08-5446-cr
USA v. Willis

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 22nd day
of April, two thousand ten.

Present:
            RALPH K. WINTER,
            ROBERT A. KATZMANN,
                              Circuit Judges,
            JED S. RAKOFF,
                              District Judge.*
________________________________________________

UNITED STATES OF AMERICA,

                Appellee,

                       v.                                    No. 08-5446-cr


REGINALD WILLIS,

                Defendant-Appellant.

________________________________________________



       *
          The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
For Appellee:                  MONICA J. RICHARDS, Assistant United States Attorney, for
                               Kathleen M. Mehltretter, United States Attorney for the Western
                               District of New York, Buffalo, NY

For Defendant-Appellant:       ROBERT W. WOOD , Rochester, NY



       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.

       Defendant-appellant Reginald Willis appeals from a judgment of the United States District

Court for the Western District of New York, entered November 6, 2008, sentencing him to 130

months in prison for several drug-related offenses. Willis argues that the court erred in applying a

two-level enhancement for obstruction of justice pursuant to Section 3C1.1 of the United States

Sentencing Guidelines. We assume the parties’ familiarity with the underlying facts and

procedural history of the case.

       The obstruction of justice enhancement applies where a “defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1. The

enhancement can be applied, as it was here, due to perjury, United States v. Dunnigan, 507 U.S.

87, 93-94 (1993), as long as the district court finds that “the defendant 1) willfully 2) and

materially 3) committed perjury, which is (a) the intentional (b) giving of false testimony (c) as to

a material matter,” United States v. Zagari, 111 F.3d 307, 329 (2d Cir. 1997). The perjury

enhancement does not apply to false testimony that is a result of “confusion, mistake, or faulty



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memory.” U.S.S.G. § 3C1.1 cmt. n. 2; see also Dunnigan, 507 U.S. at 94; United States v.

Kerley, 544 F.3d 172, 181 (2d Cir. 2008).

        “It is well settled that upon review of a Guidelines sentence the interpretation of a

sentencing guideline is a question of law, subject to de novo review, and that a sentencing judge’s

finding of fact may not be disturbed unless clearly erroneous.” United States v. Vasquez, 389

F.3d 65, 68 (2d Cir. 2004) (citations omitted). Accordingly, “[w]e generally defer to a sentencing

court’s findings as to what a ‘speaker meant by his words,’ and how a listener would reasonably

interpret those words.” United States v. Gaskin, 364 F.3d 438, 466 (2d Cir. 2004), quoting

United Stated v. Shoulberg, 895 F.2d 882, 884 (2d Cir. 1990). We review the reasonableness of

a district court’s sentencing determinations under a “deferential abuse-of-discretion standard,”

Gall v. United States, 552 U.S. 38, 41 (2007), considering both procedural and substantive

reasonableness, United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc).

        Willis alleges that the perjury enhancement imposed by the district court violates his Sixth

Amendment right to a jury trial, U.S. Const. amend. VI, and the Fifth Amendment requirement

that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on

presentment or indictment of a Grand Jury,” U.S. Const. amend. V. In the wake of the Supreme

Court’s remedial decision in United States v. Booker, 543 U.S. 220 (2005), this Court determined

that “the traditional authority of a sentencing judge to find all facts relevant to sentencing will

encounter no Sixth Amendment objection,” United States v. Crosby, 397 F.3d 103, 112 (2d Cir.

2005). Because Willis’s conviction on Counts II and III of the indictment exposed him to a

statutory maximum sentence of 40 years, 21 U.S.C. § 841(b)(1)(B), his actual sentence of 70

months as to those counts poses no Sixth Amendment difficulty. In addition, the Supreme Court


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has determined that when a court enhances a sentence due to particular conduct but the sentence

remains within the Guidelines range, the sentence is only for the underlying offense; a subsequent

prosecution for the same enhancing conduct does not constitute double jeopardy under the Fifth

Amendment. See Witte v. United States, 515 U.S. 389, 403-04 (1995); United States v. Grisanti,

116 F.3d 984, 987 (2d Cir. 1997). If the conduct supporting the enhancement is not an “offense”

for double jeopardy purposes, it is also not a “crime” subject to the Fifth Amendment’s

presentment requirement.

       Willis also argues that the district court erred in finding facts under a “clear and

convincing” standard rather than “beyond a reasonable doubt.” This Court has explicitly

determined, however, that “[j]udicial authority to find facts relevant to sentencing by a

preponderance of the evidence survives Booker.” United States v. Garcia, 413 F.3d 201, 220

n.15 (2d Cir. 2005). This standard applies to obstruction of justice enhancements. See United

States v. Salim, 549 F.3d 67, 75 (2d Cir. 2008).

       Finally, we need not determine whether Willis is challenging the procedural or substantive

reasonableness of his sentence, as either argument is unavailing. The district court specifically

found that Willis committed perjury because he “gave false testimony under oath concerning a

material matter with the willful intent to . . . obstruct justice.” The court added that Willis’s

testimony “was crafted . . . with the objective to fool the jury, to get the jury to accept his version

and not the Government’s version and not the version supported by the evidence.” In addition,

the court specifically identified several statements it found to be misleading and cited evidence in

the record indicating they were not truthful.

       We have determined that when, as here, a district court finds that the defendant has clearly


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lied, it “need do nothing more . . . than point to the obvious lie and find that the defendant

knowingly made a false statement on a material matter.” United States v. Williams, 79 F.3d 334,

337-38 (2d Cir. 1996). Willis contends that “years of drug addiction” could have affected his

perception, memory, and sense of reality, suggesting that his false testimony was not willful but

rather the “result of confusion, mistake, or faulty memory.” The district court squarely rejected

this possibility in its opinion, and this Court defers to a sentencing court’s assessment of a

defendant’s testimony. See Gaskin, 364 F.3d at 466. As to substantive unreasonableness, we will

overturn a district court’s sentence only in “those few cases that . . . damage the administration of

justice because the sentence imposed was shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

Given the evident falsity of numerous statements Willis made at trial, the district court did not

abuse its discretion in imposing the sentence enhancement.

       We have considered all of Willis’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                       FOR THE COURT:
                                                       CATHERINE O’HAGAN WOLFE, CLERK




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