                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-4106



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

           versus


JASON SHERRARD JOHNSON,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (3:05-cr-00062-1)


Argued:   September 25, 2007                 Decided:   January 16, 2008


Before MICHAEL and MOTZ, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Colin R. Stockton, MOORE & VAN ALLEN, Charlotte, North
Carolina, for Appellant. David Alan Brown, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Paul J. Peralta, MOORE & VAN
ALLEN, Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Defendant Jason Sherrard Johnson appeals his conviction and

sentence in the Western District of North Carolina for aggravated

identity theft.     On appeal, defendant makes two contentions: (1)

that his conviction must be reversed because the government failed

to prove that the alleged crimes involved stealing the means of

identification of a person, and (2) that the court erroneously

enhanced    his   sentence   by   two    levels   for   subornation   of   his

witness’s perjured trial testimony.          For the reasons that follow,

we reject defendant’s contentions and affirm the conviction and

sentence.



                                        I.

     On February 7, 2005, a homeless man, Lee Thomas Jones, walked

into a bank in Concord, North Carolina, and told the bank manager

that he was being forced to cash checks by two men awaiting him in

a blue rental car.      The bank called the police, and one of the

first officers to arrive on the scene spotted a car matching the

description given by Jones pulling out of the bank’s parking lot.

The officer followed the car and confirmed that its two occupants

matched the general description of the suspects given by Jones.

When the occupants noticed the police car behind them, they began

making evasive lane changes.       The police forced the car to stop and

removed defendant from the passenger seat and Bradley Thomas


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Wallace from the driver’s seat. After obtaining Wallace’s consent,

the police searched the car and found thirteen counterfeit or

altered checks under the passenger seat where defendant had been

sitting.

     Defendant and Wallace were arrested, and the following day

they were interviewed by United States Postal Inspector Justin G.

Crooks.    During the interview, defendant admitted that after his

release from prison on charges similar to those here, he and

Wallace needed money and decided to get back in the business of

stealing, altering, and cashing checks through homeless people.

Wallace, on the other hand, denied any involvement in the check-

cashing scheme and pointed the finger at defendant instead.

     Defendant and Wallace were indicted on March 2, 2005, in a

twenty-six    count   indictment     that    included   possession   of

counterfeit/forged securities (Counts 1–13), in violation of 18

U.S.C. § 513(a), and possession of stolen mail (Counts 14–26), in

violation of 18 U.S.C. § 1708.     The grand jury issued a superseding

bill of indictment on June 28, 2005, which included an additional

charge for aggravated identity theft (Count 27), in violation of 18

U.S.C. § 1028A(a)(1) and (2).

     After jury selection, but prior to the start of the evidence,

Wallace pled guilty, without the benefit of a plea agreement, to

all counts in the indictment.           At trial, Jones testified that

during a two-week period defendant and Wallace drove to banks in


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South Carolina and North Carolina where Jones attempted to cash

counterfeit checks made out to himself.

     Two      of    the    checks       found     under        defendant’s     seat    were

counterfeits of checks issued by Gail Brinn Wilkins. Ms. Wilkins

testified at trial that she is the owner of a business called Gail

Brinn Wilkins, Incorporated.                She described the two counterfeit

checks   as    bearing     the    same     check    numbers,       company     names   and

purported signatures of two legitimate checks that she had issued

to other payees, but which were instead made payable to Lee Thomas

Jones.

     At the conclusion of the government’s case, the district court

dismissed Counts 14–23 based on a lack of evidence establishing the

use of the mails.            For his defense on the remaining counts,

defendant called Wallace as his lone witness.                       The district court

granted defense counsel’s request for an opportunity to interview

Wallace during the lunch break before calling him to the witness

stand.   Wallace testified, admitting his own guilt and exonerating

defendant.         His testimony acknowledged his own and defendant’s

statements made the day after they were arrested. However, Wallace

stated     that     he    could     not    provide        an     explanation     for   the

inconsistency        between      his     trial    testimony       and   the    pre-trial

statements.

     The jury returned a guilty verdict on all remaining counts of

the indictment. The United States Probation Office prepared a pre-


                                             4
sentence report, to which the government filed an objection,

arguing that defendant should receive a two-level enhancement for

obstruction of justice for suborning the perjurious testimony of

Wallace.     A revised pre-sentence report was prepared adjusting

defendant’s guidelines offense level upward by two levels for

obstruction of justice for subornation of Wallace’s perjury.

       During the sentencing hearing, the district court found that

Wallace testified falsely.           The court also found that because

defendant’s attorney was given the opportunity to interview Wallace

during the lunch recess before calling him to the stand, it was

reasonable    to   infer      that   the      attorney   discussed     Wallace’s

anticipated exculpatory testimony with the defendant, and that the

defendant knew such testimony would be false.               The court inferred

that the defendant encouraged his attorney to call Wallace with

knowledge that his expected testimony would be false.                  The court

noted that defendant and Wallace were arrested at the same time

after having committed the crime together, supporting the inference

that the defendant knew that any exculpatory testimony from Wallace

would be false.

