                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2599
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Northern District of Iowa.
Tramain M. Whiting,                   *
                                      *
           Defendant - Appellant.     *
                                      *
                                 ___________

                             Submitted: March 11, 2008
                                Filed: April 10, 2008
                                 ___________

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Tramain Whiting was convicted of multiple drug and firearm offenses and was
sentenced to 195 months. Whiting appeals his sentence, alleging that the district
court1 erred by enhancing his sentence for obstruction of justice, by including too
much as relevant conduct, and by not crediting him for a minimal role. He also
contends that the district court should have granted his request for a variance based


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
on a pending amendment which would reduce the advisory guideline ranges
associated with crack cocaine. We affirm the district court's application of the
sentencing guidelines then in effect but remand for its consideration of whether
Whiting's sentence should be modified in light of the now effective amendments
which have been made retroactive by the United States Sentencing Commission.

       Tramain Whiting and his cousin, Brian Whiting, drove from Chicago to Cedar
Rapids on November 5, 2006. They stayed in Cedar Rapids for a few days with
Tramain's brother Darius before a planned trip to Tennessee. The Whitings were
unaware that Darius and Brian were under investigation for drug trafficking and that
Darius's house was under surveillance by the Cedar Rapids police. When officers saw
the three men leave the house by car on November 7, they attempted an identification
stop of the car which Tramain was driving. He initially pulled over, but then decided
to speed off. After driving a few blocks, he stopped briefly to let Darius and Brian out
of the car and then continued a little farther before coming to a stop and being taken
into custody. Darius and Brian tried to flee on foot but were caught after a short
chase.

       All three were arrested, and officers seized a handgun from Brian and 2.6 grams
of crack cocaine from Darius. A handgun and magazine were found in the area where
Darius had been running. Although the magazine had Tramain's fingerprints on it, he
did not have any weapons or drugs when arrested. Officers searched Darius's
residence pursuant to a warrant and found 192 grams of cocaine, 208.2 grams of
cocaine base, 14.62 grams of marijuana, two handguns (one of which had an
obliterated serial number), and more than $34,000 in cash. Following his arrest and
Miranda warning, Darius admitted that the seized drugs and firearms belonged to him.

      Tramain, Darius, and Brian Whiting were all indicted on multiple counts related
to drugs and firearms, but a superseding indictment followed which charged only
Darius and Tramain. Tramain's case went to trial before a jury, which heard

                                          -2-
conflicting evidence about his involvement in the drug activity. When the three
Whitings were arrested, they had been on their way to do a drug transaction at a local
store, but both brothers denied at trial that Tramain had known about the planned deal.
Tramain testified that after his arrest he had learned about it from Officer Moyle.
Officer Moyle testified to the contrary, telling the jury that Tramain had told him
during his post arrest interview that he had been aware that they were on their way to
a drug deal. Brian testified that he had also seen Tramain retrieve drugs from a
bedroom and hand them to two of Darius's customers, but both brothers denied that
Tramain had handed drugs to any customer or otherwise assisted with manufacturing
or dealing drugs.

       The jury acquitted Tramain Whiting of conspiracy to manufacture, distribute,
and possess with intent to distribute a mixture or substance containing crack and
cocaine within 1000 feet of a protected location (Count 1), but convicted him of:
possessing with intent to distribute and aiding and abetting the possession with intent
to distribute less than 5 grams of crack (Count 2)2 and 2.6 grams of crack (Count 3)
within 1000 feet of a protected location; carrying, using, and possessing a firearm in
furtherance of a drug offense and aiding and abetting such use of a firearm (Count 4);
and conspiracy to aid and abet using, carrying, and possessing a firearm in furtherance
of a drug offense (Count 5).

      At the sentencing hearing on July 2, 2007 the district court calculated Tramain
Whiting's base offense level at 33 for Counts 2 and 3, then imposed a two level
increase for obstruction of justice after finding that he had committed perjury and also
suborned perjury from Darius Whiting. The court granted a two level reduction for
minor role, arriving at an adjusted offense level of 33. Counts 2, 3, and 5 were then

      2
       Count 2 of the superseding indictment alleged 192 grams of cocaine and 207.2
grams of crack, but the presentence investigation report indicates that this count was
amended after the jury found that Whiting was involved with less than 5 grams of
crack.

