                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            AUG 16, 2006
                             No. 05-16590                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 05-00187-CR-2-SLB-HGD

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MEENYA TANESH THOMAS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (August 16, 2006)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Meenya Tanesh Thomas appeals her 21-month concurrent sentences,

imposed after a jury convicted her of two counts of committing perjury before a

grand jury, both violations of 18 U.S.C. § 1623(a). On appeal, she argues that the

district court erred by (1) denying her motion to suppress statements made to

police; (2) her motion to disqualify the prosecuting attorney; and (3) applying a

two-level sentencing enhancement for obstruction of justice. For the reasons set

forth more fully below, we affirm.

      Prior to trial, Thomas filed a motion to have the prosecutor withdraw himself

from the case because Thomas intended to call him as a witness. The government

opposed the motion, and described in detail the robbery that triggered the grand

jury testimony at issue in this case. Thomas, according to the government, was the

girlfriend of one of the suspects in the robbery, Xavier Perkins, and when

interviewed by police, she said that Perkins had told her that he had robbed a CVS

Pharmacy and gotten into a shootout with police. When she testified before the

grand jury, however, Thomas denied making the statement to police and claimed

that she fabricated a second, written statement because Detective Eddie Morrissette

had threatened her. The government opposed Thomas’s motion because Thomas

had failed to demonstrate a compelling need to call the prosecutor as a witness.

      Thomas responded by arguing that she intended to call the prosecutor as a



                                          2
witness, and, therefore, it was improper for him to simultaneously prosecute the

case in which he was going to testify. She argued that it was unfair for the

prosecutor’s credibility to be gauged by the jury based upon his presentation of the

case (voir dire, opening statement, examination of witnesses) prior to giving his

own testimony. Next, Thomas argued that she did not have to show a compelling

need for the prosecutor to be called as a witness because she should not be placed

in a position where she would have to disclose trial strategy. In addition, she

argued that her Sixth Amendment interests in obtaining witnesses outweighed any

interest Simpson had in avoiding testifying.

      The district court denied the motion after finding that Thomas failed to

demonstrate any compelling need to call the prosecutor as a witness. Thomas filed

a motion for reconsideration of the court’s order and argued that she had a

compelling need to call Simpson because he was the only witness, other than

Thomas herself, to her testimony before the grand jury. She further argued that the

grand jury transcript of her testimony was not a substitute for the prosecutor’s

testimony, which would better capture the overall veracity of Thomas’s grand jury

testimony. Lastly, she argued that the district court’s refusal to call the prosecutor

as a witness would deny her Sixth Amendment right to confront the only witness

with first-hand knowledge of her testimony. That motion was denied. At a later



                                           3
hearing, Thomas was given an opportunity to clarify her compelling need for the

prosecutor to be called as a witness, and she stated that the grand jury transcript

“can’t capture the body language, the dynamics, of what was said and how it was

said. Only a live witness can convey that to this court.” The district court found

no compelling need.

      The morning of the trial, Thomas filed a motion in limine that was converted

to a Miranda1 hearing to determine whether Thomas was in custody when she gave

statements to the police. Thomas called Detective Eddie Morrissette, who spoke to

Thomas and her mother regarding a CVS robbery. Thomas was in plain clothes,

but had his badge and firearm showing. Morrissette first spoke with Thomas’s

mother, Lorene, because Thomas was not present at her home when Morrissette

arrived. Thomas later arrived, and Morrissette began questioning her. Morrissette

observed that, at the time, Thomas was handcuffed but not arrested. After Thomas

had identified herself, however, Morrissette unhandcuffed her “within moments.”

Morrissette questioned Thomas and explained to her that, if in fact she had picked

up the men from the scene of the robbery, she could get in trouble because it was

against the law. However, Morrissette never told Thomas that she was facing any

charges. Morrissette then asked Thomas if she would accompany him to the police



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               4
department, and Thomas replied that she would. Morrissette asked Thomas’s

mother if she could pick Thomas up, and she agreed. Thomas was not placed in

handcuffs, and, in fact, sat in the front seat of the police cruiser and used her cell

phone.

      Once at the police department, Thomas gave a formal statement to an officer

other than Morrissette. At no point was Thomas ever placed under arrest, and she

was at the police department just over an hour while giving her statement.

