                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                            April 20, 2020
                         _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                              No. 18-4011
                                                         (No. 1:16-CR-00609-DB-1)
                                                                  (D. Utah)
 ALAN EDUARDO CHAVARIN,

       Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before MORITZ, KELLY, and EID, Circuit Judges.
                  _________________________________

       Appellant Alan Eduardo Chavarin challenges the imposition of a United States

Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 enhancement for obstructing the

administration of justice. The district court applied the enhancement against Chavarin for

knowingly presenting false testimony at his trial. Exercising our jurisdiction under 28

U.S.C. § 1291, we affirm the district court’s imposition of the enhancement.

                                              I.

       What began as a routine traffic stop for Chavarin in November 2016 quickly

escalated. He did not have a driver’s license—it had been recently suspended. Nor did


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
he possess the vehicle’s registration—the vehicle was rented by his girlfriend who was

out of state. Further, the officer noticed a straw lying next to a razor blade on the center

console. This immediately raised the suspicions of the officer, because razor blades and

straws are often associated with drug use.

       Chavarin consented to a search of his vehicle. During the search, law enforcement

found five packages in the vehicle’s spare tire. Testing revealed that the packages

contained 8.4 pounds of heroin.

       In a post-Miranda interview at the field office, Chavarin first said he was driving

to Cheyenne to visit a girl. He admitted that he swallowed heroin after the officer

stopped him. But he denied knowing about the existence of any other drugs in the

vehicle. After learning he would be booked into jail, Chavarin’s demeanor conveyed to

law enforcement that “he wanted a deal to try and get himself out of the situation he was

in.” ROA Vol. I at 417.

       Chavarin and officers began to discuss “different options.” Id. at 381. It was at

this point that Chavarin recanted his previous story. No longer was he headed to

Cheyenne to see a girl; rather, Chavarin confessed he was traveling to Kansas City to

deliver drugs. He told officers “he was working for an organization” that he had

purchased heroin from in the past. Id. at 380. Chavarin stated that he was only

delivering these drugs to “square up his debt with them.” Id. at 387.

       During these discussions, Chavarin expressed concern about what would happen

to him if he cooperated with police and then became incarcerated. Id. at 417–18. But at



                                              2
no time did Chavarin ever tell law enforcement that he ever felt threatened or coerced

into transporting these drugs. See id. at 383, 387, 422.

       A deal never materialized for Chavarin. The government charged him with one

count of possessing heroin with the intent to distribute, a violation of 21 U.S.C.

§ 841(a)(1) and punishable under 21 U.S.C. § 841(b)(1)(A). Id. at 15–16.

       At trial, there was no question about whether or not Chavarin committed the

offense. The focus was on what motivated him to transport the drugs. Chavarin’s sole

defense was duress. See Aplt. Br. at 2–4. He explained that he had been addicted to

heroin from a young age. See ROA Vol. III at 9. This addiction led to him becoming

indebted to various drug dealers. Before long, Chavarin testified he became involved

with the violent Sinaloa cartel.

       After spending approximately nine months incarcerated for drug trafficking,

Chavarin stated that he became clean and was released. But within less than a year,

Chavarin began using heroin once again. He quickly ran up a debt with the cartel, and he

testified that he began to receive threats related to the debt. Id. at 16. Chavarin told the

jury that he received menacing phone calls from the cartel and saw mysterious cars

parked in front of his house. Id. The threats were not limited to Chavarin: a man named

Chewy, a member of the cartel, allegedly threatened Chavarin’s family. ROA Vol. I at

344. And then someone ransacked his home. ROA Vol. III at 20. Ultimately, the cartel

directly threatened Chavarin by telling him that they would kill him and his family unless

he transported drugs for the organization. Id. at 17–18. Only as a last resort—and



                                              3
because he was under threat—Chavarin testified that he agreed to perform the drug run

that led to his arrest. Id. at 21–23, 27.

       On cross-examination, Chavarin admitted that he never told the arresting officers

that he had ever been threatened by the cartel. Id. at 27–32. Chavarin was unable to give

specifics about any of the alleged threats against him or his family. For example, he

stated that his cartel contact’s real name was Jesus Gonzales (which the government

argued was a suspiciously “generic name”). Id. at 35, 85. He could not remember where

he was when the cartel threatened him other than that he was “in the street.” Id. at 38–39.