      The district court sentenced defendant to the maximum term of

imprisonment provided under the sentencing guidelines:                 46 months

in prison on Counts 1–13 and Counts 24–26 to run concurrently, with

a   consecutive    sentence    of    24   months   on    Count   27.   The   court

specifically found that “the only way to prevent future crimes of


                                          5
this nature by the defendant is to incarcerate him.                    The public

will be safe from these crimes only so long as the defendant is in

custody. . . . And it would be the same sentence that I imposed

regardless of the guidelines.” (J.A. 531).



                                    II.

     Defendant first challenges the sufficiency of the evidence

underlying     his    conviction    for       aggravated      identity      theft.

Specifically,      defendant   argues       that    the   government    failed   to

establish that he had assumed the identity or otherwise used the

means of identification of a natural person in violation of 18

U.S.C. § 1028A.

     The court reviews de novo the district court’s denial of a

motion for judgment of acquittal.                  See United States v. Ryan-

Webster, 353 F.3d 353, 359 (4th Cir. 2003).                The district court’s

determination of the ambit of a criminal statute is also reviewed

de novo.     Id.

     The issue at trial and on appeal is whether the aggravated

identity theft statute, 18 U.S.C. § 1028A, requires a criminal

defendant to have attempted to steal the identity of a natural

person, or whether “person” can mean a corporation.                    The statute

provides, in relevant part

     Whoever, during and in relation to any felony violation
     enumerated in subsection (c), knowingly transfers,
     possesses, or uses, without lawful authority, a means of
     identification of another person shall, in addition to

                                        6
        the punishment provided for such felony, be sentenced to
        a term of imprisonment of 2 years.

18   U.S.C.    §   1028A(a)(emphasis       added).    The   term   “means   of

identification” is defined as “any name or number that may be used,

alone or in conjunction with any other information, to identify a

specific individual.”      18 U.S.C. § 1028(d)(7).

      Defendant argues that Congress meant to limit aggravated

identity theft to those involving natural persons, not companies.

The government argues that Ms. Wilkins’s name as part of the

company name was sufficient to identify a specific individual under

the statute.

      The court agrees with the government that use of Ms. Wilkins’s

name as part of the company name was sufficient to satisfy the

means     of   identification   element        in    18   U.S.C.   §   1028A.

Independently, the court finds that use of Ms. Wilkins’s name as

the signatory on the checks is sufficient to identify a specific

individual under the statute.

      For the foregoing reasons, we affirm defendant’s conviction on

Count 27.



                                  III.

      Defendant next challenges the district court’s sentencing

enhancement for obstruction of justice, U.S. Sentencing Guidelines

Manual § 3C1.1, based on subornation of Wallace’s perjury.



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     The court reviews the enhancement on a mixed standard of

review: the findings of fact are subject to a clearly erroneous

standard,   and    the   court’s   interpretation   of    the   sentencing

guidelines is reviewed de novo. See United States v. Moreland, 437

F.3d 424, 433 (4th Cir. 2006), United States v. Jones, 308 F.3d

425, 427 (4th Cir. 2002).

     Obstruction of justice is not defined in the guidelines, but

includes “committing, suborning, or attempting to suborn perjury.”

U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(b). Subornation

of perjury consists of three elements: the suborner (1) “should

have known or believed or have had good reason to believe that the

testimony given would be false”; (2) “should have known or believed

that the witness would testify willfully and corruptly, and with

knowledge of the falsity”; and (3) have “knowingly and willfully

induced or procured the witness to give false testimony.” Petite v.

United States, 262 F.2d 788, 794 (4th Cir. 1959), vacated on other

grounds, 361 U.S. 529, 80 S. Ct. 450, 4 L. Ed. 2d 490 (1960); see

also United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995)

(“Subornation of perjury consists of procuring or instigating

another to commit perjury.”).

     Although defendant also questions the falsity and materiality

of   Wallace’s    testimony,   defendant   primarily     objects   to   the

enhancement on the ground that there was no evidence that he

willfully procured the false testimony.        Defendant asserts that


                                     8
knowledge of false testimony alone is insufficient, as there must

be evidence that he induced or procured the false testimony.

Defendant suggests that, at most, he merely allowed Wallace to give

perjured   testimony,   which   he   argues   does   not   constitute   a

sufficient basis for the enhancement. For support, defendant cites

this court’s unpublished opinion in United States v. Lesczynski, 86

Fed. App’x 551 (4th Cir. 2004), which held that the fact that

defendant allowed his brother-in-law to testify did not establish

the element of procurement necessary for obstruction of justice.

     Subornation is but one example of the type of conduct that

constitutes obstruction.    As we recognized in United States v.