Morrissette further testified that he never told Thomas that she had to come with

him and Thomas never expressed any reluctance to talk to him or a desire to leave.

      Next, Thomas called her mother, Lorene. She testified that, on January 7,

she was at home with her granddaughter when a “team of police” knocked on her

door. The police rushed them out of the house and she was eventually approached

by Morrissette. While she was talking to Morrissette, Thomas drove up and

Morrissette asked Thomas if she knew where Perkins was before walking off with

her. Thomas was not handcuffed. Some time later, Morrissette told Lorene that he

was taking Thomas “downtown” for questioning, but did not indicate that Thomas

was under arrest. Lorene, however, was under the impression that Thomas was

under arrest because of “the way [Morrissette] turned around and said he was

going to take her downtown, the way he was talking to her and everything,



                                            5
motioning his hands and everything.” In Lorene’s opinion, Thomas was not

leaving of her own volition.

      Morrissette was re-called by the court, and he clarified that, while at

Thomas’s home, he spoke with Thomas for approximately 30 minutes, but at no

time placed her or told her that she was under arrest. When asked if she would go

with Morrissette to the police station, Thomas showed no reluctance and made no

statement indicating that she would rather not go.

      The court then denied the motion to suppress, first finding that the 30-

minute investigative detention was not unreasonable and that Thomas was not

under arrest either at her home or when she went to the police station. It further

found that, under the totality of the circumstances, a reasonable person in

Thomas’s situation “would not have believed that she was not free to go.”

      At trial, the government called as witnesses both Keith Kennedy, the court

reporter of Thomas’s grand jury testimony, and FBI Agent Greg Gauger, who also

was present during Thomas’s grand jury testimony. The only reference made to

the prosecutor’s participation in the grand jury proceeding was made by Kennedy,

who identified the transcript as “the testimony of Meenya Thomas on March 30,

2005, conducted by yourself.” The government read the transcript of Thomas’s

grand jury testimony, during which she was informed that she had an obligation to



                                          6
tell the truth and her failure to do so could lead to a perjury charge that carried a

five-year maximum term of imprisonment for each lie. During her testimony,

Thomas stated that she was called by her boyfriend, Perkins, and another man, both

of whom asked her to come pick them up near a CVS in Hoover, Alabama. She

denied that either man told her that they had been involved in a robbery and a

shooting. The prosecutor then asked Thomas if she remembered giving a

statement to police indicating that the men she picked up described a shooting.

Thomas denied making the statement. Thomas was reminded that she was under

oath and subject to perjury, and then he showed her the statement with her

signature on it and asked her if she wrote the statement. Thomas admitted to

writing the statement, but then claimed that she had “made it up.” Thomas’s

written statement also indicated that the two men told her that they had “held up

CVS.” Thomas denied that the men said that to her, at which point Thomas was

again warned that every lie to the grand jury could cost her five years in prison.

Thomas admitted writing the statement, but again said that it had been made up,

and the police, specifically Detective Morrissette, had threatened her.

Additionally, the government introduced into evidence Morrissette’s testimony

regarding Thomas’s oral statement, the actual written statement provided by

Thomas at the police station, and a videotape of the interview at the police station,



                                            7
conducted by Detective Laura Brignac. Thomas also testified in her own defense

and asserted, as she did to the grand jury, that she made up the statements she gave

to police indicating that the men in her car told her about the shooting and robbery

at CVS because Morrissette told her that she was going to be charged with “two

counts of attempted murder and first-degree.” However, as the undisputed facts in

the PSI make clear, a review of the videotape of the interview revealed that the

interview was conducted by Detective Brignac, not Morrissette, and Thomas never

complained about any alleged threats made by Morrissette. A jury convicted

Thomas on both counts as charged in the indictment.

      The PSI set Thomas’s offense level at 14, pursuant to U.S.S.G. § 2J1.4.

Two levels were added for obstruction of justice, pursuant to U.S.S.G. § 3C1.1,

because Thomas provided false testimony during her trial concerning statements

made to police and to the grand jury under oath. Thomas received no reductions

for a total offense level of 16. Thomas had no assessable criminal history, for

criminal history category I, which, at offense level 16, provided for an advisory

guidelines range of 21 to 27 months’ imprisonment.

