                                          PUBLISH

                       UNITED STATES COURT OF APPEALS
Filed 2/7/96
                               FOR THE TENTH CIRCUIT



UNITED STATES OF AMERICA,                       )
                                                )
               Plaintiff - Appellee,            )
                                                )
       v.                                       )                  No. 94-3123
                                                )
CORTEZ SMITH,                                   )
                                                )
               Defendant - Appellant.           )


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
                         (D. C. No. 93-CR-20089)


ON THE BRIEFS:

Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Assistant
Federal Public Defender, Office of the Federal Public Defender, District of Colorado
and Wyoming, Denver, Colorado, for the appellant.

Randall K. Rathbun, United States Attorney, and James E. Flory, Assistant United
States Attorney, Office of the United States Attorney, Kansas City, Kansas, for the
appellee.


Before Tacha, Coffin,* and Lucero.




       *
          Honorable Frank M. Coffin, Senior Circuit Judge, United States Court of Appeals for
the First Circuit, sitting by designation.
Tacha, Circuit Judge.


       A jury convicted Cortez Smith of possession with intent to distribute cocaine. At

sentencing, the district court imposed a two-level sentence enhancement for obstruction

of justice based on testimony it considered to be perjured. The court then sentenced

Smith to 100 months imprisonment, four years of supervised release, and a $5000 fine.

Smith appeals that sentence, claiming that the district court erred in (1) failing to make an

adequate finding of perjury, (2) imposing the enhancement without sufficient evidence of

perjury, and (3) basing Smith’s sentence on improper considerations. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the district court’s perjury

finding was inadequate and therefore we remand for further findings.



                                       Background

       Cortez Smith and his friend, Antoin Tyler, flew from Kansas City to Los Angeles.

Smith returned to Kansas City by bus. On the day Smith returned, police officers were

monitoring the Kansas City bus terminal as part of a drug interdiction program. The

officers had been watching two men in a gold car moving to different locations in the

parking lot. The officers then observed Smith get off the bus carrying a small plastic

cooler and get into the gold car. The car exited the parking lot at a high rate of speed, and

one of the officers followed. After observing the gold car speeding and driving

erratically, the officer summoned a marked patrol car to conduct a traffic stop.

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       When the officer in the marked patrol car turned on his red lights and siren, the

driver of the gold car refused to stop and, instead, increased his speed. The gold car

eventually stopped and its three occupants jumped out and fled on foot. The officers

apprehended Smith and the driver, Tyler; the third man in the car escaped.

       The officers returned to the gold car and saw an open container of wine in the

small cooler that Smith had with him when he got off the bus. One of the officers seized

the wine and cooler and, as he was dumping water out of the cooler, noticed that the

cooler’s liner was exposed. Upon closer inspection, the officer found that portions of the

foam liner had been removed and that cellophane packages of white powder had been

secreted between the liner and the shell of the cooler. Laboratory analysis subsequently

revealed that the powder contained cocaine.

       Smith testified in his own defense at trial. He recounted his career as a musician

and how he first met Tyler when Tyler came to one of Smith’s performances. Smith also

testified that Tyler wanted to help launch Smith’s music career by putting him in contact

with some of Tyler’s acquaintances in the music industry in Los Angeles. To that end,

Smith testified, they flew to Los Angeles. Smith said that he returned to Kansas City by

bus because he wanted to see the country and because the flight to Los Angeles, his first

experience flying, was unpleasant. Smith also said that Tyler gave him the cooler for the

bus trip.

       Smith further testified that the packages of white powder were not in the cooler


                                            -3-
when he got off the bus, claiming instead that Tyler had put them into the cooler after

Smith got into the car. Smith testified that while the car was stopped at a stoplight, Tyler

grabbed some packages from under the front seat and concealed them between the liner

and the shell of the cooler. Smith’s testimony as to what transpired within the car was not

contradicted by any other witness. The police officers testified that they could not see

what happened in the car. The two other men in the gold car did not testify: Tyler was

killed in an unrelated incident before trial and the third man in the car was never

apprehended.

       The jury, however, did not believe Smith’s version of the events and convicted him

of possession with intent to distribute cocaine under 21 U.S.C. § 841 (a)(1). The

applicable base offense level under the federal sentencing guidelines was 26 which, given

Smith’s criminal history, translated into a guideline range of 70 to 87 months. At

sentencing, however, the district court increased Smith’s base offense level two levels for

obstruction of justice, pursuant to U.S.S.G.§ 3C1.1, premised upon what the court

considered perjured testimony. With the two-level enhancement, the guideline range

increased to 87 to 108 months. The district court sentenced Smith to 100 months

imprisonment, and Smith appeals.



                              The District Court’s Finding

       Smith first contends that the district court made an inadequate finding of perjury.


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A finding of perjury in support of a sentence enhancement for obstruction of justice must

contain two components. First, the finding must encompass all of the factual predicates

of perjury. United States v. Dunnigan, 113 S. Ct. 1111, 1117 (1993). Second, the finding

must specifically identify the perjured testimony. United States v. Arias-Santos, 39 F.3d

1070, 1077 (10th Cir. 1994), cert. denied, 115 S. Ct. 1156 (1995). Smith argues that the

finding in this case is deficient in both respects.

       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. Id. at 1116; United States

v. Massey, 48 F.3d 1560, 1573 (10th Cir.), cert. denied, 115 S. Ct. 2628 (1995). While “it

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

separate and clear finding,” it is sufficient if “the court makes a finding of an obstruction

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

perjury.” Dunnigan, 113 S. Ct. at 1117.

