                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 1, 2015
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT
                      _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                        No. 14-3180
                                               (D.C. No. 6:12-CR-10248-EFM-1)
OSAYUWAME BAZUAYE,                                        (D. Kansas)

      Defendant - Appellant.



                      _________________________________

                          ORDER AND JUDGMENT*
                      _________________________________

Before GORSUCH, MCKAY, and BACHARACH, Circuit Judges.
                 _________________________________


      Mr. Osayuwame Bazuaye is an alien who was subject to immigration

proceedings when taken into custody and placed in an isolated cell. Upset with his

isolation, Mr. Bazuaye blamed Agent Douglas Thompson and made a hostile

comment. According to the government, the comment consisted of a threat, with Mr.

Bazuaye stating that he was going to have intercourse with Agent Thompson’s wife




*
       This order and judgment does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But, under some
circumstances, citation may be permissible under Fed. R. App. P. 32.1(a) and 10th
Cir. R. 32.1(A).
and daughter. But, Mr. Bazuaye testified that he had told Agent Thompson that the

sex with his wife and daughter had already taken place.

       The jury believed the government’s account and found Mr. Bazuaye guilty of

threatening a federal law enforcement officer’s immediate family. Based on this

finding, the district court entered a judgment of conviction. In imposing the sentence,

the court varied upward from the guidelines and imposed a two-level enhancement for

obstruction of justice on the ground that Mr. Bazuaye had lied when testifying about

what he had said to the agent. The result was a 60-month sentence.

Mr. Bazuaye’s Challenges to the Sentence

       A sentence must be procedurally and substantively reasonable. United States v.

Hanrahan, 508 F.3d 962, 969 (10th Cir. 2007). Mr. Bazuaye challenges both

components, arguing that (1) the court erred procedurally in imposing the two-level

enhancement for obstruction of justice, and (2) the court erred substantively by

imposing an overly harsh sentence of 60 months. We reject both challenges and

affirm.1

Procedural Reasonableness

       If Mr. Bazuaye had suborned perjury, the district court could increase the

offense level by two for obstruction of justice. U.S.S.G. § 3C1.1 comment 4(b). In a

prior appeal, we held that the court could increase the offense level only by


1
     The parties have not asked for oral argument, and we do not believe oral
argument would be helpful. Thus, we have decided the appeal based on the briefs.

                                           2
identifying the sworn statements constituting perjury and finding that they had been

false, material, and given willfully with the intent to provide false testimony. United

States v. Bazuaye, 559 F. App’x 709, 716 (10th Cir. 2014) (unpublished). The district

court complied with these requirements by identifying the false testimony and

explaining how it was false, material, and intentionally deceptive.

      The sole issue was whether Mr. Bazuaye had threatened Agent Thompson’s

family. By definition, threats involve something to happen in the future. See

Webster’s Third New Int’l Dict. 2382 (1993) (definition of “threat”). Thus, it was

crucial for the jury to decide whether Mr. Bazuaye had said he was going to have sex

with Agent Thompson’s wife and daughter or whether the comment involved past

sexual relations. The first possibility would have constituted a threat; the second

would have been little more than a juvenile taunt.

      The district court relied on this distinction, finding that Mr. Bazuaye was lying

when he testified. In explaining this finding, the court acknowledged that testimony

does not constitute perjury if the witness simply made a mistake. See United States v.

Dunnigan, 507 U.S. 87, 94 (1993). But, the court concluded that Mr. Bazuaye was not

merely mistaken. In the court’s view, Mr. Bazuaye was mad at Agent Thompson and

tried to provoke him by threatening to have sex with his wife and daughter. Thus, the

court found obstruction of justice and provided the required explanation. See United

States v. Sanchez, 725 F.3d 1243, 1252-53 (10th Cir. 2013) (holding that the district




                                            3
court adequately explained its reason for enhancing a sentence based on obstruction of

justice through perjured testimony).

       We can disturb these findings only if they are clearly erroneous. See United

States v. McKeighan, 685 F.3d 956, 975 (10th Cir. 2012) (“A district court’s

determination that a defendant obstructed justice [under Sentencing Guideline 3C1.1]

is a factual finding that we review for clear error.”). They are not. Agent Thompson

and Mr. Bazuaye gave two different accounts about what had been said, and the

district court could reasonably accept the agent’s version. Having accepted this

version, the court could infer that Mr. Bazuaye had colored his account of the

statement to cast it as a schoolyard taunt rather than a threat. The difference would be

material, for Mr. Bazuaye would be acquitted if the jury believed his account and

convicted if the jury believed Agent Thompson’s account. As a result, we cannot

disturb the district court’s findings on the basis of clear error.

Substantive Reasonableness

       The resulting issue is the substantive reasonableness of the 60-month sentence.

On this issue, our review is limited: We can reverse only if the district court abused its

discretion. United States v. Smart, 518 F.3d 800, 806 (10th Cir. 2008). The court

abused its discretion only if we were to regard the 60-month sentence as “‘arbitrary,

capricious, whimsical, or manifestly unreasonable.’” United States v. Sayad, 589 F.3d




                                              4
1110, 1116 (10th Cir. 2009) (quoting United States v. Friedman, 554 F.3d 1301, 1307

(10th Cir. 2009)).

       The guidelines called for a sentence between 41 and 51 months. The court

concluded that the guideline range was too low based on Mr. Bazuaye’s pattern of

contemptuous treatment of law enforcement officers while in the United States. Had

we been in the district court’s shoes, we might have declined to vary upward. But, this

is not enough. See Gall v. United States, 552 U.S. 38, 51 (2007) (“The fact that the

appellate court might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.”). We cannot regard

the district court’s assessment as arbitrary, capricious, whimsical, or manifestly

unreasonable. As a result, we conclude that the district court acted within its

discretion in imposing the 60-month sentence.

Conclusion

       Having rejected the procedural and substantive challenges to Mr. Bazuaye’s

sentence, we affirm.

                                          Entered for the Court




                                             Robert E. Bacharach
                                             Circuit Judge




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