      At sentencing, Thomas objected to the obstruction of justice enhancement

for providing false testimony during her jury trial, which was not charged. The

court found that Thomas perjured herself during the trial on several occasions,



                                          8
including stating to the jury that she made up the fact that she had been told about

the robbery and denying telling police that the men had robbed the CVS. The court

further found that Thomas lied about when the handcuffs were removed and by

testifying that she got the information about CVS from Morrissette. Thomas’s

objection, therefore, was overruled. At sentencing the court reiterated that it was

adamant in its belief that Thomas had lied, and it found it “unbelievable” that she

had chosen to go to trial and lie again. In particular, the court said, “because you

lied and lied and continued to lie in trial, you are getting a twenty-one month

sentence. It’s sad. . . . But I think it’s the right sentence.” Moreover the court did

not choose to exercise its discretion to depart from the advisory guidelines range.

The court then adopted the findings from the PSI and imposed a low-end

guidelines sentence of 21 months’ imprisonment on each count to run

concurrently.

                               I. Motion to Suppress

      On appeal, Thomas argues that the district court erred by denying her motion

to suppress statements she made to police. Specifically, she argues that the court

erred by finding that a reasonable person would not have believed she was in

custody, and, therefore, erred by finding that she was not entitled to Miranda

warnings. Thomas argues that the totality of the circumstances, including being



                                           9
separated from her mother and taken in a police cruiser to the police station for

questioning, demonstrate that a reasonable person would not have felt “free to

leave.”

      We review “the district court’s findings of fact on a motion to suppress

evidence for clear error and the district court’s application of the law to those facts

de novo.” United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). When

considering a ruling on a motion to suppress, all facts are construed in a light most

favorable to the successful party. United States v. Behety, 32 F.3d 503, 510 (11th

Cir. 1994). We will not reverse a district court’s factual findings unless “contrary

to the laws of nature, or . . . so inconsistent or improbable on [their] face that no

reasonable factfinder could accept [them].” United States v. Pineiro, 389 F.3d

1359, 1366 (11th Cir. 2004).

      In Miranda v. Arizona, the Supreme Court considered the scope of the Fifth

Amendment privilege against self-incrimination and held that the government

“may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation from the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694

(1966). “A defendant is in custody for the purposes of Miranda when there has



                                           10
been a formal arrest or restraint on freedom of movement of the degree associated

with a formal arrest.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir.

2006) (quotation and citation omitted). “Whether [the defendant] was in custody

prior to his formal arrest depends on whether under the totality of the

circumstances, a reasonable man in his position would feel a restraint on his

freedom of movement to such extent that he would not feel free to leave.” Id.

“The test is objective: the actual, subjective beliefs of the defendant and the

interviewing officer on whether the defendant was free to leave are irrelevant.” Id.

“[U]nder the objective standard, the reasonable person from whose perspective

custody is defined is a reasonable innocent person.” Id. (emph. in original).

      Taking the facts in a light most favorable to the government, we readily

conclude that the district court did not err by denying Thomas’s motion to

suppress. Although Thomas was handcuffed immediately after arriving at her

home, Morrissette testified that the handcuffs were removed before he questioned

Thomas, and, significantly, he informed Thomas that she was not under arrest.

Thomas’s own mother confirmed that Morrissette was not handcuffed while

Morrissette talked with her, nor was she handcuffed when she entered

Morrissette’s police cruiser to give her statement at the police station. Cf. United

States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995) (noting that “the fact that



                                           11
police handcuff the person . . . does not, as a matter of course, transform an

investigatory stop into an arrest.”). Morrissette further testified that Thomas

voluntarily went with him to the police station, sat in the front, not the back seat of

the cruiser, made several phone calls on her cell phone, both while she was at her

home and in the cruiser, and returned home with her family after about one hour.

The only fact that weighs in Thomas’s favor is that Morrissette advised her that, if

she drove the car and helped the CVS robbers escape, she could get in trouble.

However, Morrissette never indicated that Thomas was to be charged for anything.

Under the totality of the circumstances, we conclude that Morrissette’s freedom of

movement was not restrained to the degree associated with a formal arrest, and,

therefore, she was not in custody for purposes of Miranda. See California v.

