                            ___________

                            No. 95-3940
                            ___________


United States of America,       *
                                *
          Appellee,             *
                                *   Appeal from the United States
     v.                         *   District Court for the
                                *   Northern District of Iowa.
Shaun Thomas,                   *
                                *
          Appellant.            *

                            __________

                  Submitted:   April 9, 1996

                       Filed: August 21, 1996
                             __________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and
     LOKEN, Circuit Judge.

                            ___________


MAGILL, Circuit Judge.


     Shaun Thomas appeals his conviction of possession with intent
to distribute more than five grams of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (1994), and of using and carrying a firearm
during and in relation to a felony drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (1994).         Because there was
insufficient evidence to establish that Thomas violated 18 U.S.C.
§ 924(c), we vacate his conviction on that count and remand for
resentencing. With respect to Thomas's other challenges, we affirm
the district court.1



     1
      The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
                                I.


     On March 25, 1994, the Waterloo, Iowa, Police Department
received information from a motel employee that several people from
Chicago had checked into the Rodeway Inn in the early hours of the
morning.   According to the motel employee, the guests had made
numerous telephone calls early in the day and appeared to be
conducting drug transactions from their room and their automobile,
a white Oldsmobile Delta 88. The room was registered to Charmane
Powells and the automobile to Shaun R. Thomas.       Based on this
information, the police ran a check on Powells and Thomas and
discovered that both had suspended Illinois driver's licenses.


     At a police department meeting before the 3-11 p.m. shift,
officers were directed to "attempt to locate" the white Oldsmobile
Delta 88. Suppression Tr. at 5-7. The officers were informed that
the occupants of this vehicle were suspected of trafficking drugs
at the Rodeway Inn and that their licenses had been suspended by
the State of Illinois.


     At approximately 8:30 p.m., Officer Frank Krogh observed
Thomas's automobile parked outside the West Coast Connection, a bar
on the north end of Waterloo that had been the site of frequent
drug deals.   I Trial Tr. at 267.     It was described by police
officers as the hot spot for crack cocaine dealing in Waterloo in
March 1994. Suppression Tr. at 6, 59.


     Krogh set up surveillance on the white Oldsmobile from a
distance.   During this time, he observed Thomas going back and
forth between the automobile and the bar. Shortly after 9 p.m.,
Thomas and Steve Marshall left the West Coast Connection, entered
Thomas's Delta 88, and drove away with Thomas behind the steering
wheel. Krogh followed.


                               -2-
     While following the defendants, Krogh observed that neither
Thomas nor Marshall was wearing a safety belt, a violation of Iowa
law.   Krogh followed the vehicle for a short distance and then
stopped the defendants in a well-lit area. Krogh approached the
driver's side of the vehicle and asked Thomas for his driver's
license.    Thomas produced an Arkansas driver's license.      The
passenger identified himself as Steven Dixon.


     Krogh took Thomas's Arkansas driver's license and called the
dispatcher to run a check on the defendant's driving status in
Illinois and Arkansas.    By this time, Officer Mark Meyer had
arrived at the scene. Krogh asked Thomas whether he had any guns,
drugs, or things of that nature in the automobile. Thomas said
that he did not.


     Krogh then asked Thomas if he could search the automobile.
Thomas responded in the affirmative by stating either that he did
not mind or that he did not care. I Trial Tr. at 276; Suppression
Tr. at 45-46. Thomas was told to get out of the car, and Krogh did
a pat-down search of the defendant for weapons. A search of the
automobile revealed a white napkin between the front seats. Inside
the white napkin, Krogh found 0.29 grams of crack cocaine.        A
further search of Thomas's person revealed additional crack cocaine
concealed under his baseball cap.      Police arrested Thomas and
Marshall.