       The finding found sufficient (though not preferred) in Dunnigan read as follows:

       The court finds that the defendant was untruthful at trial with respect to
       material matters in this case. [B]y virtue of her failure to give truthful
       testimony on material matters that were designed to substantially affect the
       outcome of the case, the court concludes that the false testimony at trial
       warrants an upward adjustment by two levels.

Id. (emphasis and brackets in original). This finding contains each of the factual

predicates of perjury: the defendant was (1) “untruthful” at trial (2) with respect to


                                              -5-
“material matters” and (3) the untruthfulness was “designed” to substantially affect the

outcome of the case. The district court’s finding at Smith’s sentencing read as follows:

       [T]he Court finds . . . that . . . no enhancement should be imposed on the
       defendant because he stood trial. He has a constitutional right to trial. But
       he does not have a constitutional right to commit perjury. . . . I heard all of
       the testimony at the trial and I do not believe that the defendant’s testimony
       was true. I believe it was false and I conclude and I find that he committed
       perjury at trial. And, therefore, the two-level enhancement for obstruction
       of justice is appropriate. And that’s going to be the findings of the court.

This finding does not set out the requisite predicates of perjury. Specifically, the district

court did not find that Smith was untruthful about a material matter nor that he willfully

intended to provide false testimony. In Massey, we held that a district court’s finding that

the defendant’s testimony was merely “false” was insufficient because “[m]issing from

the district court’s findings are the necessary findings on materiality and willfulness.” 48

F.3d at 1573. The district court’s finding in this case is similarly deficient.

       The second required element of a district court’s finding of perjury is that it must

identify the perjured statement. Massey, 48 F.3d at 1573; Arias-Santos, 39 F.3d at 1077.

The court need not recite the perjured testimony verbatim, but it at least must describe the

testimony in substance “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.” Massey, 48 F.3d at 1574.

       The district court’s finding in this case does not identify which portion of Smith’s


                                             -6-
testimony it considered to be perjured. The government argues that meaningful appellate

review is still possible because the scope of disputed testimony is narrow. They argue

that because the only disputed testimony concerns whether there was cocaine in the cooler

when Smith departed the bus, the district court was clearly referring to that testimony

when it made its finding. The government’s argument, however, begs the question: we

need to know what testimony the district court considered perjured in order to evaluate

whether it concerned a material matter. Further, because there was no finding of

materiality, we cannot assume that the district court only considered testimony on

material matters when it made its finding. Thus, the district court’s finding was deficient

both because it did not contain all of the factual predicates of perjury and because it did

not specifically identify what testimony it considered perjured.



                               Sufficiency of the Evidence

       Smith’s second contention on appeal is that the evidence of perjury was

insufficient to support a sentence enhancement for obstruction of justice. He assumes for

the sake of argument that the district court found that the perjured testimony was his

testimony concerning the events in the car. If that assumption is correct, Smith argues,

the district court’s finding was based upon insufficient evidence because Smith was the

only witness to provide testimony as to what transpired in the car. Smith maintains that

the Tenth Circuit has never upheld a finding of perjury for the purposes of sentence


                                            -7-
enhancement supported only by circumstantial evidence. In order to evaluate whether

there was sufficient evidence of perjury, however, we first need to know what testimony

the district court found to be perjured. Thus we do not reach this claim.



                                     Basis for Sentence

       Smith’s final contention is that the district court determined his sentence on an

improper basis. At sentencing, Smith exercised his right of allocution. After Smith’s

comments, the court stated that while it had “seriously considered” sentencing Smith at

the bottom of the guideline range of 87 to 108 months, it had changed its mind after

hearing Smith’s comments. Instead, the court sentenced Smith to 100 months.

       Smith first maintains that the district court’s decision was improper because the

court failed to state a reason for the sentence. The district court, however, stated, “In

determining the sentence to be imposed, I’ve taken into consideration the serious nature

of the instant offense and the sentencing objectives of punishment, deterrence and

incapacitation.” While the court did not specifically state its reason for imposing a

sentence at a particular point within the sentencing range, it was not required to do so

because the span of the range did not exceed 24 months. 18 U.S.C.§ 3553(c). Thus the

stated reasons were adequate.

       Smith also argues that because the district court failed to state a reason for the

sentence, the court may have imposed its sentence for improper reasons. We will not


                                             -8-
review the reasons underlying a district court’s decision to impose a sentence at a

particular point within the proper guideline range other than for facial illegality, improper

calculations, or clearly erroneous fact findings. United States v. Garcia, 919 F.2d 1478,

1481 (10th Cir. 1990). Smith maintains that the court may have improperly (1) punished

him for exercising his right of allocution at sentencing, (2) punished him for making a

record of his dissatisfaction with his attorney, and (3) impermissibly double counted by

imposing a higher sentence because it thought Smith was a liar. These allegations are

nothing more than speculation, and in any case do not rise to the level of facial illegality,

improper calculation, or clearly erroneous fact findings. We, therefore, decline to review

these claims.



                                         Conclusion

       In sum, we REMAND to the district court for further findings in accordance with

this opinion. Upon remand, if the court again determines that enhancement is appropriate

under § 3C1.1, it must indicate what specific testimony it finds to be untrue and how that

testimony concerns a material matter designed to substantially affect the outcome of the

case. We do not reach the issue of whether there was sufficient evidence of perjury to

support the enhancement. We AFFIRM on all other issues.




                                             -9-
