                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0064n.06
                           Filed: January 29, 2009

                                           No. 06-3327

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT     FOR     THE
v.                                                       )         NORTHERN DISTRICT OF
                                                         )         OHIO
LAWRENCE JEFFREY HARRIS,                                 )
                                                         )                  OPINION
       Defendant-Appellant.                              )




BEFORE:        MARTIN and McKEAGUE, Circuit Judges, and COLLIER, Chief District
               Judge.*

       McKEAGUE, Circuit Judge. This case involves an interesting tale of fraud and deception

by a doctor attempting to avoid repaying his student loans to the government. As a medical student,

Lawrence Harris took out Health Education and Assistance Loans (“HEAL loans”) in order to

complete his education. HEAL loans are private loans backed by the government. After graduating,

Harris did not make regular payments on his loans, and his private lender filed a claim for his loans

with the Department of Health and Human Services (“HHS”). HHS paid the private lender, and then

the government obtained a civil judgment against Harris. Harris entered a repayment agreement after

that judgment, but again failed to make consistent payments. The government suspended Harris’s



       *
       The Honorable Curtis L. Collier, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 06-3327
US v. Harris

access to Medicare and Medicaid payments in November 2000, and, in 2002, Harris convinced the

government that he was permanently unable to pay off his loans. The government forgave the loans

and readmitted Harris to Medicare and Medicaid practice. Suspicious charges involving Harris led

to an investigation. That investigation resulted in an indictment against Harris, charging him with

ten counts of health care fraud, one conspiracy count, and one count of making a false statement.

       A jury convicted Harris on all twelve counts, and the district court sentenced him to seventy-

eight months in prison and $528,074 in restitution. Harris now appeals, challenging the denial of

a motion to compel effective assistance of counsel that he filed just before trial began, the use of

judicial fact-finding in his sentencing, and the obstruction of justice enhancement he received during

sentencing. For the reasons set forth below, we affirm the district court’s judgment.

                                        I. BACKGROUND

A. History of Harris’s Loans

       Beginning in 1983, Harris attended the Ohio College of Podiatry Medicine. In order to attend

Ohio College, Harris took out HEAL loans. HEAL loans are private loans backed by the

government. Harris accrued $66,100 in loans during his time in school.

       It is unclear if Harris ever took a deferment on his loans. It is clear, however, that Harris did

not make at least six loan payments. Sallie Mae, the private lender responsible for the loans, filed

an insurance claim with HHS. HHS repaid Sallie Mae for Harris’s loans and Sallie Mae assigned

the loans to HHS. HHS then referred the loans to the U.S. Attorney’s Office in Cleveland, Ohio for

collection.



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US v. Harris

B. The First Judgment against Harris and the Loan Repayment Plan

       In 1989, the government initiated a civil action against Harris to collect on the HEAL loans.

It obtained a judgment against Harris in the amount of $127,520.18. Based on that judgment, Harris

and the government entered into a repayment agreement in 1991. The plan required regular

repayment be made from the reimbursements Harris received from Medicare for services rendered.1

The government would receive the first $1,500 of the Medicare payments Harris received each

month. The next $10,000 each month would be Harris’s, while anything over $11,500 in a month

would be split equally between Harris and the government.

C. Harris’s Attempts to Limit his Payments

       During the same period, Harris began attending an “asset protection class” offered by Jay

Mitton. He attended this class yearly, often with other doctors he knew. One of the seminar books

indicated that forming a corporation and working as the corporation’s employee would allow an

individual with heavy loan payments to have better control of his finances. Harris received similar

advice from his accountant, Kenneth Embry. Embry indicated that, if Harris formed a corporation

and listed himself as its employee, “Medicare would discontinue intercepting his funds.” Repayment

of Harris’s loans was initially made from Medicare reimbursements which he obtained using his

Medicare PIN number. Creating a corporation would create a new PIN number for the corporation

under which Harris could bill Medicare for reimbursements. Embry indicated that Medicare would

not deduct payments for Harris’s repayment plan from Medicare reimbursements obtained using the


       1
        Nationwide Insurance oversaw the Medicare trust fund. Advance Med now serves that
function. For ease of reference, both entities are referred to as Medicare.