     After placing Thomas and Marshall in custody, officers
obtained a search warrant for the Rodeway Inn motel room. The room
search uncovered 39.65 grams of crack cocaine hidden between the
mattress and the box spring of one of the two beds in the room.
There were two packages of cocaine--one containing loose crack
cocaine and the other containing numerous, individually packaged
pieces of crack cocaine.     The police found a loaded 9mm semi-
automatic handgun concealed under a pillow.         The room also
contained plastic bags used to package crack cocaine and a piece of

                               -3-
luggage containing Thomas's clothing.


     Following the execution of the search warrant at the Rodeway
Inn, officers returned to the police station and interviewed Thomas
and Marshall after advising them of their Miranda rights. Both
individuals denied any knowledge of crack cocaine at the hotel
room. Indeed, both denied staying at the hotel room even though
their clothing had been found scattered about the room.


     During the interview, Thomas admitted coming to Waterloo with
a third person named Charmane Powells, whom he knew by the nickname
of "Shoe."    Marshall likewise confirmed that he had come to
Waterloo with the defendant and Powells. However, Marshall stated
that he and Powells had stayed at a house located on the west side
of Waterloo the previous evening, while the defendant had stayed at
the motel. Later, on the morning of March 26, 1995, Marshall was
taken from the jail to identify the house at 1116 West Fifth
Street, Waterloo, Iowa, as the house where he and Charmane Powells
had spent the previous evening.


     Based on information provided by Marshall and information law
enforcement officials had received from other sources, officers
applied for a search warrant for the residence of Keisha Morris,
1116 West Fifth Street in Waterloo.       Pursuant to a warrant,
officers searched the residence and located a large quantity of
crack cocaine in three separate locations in the house along with
a large quantity of money, plastic bags used to package crack
cocaine, and other drug paraphernalia.2


     On June 24, 1994, Thomas, Marshall, and Powells were indicted
on one count of possession with intent to distribute fifty grams or


     2
      Powells testified at trial that Thomas had left the package
of crack cocaine found in the upstairs, southeast bedroom. The
cocaine base weighed 4.52 grams.

                               -4-
more of cocaine base. Three months later, a superseding indictment
was filed against the three defendants, substituting a charge for
possession with intent to distribute five grams or more of cocaine
base, in violation of 18 U.S.C. § 841(b)(1)(B)(iii), and for using
and carrying a firearm during and in relation to a felony drug
trafficking offense, in violation of 18 U.S.C. § 924(c). Thomas
filed a motion to suppress the evidence seized as a result of the
traffic stop made by Krogh, which the court denied.


     Powells subsequently entered into a plea agreement with the
government and testified against Thomas at trial.          Powells
testified that he observed Thomas with a small package which
contained crack cocaine. Thomas placed this package in the bedroom
in the upstairs of the Morris residence.      Police seized this
package during the execution of the warrant at the Morris
residence.


     Powells also testified that he had observed Thomas coming out
of the Rodeway Inn carrying a brown paper bag. Powells testified
that the brown paper bag which the defendant was carrying was very
similar to the one which was government's exhibit 13. Government
exhibit 13 was the brown paper bag which contained the large
quantity of controlled substances found at the motel room.


     Thomas also testified at trial. The defendant admitted that
he stayed in Room 207 at the Rodeway Inn and slept in the bed where
the drugs and gun were found. Thomas acknowledged that he had gone
to the West Coast Connection with Marshall and that he had been
stopped while driving his car after leaving the West Coast
Connection.   Thomas contended that he had purchased the crack
cocaine found in his hat at the West Coast Connection. He admitted
that he lied to the officers when he denied that he had ever been
in the motel room. Thomas admitted that his luggage and clothing
were in the motel room, although he denied any knowledge of the
drugs, firearm, or drug paraphernalia located in the room or the

                               -5-
crack found between the car seats.


