                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3069
                                    ___________

United States of America,                *
                                         *
              Appellee,                  *
                                         * Appeal from the United States
         v.                              * District Court for the
                                         * District of South Dakota.
Timothy Red Elk,                         *
                                         *
              Appellant.                 *
                                    ___________

                              Submitted: March 8, 2004
                                 Filed: May 28, 2004
                                  ___________

Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and COLLOTON, Circuit
      Judges.
                         ___________

WOLLMAN, Circuit Judge.

      Timothy Red Elk appeals his sentence and conviction, arguing that the district
     1
court improperly applied a cross-reference in the United States Sentencing
Guidelines Manual (U.S.S.G.), erred in applying a two-level sentencing enhancement
for obstruction of justice, and erred in denying his motion for a new trial. We affirm.




         1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                          I.
        Red Elk was indicted and tried for sexual abuse of a minor, a violation of 18
U.S.C. § 2243(a), which carries a maximum sentence of 15 years’ imprisonment. At
trial, the government called the two victims, D.F.B. and S.F.C., and two FBI agents
who had interviewed Red Elk. The government played for the jury two portions of
taped interviews that included admissions by Red Elk that he knew that the girls were
under 16 and that he had sexually penetrated both girls. The defense presented
evidence to the effect that the girls could have appeared to be at least 16 and that
family and community members did not necessarily think Red Elk was too old to date
the girls. Testifying in his own defense, Red Elk stated that he believed D.F.B. and
S.F.C. were at least 16. During cross examination, Red Elk asserted that he had never
engaged in sex with either victim. The jury found him guilty on both counts.

       At sentencing, the district court applied the cross-reference in section
2A3.2(c)(1) of the sentencing guidelines, which states: “If the offense involved
criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18
U.S.C. § 2241 or § 2242), apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit
Criminal Sexual Abuse).” The district court found this cross-reference applicable
because the testimony of both victims indicated that they were unable to consent due
to intoxication, meeting the definition of sexual abuse set forth in 18 U.S.C. §
2242(2)(B). The district court then established a base offense level of 27, which it
increased by two levels because the victims were at least 12 but less than 16. See
U.S.S.G. § 2A3.1 (2000). The district court then increased the base level by two
more levels for a multiple-count adjustment. See Id. § 3D1.4. Finally, after finding
that Red Elk had committed perjury at trial, the district court applied a two-level
enhancement for obstruction of justice. See Id. § 3C1.1. With a total offense level
of 33 and a criminal history category I, the applicable sentencing range was 135-168
months. The district court sentenced Red Elk to 168 months’ imprisonment on each
count, to run concurrently, and a three-year term of supervised release.



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                                           II.
                                           A.
       Red Elk first argues that his due process rights were violated when the district
court sentenced him on the basis of a charge on which he was neither indicted nor
tried. He contends that the government should not have been able to try him for
sexual abuse of a minor, under which the issue of consent of the victim is immaterial,
and then at sentencing raise inability to consent as a basis to invoke a cross-reference
and impose a higher sentence.

       We review the district court’s findings of fact for clear error and its application
of the sentencing guidelines to those facts de novo. United States v. Swick, 334 F.3d
784, 787 (8th Cir. 2003). Having applied those standards of review here, we
conclude that Red Elk’s constitutional due process argument fails, for it is appropriate
for a district court to consider uncharged relevant conduct for purposes of sentencing,
even if it increases the sentence that would otherwise be applied, so long as the
sentence does not exceed the statutory maximum authorized for the charged offense.
See United States v. Galloway, 976 F.2d 414, 425 (8th Cir. 1992) (en banc)
(upholding the constitutionality of the relevant conduct guideline, U.S.S.G. § 1B1.3).

