                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1713

                  UNITED STATES OF AMERICA,

                          Appellee,

                              v.

                        JOHN L. TRACY,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                 

                                         

                            Before

                  Torruella, Cyr and Boudin,

                       Circuit Judges.
                                     

                                         

J.  Michael McGuinness,  by Appointment  of the  Court, with  whom
                      
McGuinness &amp; Parlagreco was on brief for appellant.
                   
Michael M.  DuBose, Assistant  United States  Attorney, with  whom
                  
Jay P.  McCloskey, United States Attorney, was on brief for the United
             
States.

                                         

                      September 28, 1994
                                         

     BOUDIN, Circuit Judge.   John  Tracy was  indicted by  a
                          

federal grand jury in Maine on five counts of distribution or

attempted distribution  of LSD in  violation of 21  U.S.C.   

841(a)(1),  846.   Tracy failed to  appear for  his scheduled

trial  in August  1991 and  was arrested  two weeks  later in

Florida, carrying a false identification and pretending to be

someone else.  He was then separately indicted for failing to

appear in violation of 18 U.S.C.   3146(a)(1).  

     In  October 1991, Tracy was convicted by a jury on three

of the  five drug counts  and acquitted on  two others.   The

following  month he pleaded  guilty to the  failure to appear

charge.   In April 1992, Tracy  was sentenced to 97 months on

the  drug convictions and an additional 24 month term, to run

consecutively to  the first sentence, for  Tracy's failure to

appear for trial.

     Tracy  then  appealed but  this  court  rejected all  of

Tracy's claims as to both  convictions and sentence.   United
                                                             

States v. Tracy,  989 F.2d 1279 (1st Cir.  1993).  The United
               

States cross-appealed because of the district court's refusal

to  enhance Tracy's sentence for obstruction of justice.  See
                                                             

U.S.S.G.    3C1.1.   On  the government's  appeal this  court

remanded for  further proceedings.  See 989  F.2d at 1288-90.
                                       

The  facts  pertaining  to  the remand  need  to  be  briefly

                             -2-

recounted, as the  remand is  the predicate  for the  present

appeal.

     In  the original  pre-sentence report  following Tracy's

convictions and guilty plea,  the probation officer said that

the drug weight  established a base offense level of 26.  The

officer recommended  a two-level enhancement  for obstruction

of  justice,  because  of an  asserted  direct  contradiction

between Tracy's  trial testimony and that  of Russell Wright,

an  individual  who  had  purchased drugs  from  Tracy  while

secretly cooperating with Maine's Bureau of Intergovernmental

Drug  Enforcement.   Tracy had  claimed  that the  final drug

transaction involved  fake LSD.   Wright had  given testimony

pointing in  the other direction, and the  jury seemingly had

believed that Tracy was not telling the truth.

     Based   on  Tracy's   criminal  history   category,  the

recommended two-point  enhancement (to  a level of  28) would

have  created  a  sentencing  guideline range  of  97  to 121

months.  At sentencing, the district court declined to impose

the two-point enhancement.  The court said:

          [It]  is  a  very  close  call.    It  is
          apparent  to  the  Court  that  the  jury
          rejected   the    credibility   of   this
          defendant and of his testimony  at trial.
          This Court was  present at that time  and
          heard that  testimony.  This  Court, too,
          disbelieved   the    accuracy   of   this
          testimony.  

               Nevertheless, there  are many policy
          considerations that surround the question
          of enhancing  a base offense  level which

                             -3-

          creates potential punishment on the basis
          of  the  Court's conclusion  that perjury
          has been  committed.   And  the Court  is
          simply not comfortable in its own mind in
          concluding  that  the conduct  amounts to
          perjury  of  sufficient  significance  to
          justify such an enhancement.

     Absent the  enhancement, the base offense level remained

at 26 and the guideline range was  therefore 78 to 97 months.

The  district court imposed a  sentence of 97  months for the

drug offenses, as well as  the separate consecutive 24  month

sentence--not  here  in  issue--for  the  failure  to  appear

offense.     Apparently,  as  a  matter   of  principle,  the

government appealed the district court's refusal to adopt the

two-point enhancement.

     On the appeal, this court held that under United  States
                                                             

v.  Dunnigan, 113  S.  Ct. 1111  (1993),  the obstruction  of
            

justice enhancement is mandatory under U.S.S.G.   3C1.1 where

the  defendant willfully obstructed  or attempted to obstruct

the administration  of justice during the  prosecution of the

case.  The  application note specifically  identifies perjury

as conduct comprising obstruction, U.S.S.G.   3C1.1, comment.

