                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4706



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LUIS FERNANDO MONTOYA-CARMONA,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-05-8)


Submitted:   November 17, 2006            Decided:   January 4, 2007


Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Kurt J. Mayer,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Norfolk, Virginia, for Appellant.       Paul J. McNulty,
United States Attorney, Darryl J. Mitchell, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Luis Fernando Montoya-Carmona (“Defendant”) was convicted of

various drug-related offenses.        At sentencing, the district court

assessed a two-level obstruction-of-justice enhancement for perjury

pursuant to United States Sentencing Guidelines (“Guidelines”)

§ 3C1.1, sentencing Defendant to eighty-four months' imprisonment.

On appeal, Defendant challenges the perjury enhancement.              Because

the district court made the independent findings of fact necessary

to sustain the enhancement, we affirm.



                                     I.

     The   critical    facts    underlying    Defendant’s   conviction   are

undisputed.    Defendant’s niece received a package containing a

bicycle from Defendant’s son in Colombia.           The bicycle had heroin

hidden in its frame and previously had been intercepted by law

enforcement   agents    at     customs.      When   confronted   by   agents,

Defendant’s niece agreed to cooperate and contacted Defendant to

collect the package according to their pre-arranged plan.              After

Defendant arrived at his niece’s house, the package was opened and

Defendant was arrested.

     Once in custody, Defendant admitted that he had received a

similar bicycle shipment from his son several months earlier.             He

had been contacted after receipt of the first package by an unknown

person and arranged to exchange the bicycle for $400.             Defendant


                                      2
stated that he assumed he would be asked to perform a similar

“favor” for his son in connection with the second bicycle.                    J.A.

399.    He insisted that he did not know that there were drugs hidden

in the second bicycle.

       At Defendant’s trial for various drug charges, he testified

that he did not know that the bicycle contained drugs and that he

harbored no suspicions that his son might be conducting criminal

activity.        The     district   court    offered    a    willful     blindness

instruction to the jury, which in turn returned a guilty verdict on

all counts.       At the subsequent sentencing hearing, the district

court    found    that    Defendant    had   perjured       himself    by   denying

knowledge of the presence of drugs in the bicycle.                      The court

calculated       Defendant’s    Guidelines      range       by   applying,    over

Defendant’s objection, a § 3C1.1 enhancement for obstruction of

justice based on his perjured testimony at trial.                     The district

court then imposed a sentence of eighty-four months’ imprisonment,

within    the    Guidelines    range   of    seventy-eight       to   ninety-seven

months.     Defendant now appeals the application of the § 3C1.1

enhancement to his sentence.



                                       II.

        The factual findings of the district court supporting the

§ 3C1.1 enhancement are reviewed for clear error. United States v.

Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).              Legal issues regarding


                                        3
proper application of the enhancement, however, are reviewed de

novo.        United States v. Williams, 152 F.3d 294, 302 (4th Cir.

1998).

     Section 3C1.1 of the Guidelines requires a sentencing court to

impose a two-level enhancement to a defendant's offense level 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 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[.]

U.S.S.G. § 3C1.1 (2005).1            The adjustment applies, for instance,

when a defendant "commit[s] . . . perjury."           U.S.S.G. § 3C1.1, cmt.

n.4(b); see also United States v. Dunnigan, 507 U.S. 87, 94 (1993).

A defendant commits perjury when he "[1] gives false testimony [2]

concerning a material matter [3] with the willful intent to provide

false testimony."           Dunnigan, 507 U.S. at 94.           The government

carries the burden of persuading the court by a preponderance of

the evidence that the enhancement should apply in a particular

case.       United States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995).

        The enhancement does not apply merely because a defendant is

convicted,       however.      For    example,   a   defendant    may    testify

truthfully       but   "the   jury   may   nonetheless   find    the    testimony


        1
      Section 3C1.1 was amended on November 1, 2006. See U.S.S.G.
app. C, amendment 693. We cite to the Guidelines, however, that
were “in effect on the date that the defendant [was] sentenced.”
See U.S.S.G. § 1B1.11.

                                           4
insufficient to excuse criminal liability or prove lack of intent."

Dunnigan, 507 U.S. at 95.        The district court should "preferabl[y]

address each element of the alleged perjury in a separate and clear

finding" but must at least "make[] a finding of an obstruction of

. . . justice that encompasses all of the factual predicates for a

finding of perjury."           Id.   These findings must be express and

independent of the jury's verdict.                Smith, 62 F.3d at 647 n.3.

That is, the district court must "itself be convinced" that the

defendant perjured himself, regardless of whether the jury returned

a conviction.        Id.



                                        III.

      Defendant’s primary contention is that the district court

impermissibly relied on the jury verdict to support its finding of

perjury, in contravention of Dunnigan and Smith.                    This argument

misreads     the    district    court’s       explanation    at    the    sentencing

hearing.

      The district court repeated the central holding of Dunnigan,

stating      that    “an    obstruction        enhancement    does        not   apply

automatically every time a defendant who testifies is convicted.”

J.A. 548.      The court then found that “[i]n testifying as to his

complete lack of knowledge that the bicycle contained drugs and

that he had no suspicions of his son’s criminal activity, the Court

may   find    that    the   defendant     willfully    gave       false    testimony


                                          5
concerning a material matter.”   J.A. 551.     Although it might have

been preferable to have the benefit of further elaboration on this

explanation, we nevertheless conclude that the district court

“itself [was] convinced” that the defendant perjured himself,

independent of the jury verdict.       See Smith, 62 F.3d at 647 n.3.

     Nevertheless, Defendant highlights other statements made by

the district court as evidence of its alleged improper reliance on

the jury verdict.     For example, the district court found at

sentencing that Defendant’s “testimony is at odds with the finding

by the jury . . . that the defendant was guilty.”      J.A. 551.   Even

if such statements would violate Smith standing alone, however, the

district court concluded by making its own independent finding of

perjury.   See 62 F.3d at 647 n.3.     Viewed as a whole, the district

court’s explanation of its finding of perjury is sufficient to

support the obstruction-of-justice enhancement.2




     2
      Defendant also argues that the district court failed to make
an adequate factual finding of perjury. It is sufficient, however,
for the district court to “make a single global finding that
encompasse[s] the three essential elements” of perjury. See Smith,
62 F.3d at 647.     Here, the district court “f[ou]nd that the
defendant willfully gave false testimony concerning a material
matter [and] . . . that the government has met its burden by a
preponderance of the evidence.” J.A. 551. This finding easily
qualifies as a “single global finding that encompasse[s] the three
essential elements” of perjury and does not constitute clear error.
See Smith, 62 F.3d at 647.

                                   6
                                IV.

     We have considered Defendant’s other arguments and find them

to be without merit.   Accordingly, we affirm the sentence imposed

by the district court.

                                                          AFFIRMED




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