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No. 06-3327
US v. Harris

corporation’s PIN number if Harris was listed as an employee of the corporation. Based on this

advice, Harris formed Metropolitan Foot and Ankle (“Metropolitan”) in 1993.

       To incorporate under Ohio state law, Harris believed he needed to have other doctors as

shareholders. He listed several other doctors as shareholders, doctors that he knew from school and

who had also attended the Mitton seminars. One of these doctors was Dr. Taj Malik. Dr. Malik later

testified he had never been involved with Metropolitan.2 Dr. George Ilodi was also listed as a

shareholder. Dr. Ilodi later testified that he had never been involved with or had any knowledge of

Metropolitan.3 After being contacted by FBI agents investigating Harris, Dr. Ilodi sent a letter to

Harris inquiring why Harris had used Dr. Ilodi’s name in connection with Metropolitan. Harris sent

a response, but the response was addressed to Dr. Malik rather than Dr. Ilodi: in it, Harris apologized

to Dr. Malik for using Dr. Malik’s address in relation to Metropolitan and explained it away as an

accident. Needless to say, the letter did nothing to assuage Dr. Ilodi’s concerns about the use of his

own name. Dr. Kenneth Walker was also listed as a shareholder.4 Dr. Walker’s wife testified that

Dr. Walker was not involved in any way with Metropolitan. Dr. Damon Litsey and Dr. Brenda




       2
           Dr. Malik had been charged with taking a kickback previously. He was found not guilty.
       3
         Dr. Ilodi was convicted of receiving a kickback in an unrelated case. He was found guilty,
and his license to practice medicine was revoked in 2002.
       4
         Dr. Walker was diagnosed with sarcoidosis in 1992. He stopped practicing in 2000, and he
died in 2002.

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No. 06-3327
US v. Harris

Casselberry also testified that, though listed as shareholders in Metropolitan, neither had any

involvement with Metropolitan.5

       When Metropolitan first incorporated, Medicare began deducting Harris’s payments from

reimbursements to Metropolitan.      In response, Harris informed Medicare he was simply a

Metropolitan employee.     He submitted a handwritten chart showing other doctors’ roles at

Metropolitan. It listed Dr. Walker as president of Metropolitan and Dr. Casselberry as president of

Metropolitan’s Podopediatrics Department, though neither doctor had any involvement with the

corporation. Harris also wrote letters to Medicare–using other doctors’ names–that indicated Harris

had no financial interest in Metropolitan and that Harris would be fired if Medicare continued

deducting amounts Harris owed under the repayment plan from Metropolitan’s Medicare payments.

Harris did not receive permission from these other doctors to use their names, but his efforts were

successful: Medicare stopped deducting amounts Harris owed from reimbursements made to

Metropolitan. He wrote the first of these letters in 1993, and Medicare stopped deducting amounts

Harris owed from reimbursements made to Metropolitan’s Medicare reimbursements soon after.

       Emboldened by the success of this ruse, Harris formed another corporation, Achilles Foot

and Ankle (“Achilles”), in 1994. He did not actively use the Achilles corporation until the fall of

2000, shortly after he learned that the government was going to exclude him from Medicare. He

submitted requests for PIN numbers under Achilles for both himself and Dr. Walker. He admitted

signing for both himself and Dr. Walker. Harris included with the application an employment


       5
        Many of these doctors were also falsely listed as practicing at Metropolitan in an
organizational chart Harris submitted to the government at the time.

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No. 06-3327
US v. Harris

agreement and withholding form signed by Dr. Walker. As with Metropolitan, Dr. Walker’s wife

denied that Dr. Walker had any involvement in Achilles. She also testified that the signatures on the

forms were not from Dr. Walker. She further testified that, at the time the forms were signed, Dr.

Walker could no longer hold a pen.