     On cross-examination, the prosecutor tried to establish that
Thomas had given trial testimony inconsistent with testimony he had
given at prior hearings held in the case, including a suppression
hearing.   At the beginning of cross-examination, the prosecutor
asked the defendant whether he had ever lied under oath in a court
proceeding and Thomas answered "no." II Trial Tr. at 598. The
prosecutor then inquired as to whether the defendant had been under
oath when he "previously testified in August of 1994" and whether
he had been honest at that time.       II Trial Tr. at 600.     The
defendant responded that "yes" he had been under oath and that, as
far as he knew, he had been honest on that occasion. Later, the
prosecution questioned Thomas about several inconsistent statements
he had made, including statements previously made under oath. In
the course of trying to pin down the defendant on testimony which
appeared inconsistent to previous testimony, the prosecutor asked
the following question:


     And do you recall testifying at the suppression hearing--
     excuse me--at the previous hearing in this matter
     concerning how long you had been at that hotel or what
     you had been at that hotel for?


II Trial Tr. at 608. After cross-examination continued for several
more minutes, the court adjourned trial for the day. At the time
court was recessed, defendant's counsel moved for a mistrial based
upon the prosecutor's withdrawn mention of the word "suppression"
in reference to a prior hearing while cross-examining the
defendant. The court denied the motion for mistrial, but agreed to
give a curative instruction.


     Thomas was subsequently convicted. He moved for a new trial,
which the district court denied. At sentencing, the district court
found that Thomas had obstructed justice through perjurious
testimony and applied a two level sentence increase. The court

                               -6-
sentenced Thomas to 151 months in prison for the drug offense, and
an additional 60 months in prison for the § 924(c) firearm
conviction.


     Thomas now appeals, arguing that the district court committed
four reversible errors. First, Thomas claims that the district
court erred in refusing to exclude evidence stemming from the
police stop of Thomas's vehicle. Second, Thomas argues that the
government, in making improper and prejudicial references at trial
to Thomas's testimony at the suppression hearing, deprived him of
a fair trial. Third, in light of Bailey v. United States, 116 S.
Ct. 501 (1995), the district court erred in failing to grant
Thomas's motion for judgment of acquittal in light of the
insufficient evidence supporting the § 924(c) firearms count.
Fourth, the district court erred in applying a two level sentence
increase for obstruction of justice based on Thomas's trial
testimony. After careful review of these claims, we affirm the
district court except with respect to Thomas's § 924(c) conviction,
which we vacate and remand for resentencing.

                               II.


     Thomas argues that the evidence stemming from the automobile
search should have been excluded. He predicates this argument on
two assertions. According to Thomas, the district court erred in
finding (1) that the police made a valid traffic stop, and (2) that
Thomas gave voluntary and knowing consent to the subsequent search
of his automobile.       We review the district court's legal
conclusions de novo and its factual findings for clear error. See
United States v. Johnson, 64 F.3d 1120, 1124 (8th Cir. 1995), cert.
denied, 116 S. Ct. 971 (1996).

                                A.


     As a general matter, police may stop an automobile where there

                               -7-
is probable cause to believe that a traffic violation has occurred.
See Whren v. United States, 116 S. Ct. 1769, 1772 (1996); United
States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990), cert.
denied, 502 U.S. 962 (1991).      Probable cause exists where an
officer objectively has a reasonable basis for believing that the
driver has breached a traffic law. See Cummins, 920 F.2d at 501.
Under this objective test, so long as police have probable cause to
believe that a traffic violation has occurred, the stop is valid
even if the police would have ignored the traffic violation but for
their suspicion that greater crimes are afoot.


     The district court found that Krogh stopped Thomas's
automobile because he observed that the driver and front seat
passenger were not wearing their seat belts and because he had
reason to believe that the driver did not have a valid driver's
license. Thomas challenges these findings, arguing that the police
had no valid reason for making the traffic stop.


     Police stopped Thomas's automobile around 9:00 in the evening.
According to Thomas, Krogh could not have observed whether Thomas
was wearing his seat belt because it was dark outside and Krogh was
some distance away. Under these conditions, Thomas contends, it
was impossible for Krogh to make such a determination.           We
disagree.