                                          -3-
grouped as closely related offenses. See U.S.S.G. § 3D1.2.3 With a criminal history
category of I, Tramain Whiting's guideline range was 135 to 168 months, although the
court did not expressly state this in the transcript of the sentencing hearing. After
considering the factors in 18 U.S.C. § 3553(a), the district court imposed a sentence
of 135 months on Counts 2, 3, and 5, plus a consecutive 60 month sentence on Count
4. Whiting asked for a downward variance pursuant to 18 U.S.C. § 3553(a), arguing
that he was entitled to a lower sentence based on a pending amendment to the
guidelines affecting crack offenses and the sentencing disparities between powder and
crack cocaine. The court denied the request and sentenced him to 195 months.

       Whiting appeals his sentence, alleging that the district court erred in its
calculation of his guideline range and that it should have granted the variance he
requested, suggesting that his sentence is unreasonable. The government argues that
the district court did not err or abuse its discretion in imposing the sentence, that it fell
within the guideline range, and that it was reasonable. We review the sentence
imposed for reasonableness, first "ensur[ing] that the district court committed no
significant procedural error." Gall v. United States, 128 S. Ct. 586, 597 (2007); see
also United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008). If we determine
the district court's decision is "procedurally sound," we move on to "consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard." Gall, 128 S. Ct. at 597; Washington, 515 F.3d at 865. We may apply a
presumption of reasonableness to a sentence within the guideline range but are not
required to do so. Gall, 128 S. Ct. at 597, citing Rita v. United States, 127 S. Ct. 2456
(2007). A district court's application of the advisory guidelines is reviewed de novo,



       3
       Before grouping Count 5 with Counts 2 and 3, the district court calculated an
adjusted offense level of 18 for Count 5. This level reflected upward adjustments,
under U.S.S.G. § 2K2.1(b)(1)(A) and U.S.S.G. § 2K2.1(b)(4), for the number of
firearms involved and an obliterated serial number on one of the guns; these
adjustments had no effect on the final sentence because of the grouping involved.

                                            -4-
while findings of fact are reviewed for clear error. See United States v. Flying By,
511 F.3d 773, 778 (8th Cir. 2007) (citations omitted).

       Whiting first challenges the district court's imposition of a two level
enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We review a
district court's factual findings underlying such an enhancement for clear error,
United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004), giving great
deference to the sentencing court's determination. United States v. Denton, 434 F.3d
1104, 1114 (8th Cir. 2006).

       U.S.S.G. § 3C1.1 provides for a two level enhancement for obstruction of
justice if the defendant has committed perjury or suborned perjury by another witness.
U.S.S.G. § 3C1.1 & app. n. 4(b); see also United States v. Flores, 362 F.3d 1030,
1037 (8th Cir. 2004). A defendant commits perjury by testifying falsely under oath
in regard to a material matter and by doing so willfully, rather than out of confusion,
mistake, or faulty memory. See United States v. Dunnigan, 507 U.S. 87, 94-95
(1993); see also United States v. Vinton, 429 F.3d 811, 818 (8th Cir. 2005). A
defendant suborns perjury by procuring another to commit perjury. See 18 U.S.C. §
1622. Before imposing an enhancement under § 3C1.1, the district court "must review
the evidence and make independent findings necessary to establish a willful
impediment to, or obstruction of, justice." Dunnigan, 507 U.S. at 95; see also
Mendoza-Gonzalez, 363 F.3d at 796. The government bears the burden of proving
the facts to support such findings by a preponderance of the evidence. Vinton, 429
F.3d at 818.

       Whiting argues that the government did not show that he willfully committed
or suborned perjury. During the sentencing hearing the district court found by a
preponderance of the evidence that Whiting had done both. These findings were
supported by the testimony of Brian Whiting and Officer Moyle although it conflicted
with that of Darius and Tramain Whiting. A sentencing enhancement under U.S.S.G.

                                         -5-
§ 3C1.1 may be based on the experienced trial judge's finding that the defendant lied
to the jury. Denton, 434 F.3d at 1114. Whiting contends that the district court did not
make specific findings as to each element of obstruction of justice or perjury. 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 of, or impediment to, justice that encompasses all of the factual predicates
for a finding of perjury." Dunnigan, 507 U.S. at 95; see also Denton, 434 F.3d at
1114; Vinton, 429 F.3d at 818. The sentencing judge here exceeded this standard by
pointing to specific parts of the testimony of Tramain and Darius Whiting in which
it found they had intentionally lied to the jury. We conclude that the district court did
not clearly err in applying an adjustment for obstruction of justice.