       Through his use of these corporations, Harris was able to limit the amount the government

received under his repayment plan. Payments were made using his Medicare reimbursements from

1991 through 1993. In 1993, the government stopped deducting payments from Metropolitan’s

Medicare reimbursements based on the letters received from Harris. In 1994, Harris made two direct

payments to the government. In 1995, Harris made no payments until May. He then made regular

payments for the rest of the year. Harris made no meaningful payments on his debt in 1996 or 1997.3

He made occasional, small direct payments in 1998 and 1999. For example, he made a payment of

$39.45 in June of 1999. In 1999, the government resumed taking payments from Metropolitan’s

Medicare reimbursements. There were no further payments after May 1, 2000.4

D. Exclusion from Medicare and Harris’s Loan Forgiveness

       In June 2000, the government issued a letter to Harris informing him that he had to make

payments or he would be barred from Medicare and Medicaid. Harris made no further payments.

He was then excluded from Medicare and Medicaid on November, 20, 2000. He continued to



       3
        Though the exhibits are not in the record, it appears from the phrasing of questions at trial
that Harris did make payments in 1996 and 1997, but that they were so small as to have no impact
on the principal of the loan.
       4
           On May 1, 2000, Harris made a loan payment of $20.65.

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No. 06-3327
US v. Harris

practice, though he later testified that he did not bill Medicare for any services rendered during his

exclusion.

       In 2001, Harris applied for loan forgiveness. Harris had his accountant, Ken Embry, fill out

the financial statement provided by the government.5 The financial statement form clearly stated that

all statements must be true under penalty of perjury. The form listed Metropolitan as Harris’s

employer. It did not list Achilles.

       Based on the financial statement, the government found Harris could not repay the loan. The

principal and interest at the time totaled $216,492.98. The government forgave the entire loan. After

the government forgave his loan, Harris applied to be readmitted to Medicare. He was readmitted

to Medicare in 2002.

E. Investigation into Suspicious Billing Activity

       During his exclusion from Medicare, multiple suspicious requests for reimbursement were

made for services charged using Dr. Walker’s Achilles PIN number. Medicare referred the requests

to the Office of Investigations in HHS. Special Agent Catherine Hanselman led the investigation.

Hanselman contacted Medicare beneficiaries associated with the charges for services. All of the

beneficiaries identified Harris as the doctor that provided the services for which payment was sought

from Medicare using Dr. Walker’s PIN.

       Based on this information, Hanselman obtained a search warrant for Harris’s offices. After

executing the warrant, Hanselman obtained a second search warrant in order to obtain further patient


       5
       Embry had previously been convicted twice of tax fraud. Harris testified that he did not
know of those convictions.

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US v. Harris

files. An analysis of the patient files revealed that, in the records analyzed, almost all of the patients

for which reimbursement was sought using the Achilles PIN numbers matched entries in Harris’s

records.

        The investigation also implicated Barbara Kelley. Embry testified that Kelley had worked

for Harris for years. When investigators first searched Harris’s office, Kelley identified herself as

the office manager. Hanselman obtained a subpoena for Kelley’s employment records. Harris

responded to the subpoena with a letter stating that, speaking “as the custodian of records” for both

corporations, Barbara Kelley had never been an employee of either corporation. Multiple documents

contradicted this letter, including an application for health coverage at Metropolitan that listed Kelley

as an employee.

F. Procedural Background

        The investigation ultimately led to an indictment charging Harris with ten counts of health

care fraud, one count of making a false statement and one count of conspiracy. The district court

appointed counsel for Harris and scheduled the original trial date for June 13, 2005. Harris’s

attorney sought a continuance because it was “a complex case” and he needed “more time to

thoroughly review all of the discovery.” The court granted a continuance until October 3, 2005.

Trial was later reset for October 11, 2005.

        On October 7, 2005, Harris filed a pro se motion in paper form without his attorney’s

knowledge. The motion was captioned a “Motion to Compel Effective Assistance of Counsel.” It

sought a continuance because Harris felt unprepared for trial. Specifically, he claimed that his

attorney’s failure to share discovery materials with him prevented him from lending his expertise to

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No. 06-3327
US v. Harris

the case. The motion noted that the “defendant is emphatically stating that he is not at odds with

Court Appointed Counsel’s defense strategy.” October 7 was the Friday before Columbus Day, a

federal holiday on which the federal courts were closed. Harris did not send a copy of the motion

to the trial judge or to opposing counsel.