Beheler, 463 U.S. 1121, 1121-22, 103 S.Ct. 3517, 3518, 77 L.Ed.2d 1275 (1983)

(holding that Miranda warnings are not required if the person is not placed under

arrest, voluntarily comes to the police station, and is allowed to leave unhindered

by police after a brief interview). Thus, the district court properly denied

Thomas’s motion to suppress.

                              II. Motion to Disqualify

      Next, Thomas argues that the district court erred by failing to remove the

prosecutor from the case because he also prosecuted the underlying robbery, which



                                           12
entailed questioning Thomas before the grand jury. Thomas argues that the

prosecutor was a potential witness in the case because his “credibility was placed

before the jury by the utilization of the questions asked by him to Thomas, eliciting

the answers which [the] prosecutor later contended constituted the perjury charge

in this matter.” Thomas further argues that the prosecutor’s responses to her

answers—warning her about the commission of perjury—constituted indirect

testimony that violated the rule that the prosecutor cannot act as both prosecutor

and witness.

      The decision whether to disqualify the prosecuting attorney because he was

“the sole witness whose testimony is necessary to establish essential facts

otherwise not ascertainable,” is reviewed for an abuse of discretion. United States

v. Hosford, 782 F.2d 936, 939 n.3 (11th Cir. 1986). That the prosecutor indirectly

testified by introducing the grand jury transcript was a theory not raised before the

district court, and, ordinarily, this Court will not address the issue. Id. at 938 n.1.

However, because the issue is a question of law, we, as we did in Hosford, choose

to exercise our discretion and will address the question. Id.

      “It is clear that a prosecutor must not act as both prosecutor and witness.”

Id. at 938. “This is a part of the general ‘advocate-witness’ rule that counsel

should avoid appearing as both advocate and witness except under extraordinary



                                           13
circumstances.” Id. However, “mere first-hand knowledge of facts that will be

proved at trial is not a per se bar to representation.” Id. We have further stated that

it would be

       improper for a government attorney who has independent personal
       knowledge about facts that will be controverted at the trial to act as
       prosecutor (1) if he uses that inside information to testify indirectly by
       implying to the jury that he has special knowledge or insight, or (2) if
       he is selected as prosecutor when it is obvious he is the sole witness
       whose testimony is necessary to establish essential facts otherwise not
       ascertainable.

Id. at 939.

       At issue here is the introduction of the grand jury transcript containing

Thomas’s perjured testimony because the same prosecutor trying the instant case

against her was also the prosecutor questioning Thomas at the grand jury

proceeding. However, the prosecutor’s testimony was clearly unnecessary to

establish the essential facts of the case. The transcript itself contained the relevant

information, and, to the extent the conduct, demeanor, or content of the questions

and answers was even relevant, two other witnesses—court reporter Keith

Kennedy and FBI Agent Greg Gauger—were both present at the grand jury

proceedings and available for examination by Thomas. The prosecutor’s mere

first-hand knowledge of facts that would be proved at trial was not sufficient, in

and of itself, to either create a compelling need to call him as a witness, or to



                                           14
disqualify him from prosecuting the case. Accordingly, we conclude the district

court did not abuse its discretion by denying Thomas’s motion on this ground.

      As to the “indirect testimony,” or de facto witness argument, see Hosford,

782 F.2d at 938, we conclude that Thomas’s argument is meritless. In Hosford, we

rejected the argument that the prosecutor should have been disqualified from

prosecuting the defendant for soliciting and attempting murder because he had

participated in the negotiations for a use and immunity agreement that the

government alleged the defendant had violated, enabling his prosecution. Id. at

937, 939. We found that all references at trial to the prosecutor’s participation had

been made in passing and the prosecutor at no point implied he was privy to

special knowledge about the agreement. Id. at 939. In the instant case, the only

reference to the prosecutor’s participation in the grand jury testimony was made by

the court reporter, Kennedy, who identified the grand jury transcript as “the

testimony of Meenya Thomas on March 30, 2005, conducted by yourself.” This

clearly was a passing reference. Moreover, at no point did the prosecutor imply

that he was privy to special knowledge about the grand jury proceedings. The

transcript was read for the jury’s benefit, the statements made to police were

presented, and Thomas herself testified consistent with her grand jury testimony,

giving the jury in Thomas’s perjury trial all the evidence it needed to sustain a



                                          15
conviction. The prosecutor never highlighted his involvement and never intimated

to the jury that he had special knowledge about whether or not Thomas had

perjured herself. The evidence spoke for itself, and the jury convicted her. Like in

Hosford, we conclude that no reversible error has been shown.