     At the suppression hearing, neither Thomas nor Marshall
claimed that they were wearing their seat belts.     In fact, the
police testimony was not challenged in any fashion. We are not
willing to reverse the district court's evaluation of the evidence
on the thin observation that in March at 9 p.m. the sun had set in
Waterloo, Iowa.   Interior lights of Thomas's automobile, street
lights, and headlights of other automobiles could have allowed
Krogh to observe whether Thomas had his seat belt fastened or not.
We do not believe the district court's fact-finding to be clearly
erroneous.

                               -8-
                                B.


     Thomas also argues that the district court erred when it found
that he had given valid consent for the police to search his
automobile and his person.      Even without probable cause or a
warrant, police may search an area if they obtain voluntary consent
from someone possessing adequate authority over the area.       See
United States v. Chaidez, 906 F.2d 377, 380 (8th Cir. 1990). A
driver of an automobile has sufficient authority to give consent
for its search. See United States v. Eldridge, 984 F.2d 943, 948
(8th Cir. 1993).


     Thomas makes two challenges to the district court's
suppression hearing determination that he gave the police his
consent to search. First, he argues that the police never sought
his consent to conduct the searches. Second, accepting that Thomas
was asked and indicated consent, this consent was not voluntary and
therefore inadequate to validate the search. We do not find either
of these arguments persuasive.


     At the suppression hearing, Krogh and Meyer testified that
they asked for and received Thomas's consent before they searched
the automobile. Suppression Tr. at 17. Thomas offered a different
account of the events, stating that the police conducted the pat-
down search and the automobile search without asking his consent.
On appeal, Thomas asserts that the district court should have found
his version of the searches more credible, pointing to an apparent
discrepancy between the police testimony at the initial detention
hearing and the police testimony at the suppression hearing.


     Meyer stated at the initial detention hearing that he heard
Krogh ask Thomas for permission to search, whereas at the
suppression hearing Meyer stated that he requested that Krogh ask
Thomas for consent. We are not convinced that the police testimony
at the two hearings is at odds or, if such a discrepancy does

                               -9-
exist, that it warrants overturning the district court's firsthand
assessment of the evidence.      It is uniquely the role of the
district court to judge the credibility of witnesses. See United
States v. Hankins, 931 F.2d 1256, 1258-59 (8th Cir.), cert. denied,
502 U.S. 886 (1991).


     Thomas also challenges the voluntariness of any consent that
he might have given for the police search. Consent is voluntary if
it is "the product of an essentially free and unconstrained choice
by its maker," Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973),
and not the result of "duress or coercion, express or implied."
Id. at 227. To determine whether consent was voluntary, we look at
the totality of the circumstances surrounding a particular case,
considering both the characteristics of the accused and the details
of the police questioning. Id. at 226. We will "'affirm the trial
court's decision unless it is not supported by substantial
evidence, it evolves from an erroneous conception of the applicable
law, or we are left with the firm conviction that a mistake has
been made after having considered the entire record.'"       United
States v. Ware, 890 F.2d 1008, 1011 (8th Cir. 1989) (quoting United
States v. Wallraff, 705 F.2d 980, 987 (8th Cir. 1983)).


     Thomas asserts that the coercive circumstances of the traffic
stop, with an intimidating show of force by the police and the
seizure of Thomas's person, tainted any consent offered by Thomas.
As Thomas succinctly stated his position, he "was a young man in a
strange town surrounded by numerous police officers at night."
Appellant's Br. at 11.      The age of the consent giver, the
intimidating actions of police, the time of day, and the consent
giver's familiarity with the area are proper considerations under
the totality of the circumstances evaluation of whether consent is
voluntary. In this instance, however, they are not sufficient to
establish that Thomas acted against his will when he told police
they could search his automobile.