       Whiting next contends that the district court erred by counting the drugs and
guns seized from his brother's house as relevant conduct for purposes of calculating
his sentence. He claims that the jury only held him responsible for a total of 7.6 grams
of crack and that he personally did not have a weapon. The government argues that
the district court correctly included the drugs and firearms from the house as relevant
conduct. We review a sentencing court's relevant conduct findings for clear error as
these are fact intensive determinations. United States v. Ault, 446 F.3d 821, 823 (8th
Cir. 2006). Relevant conduct for sentencing purposes includes all acts and omissions
of the defendant that were "part of the same course of conduct or common scheme or
plan as the offense of conviction" and "all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal activity." U.S.S.G. §
1B1.3(a)(1) & (2); see Ault, 446 F.3d at 823; see also Flying By, 511 F.3d at 778.
The sentencing court is not prohibited from considering uncharged or acquitted
conduct. See Flying By, 511 F.3d at 779 (acquitted conduct); United States v. Griggs,
71 F.3d 276, 281 (8th Cir. 1995) (district court must consider all relevant conduct
"whether uncharged, charged, or charged and dismissed").




                                          -6-
       The district court found by a preponderance of the evidence that Whiting was
accountable for over 4000 kilograms of marijuana equivalent drugs. Evidence at trial
indicated that Whiting knew about the drug trafficking and manufacturing in the
house, had access to the guns and drugs there, had handled and moved some of those
guns, and had retrieved drugs from one room of the house for delivery to two
customers. He was driving the car on the way to the anticipated drug deal, and he
expected that Darius and Brian Whiting would flee when he stopped the car to let
them out during the police chase. Although Whiting objects to using the guns found
in the house to increase his offense level on Count 5, that increase had no effect on his
sentence because Count 5 was ultimately grouped with Counts 2 and 3. We conclude
that the district court did not clearly err by considering the drugs and firearms in the
house as relevant conduct. See United States v. Alexander, 408 F.3d 1003, 1009-10
(8th Cir. 2005); see also United States v. Gordon, 510 F.3d 811, 817-18 (8th Cir.
2007).

       Whiting contends that he was entitled to more than a two level downward
adjustment for minor role and that he should instead receive a four level reduction for
minimal role. We review the district court's finding for clear error. United States v.
Carpenter, 487 F.3d 623, 625 (8th Cir. 2007). Sentencing guideline § 3B1.2
authorizes a decrease of two to four levels to reflect a defendant's mitigating role in
any criminal activity. U.S.S.G. § 3B1.2; see also United States v. Thurmon, 278 F.3d
790, 792 (8th Cir. 2002). A defendant may qualify for a four level decrease as a
minimal participant if he is "plainly among the least culpable" of those involved and
lacks knowledge of "the scope and structure of the enterprise and of the activities of
others." U.S.S.G. § 3B1.2(a) & app. n. 4; see also Denton, 434 F.3d at 1114-15. He
may receive a two level decrease as a minor participant if he is "less culpable than
most other participants, but [his] role could not be described as minimal." U.S.S.G.
§ 3B1.2(b) & app. n. 5; see also Denton, 434 F.3d at 1115. The defendant bears the
burden of establishing that he is entitled to such a reduction, and the "test for whether
a reduction is appropriate is to compare the acts of the defendant in relation to the

                                          -7-
relevant conduct for which the participant is held accountable and measure each
participant's individual acts and relative culpability against the elements of the
offense." Carpenter, 487 F.3d at 626 (internal quotations and citations omitted).

       Because Whiting was held responsible only for what occurred between
November 5 through 7, 2006, his role in the offense must be based on the relevant
conduct during that time rather than the overall scope of the conspiracy. See United
States v. Speller, 356 F.3d 904, 907 (8th Cir. 2004). Although Whiting argues that he
was only implicated in the criminal activity because the surveillance and arrests
happened to coincide with his visit to Cedar Rapids, he cannot be considered a
minimal participant since he had "knowledge of the scope and structure of the
conspiracy and observed the activities of others in the conspiracy." Denton, 434 F.3d
at 1115. Trial evidence showed Whiting knew that Darius Whiting had manufactured
crack in the house during his visit, observed customers come and go, handed drugs to
two customers, drove to a drug deal, and knew of and moved the guns around the
house. The district court did not err by declining to grant a four level reduction for
minimal role.

       Whiting requested a downward variance in his sentence under 18 U.S.C. §
3553(a) based on the disparity between crack and powder cocaine sentencing ranges
and the related guideline amendment enacted by the United States Sentencing
Commission which had not yet taken effect at the time of his sentencing on July 2,
2007. Amendment 706 to the sentencing guidelines changed the drug quantity table
in U.S.S.G. § 2D1.1 and decreased by two the base offense level assigned to each
threshold quantity of crack. See U.S.S.G. § 2D1.1; U.S.S.G. app. C, amend. 706
(Supp. 2007); see also United States v. King, No. 07-1961, 2008 WL 596728, *4 (8th
Cir. 2008). This amendment was submitted to Congress on May 1, 2007 and became
effective on November 1, 2007. See U.S.S.G. app. C, amend. 706 (Supp. 2007);
Sentencing Guidelines for United States Courts, 72 Fed. Reg. 28,558 (May 21, 2007).