Chavarin testified that the threat to his family was made “a month” before his arrest but

did not give a more specific date. Id. at 38. In closing, the government pointed out the

utter lack of details in Chavarin’s testimony and argued that his duress defense was not

credible. Id. at 85. The jury rejected his duress defense and convicted him on the one

count. ROA Vol. I at 210.

       At sentencing, the district court applied a two-level obstruction of justice

enhancement under U.S.S.G. § 3C1.1. The district court stated that the “obstruction of

justice is appropriately added based on the defendant’s defense, which I find was

unfounded in fact and law.” ROA Vol. III at 121. The district court opined at length that

Chavarin’s defense was false—stating among other things, that the defense was “bogus,”

a “false defense,” and a “charade.” Id. at 123–25. The district court concluded that “Mr.

Chavarin took that witness stand and actually committed perjury.” Id. at 123. Based on

those findings, the court applied the obstruction of justice enhancement. Chavarin was



                                              4
sentenced to 188 months’ imprisonment—the bottom of the advisory Guidelines range.

Id. at 125.

                                              II.

       A district court’s legal interpretation of the Sentencing Guidelines is typically

reviewed de novo, and its factual findings are reviewed for clear error. United States v.

Sarracino, 340 F.3d 1148, 1172 (10th Cir. 2003) (citations omitted). On appeal,

Chavarin argues the district court failed to make the findings underlying the obstruction

enhancement with sufficient specificity. But at sentencing, he never objected to the

court’s allegedly inadequate explanation; rather, Chavarin only argued that “there was no

evidence . . . that clearly rebuts the testimony of Mr. Chavarin about his duress and

coercion.” ROA Vol. III at 113. To that end, Chavarin simply requested that the district

court “not [] impose the two-level increase” for obstruction of justice. Id.

       Thus, we review his procedural challenge to the adequacy of the district court’s

findings only for plain error. See United States v. Gantt, 679 F.3d 1240, 1246–47 (10th

Cir. 2012) (conducting plain error review concerning a claim of inadequate explanation

because defendant failed to notify the district court that its explanation was deficient—

thereby depriving the district court of the ability to cure any error); see also United States

v. Flonnory, 630 F.3d 1280, 1288 (10th Cir. 2011) (reviewing for plain error the

defendant’s argument as to the adequacy of district court’s perjury findings when the

defendant did not object on that ground at the trial level).

       To prevail under the plain error standard, Chavarin must demonstrate: (1) error (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects the

                                              5
fairness, integrity, or public reputation of judicial proceedings. See Gantt, 679 F.3d at

1246 (quoting another source).

                                             III.

       The sole issue before us is the propriety of the enhancement for obstruction of

justice. U.S.S.G. § 3C1.1 sets forth in broad language the enhancement’s scope:

       “If (1) the 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 of conviction, and (2) the obstructive conduct
       related to (A) the defendant’s offense of conviction and any relevant conduct; or
       (B) a closely related offense, increase the offense level by 2 levels.”

U.S.S.G. § 3C1.1. The commentary to § 3C1.1 lists many examples of covered

conduct—one of which is when a defendant commits perjury. Id. cmt. 4(b).

       In United States v. Dunnigan, the Supreme Court outlined the requirements for

imposing a § 3C1.1 perjury enhancement. 507 U.S. 87 (1993). It said that district courts

“must review the evidence and make independent findings necessary to establish a willful

impediment to or obstruction of justice, or an attempt to do the same, under the perjury

definition.” Id. at 95. “[I]t is preferable,” the Court added, “for a district court to address

each element of the alleged perjury in a separate and clear finding.” Id. But it is also

sufficient if the finding simply “encompasses all of the factual predicates for a finding of

perjury.” Id.

       Aside from this guidance, our circuit “further requires that the district court be

explicit about which representations by the defendant constitute[] perjury.” Flonnory,

630 F.3d at 1287 (citing United States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir.

2003)). But consistent with Dunnigan, a district court need not “recite the false

                                               6
statements verbatim.” Id. (quoting another source). And yet this examination must still

“generally identify the testimony at issue so that when we review the transcript we can

evaluate the Dunnigan findings of the elements of perjury . . . without having simply to

speculate on what the district court might have believed was the perjurious testimony.”