       The sentencing guidelines include numerous enhancements and cross-
references that require the district court judge to consider the defendant’s relevant
conduct in reaching an appropriate sentence within the maximum authorized by law.
Galloway, 976 F.2d at 424. The government must prove the elements of a charged
offense beyond a reasonable doubt but need prove other facts that may provide for an
enhanced sentence by only a preponderance of the evidence, even if such facts will
result in a mandatory minimum sentence. McMillan v. Pennsylvania, 477 U.S. 79,
92-93 (1986). See also Harris v. United States, 536 U.S. 545, 568 (2002) (reaffirming
the reasoning in McMillan). The district court may “impose a sentence within a range
provided by statute, basing it on various facts relating to the defendant and the
manner in which the offense was committed.” Harris, 536 U.S. at 549. Conduct

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outside the scope of that which bears on the question of guilt or innocence still “bears
directly upon [the] seriousness” of the offense and is appropriately considered as a
sentencing factor. Galloway, 976 F.2d at 424. The district court needs to know “the
fullest information possible concerning the defendant’s life and characteristics” in
order to choose the appropriate sentence. United States v. Wise, 976 F.2d 393, 398
(8th Cir. 1992) (en banc) (citing Williams v. New York, 337 U.S. 241, 247 (1949)).
Such sentencing factors are not subject to the indictment, jury trial, or proof
requirements so long as the enhanced sentence does not exceed the statutory
maximum. Harris, 536 U.S. at 549.

       Nor does the mandatory nature of the sentencing guidelines, which require the
district court to adjust the sentence if certain facts are found, violate the defendant’s
rights to indictment, jury trial or proof beyond a reasonable doubt. Galloway, 976
F.2d at 423. In Galloway, we held that the sentencing judge need find the relevant
conduct that triggers different guideline ranges by only a preponderance of the
evidence. See Galloway, 976 F.2d at 425. We have also applied the reasoning in
Galloway to several cross-referencing provisions in the sentencing guidelines that
allow a district court to consider uncharged conduct to establish the appropriate base
offense level. See, e.g., United States v. Smith, 997 F.2d 396, 397 (8th Cir. 1993)
(per curiam); United States v. Fleming, 8 F.3d 1264, 1266 (8th Cir. 1993). In
considering such conduct for purposes of sentencing, it is appropriate for the judge
to consider testimony presented at trial, see Fleming, 8 F.3d at 1266-67, as well as
additional evidence provided at the sentencing hearing.

       A defendant does have a liberty interest, of course, in the correct application
of the sentencing guidelines. Galloway, 976 F.2d at 425. We will therefore reverse
a sentence if the district court has failed to make the necessary factual findings, if the
sentence exceeds the punishment authorized by the statute the defendant was
sentenced under, or if the punishment “overwhelms or is extremely disproportionate
to the punishment that would otherwise be imposed.” Id. at 426. We have suggested

                                           -4-
that if presented with a case involving an extreme disparity between the crime
charged and the sentence imposed, we might require the government to establish the
relevant conduct by proof greater than a preponderance of the evidence. See United
States v. Geralds, 158 F.3d 977, 979 (8th Cir. 1998); United States v. Townley, 929
F.2d 365, 369 (8th Cir. 1991).

       We need not define the degree of disparity that might require the imposition
of a heightened standard of proof, for Red Elk’s sentence falls within a range that is
affirmable under the preponderance of the evidence standard. First, the 168-month
sentence imposed does not exceed the 15 years of imprisonment authorized under 18
U.S.C. § 2243(a). Second, the district court’s detailed findings at the sentencing
hearing that the victims were unable to consent because of their intoxication finds
clear support in the testimony of D.F.B. and S.F.C. See 18 U.S.C. § 2242(2)(B)
(stating that it is criminal sexual abuse if the defendant knowingly engages in a sexual
act when the victim is “physically incapable of declining participation in, or
communicating unwillingness to engage in” the sexual act). The record supports the
conclusion that both victims were passed out at the time of the offenses, that S.F.C.
briefly came to while Red Elk was engaged in intercourse with her, and that Red Elk
must have known of their state of consciousness.