(n.3(b)), and  Dunnigan requires  sentencing courts  to apply
                       

the generally accepted definition  of perjury under 18 U.S.C.

  1621, 113 S. Ct. at 1116.

     The  Supreme  Court  said  that,  under   the  statutory

definition of perjury, a witness commits perjury if he or she

                             -4-

"gives false  testimony concerning  a material matter  with a

willful intent to  provide false testimony, rather than  as a

result of confusion, mistake  or faulty memory."  113  S. Ct.

at 1116.  Dunnigan added that the sentencing court must "make
                  

independent findings necessary" to establish  the enhancement

and  that "it is preferable  for a district  court to address

each element of the  alleged perjury in a separate  and clear

finding."  Id. at 1117.
              

     On the  original appeal in  Tracy, this court  said that
                                      

the  district  court had  made  clear that  it  found Tracy's

testimony inaccurate but had  not specifically found that the

testimony concerned a material  matter or that the inaccuracy

was deliberate.  989 F.2d at 1289-90.  At the same time, this

court made clear  that under the guideline  and Dunnigan, the
                                                        

district court  could not both  find perjury and  yet require

"something more than basic  perjury to justify an enhancement

. . . ."  Id. at  1290.  In other words, the enhancement  had
             

to be imposed where the requisites of perjury existed.  

       On  remand,  the   government  apparently  asked   the

district  court  to make  an  explicit  finding that  Tracy's

testimony, contradicted by Wright,  had been perjurious.  But

having  made  its  point,  the  government  professed  itself

satisfied  with the 97-month  sentence previously imposed for

the drug  counts, noting that  it was a  permissible sentence

under the  new  guideline  range that  would  result  if  the

                             -5-

district  court  did find  perjury  and  added the  two-level

enhancement  to the base offense  level of 26.   The district

court took quite a different course.  

     Instead  of  focusing  upon  the  instance  of  possible

perjury  identified by  the probation  officer,  the district

court  held a hearing on remand, in June 1993, and determined

that Tracy had  lied at his  trial on two  other points:   in

testifying that he had sold LSD to Wright only because he was

afraid of Wright, and in claiming that he  had left Maine for

Florida because he believed his girlfriend to be pregnant but

intended after the child's birth to return to Maine and stand

trial.   The  court found  that these  lies were  willful and

material and that the  requirements of perjury were therefore

satisfied.

     The  two-level   enhancement  based  on   these  perjury

findings increased  Tracy's offense  level to 28,  yielding a

guideline  range of  97 to  121 months  for one  with Tracy's

criminal history.  As he had done in the first instance,  the

district judge sentenced  Tracy at the  top of the  guideline

range.  This  time, however,  the range went  higher and  the

sentence now imposed on  the drug counts was 121  months.  As

before, this  is to  be followed  by a  24-month term  on the

failure  to appear count.   Tracy has now  appealed from this

new sentence.

                             -6-

     On appeal, Tracy contends  that the district court could

not  on this  record properly  find  perjury.   His appellate

brief contrasts Tracy's situation  with that of the defendant

in  Dunnigan where  the  Supreme Court  pointed to  "numerous
            

witnesses" contradicting  the defendant on "so  many facts on

which she could not have been mistaken."  113 S. Ct. at 1117.

Tracy's  brief also tries to  focus attention on the original

conflict between Tracy and Wright, one part of which involved

the  color and design  of the blotter paper  on which the LSD

was tendered.

     The district court's  findings that perjury  occurred in

this  case  can  be  overturned  only  if  they  are  clearly

erroneous.  See  United States  v. Aymelek, 926  F.2d 64,  68
                                          

(1st Cir. 1991).   In this instance, there is  ample evidence

in the  record to support the  district court's determination

that there were  two separate episodes of perjury (either one

would suffice  for an  enhancement).  Although  Tracy's brief

does  not  argue  in  detail  about  the  adequacies  of  the

evidence,  we  have  nevertheless  reviewed  the  record  and

recount the evidence quite briefly.

     At his trial, Tracy  had offered an entrapment defense--

the transactions  were difficult to deny since  they had been

recorded--and in aid  of that defense, he  had testified that

he  had been afraid of Wright  because of Wright's aggressive

manner.  Tracy's sixteen year old stepdaughter testified that

                             -7-

she  had  been frightened  by  Wright and  in  other respects

supported  Tracy's claim of fear.  On the other hand, because

the drug transactions had  been monitored and recorded, there

was also evidence from witnesses, presumably supported by the

tapes,  that at no point had Wright said anything to threaten

or intimidate Tracy.  

