                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4710


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LUIS ALBERTO NAPAN,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  T. S. Ellis, III, Senior
District Judge. (1:10-cr-00384-TSE-1)


Submitted:   March 30, 2012                 Decided:   June 28, 2012


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Alexandria, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Andrew
Peterson,   Assistant   United  States   Attorney,  Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Luis     Alberto    Napan    appeals       the     twenty-seven-month

sentence   imposed     following       his       conviction    by    a    jury      of

conspiring to import a controlled substance, in violation of 21

U.S.C. §§ 952, 960(a)(1), 963 (2006).                On appeal, Napan argues

that the sentencing court committed procedural sentencing error

by failing to establish an adequate factual predicate for its

obstruction    of   justice    enhancement,         in   violation       of   United

States v. Perez, 661 F.3d 189 (4th Cir. 2011).                      We vacate and

remand for resentencing.

           To impose an enhancement pursuant to U.S. Sentencing

Guidelines Manual (“USSG”) § 3C1.1 (2010), for obstruction of

justice based on false testimony, “the sentencing court must

find that the defendant (1) gave false testimony; (2) concerning

a material matter; (3) with willful intent to deceive.” Perez,

661 F.3d at 192.       The sentencing court must “make independent

findings   necessary    to    establish      a    willful   impediment        to,   or

obstruction of, justice,” which is accomplished if the court’s

finding “encompasses all of the factual predicates for a finding

of perjury.”      United States v. Dunnigan, 507 U.S. 87, 95 (1993),

abrogated on other grounds by United States v. Wells, 519 U.S.

482 (1997).    We will “decline[] to infer such findings when they

were not made with the specificity stated in Dunnigan.”                       United

States v. Smith, 62 F.3d 641, 647-48 (4th Cir. 1995).                    Recently,


                                       2
we     clarified      our   standard         for      articulating        such      findings,

holding that “[i]f a district court does not make a specific

finding as to each element of perjury, it must provide a finding

that clearly establishes each of the three elements.”                                   Perez,

661 F.3d at 193.

                In   imposing     a    USSG       §   3C1.1   enhancement         for     false

testimony at a suppression hearing, the district court stated

that    Napan’s      testimony        was   not       credible    as    to    the   disputed

points     and       contrary         to    the       testimony        provided      by    the

Government’s witnesses.               However, we conclude that neither these

findings, nor the specific statements at issue, are sufficient

to establish that the testimony as to each disputed point was

both material and made with willful intent to deceive.                              Although

the court made lengthy factual findings in ruling on the motion

to suppress, we conclude the findings articulated by the court

do   not   provide      a   sufficient        basis      to   clearly     establish       each

necessary element.           See Perez, 661 F.3d at 193-94; cf. United

States v. Cook, 76 F.3d 596, 605-06 (4th Cir. 1996); United

States     v.    Quinn,     359   F.3d       666,      681    (4th     Cir.   2004).         We

therefore conclude that the district court procedurally erred in




                                              3
imposing       the     USSG        §     3C1.1        enhancement     without         further

factfinding. *

               The    Government         asserts       that   the   court’s    procedural

error is harmless.           See United States v. Boulware, 604 F.3d 832,

838    (4th     Cir.       2010)       (discussing       standard).         Although     the

district      court    granted         Napan     a    substantial    downward     variance

from his Guidelines range and provided a sufficient explanation

for its chosen sentence, these facts, standing alone, do not

provide a sufficient basis to conclude that the court would not

have       applied    an    equivalent          variance,     resulting      in   a    lower

sentence, if the USSG § 3C1.1 enhancement was not applied.                                Cf.

United States v. Savillon-Matute, 636 F.3d 119, 124 (4th Cir.)

(finding error harmless when sentencing court stated on record

that       sentence        imposed        was        “absolutely”     the     appropriate

sentence), cert. denied, 132 S. Ct. 454 (2011); United States v.

Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) (“An error in the

calculation of the applicable Guidelines range, whether an error

of fact or of law, infects all that follows at the sentencing

proceeding . . . .”).                    Thus, we conclude the error was not

harmless.




       *
       We note that the district court did not have the benefit
of Perez at the time it sentenced Napan.




                                                 4
           Accordingly,      we   vacate    the    sentence    and   remand   for

resentencing in light of Perez.              In doing so, we express no

opinion as to the propriety of the USSG § 3C1.1 enhancement in

this instance.    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.

                                                         VACATED AND REMANDED




                                      5