Washington, 171 Fed. App’x 986, 988 (4th Cir. 2006)(unpublished),

“the calling of a witness whom the defendant knows will testify

falsely could constitute obstruction of justice” even if it does

not necessarily constitute subornation of perjury. This holding is

consistent with the majority of circuits that have considered the

issue.*


     *
      See United States v. Livotti, 196 F.3d 322, 327 (2d Cir.
1999)(holding that obstruction of justice enhancement based on
district court’s finding that defendant called trial witnesses
knowing they would offer false testimony was not clearly
erroneous); United States v. Lowder, 148 F.3d 548, 552–53 (5th Cir.
1998)(finding enhancement for obstruction of justice proper where
plausible inference that defendant counseled or induced attorney to
call perjurious witness supported district court’s factual finding
of subornation of perjury); United States v. Miller, 159 F.3d 1106,
1112–13 (7th Cir. 1998)(holding that obstruction of justice
enhancement based on evidence that defendant suborned perjury by
calling sole witness to contradict testimony of government
witnesses was not clearly erroneous); United States v. Calderon-

                                     9
     We therefore conclude that the district court's determination

that defendant obstructed justice by knowingly calling his co-

defendant to give perjured testimony could be affirmed if the

court's factual finding is supported by the record.

     Based on the facts of this case, the district court did not

clearly err in applying the enhancement.             As the district court

stated, whether the defendant encouraged his attorney to call the

witness with knowledge of his expected false testimony is an

inference not subject to direct proof.         The inference drawn by the

district court that defendant either directed or encouraged his

attorney   to   call   Wallace   as   a    witness   is   a   reasonable   one

circumstantially supported by logic.

     At least with respect to Wallace's testimony regarding whether

defendant was a participant in the check cashing scheme, there is

a clear basis in the record to find that defendant obstructed

justice.   First, defendant had personal knowledge of the truth or

falsity of Wallace's testimony because Wallace described an event

at which both he and defendant were present. Second, defendant had

knowledge of Wallace's testimony prior to calling him as a witness



Avila, 322 F.3d 505, 507 (8th Cir. 2003)(upholding application of
obstruction of justice enhancement based on district court’s
finding that defendant suborned perjurious testimony to obstruct
government’s prosecution efforts); United States v. Bradberry, 466
F.3d 1249 (11th Cir. 2006)(upholding obstruction of justice
enhancement and holding that defendant suborns, aids or abetts,
procures, or willfully causes perjury by calling witness to testify
on defendant’s behalf knowing the witness will testify falsely).

                                      10
because his attorney requested, and was given, the opportunity to

interview Wallace during the lunch recess before calling him to the

stand.    The district court found that “it’s reasonable to infer

that   the    attorney     discussed    Wallace’s    anticipated     exculpatory

testimony with the defendant, and that the defendant knew such

testimony would be false.”           (J.A. 515).

       Furthermore, logic dictates that defendant would not have

consented to calling Wallace as a witness to corroborate the

government’s case against him and to have him testify consistently

with their pretrial confessions.                 Instead, the district court

reasonably        inferred   that    defendant     called    Wallace     with   the

expectation that his testimony would exonerate defendant.                        By

knowing that Wallace's testimony was false, but choosing to call

Wallace      in   his    defense,    defendant    either    obstructed     justice

directly or, at the very least, “aided or abetted” Wallace's

perjury before the district court. U.S. Sentencing Guidelines

Manual § 3C1.1 cmt. n.9.

       The court's conclusion that defendant also knew how Wallace

would testify is not clearly erroneous. Wallace's testimony was

defendant’s sole defense and contradicted the testimony of witness

Lee    Jones,      who   testified     that   defendant     held   the    envelope

containing the counterfeit checks, handed him the counterfeit check

to cash at the bank, and instructed him that                “[t]his is the check

that I want you to take to this bank.” (J.A. 162).                       Wallace’s


                                         11
testimony also contradicted his own and defendant’s statements,

made the day after their arrests, that they had decided to get back

in the business of cashing counterfeit checks through homeless

people.     The court finds that these plausible inferences, taken

together,      sufficiently    support     the   district    court's   factual

finding, particularly in light of defendant's failure to submit any

sworn rebuttal to Wallace’s false testimony.

      The   court   rejects    defendant’s       alternative   argument     that

enhancing his sentence for presenting perjured testimony would have

a chilling effect on a defendant’s right to defend himself and

confront his accusers.         We believe that “just as ‘a defendant’s

right to testify does not include a right to commit perjury,’” see

Lowder, 148 F.3d at 553 (quoting United States v. Dunnigan, 507

U.S. 87, 96, 113 S. Ct. 1111, 1117, 122 L. Ed. 2d 445 (1993)),

similarly, a defendant’s right to present witnesses in his own

defense does not include the right to deliberately present false

testimony. See id. at 552-53.

      The court is not establishing a broad-brush rule that a

defendant is subjected to a sentencing enhancement for obstruction

of   justice    every   time   the   defense     calls   a   witness   to   give

exculpatory testimony which is later determined to be false.                The

record of the district court’s findings must reveal some necessary

link such as showing that the defendant knew in advance that the




                                      12
testimony would be false, yet chose to make it a part of his

defense.   That link was established in this case.

     In light of the foregoing, we find no reversible error in the

district court’s two-level enhancement for obstruction of justice.

Accordingly, defendant's conviction and sentence are affirmed.



                                                         AFFIRMED




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