                             III. Obstruction of Justice

      On appeal, Thomas argues that the district court should not have applied a

two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. She

concedes that her trial testimony was material, but argues that it was not false and

she had no intent to provide false testimony. Thomas also argues that the

statements she gave to law enforcement officers were not made under oath and

that, only when placed under oath before the grand jury, did she make statements

inconsistent with the statements to law enforcement. Because her testimony during

trial was the same as that given to the grand jury, she argues the obstruction

enhancement is inappropriate and leads to a chilling effect on a defendant’s right to

testify. Thomas further argues that, while the jury’s determination of guilt was a

ruling that she had falsely testified to the grand jury, the district court should not

have punished her for insisting upon what she maintained was the truth—that her

statements to law enforcement were inaccurate. By doing so, Thomas argues the

court encouraged people who give false information to the police to continue to



                                           16
repeat such false information for fear of perjury and a possible sentencing

enhancement. She further argues that, by enhancing her sentence, the district court

“double punished” her. Finally, Thomas argues that the district court failed to

make sufficient findings regarding her false statements.

       When a district court imposes an enhancement for obstruction of justice, we

review the district court’s factual findings for clear error and its application of the

Sentencing Guidelines to those facts de novo. United States v. Massey, 443 F.3d

814, 818 (11th Cir. 2006). If, however, the defendant fails to clearly state the

grounds for his objection, we will review only for plain error. Id. “An appellate

court may not correct an error the defendant failed to raise in the district court

unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights . . .

[and then] only if (4) the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id.

       Section 3C1.1 of the guidelines provides for a two-level enhancement if:
       (A) the defendant willfully obstructed or impeded, or attempted to
       obstruct or impede, the administration of justice during the course of
       the investigation, prosecution, or sentencing of the instant offence 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.

U.S.S.G. § 3C1.1. Among the several examples of conduct making a § 3C1.1

enhancement appropriate is committing perjury. U.S.S.G. § 3C1.1, comment.



                                              17
(n.4(b)). Moreover, the Supreme Court has held that “if 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.” United States v. Dunnigan, 507 U.S. 87,

95, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993).

      Here, a jury convicted Thomas for perjury before the grand jury, and, at trial

Thomas testified in her own behalf and maintained, as she did before the grand

jury, that her statements to law enforcement were inaccurate. As the jury convicted

her for perjury based on those statements to the grand jury, it follows that

Thomas’s trial testimony, given under oath, was also perjured. Moreover, while

Thomas did not object to the sufficiency of the court’s findings, a plain error

review shows that the district court explicitly found that Thomas lied at trial

regarding making up her statements to the police and the less material statements

about being handcuffed. Thus, the court found that Thomas had perjured herself at

trial, and applied the enhancement. Based on the foregoing, application of the

enhancement was not improper and the court’s findings were sufficient.

      As to Thomas’s argument regarding infringement of her right to testify, the

Supreme Court in Dunnigan rejected that argument outright. Dunnigan, 507 U.S.

at 96, 113 S.Ct. at 1117. Thomas’s remaining argument is that application of the



                                          18
enhancement resulted in double counting. She did not, however, object on this

ground in district court, and we will only review for plain error. “Impermissible

double counting occurs only when one part of the Guidelines is applied to increase

a defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v.

Uscinski, 369 F.3d 1243, 1247 (11th Cir. 2004). “Double counting is permitted if

the Sentencing Commission intended the result, and if the result is permissible

because each section concerns conceptually separate notions related to sentencing.”

Id.

           Here the district court’s application of the obstruction enhancement punished

a separate harm apart from her perjured grand jury testimony—the enhancement

punished her for perjuring herself a second time before the jury in her criminal

trial. Cf. Uscinski, 369 F.3d at 1247-48 (upholding the application of an

obstruction enhancement to a defendant convicted of tax evasion because the

defendant’s false statements were intended to prevent the government from

discovering his tax evasion, a separate and distinct notion from the tax evasion

itself).