Hawthorne, 316 F.3d at 1146 (ellipses and internal quotation marks omitted).

       On review, we are aware district courts must be afforded adequate discretion in

their fact-finding capacity. After all, district courts hold an advantage in fact-finding

where, as here, the sentencing enhancement is based upon trial proceedings they have

personally observed. See Gall v. United States, 552 U.S. 38, 51–52 (2007). But these

advantages do not relieve district courts of their obligation to find the facts necessary for

meaningful appellate review. When the obstruction of justice enhancement is based on a

defendant’s alleged perjury, the district court’s findings should encompass the factual

predicates of perjury—namely that the defendant: (1) gave false testimony under oath; (2)

concerning a material matter; (3) with the willful intent to provide false testimony. See

Hawthorne, 316 F.3d at 1146 (citing Dunnigan, 507 U.S. at 94).

                                              IV.

       Chavarin raises two concerns with his enhancement for obstruction of justice.

First, he contends the district court failed to specifically identify his allegedly perjurious

statements. And Chavarin argues the court erred “because it never discussed the

elements of perjury.” Aplt. Br. at 5.




                                               7
                     A. Identification of the Perjurious Testimony

       Chavarin is correct that we require the district court to identify the part of the

testimony that is perjurious. But here, there was no error because there is no need for us

“to speculate on what the district court might have believed was the perjurious

testimony.” Hawthorne, 316 F.3d at 1146 (quoting another source) (internal quotation

marks omitted).

       Contrary to Chavarin’s claim, the district court repeatedly identified what it

believed to be perjurious during his sentencing. Among other statements, the district

court made the following findings as to Chavarin’s perjury:

       “I find that obstruction of justice is appropriately added based on the defendant’s
       defense, which I find was unfounded in fact and in law . . . the defendant’s
       coercion and duress defense [is] wholly unsupported by facts . . . [Chavarin] chose
       to go to trial and present an absolutely uncorroborated defense . . . [t]he entire
       defense was bogus and it was a false defense . . . . The facts [Chavarin] gave in
       support of his feeling coerced were as weak as they could be.”

ROA Vol. III at 121–24 (emphases added).

       Compare these statements to a case in which we found the district court was

specific enough. In Hawthorne, the district court “observed only that Defendant lied in

[his] testimony at the suppression hearing about the voluntariness of the statements that

[he] made to the officers.” 316 F.3d at 1147 (alterations in original) (internal quotation

marks omitted). What complicated our review was that “the central issue for resolution

at the suppression hearing was whether Defendant’s confession was voluntary” and so the

district court’s statement “could have been referring to almost any part of Defendant’s

testimony.” Id. Even so, we looked to the context of the district court’s statements and


                                              8
concluded that it was clearly referencing only one part of the defendant’s testimony: the

“voluntariness” about requesting an attorney. Id. The district court’s statements in our

case are more specific than that of the district court in Hawthorne.

       Now compare these statements to a case in which we found the district court

lacked sufficient specificity in identifying the perjurious testimony. In United States v.

Massey, 48 F.3d 1560 (10th Cir. 1995), the district court’s finding was:

       “The testimony wasn’t reconcilable with the jury verdict; that is, necessarily the
       jury had to find that the testimony was false in order to convict Mrs. Wilkins. I
       accept that finding. It’s my personal finding in the case that the testimony was
       false, and consequently the objection is overruled.”

Id. at 1574. To describe the court’s commentary in Massey is to distinguish it from

Chavarin’s case.

       We find the district court was unequivocal in identifying that its perjury finding

encompassed the entirety of Chavarin’s duress defense. As such, there was no need for

the court to dissect apart Chavarin’s testimony and then delineate which statements

constituted perjury—the whole defense was perjurious. This was not a case where

Chavarin offered multiple defenses. Nor was this a case where there were complicated

layers to his duress defense. Rather, Chavarin argues that because of debts he owed to a

violent drug cartel, members of the organization threatened his life and those of his loved

ones unless he transported drugs for the cartel. See Aplt. Br. at 3–4; see also ROA Vol.

