                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0233n.06

                                           No. 14-4067


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
UNITED STATES OF AMERICA,                       )                                 Apr 29, 2016
                                                )                            DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                      )
                                                )
v.                                              )
                                                      ON APPEAL FROM THE UNITED
                                                )
                                                      STATES DISTRICT COURT FOR THE
DEREK A. WARNER,                                )
                                                      NORTHERN DISTRICT OF OHIO
                                                )
       Defendant-Appellant.                     )
                                                )
                                                )

BEFORE:        DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

       PER CURIAM. Indicted on 12 drug and firearm counts, defendant Derek Warner moved

to suppress the evidence supporting four of the charges. During a pretrial hearing on his motion,

Warner’s testimony about the events leading up to the searches differed in some respects from

that of the police officers who testified. Warner also denied selling drugs on the days in question

and maintained that he was unaware of the drugs found in his house and vehicles. Ultimately,

the district court denied Warner’s motion to suppress. Warner was convicted on the drug

charges, and the government dismissed the firearm charge.

       At sentencing, the government argued that Warner committed perjury during the

suppression hearing and therefore warranted a sentencing enhancement for obstruction of justice.

The district court found that Warner deserved a two-level enhancement “for attempting to

obstruct or impede the administration of justice with regard to the prosecution” and calculated

his range under the Sentencing Guidelines accordingly. However, the district court failed to
No. 14-4067, United States v. Warner


identify the specific portions of Warner’s testimony it found to be false and also failed to find on

the record that the perjury was material and made with willful intent, as required by well-

established Supreme Court and Sixth Circuit precedent. For this reason, we find it necessary to

vacate Warner’s sentence and remand the case to the district court.

       Section 3C1.1 of the United States Sentencing Guidelines provides:

       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. Sentencing Guidelines Manual § 3C1.1 (2013). Application note 4(B) to § 3C1.1 explains

that one type of conduct to which the enhancement applies is “committing, suborning, or

attempting to suborn perjury, including during the course of a civil proceeding if such perjury

pertains to conduct that forms the basis of the offense of conviction.” Id. A person testifying

under oath commits perjury if he “gives false testimony concerning a material matter with the

willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993).

       Before applying the obstruction-of-justice enhancement based on a defendant’s perjury,

the district court “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 above definition of perjury. Id. at 95. We require the district court first to identify the

defendant’s perjured testimony and then to “either make specific findings for each element of

perjury or at least make a finding that encompasses all of the factual predicates for a finding of

perjury.” United States v. Bazazpour, 690 F.3d 796, 808 (6th Cir. 2012) (internal quotation

marks and citation omitted). “[I]t is preferable for a district court to address each element of the

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No. 14-4067, United States v. Warner


alleged perjury in a separate and clear finding.” Dunnigan, 507 U.S. at 95. “The district court

must be specific.” United States v. Lawrence, 308 F.3d 623, 633 (6th Cir. 2002). Hence, the

court must do more than simply state that it did not believe the defendant’s testimony. Id.

       “[W]here the record reveals that the government has proffered a clear and detailed list of

the defendant’s perjurious statements, the district court need not parrot that list so long as it

makes clear that it has independently adopted the government’s version.” United States v.

Sassanelli, 118 F.3d 495, 501 (6th Cir. 1997). Our case law also suggests that the district court

need not specifically identify the perjury “where the defendant’s testimony appears to be

‘pervasively perjurious,’ . . . so long as its findings encompass the factual predicates necessary

for a finding of perjury.” See id. (quoting an unpublished opinion); United States v. Macias-

Farias, 706 F.3d 775, 782 (6th Cir. 2013) (quoting Sassanelli).

       Here, the district court failed to make the required findings before it applied the

obstruction-of-justice enhancement. The court did not identify instances of Warner’s allegedly

false testimony and, in fact, never mentioned the word “perjury,” although it seems apparent

from the record and from the parties’ briefs on appeal that the obstruction-of-justice

enhancement was based on perjury and not on another type of covered conduct. Nevertheless,

the only finding in the record is the district court’s observation that Warner “attempt[ed] to

convince the court that he was not at all involved in the criminal activities for which he was

indicted at the time he testified under oath.” This non-specific statement fails to “identify those

particular portions of the defendant’s testimony that [the court] considers to be perjurious.”

Sassanelli, 118 F.3d at 501. Moreover, the government does not suggest that Warner’s perjury

was so pervasive that it could not be listed, see id., because the government did in fact list the

testimony it considered false in its sentencing memorandum.



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       Instead, the government argues that the district court implicitly adopted the list of

Warner’s false testimony set out in the government’s sentencing memorandum and discussed in

its statements at the sentencing hearing. We disagree. Although the court referenced the

prosecutor’s “comments as mimicked by his earlier writing,” it did so while discussing whether

the suppression hearing should be considered part of an “investigation” or the “prosecution.”

The court neither stated nor implied that it was adopting the government’s list of Warner’s

alleged perjury. Moreover, a mere inference that the district court’s ruling was based on the

government’s arguments is not enough for this court to affirm imposition of the enhancement.

See United States v. McRae, 156 F.3d 708, 713 (6th Cir. 1998).

       Even if we were to find that the district court fulfilled the first requirement for imposing

the enhancement by implicitly adopting the government’s list of perjured statements, there is no

indication in the record that the court fulfilled the second requirement by finding that the perjury

was material and made with willful intent. See Bazazpour, 690 F.3d at 808. Although the

parties briefed the issue of whether Warner’s testimony at the suppression hearing was material,

“an appellate court is not well-placed to make factual findings of perjury in the first instance.”

Macias-Farias, 706 F.3d at 783. When the district court fails to make the required factual

findings concerning materiality or intent, the sentence must be vacated and remanded for further

proceedings. See United States v. Kamper, 748 F.3d 728, 748–49 (6th Cir. 2014).

       Accordingly, we find it necessary to vacate Warner’s sentence and remand the case to

allow the district court either to find on the record that Warner “(1) made a false statement under

oath (2) concerning a material matter (3) with the willful intent to provide false testimony,”

Macias-Farias, 706 F.3d at 782 (internal quotation marks omitted), or to resentence him using

the correct initial guideline range, without the obstruction-of-justice enhancement.



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No. 14-4067, United States v. Warner


       For the reasons set out above, we VACATE the district court's sentencing order and

REMAND the case for further proceedings.




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