           However, this point does not fully dispose of this issue. Although neither

party notes it, the Sentencing Commission did not intend for the obstruction



                                             19
enhancement to be applied to a situation such as Thomas’s. Although Thomas was

convicted of perjury before the grand jury, an obstruction of an investigation

separate from her own trial, and later perjured herself again during her own trial, a

separate act of obstruction that ordinarily would call for the enhancement, the

Guidelines themselves explicitly except Thomas’s conduct from application of the

enhancement, and, therefore, double counting occurred here. The commentary to

§ 3C1.1 states that

      [i]f the defendant is convicted of an offense covered by . . . § 2J1.3
      (Perjury or Subornation of Perjury; Bribery of a Witness) . . . this
      adjustment is not to be applied to the offense level for that offense
      except if a significant further obstruction occurred during the
      investigation, prosecution, or sentencing of the obstruction offense
      itself (e.g., if the defendant threatened a witness during the course of
      the prosecution for the obstruction offense).

U.S.S.G. § 3C1.1, comment. (n.7). Thomas’s offense level was covered under

§ 2J1.3, and, thus, on its face, the adjustment should not have been applied to

Thomas unless she did something that would be considered a “significant further

obstruction.” Cf. United States v. Hughes, 401 F.3d 540, 559 (4th Cir. 2005)

(persuasively noting that note 7 “prohibits an obstruction enhancement if the

defendant's underlying conviction is itself for an obstruction offense, unless the

conduct further obstructed the investigation, prosecution, or sentencing of the

obstruction offense significantly.”).



                                          20
      In the instant case, Thomas did not threaten a witness. The most that can be

said is that she maintained the same story at trial as she did before the grand

jury—that her statements made to police were inaccurate and made because of a

threat of prosecution. There does not appear to be any significant further

obstruction by Thomas testifying consistent with the grand jury testimony that

formed the basis for her criminal conviction for perjury. Under these

circumstances, it appears that the Sentencing Commission believed that the base

offense level for perjury, U.S.S.G. § 2J1.3, adequately took into account the

obvious obstruction of justice in perjury, but contemplated an additional two levels

only for a further “significant” obstruction.

      We have identified no cases from this or any other circuit, however, that

have applied § 3C1.1, comment. (n.7) to a situation such as this. We previously

have held that, “at least where the explicit language of a statute or rule does not

specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Given the explicit

language of the commentary, we find that the district court probably committed an

error that was plain by applying the enhancement in this case.

      The next question is whether, under prongs (3) and (4), Thomas’s substantial



                                          21
rights were violated and the error seriously affected the fairness, integrity, or

public reputation of judicial proceedings. Massey, 443 F.3d at 818. Under prong

(3), we have held that the burden of proving that the error made a difference lies

with the defendant, and, therefore, where the effect of the error is uncertain, no

plain error exists. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.),

cert. denied 125 S.Ct. 2935 (2005). Here, the district court was adamant that it

believed Thomas had lied, and it found it “unbelievable” that she had chosen to go

to trial and lie again. In particular, the court said, “because you lied and lied and

continued to lie in trial, you are getting a twenty-one month sentence. It’s sad. . . .

But I think it’s the right sentence.” Moreover the court did not choose to exercise

its discretion to depart from the advisory guidelines range.

      First, it is noted that, if the two-level enhancement had not been added,

Thomas’s offense level would have been 14, which would have provided for an

advisory range of 15 to 21 months. U.S.S.G. App. G. The sentencing judge made

it clear that under all the circumstances of this case a sentence of 21 months was

the “right sentence.” Therefore, Thomas has failed to show that any error resulted

in harm or prejudice. Consequently, no violation of her substantial rights

occurred. And, in addition, any possible error did not affect the fairness, integrity

or public reputation of judicial proceedings.



                                           22
      Thomas’s 21-month sentence was within the advisory sentencing range with

or without the enhancement, which, although not a per se sign of reasonableness,

see United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005), appears entirely

reasonable in light of the fact that Thomas was convicted of perjury and further

perjured herself again at trial. The maximum sentence was five years’

imprisonment, and Thomas’s 21-month sentence is not even half that.

      In sum, we conclude that the district court did not err by denying Thomas’s

motion to suppress, did not err by failing to disqualify the prosecuting attorney,

and did not commit an error requiring a remand by applying the two-level

enhancement for obstruction of justice and sentencing Thomas to 21 months’

imprisonment. We, therefore, affirm.

      AFFIRMED.




                                          23