III at 125. Thus duress—and nothing else—forced his actions.

       In his reply brief, Chavarin contends that characterizing all of his duress defense

as perjurious must fail—otherwise, none of the statements he made at trial would escape


                                             9
this allegedly overbroad categorization. See Reply Br. at 4. But this simply misses the

mark. For example, at trial, Chavarin provided background information about his name,

his age, and where he grew up. He testified he became addicted to heroin at a young age.

Aplt. Br. at 2. Chavarin noted that after his first incarceration, he lived with his fiancée’s

family, including her parents and two siblings. Id. at 3. None of these statements falls

within the category of Chavarin’s duress defense. And there is no reason to believe any

of these biographical facts are false.

       Even if there was any doubt as to what the district court was referring to when it

discussed Chavarin’s defense, the district court cited to specifics that it found perjurious.

The district court noted that Chavarin failed to specify any “dates and places,” referring

to his inability to discuss when or where any of the supposed threats occurred. ROA Vol.

III at 123. And when Chavarin attempted to offer specifics concerning his defense, the

district court found them lacking in detail and uncorroborated. See, e.g., id. at 124 (“The

facts he gave in support of his feeling coerced were as weak as they could be, some

mysterious car . . . in front of his house.”). Then towards the end of its soliloquy, the

district court summed up its finding:

       “Here we had a person who in trial was attempting to get the jury to believe that
       he was coerced because his family’s life was in danger and his girlfriend’s life was
       in danger . . . . Yet in trial he is willing to tell about them and it made no sense to
       me then . . . . To me the whole thing was a charade.”




                                              10
Id. at 125 (emphasis added). These comments—which all refer to aspects of Chavarin’s

duress defense—make abundantly clear that the district court’s obstruction enhancement

was based on Chavarin’s testimony that the cartel forced him to transport drugs. 1

       “[H]ighly specific findings may not be possible in every case.” United States v.

Denetclaw, 96 F.3d 454, 459 (10th Cir. 1996) (quoting United States v. Owens, 70 F.3d

1118, 1132 (10th Cir. 1995)). Here, the district court pointed to particulars of the

testimony it found perjurious—but it would have sufficed had the court merely identified

the “substance” of Chavarin’s testimony that was perjurious. See Massey, 48 F.3d at

1574 (“The district court may generally identify the testimony at issue . . . and it is

sufficient if such testimony is merely described in substance.”). The district court met

this minimum requirement.

       The requirement for particularity exists so that we can fulfill our appellate

responsibility of reviewing whether the record supports findings of falsity, materiality

and willful intent. See id. There was no confusion about what the district court

considered perjurious. As a result, our review was devoid of speculation. We find no

error—let alone plain error.




       1
         It also noted that Chavarin provided only “one first name” of the cartel member
who allegedly threatened him. ROA Vol. III at 123. The district court seems to have
misremembered Chavarin’s testimony, as Chavarin provided both a first and last name.
See id. at 35. On appeal, Chavarin does not challenge this mistake. Regardless, in light of
the specifics the district court identified as perjurious, this error is harmless.
                                              11
                                      B. Elements of Perjury

       Chavarin’s second argument is the district court erred by failing to find that his

trial testimony satisfied the elements of perjury. See Aplt. Br. at 5–6. But “[o]nce the

perjurious testimony is identified, Dunnigan then permits fairly conclusory findings that

such testimony was false, material, and given with intent to commit perjury.” Massey, 48

F.3d at 1574. Under the facts and circumstances here, we find no error in the district

court’s imposition of the enhancement.

       As previously recounted, the court repeatedly stated it believed Chavarin provided

false testimony under oath—the first element of perjury. In fact, the district court noted

Chavarin “was not even a good liar.” ROA Vol. III at 124 (emphasis added). And the

court characterized his whole duress defense “a charade,” id. at 125, one “inconsistent

and lacking in detail,” id. at 122.