        On October 10, Columbus Day, Harris met with his counsel to discuss the upcoming trial.

At the end of that meeting, Harris informed his counsel that he had sought a continuance. Early the

next morning, Harris’s counsel called the court and informed the judge about the motion. The trial

judge then met briefly with both counsel in chambers.

        The court addressed the motion on the record at the start of trial. The court denied the motion

because defense counsel had a “stellar reputation,” defense counsel stated he had been preparing for

trial for a significant amount of time, and Harris himself had missed many meetings with his counsel

before trial. Finding no prejudice to Harris in denying the motion, the court also noted the prejudice

to the government that a continuance would cause. The government had prepared for trial on that

date, rearranged several schedules, and procured witnesses for trial.

        The jury trial commenced, and, after a four-day trial, the jury–not surprisingly–convicted

Harris on all counts. At sentencing, the trial judge applied a number of sentencing enhancements,

including enhancements for the amount of the loss, use of sophisticated means, Harris’s position of

trust as a doctor in the Medicare system, his role as a leader in the offense, and obstruction of justice.

Adding these enhancements to his base offense level produced an advisory Sentencing Guidelines

range of seventy-eight to ninety-seven months. The court sentenced Harris to a prison term of

seventy-eight months, three years of supervised release, and required restitution in the amount of

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No. 06-3327
US v. Harris

$528,074. The statutory maximum for counts 1, 11, and 12 was five years in prison; the statutory

maximum for counts 2-10 was ten years imprisonment. The court made clear that Harris was

sentenced to sixty months each for counts 1, 11, and 12, and seventy-eight months for each of the

remaining counts. The sentences were to be served concurrently.

                                           II. ANALYSIS

A. Motion to Compel Effective Assistance of Counsel

       Harris first argues that the district court erred in denying his motion to compel effective

assistance of counsel. In practical effect, this was a motion for a continuance, as it sought time in

which Harris could review discovery materials. “[B]road discretion must be granted trial courts on

matters of continuances.” Morris v. Slappy, 463 U.S. 1, 11 (1983). A denial of a motion to continue

is reviewed only for abuse of discretion. United States v. Garner, 507 F.3d 399, 408 (6th Cir. 2007).

A denial of a continuance amounts to a constitutional violation “only if there is an unreasoning and

arbitrary insistence upon expeditiousness in the face of a justifiable request for delay.” Morris, 463

U.S. at 11-12. “There are no mechanical tests for deciding when a denial of a continuance is so

arbitrary as to violate due process. The answer must be found in the circumstances present in every

case, particularly in the reasons presented to the trial judge at the time the request is denied.” Ungar

v. Sarafite, 376 U.S. 575, 589 (1969). To succeed on appeal, the movant must show that the denial

resulted in actual prejudice. United States v. Crossley, 224 F.3d 847, 854 (6th Cir. 2000). Prejudice

requires showing the “continuance would have made relevant witnesses available or added

something to the defense.” United States v. King, 127 F.3d 483, 487 (6th Cir. 1997) (quoted in

Crossley, 224 F.3d at 855). A showing of prejudice based on new evidence or new witnesses that

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No. 06-3327
US v. Harris

the defendant would have produced if the motion had been granted must be made with specificity.

United States v. Graham, 278 F. App’x 538, 546 (6th Cir. 2008); see also King, 127 F.3d at 487.

        The district court did not abuse its discretion in denying the motion. District courts must

“assembl[e] the witnesses, lawyers and jurors at the same place at the same time, and this burden

counsels against continuances except for compelling reasons.” Morris, 461 U.S. at 11. Harris filed

his motion late on a Friday afternoon in paper form and did not provide a copy to his attorney or

serve the attorney for the government.6 He did not inform his own attorney about the motion until

Monday, and the judge did not receive the motion until just before the start of trial on Tuesday

morning. The lawyers and jurors were already present by the time the court could address the

motion. In deciding to deny Harris’s motion, the court noted that “the government has a substantial

number of lay witnesses who have been put on notice of their obligation to appear for trial” and that

the government’s case agent had also undergone “substantial inconvenience” to meet the schedule

for trial. The court also observed that Harris’s attorney had spent a substantial amount of time

preparing for Harris’s trial, and the court noted that Harris’s attorney continued preparing for trial

after he learned of Harris’s motion. These factors cut strongly in favor of upholding the district

court’s exercise of its discretion.