                               -10-
     The district court's conclusion is supported by substantial
evidence. The court heard Thomas testify and found him to be old
enough and intelligent enough to understand the situation he was in
and the consequences of allowing the search.       Thomas had been
stopped in a well-lit area and had been detained only briefly
before Krogh asked permission to search the automobile. At the
suppression hearing, Thomas discounted the intimidating effect of
the police, stating that he was "sort of surprised" by the number
of police around him.       Suppression Tr. at 113.        He also
characterized the exchange between the police and himself as
cordial. In these circumstances, the district court properly found
Thomas's consent to be voluntary.

                               III.


     While cross-examining Thomas, the prosecutor mentioned that
Thomas had testified at an earlier suppression hearing.
Immediately upon speaking the words "suppression hearing," the
prosecutor corrected himself and recharacterized the suppression
hearing as "the previous hearing." II Trial Tr. at 608. Thomas
moved for a mistrial, arguing that it was improper and highly
prejudicial for the prosecutor to convey to the jury that Thomas
had sought to exclude evidence. The court denied the motion, but
gave the jury a curative instruction immediately prior to closing
arguments.3    Thomas argues it was both improper and highly
prejudicial for the prosecution to convey to the jury that Thomas
had sought to exclude evidence and that the district court erred in
denying his motion for mistrial.



      3
       The district court instructed the jury that "during the
cross-examination of Mr. Thomas, you heard reference to earlier
testimony by Mr. Thomas.    You need not and should not concern
yourself about the proceedings or the nature of that prior hearing.
Specifically, you are advised that no evidence, statements, or
testimony has been suppressed in any way in this case." III Trial
Tr. at 745.

                               -11-
     An instance of trial error constitutes reversible error when
the prosecutor's actions are, in fact, improper and have
prejudicially affected the defendant's substantial rights so as to
deprive the defendant of a fair trial.      See United States v.
Emmert, 9 F.3d 699, 701 (8th Cir. 1993), cert. denied, 115 S. Ct.
101 (1994). The decision to deny a motion for a mistrial falls
within the discretion of the district court and will be reversed
only if that discretion is abused. See United States v. Wold, 979
F.2d 632, 635 (8th Cir. 1992).


     We agree that the prosecutor's mention of the suppression
hearing was improper. The defendant has a Fourth Amendment right
to be free of unreasonable searches and seizures which is
diminished when the prosecution mentions before the jury that the
defendant attempted to exercise that right by excluding evidence.
Thomas, however, was not denied a fair trial as a consequence of
this trial error and, therefore, we conclude that the district
court was not in error.


     In evaluating whether a trial error resulted in prejudice to
the defendant, we consider the cumulative effect of such
misconduct, the strength of the properly admitted evidence of the
defendant's guilt, and the curative actions taken by the district
court.   See Emmert, 9 F.3d at 701.   Considering the quantum of
evidence presented by the prosecution, the brief, inadvertent, and
quickly corrected error by the prosecution is insignificant. In
addition, the district court issued a corrective instruction to the
jury, assuring them that all the evidence was before them.       In
combination, these factors eliminated the risk that Thomas was
prejudiced. Cf. United States v. Farmer, 73 F.3d 836, 844 (8th
Cir.) (where prosecution merely asks an improper question, which
was immediately stricken, there was no substantial effect on the
outcome of the case), cert. denied, 116 S. Ct. 2570 (1996); United
States v. Turk, 21 F.3d 309, 312-13 (8th Cir. 1994) (where
prosecution witness testified in contravention of the district

                               -12-
court's motion in limine, jury was admonished that they were to
disregard such testimony and that such admonishment cured any harm
caused by the improper testimony).

                               IV.


     Police, in the course of searching the motel room, discovered
a loaded 9mm semi-automatic handgun under a pillow on the bed.
Thomas was charged with violating 18 U.S.C. § 924(c), which
increases the defendant's sentence for using a firearm during a
drug offense.4 Following the completion of the government's case
and again at the close of evidence, Thomas moved for judgment of
acquittal on the firearms charge. The district court denied the
motion and submitted the charge to the jury, which convicted
Thomas.


