                            - 18 -
v. Rivera-Carrera, 386 F. App’x. 812, 820-21 (10th Cir. 2010) (unpublished) (affirming

district court’s application of obstruction of justice enhancement even though court failed

to make particularized findings that defendant’s false statements were willful where trial

record demonstrated defendant’s trial testimony was sufficiently at odds with all the other

witnesses’ testimony); see also United States v. Webster, 373 F. App’x. 867, 871 (10th

Cir. 2010) (unpublished) (affirming district court’s application of obstruction of justice

enhancement even though court failed to make particularized findings that defendant’s

false statements were willful where there was no evidence defendant’s testimony was the

product of confusion, mistake or faulty memory and court determined defendant was

making excuses for his conduct).17 Given the overwhelming evidence that Stoner lied

about possessing the firearm, a remand requiring the district court to accentuate the

obvious would change nothing. “[I]t would be surprising if [Stoner’s] sentence would be

any different if we reversed and remanded for resentencing.” See Flonnory, 630 F.3d at

1288. As the defect in the district court’s factfinding did not affect Stoner’s substantial

rights, the error was harmless.

       AFFIRMED.
                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       17
       Unpublished opinions are not binding precedent. 10th Cir. R. App. P. 32.1(A).
We mention Rivera-Carrera and Webster because of their persuasive reasoning.

                                            - 19 -