        Nor can Harris identify any prejudice in the denial. Harris’s motion indicated he felt his

counsel was inadequately prepared–particularly because his counsel had failed to give Harris all the

discovery materials to review. Yet he does not identify with any specificity what the continuance



        6
            Presumably, the paper motion was not docketed by the clerk’s office until later on Tuesday.

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No. 06-3327
US v. Harris

would have added to his defense. He emphasizes his counsel’s failure to consult him on the

discovery material; however, his counsel examined Harris on the stand regarding a wide array of

discovery materials. During his testimony, Harris discussed roughly twenty-five different exhibits.

On appeal, Harris identifies no further piece of discovery that his counsel failed to address.

       Harris also contends on appeal that the denial of the continuance prevented him from

“provid[ing] the names and addresses of witnesses that would have assisted in his defense.” Harris

has not identified any specific witnesses he would have called. Over the course of the trial, at least

twenty-two witnesses were called–including all of the doctors Harris contends were involved in

either Metropolitan or Achilles, as well as Harris’s accountant.

       By failing to identify any specific negative effect resulting from the denial of the motion for

continuance, Harris has failed to make the requisite showing of actual prejudice. Accordingly, the

district court did not abuse its discretion in denying the motion.

       Harris also contends the denial of the motion violated his right to counsel. In Harris’s motion

to compel effective assistance of counsel, Harris argued that if the court denied his motion, the denial

would prevent him from receiving effective assistance of counsel. The motion also stated that “if

by some strange rule of law, the Defendant is precluded from receiving the requested materials of

any type until the 11th hour because the Defendant is ‘Represented by Counsel’ Then [sic], please

consider this a motion to appoint Defendant as Co-Counsel.” Harris’s brief on appeal recites the

applicable standard for reviewing a motion to substitute counsel and then contends that the denial

of the continuance “rose to the level of a violation of his fundamental right to due process because

he was effectively denied the assistance of counsel.”

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No. 06-3327
US v. Harris

       Neither of these Sixth Amendment arguments alters our finding that the district court did not

abuse its discretion in denying the motion. Assuming Harris’s motion did constitute a motion to be

allowed to represent himself as co-counsel,7 the district court did not abuse its discretion in denying

the motion. In assessing a motion to substitute counsel, a court must consider

       the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s
       complaint; and whether the conflict between the attorney and client was so great that
       it resulted in a total lack of communication preventing an adequate defense . . .
       Further, [c]onsideration of such motions requires a balancing of the accused's right
       to counsel of his choice and the public's interest in the prompt and efficient
       administration of justice.

United States v. Saldivar -Trujillo, 380 F.3d 274, 277 (6th Cir. 2004) (quoting United States v. Iles,

906 F.2d 1122, 1130 n.8 (6th Cir.1990)).

       Harris’s motion did not satisfy any of these elements necessary to substitute counsel. Harris’s

motion was not timely. He filed it late on the Friday before trial would begin and did not notify the

court, opposing counsel, or his own attorney of the motion. Compare United States v. Trujillo, 376

F.3d 593, 606-07 (6th Cir. 2004) (finding a motion to substitute counsel filed three days before trial

was untimely); United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999) (finding a motion to

substitute two weeks before trial was untimely). The district court also addressed the adequacy of

Harris’s representation. The court found that Harris had met multiple times with his counsel, that



       7
        We note that the motion itself was not an unqualified motion to substitute counsel. In fact,
Harris sought to represent himself only if there was a rule barring him from seeing discovery
materials while represented by counsel. There is, of course, no such rule. The district court may
reasonably have taken Harris at his word that he did not want to represent himself if there were no
such rule. Furthermore, Harris could either be represented by counsel or he can represent himself
(with or without standby counsel). There is no right to be “co-counsel” in representing yourself.