       Third, although Red Elk’s sentence is significantly greater than that which he
would have received absent the application of the cross-reference, we conclude that
it does not violate due process. Without the cross-reference and based on the
guidelines at the time of his offenses, Red Elk would have been subject to an offense
level of 19 (a base offense level of 15 under section 2A3.2 plus a two-level multiple-
count adjustment and a two-level obstruction enhancement). He would thus have
been subject to a sentencing range of 30-37 months. The 168 month sentence he
received is 4.5 times greater than the 37-month sentence that could have been
imposed. We have rejected similar due process claims for two-fold, three-fold, and
four-fold increases. See Wise, 976 F.2d at 401; Galloway, 976 F.2d at 426; United

                                          -5-
States v. Alvarez, 168 F.3d 1084, 1088 (8th Cir. 1999). In light of those holdings, we
conclude that an increase of 4.5 times is not so disproportionate that it must be
supported by evidence established under a higher standard of proof. Accordingly, the
district court did not err in applying the cross reference to Red Elk.

                                          B.
       Red Elk also contends that he should not have received a two-level
enhancement for obstruction of justice. Perjury at trial is an appropriate basis for the
enhancement. See United States v. Harris, 352 F.3d 362, 366 (8th Cir. 2003);
U.S.S.G. § 3C1.1. A witness commits perjury if he intentionally testifies falsely
about a material matter. Harris, 352 F.3d at 366. Whether Red Elk committed perjury
is a factual finding that we review for clear error. Id. Before imposing the
enhancement, the district court must review the evidence and make an independent
finding of perjury by a preponderance of the evidence, one not based solely on the
jury’s disbelief of the defendant’s testimony. Swick, 334 F.3d at 787. In reviewing
such an enhancement, we look first to see whether the district court made a specific
finding of perjury and then to whether the record supports that finding. Harris, 352
F.3d at 366.

       The district court made a specific finding that a preponderance of the evidence
supported the conclusion that Red Elk willfully testified falsely during trial that he
did not have sex with either D.F.B. or S.F.C. (Indeed, the district court went on to
state that it found that fact by clear and convincing evidence.) As recounted above,
Red Elk told the FBI agents that he had sexually penetrated both girls. At trial,
however, he testified that he did not have sex with the victims, but engaged only in
“dry-humping” while fully clothed. Thus, this is not a case of a defendant losing “a
swearing battle with one government witness,” Harris, 352 F.3d at 367, but rather
involves directly contradictory statements by the defendant himself. Accordingly, the
record amply supports the district court’s finding that Red Elk had obstructed justice
by testifying falsely.

                                          -6-
                                           C.
       Finally, Red Elk argues that the district court should have granted a new trial
because the great weight of evidence at trial weighed in favor of Red Elk’s
affirmative defense. We review the denial of a motion for a new trial for abuse of
discretion and will reverse only if “the evidence weighs heavily enough against the
verdict that a miscarriage of justice may have occurred.” United States v. Espinosa,
300 F.3d 981, 983 (8th Cir. 2002) (citation omitted). Red Elk presented evidence at
trial going to the statutory defense that he was unaware that the victims were under
the age of 16. The relevant statute, 18 U.S.C. § 2243(c)(1), provides that “it is a
defense, which the defendant must establish by a preponderance of the evidence, that
the defendant reasonably believed that the other person had attained the age of 16
years.” The burden of proof is entirely on the defendant to prove this defense,
because the Government need only prove that each victim’s actual age was less than
16 and that the defendant’s actual age was at least four years older than that of the
victim. See 18 U.S.C. § 2243(a).

       Red Elk testified that he thought that D.F.B. was “around 16, 17” and that
S.F.C. was 16 on the dates the two offenses occurred. He and his witnesses testified
that no one told Red Elk that the victims were too young to date him. It was not
unreasonable for the jury to doubt Red Elk’s credibility, however, particularly in light
of Red Elk’s statements during the FBI interviews that he thought D.F.B. was 13 or
14 and that S.F.C. was 14 or 15. In addition, that members of the community
believed the victims were not too young to date Red Elk does not establish a general
belief that the girls were at least 16. Accordingly, the evidence supporting the jury’s
verdict was not so outweighed by the defense testimony that a miscarriage may have
occurred, and thus the district court did not abuse its discretion in denying the motion
for a new trial.

      The judgment is affirmed.
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