                                         -8-
(Amendments enacted by the Sentencing Commission automatically take effect absent
congressional action within 180 days. See 28 U.S.C. § 994(p).)

       The district court declined to vary downward and stated that even if it were to
vary, it would not go below a total offense level of 31. The 135 month sentence it
imposed was at the bottom of the guideline range for offense level 33 and criminal
history category I. Although the court did not specify what that range was, it stated
that the range would overlap with that for offense level 31 (108 to 135 months). The
court also stated that its sentence would be the same whether or not the pending
amendment became law.

       Some time after Whiting was sentenced, modifications to the commentary for
the drug tables in U.S.S.G. § 2D1.1 were published as Amendment 711, also with an
effective date of November 1, 2007. See U.S.S.G. app. C, amend. 711 (Supp. 2007);
Sentencing Guidelines for United States Courts, 72 Fed. Reg. 51,882 (Sept. 11, 2007).
This commentary is an application note which addresses the conversion of drug
quantities to marijuana equivalents for offenses which involve crack and other
controlled substances and which would apply here since three types of drugs including
crack were involved in the Whitings' offenses. See U.S.S.G. app. C, amend. 711
(Supp. 2007). This amendment also became effective on November 1, 2007, and the
Commission later decided to make both amendments retroactive as of March 3, 2008.
See U.S.S.G. app. C, amend. 713 (Supp. 2008); Sentencing Guidelines for United
States Courts, 73 Fed. Reg. 217 (Jan. 2, 2008).

       Whiting argues that his case should be remanded for resentencing in light of
these amendments, contending that they would reduce his sentencing range. The
government responds that resentencing is unnecessary since the district court already
indicated that its sentence would not be affected by Amendment 706, sentencing him
at a point at the bottom of the original guideline range and at the top of the range
which would apply if Amendment 706 became effective. Whiting responds that the

                                         -9-
sentencing court did not have the new drug table and relevant commentary at the time
of his sentencing and that it cannot be known how the court might have been
influenced by this information since it also affects factors that must be considered
under 18 U.S.C. § 3553(a).

       A sentencing court has discretionary authority, under 18 U.S.C. § 3582(c)(2)
and U.S.S.G. § 1B1.10, to reduce the term of imprisonment for a defendant such as
Whiting who was sentenced based on a guideline range subsequently lowered by the
Sentencing Commission. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10; see also United
States v. Wyatt, 115 F.3d 606, 608 (8th Cir. 1997). When exercising this discretion,
the district court must first calculate the amended guideline range and determine what
sentence it would have imposed had the new sentencing range been in effect at the
original sentencing. Id. at 609-09. It must then consider "that determination together
with the general sentencing considerations contained in [18 U.S.C. §] 3553(a) and, in
the exercise of its thus informed discretion, decide whether or not to modify the
original sentence previously imposed." Id. at 609.

       When an amendment to the guidelines becomes retroactive during the appellate
proceedings on a case, it may be remanded to the district court for determination of
whether the amendment warrants a sentence reduction. See United States v. Coohey,
11 F.3d 97, 101 (1993); cf. King, 2008 WL 596728, *4 (defendant's "request for
reduction of sentence in light of Amendment 706 must be decided by the district court
in the first instance").4 Such a remand is appropriate here because the sentencing
court did not have the benefit of the amendments in their final form and those
amendments affect some of the § 3553(a) factors which are to be considered in


      4
       Pursuant to 18 U.S.C. § 3582(c)(2), the sentencing court may consider
reducing the term of imprisonment for a defendant who has been sentenced based on
a sentencing range that has subsequently been lowered by the Sentencing Commission
on the court's own motion, or on a motion by the defendant or the Bureau of Prisons.
18 U.S.C. § 3582(c)(2); see also Coohey, 11 F.3d at 101 n.3.

                                        -10-
imposing a sentence, including the sentencing range in § 3553(a)(4). Accordingly, we
remand the case to the district court for consideration of whether Whiting's sentence
should be modified in light of these retroactive amendments to the guidelines affecting
crack.

       In sum, we affirm the district court's enhancement for obstruction of justice, its
relevant conduct findings, and its reduction for minor rather than minimal role.
Because of the recent retroactive changes in the sentencing guidelines pertaining to
crack, we remand Whiting's sentence for further proceedings in accordance with this
opinion.
                        ______________________________




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