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No. 06-3327
US v. Harris

his counsel had worked hard in preparation for trial, and that his counsel had a stellar reputation in

the community. Further, Harris himself asserted that there was not a total lack of communication:

not only had he met multiple times with his counsel, but his motion stated that he agreed with his

counsel’s strategy. Finally, the public interest in the prompt and efficient administration of justice

outweighed Harris’s right to substitute counsel at the last minute in this case. Harris expressed, at

most, a limited interest in representing himself. Trial, meanwhile, was imminent. The government

and the court had invested significant resources in preparing for trial on that day, while Harris had

not demonstrated any prejudice that would flow from continuing with his current counsel. Thus, the

district court did not abuse its discretion in denying the motion.

       Additionally, the denial of the motion did not deny Harris effective assistance of counsel.

The Sixth Amendment does not require that the accused have a “meaningful attorney-client

relationship.” Wilson v. Mintzes, 761 F.2d 279 n.3 (6th Cir. 1985). Harris’s motion did not allege

acts that rose to the level of ineffective assistance of counsel, and Harris made clear that he approved

of his counsel’s trial strategy. As such, it is impossible to say that the district court abused its

discretion in finding Harris’s counsel was providing adequate representation.

B. Judicial Fact-Finding

       Harris did not challenge the fact-finding below, and he acknowledges that plain error review

applies to this argument on appeal. Nevertheless, Harris argues the district court committed plain

error by engaging in judicial fact-finding en route to determining the Guidelines range for his

sentence. Harris acknowledges that Sixth Circuit precedent stands in opposition to his argument.

The en banc Sixth Circuit recently upheld the use of judicial fact-finding in calculating the

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No. 06-3327
US v. Harris

Guidelines range so long as the district court treats the Guidelines as advisory. United States v.

Vonner, 516 F.3d 382, 384-85 (6th Cir. 2008) (en banc); see also United States v. Osborne, 545 F.3d

440, 445 (6th Cir. 2008); United States v. Phillips, 516 F.3d 479, 485-86 (6th Cir. 2008). The

district court in this case made factual findings to determine the Guidelines range and treated the

Guidelines range as advisory. In the absence of an intervening en banc or Supreme Court decision,

we are bound by these opinions. See United States v. Lanier, 201 F.3d 842, 846 (6th Cir. 2000).

       Harris relies heavily on Cunningham v. California, 549 U.S. 270 (2007), alleging that

Cunningham stands for the proposition that judicial fact-finding that increases the Guidelines range

is impermissible. The Sixth Circuit has previously held that Cunningham does not affect judicial

fact-finding inside the statutory range when the district court treated the Sentencing Guidelines as

advisory. See United States v. Conatser, 514 F.3d 508, 527-28 (6th Cir. 2008); United States v.

Mayberry, 540 F.3d 506, 517 (6th Cir. 2008). Accordingly, we find the district court did not err in

finding facts at sentencing en route to a sentence within the statutory range.

C. Obstruction of Justice

       Harris also challenges the obstruction of justice sentencing enhancement. He argues that (1)

the enhancement is unconstitutional as a violation of due process; (2) the enhancement is

unconstitutional as an infringement of his right to testify; (3) the enhancement is unconstitutional

because it deprives him of the right to trial by jury; (4) the application of the enhancement was

erroneous because it ignored the equally plausible inference that the other witnesses were lying; and

(5) the application of the enhancement was erroneous because the sentencing judge relied on

postverdict comments the jury made. All five claims lack merit.

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No. 06-3327
US v. Harris

       Both parties agree that the Supreme Court squarely addressed the due process involved in the

obstruction of justice enhancement in United States v. Dunnigan, 507 U.S. 87, 95 (1993), abrogated

on other grounds by United States v. Wells, 519 U.S. 482 (1997).8 See also United States v.