     The district judge at the hearing after remand expressly

found  Tracy  had manufactured  the intimidation  defense and

that it  was "known by the  witness at the time  to be untrue

and it goes to  a material element of the  case against him."

The  district court  judge heard  Tracy and  his stepdaughter

testify  and also had before him the evidence that no threats

or intimidating remarks were made by Wright.  Obviously,  the

presence or absence of  fear in Tracy's mind is  a subjective

matter.   But the district  judge did not  commit clear error

when  he weighed  the conflicting  inferences and  found that

Tracy had lied about his own state of mind.

     In particular,  Tracy's claim  that he  was  in fear  of

Wright must have been very hard to reconcile with Tracy's own

claim that in  the final  abortive sale he  had attempted  to

sell  Wright fake LSD (and was therefore not guilty of a drug
                 

offense regardless of entrapment).  The notion that one would

sell fake  drugs to a buyer whom one knows and fears, and who

could easily  return to retaliate,  is doubtful on  its face.

                             -8-

Tracy's explanation--that Wright would merely seek to get his

money back--sounds especially lame.

     In  the  second   perjury  episode,  concerning  Tracy's

failure to  appear for  trial,  the inferences  are not  even

close.    Tracy  obtained  several  postponements  and  then,

instead of  appearing on the  final trial date,  absconded to

Florida.   At trial, the  government offered evidence that he

had fled, coupled with further  evidence that when caught  he

was carrying  false identification and using a false name, in

order to create  an inference  of guilt on  the drug  counts.

Tracy's own testimony-- that he had gone to Florida merely to

be with  his pregnant  girlfriend during  the birth  of their

child and intended to return to trial--was material testimony

because  it sought to refute  the inference that  he had fled

because he was guilty.

     Most people  would be fairly skeptical  at Tracy's claim

that he had coincidentally  learned of the possible pregnancy

just  before the  date  of his  oft-postponed  trial and  had

departed without  explanation from  Maine for the  purpose of

bringing  comfort to his girlfriend.  They would be even more

skeptical  of Tracy's claim that by coincidence he was (so he

claimed)  about to return to Maine just when he was arrested.

News that Tracy had given a false name when  arrested and had

been carrying a driver's license and birth certificate in the

name  of  another  person   would  for  most  people  convert

                             -9-

skepticism into  hardfast disbelief.   The evidence,  in sum,

was sufficient to support the perjury finding.

     Turning from the  evidence to other claims  of error, we

begin with Tracy's assertion that the district court made its

Dunnigan  findings  "in  the most  conclusory  and threadbare
        

fashion"  and  "inadequately  explained  its  basis  for  its

purported findings .  . . ."   Tracy does  not deny that  the

district judge made, for both  perjury episodes, each of  the

three  ultimate  findings   of  inaccuracy,  willfulness  and

materiality.     Nor  is  there  any   confusion  about  what

statements were  found perjurious:   the district  court took

the  occasion to  identify  (by line  and  page numbers)  six

separate perjurious statements by Tracy, four relating to the

intimidation  claim and  two  to the  Florida  flight.   Yet,

putting  aside  rhetoric about  threadbareness,  Tracy  is in

substance  correct  that  there  are  no  further  subsidiary

findings,  nor  any  explanation  of  the  district   court's

analysis or  evaluation of Tracy's testimony  to underpin the

trial judge's finding that Tracy was willfully and materially

inaccurate.

     But the district court had no obligation to provide such

subsidiary findings  or, as would be more  pertinent here, an

explanation as to the district court's own reasoning process.

There is  no such requirement  in sentencing  determinations,

and Dunnigan imposed nothing more than a requirement that the
            

                             -10-

requisites of  perjury be  found, preferably in  explicit and

separate  findings.  In fact, it is commonplace in sentencing

for  a  district  judge   to  announce  the  court's  factual

conclusion--e.g., the  quantity  of  drugs  foreseen  by  the
                

defendant or  the presence  of a  weapon--without in  any way

providing subsidiary findings or an evaluation of conflicting

evidence.  