       In response, Chavarin contends the district court’s statements labeling his defense

as “uncorroborated,” “weak,” and “unsupported by facts,” do not amount to a finding of

perjury. See Reply Br. at 10. But it is clear from the sentencing transcript that the district

judge cited the lack of corroboration as evidence supporting its conclusion that

Chavarin’s testimony was false. For example, the district court observed that “[n]othing

[about the defense] was corroborated.” ROA Vol. III at 123. To that end, the court

fixated on Chavarin’s inability to give details about names, dates, or places relating to the

cartel’s alleged threats on his life. See id. Aggregated together, the lack of specifics

helped the district court reach its conclusion that Chavarin’s “entire defense was bogus

and it was a false defense.” Id.

                                               12
       The third element, willful intent, is clearly found when the district court stated at

the sentencing hearing that, “[Chavarin] chose to go to trial and present an absolutely

uncorroborated defense.” Id. But if that was not sufficient, the court added Chavarin

“took that witness stand and actually committed perjury.” Id. And the district court

concluded Chavarin made a “bad choice” in relaying this false narrative. Id. at 124

(emphasis added).

       These statements are more than sufficient for a finding of willfulness. Even in the

most charitable reading of the record for Chavarin, there is an absence of evidence that he

was confused, mistaken or suffering from a faulty memory at the time of trial. As such,

these statements support a reasonable inference that the district court found Chavarin’s

testimony to be willfully false. See, e.g., United States v. Webster, 373 F. App’x 867,

871 (10th Cir. 2010) (unpublished) (upholding the district court’s obstruction of justice

enhancement although the district court failed to make a particularized finding that

defendant’s false statements were willful because there was no evidence defendant’s

testimony was the result of confusion, mistake or faulty memory); see also United States

v. Dazey, 242 F. App’x 563, 571 (10th Cir. 2007) (unpublished) (holding that willfulness

finding was sufficient when district court stated defendant “tried to deceive the court”).

       It is true that, as Chavarin points out, the district court did not explicitly identify

the second element of perjury: materiality. Yet Chavarin fails on the third prong of plain

error review. “For an error to affect substantial rights, Defendant bears the burden of

showing a reasonable probability that, but for the error claimed, the result of the

proceeding would have been different.” United States v. Paup, 933 F.3d 1226, 1235

                                              13
(10th Cir. 2019) (quoting United States v. Cook, 550 F.3d 1292, 1298 (10th Cir. 2008)).

Chavarin fails to establish he was prejudiced by any inadequacy in the district court’s

explanation concerning the materiality of his perjurious statements.

       Given the lack of facts corroborating any aspect of Chavarin’s duress defense, a

remand requiring the district court to more explicitly state the obvious would change

nothing. See Flonnory, 630 F.3d at 1288 (concluding that defendant did not demonstrate

that the district court’s failure to make specific findings affected his substantial rights

because “it would be surprising if his sentence would be any different if we reversed and

remanded for resentencing”) (citing another source). Because the alleged defect in the

district court’s fact-finding did not affect Chavarin’s substantial rights, any error was

harmless.

       Although we rule on the basis that the materiality argument fails on the third prong

of plain error, we also would find no error. This court urges district courts to make detailed

findings concerning each required element supporting an obstruction of justice

enhancement based on perjury, but the context of the district court’s statements may be

taken into account during our review. See Hawthorne, 316 F.3d at 1146. And the context

of the district court’s statements cures any deficiency here. During his opening statement

at trial, Chavarin admitted “this is not a case of who did it or how it was done.” Aple. Br.

at 6. The issue was “why he did it.” Id. Whether or not Chavarin was actually coerced

into trafficking these drugs bears directly on the reasons behind why Chavarin committed

this offense. See U.S.S.G. § 3C1.1 cmt. n.6 (stating that any information “that, if believed,



                                              14
would tend to influence or affect the issue under determination” is “material.”). The false

statements are plainly material.

                                            V.

       We recognize that “[a]n automatic finding of untruthfulness, based on the verdict

alone, would impinge upon the constitutional right to testify on one’s own behalf.”

United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993) (citing another source). We

are confident that did not occur here. Chavarin claimed he had no choice but to transport

drugs, lest he endanger himself and his family. Independent of the jury verdict, the

district court made findings where it emphasized it strongly believed Chavarin

consciously gave false testimony concerning his duress defense. The district court

properly applied the enhancement to safeguard the integrity of its proceedings.

Accordingly, we AFFIRM the judgment of the district court.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




                                            15