     Subsequent to the district court's decision, the Supreme Court
issued its opinion in Bailey v. United States, 116 S. Ct. 501
(1995).    In Bailey, the Supreme Court held that § 924(c)(1)
"requires evidence sufficient to show an active employment of the
firearm by the defendant, a use that makes the firearm an operative
factor in relation to the predicate offense." Bailey, 116 S. Ct.
at 505 (emphasis added).       Active use includes brandishing,
displaying, bartering, striking with, as well as firing or
attempting to fire a firearm.     Id. at 508.   Significantly, the
Court expressly precluded the mere storage of a weapon near drugs
or drug proceeds from the scope of active use. Indeed, active use
does not necessarily encompass a gun which is hidden where it could
be grabbed and used if necessary. Id.


     4
      18 U.S.C. § 924(c)(1) states that "[w]hoever, during and in
relation to any crime of violence or drug trafficking crime . . .
for which he may be prosecuted in a court of the United States,
uses or carries a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime, be
sentenced to imprisonment for five years . . . ."

                               -13-
     On appeal, Thomas argues that there was insufficient evidence
to prove that he actively employed the 9mm gun found in the motel
room. We agree. In light of Bailey, the facts of this case do not
allow Thomas to be convicted under § 924(c)(1). At the time of his
arrest, the firearm was well outside of Thomas's control. In no
way can it be said that a firearm concealed under a pillow in an
unoccupied motel room constitutes active employment.


     The government asks that we remand for resentencing.      The
government draws our attention to the fact that once Thomas's
§ 924(c) conviction is reversed, a two level upward adjustment may
be appropriate under § 2D1.1(b)(1) of the sentencing guidelines.
Under § 2D1.1(b)(1), it is a specific offense characteristic if "a
dangerous weapon (including a firearm) was possessed" by the
defendant and warrants a two level sentence increase.


     The district court did not consider this sentencing provision
because, at the time he was sentenced, Thomas was ineligible for a
§ 2D1.1(b)(1) sentence increase.       The sentencing guidelines
prohibits double counting and therefore, because of Thomas's
conviction on the § 924(c) firearm charge, the district court was
precluded from applying a § 2D1.1(b)(1) increase. See U.S.S.G.
§ 2K2.4, comment. (n.2).     In light of our decision to vacate
Thomas's § 924(c) conviction, however, this double counting concern
is eliminated and it is appropriate to remand to the district court
to allow it to resentence Thomas. See United States v. Roulette,
75 F.3d 418, 426 (8th Cir. 1996) ("The prohibition against applying
the two level enhancement is no longer applicable, because the
firearm sentence on Count 4 has been set aside."); see also United
States v. Clements, 86 F.3d 599, 600-01 (6th Cir. 1996) (vacating
§ 924(c) conviction and remanding for consideration of a two level
increase under U.S.S.G. § 2D1.1(b)(1)); United States v. Lang, 81
F.3d 955, 963 (10th Cir. 1996) (same); United States v. Fennell, 77




                               -14-
F.3d 510, 510-11 (D.C. 1996) (per curiam) (same).5

     We therefore reverse Thomas's § 924(c) conviction, vacate his
sentence, and remand the case to the district court, which should
consider   whether   a   sentence   enhancement   under   U.S.S.G.
§ 2D1.1(b)(1) is warranted.

                               V.


     Finally, Thomas argues that the district court erred by
refusing to grant a three level sentence reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1, and by assessing a two
level sentence increase for obstruction of justice under U.S.S.G.
§ 3C1.1. These sentencing decisions rest entirely on the factual
determinations of the district court, which we review for clear
error.   See United States v. Evans, 51 F.3d 764, 766 (8th Cir.
1995); United States v. Oakie, 12 F.3d 1436, 1444 (8th Cir. 1993).


     Under the sentencing guidelines, a three level reduction in
the sentence level is warranted when "the defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his criminal conduct."    U.S.S.G. § 3E1.1(a).
The burden rests with the defendant to establish that he accepted
responsibility. See United States v. Morales, 923 F.2d 621, 628-29
(8th Cir. 1991). Thomas did not present evidence that suggests
that he is entitled to this reduction.