     On review, the appeals court  must be able to  ascertain

the ultimate  finding and there must  be evidence (regardless
                         

of  whether  it  has  been  specifically  identified  by  the

district judge) that would permit a reasonable fact finder to

make such a determination, giving  such deference to the fact

finder as may be appropriate.  Perhaps in some cases it would

be impossible  to exercise a review  function without further

information about what the district judge had found or how he

or she had reasoned about the  evidence.  For the most  part,

as here, no  such need exists.   In this respect we  normally

review  the evidence and the result, but not the reasoning by

which the result was reached by the district court.

     This discussion  also answers  the substance  of Tracy's

related  claim, namely,  that  the district  court failed  to

explain  why  it  rejected  the  possibility  of  mistake  in

appraising Tracy's  testimony.  The Supreme  Court did advert

in  Dunnigan to  the  possibility of  "confusion, mistake  or
            

faulty memory."  113 S. Ct.  at 1117.  But where as here  the

                             -11-

evidence would  permit a  reasonable fact finder  to conclude

that  an inaccuracy  was  willful rather  than mistaken,  the

judge has no  separate obligation  to explain why  he or  she
                                                 

rejected the  inference of mistake and  adopted the inference

of willfulness.     This brings  us  to Tracy's  next  point.

His  appeal  brief  calls  our  attention  to  commentary  to

U.S.S.G.     3C1.1  that  "[i]n applying  this  provision  in

respect  to  alleged false  testimony  or  statements by  the

defendant,  such testimony or  statements should be evaluated

in  a light most favorable  to the defendant."   Id. comment.
                                                    

(n.1).   Tracy is  apparently under the  impression (based on

other  statements in  his  brief) that  this quoted  language

means  that, in  general, "close"  cases under  section 3C1.1

must  be resolved  in  favor of  the defendant.    This is  a

misreading  of  the commentary  and  an  exaggeration of  the

government's burden.

     We have repeatedly said that this "commentary" "does not

mandate  the resolution  of  every conflict  in testimony  in

favor  of   the  defendant";   it  merely  resolves   in  the

defendant's  favor "those  conflicts about  which the  judge,

after weighing the evidence, has no firm conviction."  United
                                                             

States  v. Rojo-Alvarez,  944 F.2d 959,  969 (1st  Cir. 1991)
                       

(quoting  other circuits).   Otherwise, "the  safeguard would

swallow  the  rule  in a  single  gulp,"    United States  v.
                                                         

Akitoye, 923 F.2d 221, 228 (1st Cir. 1991), since to take the
       

                             -12-

evidence in the light  most favorable to the defendant  is to

credit his or her testimony.   In this case, the  trial judge

did have a firm, and amply warranted, conviction that perjury

had been committed.

     We note,  in addition,  that the quoted  commentary read
                                                             

literally  addresses  a  rather narrow  problem  peculiar  to
         

perjury and other charges  that match a defendant's testimony

against  "the truth"  as later  found by  the judge  or jury.

Words,  even  in context,  can be  subject  to more  than one

plausible  reading;  and  this  is  as true  in  parsing  the

testimony of a defendant at trial as in construing a statute.

In a  perjury case, one  of the plausible readings  may be in

conflict  with "the  truth" and  undoubtedly willful  if that

meaning were intended; the  other reading, also plausible but

perhaps  less  so,  may  render   the  defendant's  statement

accurate, or at least make willfulness unlikely.

     The precise words of quoted commentary say  that in such

cases the defendant's "testimony or statement" should be read

in the light most  favorable to the defendant.  To the extent

that  an  innocent  reading  may be  plausible  (even  though

perhaps  less   plausible  than  an  inculpatory   one),  the

commentary  resolves this  doubt in  favor of  the defendant.
                         

The Sixth Circuit recently put the matter thusly:

             We  note  that this  [commentary] does
          not  require  that  the  evidence  in its
                                                   
          entirety  be  taken   in  a  light   most
                  
          favorable to the  defendant.  It is  only

                             -13-

          the defendant's statement  that is to  be
          taken in a light  most favorable to  him.
          So, if  the  meaning of  the  defendant's
          statement  is  ambiguous,  the  ambiguity
          should  be  resolved   in  his  favor  to
          prevent a  finding  of perjury  when  the
          defendant's statement, taken another way,
          would not have been perjurious.

United States v. Crousore, 1 F.3d 382, 385 (6th Cir. 1993).
                         

     Here, as  in  Crousore, there  is  no ambiguity  in  the
                           

meaning of Tracy's statements.   We hasten to add  that there

is also nothing  that suggests  that the present  case was  a

close one as to either inaccuracy or willfulness.  Still less

is there  any possibility of  a mistake,  that is,  testimony

that was not  true but was  honestly believed  to be so  when

delivered.  The color  and design of the blotter  paper might

have involved a possibility  of mistake, but Tracy could  not

have been mistaken about his fear or lack  of fear of Wright,

or about  his  motive for  going  to Florida  (putting  aside

psychological subtleties that are not involved in this case).