Williamson, 154 F.3d 504, 505 (3d Cir. 1998) (“In United States v. Dunnigan . . . the Supreme Court

held that a defendant's due process rights are not violated when a district court enhances a

defendant's sentence under U.S.S.G. § 3C1.1 based on a finding that the defendant committed

perjury.”). More recent decisions also uphold the obstruction of justice enhancement against

constitutional attack. United States v. Williams, No. 07-3096, 2008 WL 2952788, at *2 (6th Cir. July

30, 2008); United States v. Negrete, 537 F.3d 918, 923 (8th Cir. 2008) (addressing Booker and the

preponderance of the evidence standard); United States v. Addison, 253 F. App’x 849, 851 (11th Cir.

2007) (addressing due process argument that enhancement lacked protection of indictment and trial).

Harris “objects” to Dunnigan’s holding. He identifies no later Supreme Court decision challenging

that holding, however, and this court is bound by decisions of the Supreme Court.

       Harris also challenges the use of the enhancement because it provides a punishment for

perjury without providing a jury trial. This argument largely repeats Harris’s challenge to judicial

fact-finding. To the extent that it does, the argument must fail for the reasons given above. Harris

also believes that a jury trial is needed because the enhancement is essentially a criminal charge

masquerading as a sentencing enhancement. Dunnigan rejected a similar argument, noting that “the



       8
         Dunnigan requires the district court to state which part of defendant’s testimony the judge
finds to be perjury and to make specific findings as to each element of perjury. United States v.
Chance, 306 F.3d 356, 390 (6th Cir. 2002). The district court fulfilled both requirements.

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US v. Harris

enhancement is more than a mere surrogate for a perjury prosecution. It furthers legitimate

sentencing goals relating to the principal crime, including the goals of retribution and

incapacitation.” Dunnigan, 507 U.S. at 97; see also Williams, 2008 WL 2952788, at *2. As such,

the enhancement is an appropriate part of sentencing and does not violate Harris’s right to a jury

trial.

         Harris’s argument regarding the right to testify fares no better. Dunnigan squarely addressed

it as well:

         Respondent cannot contend that increasing her sentence because of her perjury
         interferes with her right to testify, for we have held on a number of occasions that a
         defendant's right to testify does not include a right to commit perjury. Nor can
         respondent contend § 3C1.1 is unconstitutional on the simple basis that it distorts her
         decision whether to testify or remain silent. Our authorities do not impose a
         categorical ban on every governmental action affecting the strategic decisions of an
         accused, including decisions whether or not to exercise constitutional rights.

Dunnigan, 507 U.S. at 96 (citations omitted); see also Williams, 2008 WL 2952788, at *2; Addison,

253 F. App’x at 851. Therefore, the obstruction of justice enhancement does not violate the Sixth

Amendment. Accordingly, there is no error–much less plain error–in the district court’s use of the

obstruction of justice enhancement.

         Harris also challenges the sufficiency of the evidence supporting the enhancement.

Specifically, he argues that the district court finding “fail[ed] to take into account the reasonable

inference that the other doctors who testified” perjured themselves to protect their medical licenses.

A district court’s factual findings underlying the enhancement are reviewed for clear error. United

States v. Davist, 481 F.3d 425, 427 (6th Cir. 2007). The district court’s assessment of witness

credibility as it affects a sentencing enhancement is “basically unassailable.” United States v.

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No. 06-3327
US v. Harris

Maliszewski, 161 F.3d 992, 1020 (6th Cir. 1998). As the record is replete with evidence supporting

the district court’s finding, Harris’s sufficiency-of-the-evidence argument must fail.

       Finally, Harris notes in a footnote that it “is problematic” that the district court considered

post-deliberation jury statements. This court does not consider an issue raised so casually. United

States v. Johnson, 440 F.3d 832, 846 (6th Cir. 2006). Even if we did, the statement Harris objects

to did not indicate reliance on the jury; it was simply an observation that the jury and the judge both

found Harris incredible.

                                        IV. CONCLUSION

       We AFFIRM the sentence imposed on Harris and the denial of the motion to compel

effective assistance of counsel.




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