     The sentencing guidelines set out a list of considerations
useful in determining whether the defendant has accepted


       5
        We note that Bailey does not impact the application of
§ 2D1.1(b)(1).   Under § 2D1.1(b)(1), a sentence enhancement is
required if a dangerous weapon was "possessed."      The Supreme
Court's analysis in Bailey focuses on the word "use" found in
§ 924(c) and determined that "use" must be "active employment."
See United States v. Betz, 82 F.3d 205, 210 n. 3 (8th Cir. 1996).

                              -15-
responsibility. See U.S.S.G. § 3E1.1, comment. (n.1). This list
includes truthfully admitting the conduct comprising the offense of
conviction, voluntarily terminating or withdrawing from criminal
conduct, voluntarily surrendering to authorities promptly after
commission of the offense, and voluntarily assisting authorities in
recovering the fruits and instrumentalities of the offense. Id.
Thomas presents no evidence that he has satisfied any of these
factors.   The police apprehended Thomas in a traffic stop and
discovered the firearm and crack cocaine in the motel room without
Thomas's assistance. In fact, except for the crack cocaine police
found hidden in his hat, Thomas continued to deny any connection to
the drugs. Based on this evidence, the district court reasonably
refused to find that Thomas had accepted responsibility for his
criminal behavior.


     The district court found that Thomas had, in fact, obstructed
justice by testifying falsely under oath, and the court applied a
two level sentence enhancement under U.S.S.G. § 3C1.1. Section
3C1.1 states that the offense level may be adjusted upward for
obstruction of justice if "the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of
justice during the investigation, prosecution, or sentencing of the
instant offense."    It is well accepted that perjury at trial
amounts to obstruction of justice within the meaning of § 3C1.1.
See U.S.S.G. § 3C1.1, comment. (n.3(b)); United States v. Pena, 67
F.3d 153, 157 (8th Cir. 1995); United States v. Dyer, 910 F.2d 530,
533 (8th Cir.), cert. denied, 498 U.S. 907 (1990).


     A witness commits perjury if he "'gives false testimony
concerning a material matter with the wilful intent to provide
false testimony, rather than as a result of confusion, mistake, or
faulty memory.'" United States v. Berndt, 86 F.3d 803, 810 (8th
Cir. 1996) (quoting United States v. Dunnigan, 507 U.S. 87, 94
(1993)).   The district court must review the evidence and make
independent finding, by a preponderance of the evidence, of perjury

                               -16-
in order to impose a sentence enhancement for obstruction of
justice. See Berndt, 86 F.3d at 810; United States v. Darden, 70
F.3d 1507, 1548 (8th Cir.), cert. denied, 116 S. Ct. 1449 (1996).
We review a district court finding of obstruction of justice for
clear error. See United States v. Big Crow, 74 F.3d 163, 166 (8th
Cir. 1995).


     At the sentencing hearing, the trial court found that, at a
minimum, several of Thomas's statements under oath were "outright
fabrications," that he "lied about those matters," and that "those
[matters] were material to the charges that were before the court."
Sentencing Tr. at 34. Much of the trial testimony made by Thomas
stood in direct contradiction with Powells' account of events.
Police observations and the evidence found in the motel room
further undermined Thomas's statements.      Given this weight of
evidence against Thomas, the district court was not clearly
erroneous in concluding that Thomas had committed perjury and,
therefore, should receive a sentence increase for obstruction of
justice.6

                               VI.


     For the reasons stated, we affirm the district court in all
respects except Thomas's conviction under 18 U.S.C. § 924(c). We
vacate his sentence and remand the case to the district court for
resentencing.




    6
     We hold that the district court was not clearly erroneous in
making the predicate findings to the sentence enhancement.      On
remand, the district court is free to reevaluate its sentencing
determination in light of the evidence presented at the rehearing.

                               -17-
A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                         -18-