     We  conclude  by  rejecting,  and  mildly  reprimanding,

Tracy's claim that  a reasonable doubt of  perjury existed in

the trial judge's own  mind.  Tracy's brief quotes  the trial

judge as saying, at the original sentencing, that he was then

"not comfortable  in  its own  mind  in concluding  that  the

conduct amounts to perjury . . ."  (sic).  Tracy argues that,

if the district court had such a doubt about the presence  of

perjury, then the  government could not have met  its burden.

Apart  from the fact that the district court was then talking

                             -14-

about a  different perjurious  episode (the fake  LSD claim),
                  

the  argument is  undercut by  other words  of the  judge not

quoted in Tracy's brief.

     The full sentence was as follows:  "And the Court simply

is not comfortable  in its  own mind in  concluding that  the

conduct  amounts to  perjury  of  sufficient significance  to

justify  an enhancement."  Reading  this full sentence in the

context  of the two  full paragraphs (quoted  earlier in this

opinion), one would probably  conclude that when the district

court said that this was a "close call" and said  it was "not

comfortable in its  own mind,"  it was referring  not to  the

evidence of inaccuracy or willfulness or even materiality but

rather  to   the  policy  arguments  against   sanctioning  a

defendant for testifying at trial in any but the most extreme

case.

     We  were ourselves uncertain  enough about  the district

court's  intention to remand, but  we do not  think that this

doubt warranted  Tracy's brief in omitting the balance of the

sentence  it quoted.  As  it happens, on  remand the district

judge  addressed  this very  issue,  explaining  that he  had

originally given  the defendant the  benefit of the  doubt on

the enhancement  because "I  was  very concerned  that, as  a

matter  of policy,  imposition  of that  kind of  enhancement

might  chill other  defendants'  exercise of  their right  to

testify at  trial."   Needless to  say, the district  court's

                             -15-

concern  is a reasonable one,  but Dunnigan binds  us and the
                                           

district court alike.   Any charge that the  district court's

original policy doubts and present findings are  inconsistent

is without basis.  

     Tracy's  final   claim  concerns  an  amendment  to  the

sentencing  guidelines   that  became  effective   after  the
                                                        

district court resentenced Tracy  in the remanded proceeding.

Effective November 1,  1993, the  sentencing guidelines  have

altered the method for computing LSD in a manner that Tracy's

brief claims is favorable to his position and would result in

a lower  guideline range.   U.S.S.G. App.  C, Amendment  488.

The Sentencing Commission has  determined that the  amendment

applies  retroactively.  Id., Amendment 502.  See 28 U.S.C.  
                                                 

994(u).   A  sentence  imposed before  the new  computational

method  can therefore be readjusted by  the district court to

conform to the amended approach.  18 U.S.C.   3582(c)(2).  

     Tracy at the close of his brief  asks that we remand the

matter  to  the  district  court to  permit  resentencing  in

accordance  with   the  amendment.    Such  a  recomputation,

however,  presents  issues  of  fact and  may  involve  other

questions about which  the government and Tracy  differ.  The

statute  providing for  retroactive  adjustments  allows  the

defendant to  file a motion  with the district  court seeking

such  an adjustment.  18 U.S.C.   3582(c)(2).  Our affirmance

in this case is without prejudice to Tracy's right to do so.

                             -16-

     We  have  a  final  observation about  the  government's

earlier  appeal.   It now  appears from  its position  at the

remand  hearing that  the government  was satisfied  with the

sentence  originally  imposed.    Yet  as  a  result  of  the

government's appeal Tracy has now  to serve an additional two

years over  and above the ten  years' imprisonment originally

imposed.  Some  portion of the full sentence reflects Tracy's

criminal history, and his  flight to Florida.  But  neither a

ten  nor  a  twelve-year  sentence  could  be  called  unduly

lenient.

     Understandably,  the government wished  to establish the

principle that  perjury, and not "something  more," merits an

enhancement.  But this  point could have been made  as easily

in a later case where the government actually wanted a longer

sentence.  A  litigant is  not obligated to  worry about  the

price  paid by  others to  establish a  matter  of principle.

Still,  one hopes that  a prosecuting agency  would weigh the

price in its own calculus.

     Affirmed.
             

                             -17-
