                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                       July 31, 2013
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-2150
          v.                                          (D. New Mexico)
 ULFRANO OLIVAS-CASTANEDA,                    (D.C. No. 1:08-CR-02339-BB-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Defendant Ulfrano Olivas-Castaneda appeals his conviction in the United

States District Court for the District of New Mexico on two drug charges and his

sentence of 70 months’ imprisonment. He argues (1) that the district court

committed plain error by allowing the government’s law-enforcement witnesses to

interpret coded drug conversations without first assessing their qualifications as

experts under Fed. R. Evid. 702, and (2) that the district court committed


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
procedural error in imposing an obstruction-of-justice sentencing enhancement on

the basis of his perjury without identifying the specific false testimony.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. We summarize the

relevant facts as we discuss each issue in turn.

I.    DISCUSSION

      A.     Admission of Police Testimony on Meaning of Drug
             Conversations

      At trial the government introduced as evidence a series of recorded

conversations between Defendant and others. Officers of the Drug Enforcement

Administration (DEA) testified to the coded or implied meaning of the

conversations.

      On appeal Defendant argues that although the government did not

characterize these law-enforcement witnesses as expert witnesses, their testimony

was in fact expert opinion testimony under Fed. R. Evid. 702 and the district

court erred by failing to assess the witnesses’ qualifications and the reliability of

their opinions. He concedes that he did not object to the testimony on this basis

at trial and that our review is only for plain error. We will reverse for plain error

only if Defendant can show “(1) error, (2) that is plain, (3) which affects

substantial rights, and (4) which seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Romero, 491 F.3d 1173,

1178 (10th Cir. 2007).


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      Defendant’s claim fails on the second prong of plain-error review. Even if

we assume that the testimony constituted expert opinion, we cannot say that the

witnesses’ testimony clearly violated Rule 702. That would depend on the

officers’ expertise and experience, and we have no way of knowing what that was.

Because Defendant did not object to the testimony, there was no occasion for the

government to make a record on those matters. “Where the determinative facts

are missing from the record due to the defendant’s failure to make a timely

objection, we will not find plain error based on the possibility that better factual

development would have made the error clear.” United States v. Frost, 684 F.3d

963, 977 (10th Cir. 2012). This rule is particularly appropriate here because

Defendant does not argue that the officers lacked the necessary expertise and

experience.

      B.      Obstruction-of-Justice Enhancement

      Defendant testified in his own defense at trial. He said that the only

coconspirator he knew was the confidential witness working with the DEA and

that his only relevant involvement with her was a romantic one. For example, he

said that one of the people arrested with him was merely a stranger who had

offered Defendant a ride after his truck broke down.

      The probation office’s Presentence Investigation Report (PSR)

recommended that the district court increase Defendant’s offense level under

USSG § 3C1.1 (2012) to reflect his obstruction of justice through perjurious trial

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testimony. Section 3C1.1 provides for a two-offense-level increase “[i]f (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 . . . the defendant’s offense of conviction.” The commentary to this

guideline provides examples of specific conduct to which the guideline applies,

including “committing, suborning, or attempting to suborn perjury.” Id. cmt.

n.4(B). The district court adopted the PSR’s recommendation.

      In applying the obstruction-of-justice guideline, “[w]e require that a district

court be explicit about which representations by the defendant constitute perjury.”

United States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir. 2003). Specificity is

needed “so that when we review the transcript we can evaluate the . . . findings of

the elements of perjury against an identified line of questions and answers

without having simply to speculate on what the district court might have believed

was the perjurious testimony.” Id. (internal quotation marks omitted). Defendant

contends that the district court failed to identify what specific testimony it

believed to be perjurious. But he never objected to the court’s allegedly

inadequate explanation; rather, his lawyer only stated at the outset of the hearing

that “I don’t know that it could necessarily be said that his testimony was

perjurious.” Aplt. Br., Attach. 2 at 4 (Tr. Sentencing Hr’g at 4, United States v.

Olivas-Castaneda, No. 08-CR-02339-001-BB (D.N.M. Sept. 10, 2012)). Thus,

                                          -4-
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, 1247–48 (10th

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

a sentencing decision because defendant had failed to alert district court that its

explanation was deficient).

      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. After Defendant said at his allocution that he did

not know the criminals with whom he was arrested, the district court responded,

“[Y]ou have had your chance to tell the jury all of this, and you did that. They

clearly did not agree with you. They found you guilty. And it was my impression

of the evidence that you did know [your co-felons].” Aplt. Br., Attach. 2 at 14

(Tr. Sentencing Hr’g at 14, Olivas-Castaneda, No. 08-CR-02339-001-BB). The

court continued: “I don’t think you’re the most culpable in this situation, but I

also am clearly convinced that you were involved and that you knew these people.

You did not ride around in a car with people you do not know to deserted

warehouses.” Id. at 15. The court concluded, “I do think you are culpable of

obstructing justice. Your testimony at trial clearly was perjurious, as are your

statements here today, in my opinion.” Id. The court’s statements were adequate

to support the enhancement.




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II.   CONCLUSION

      We AFFIRM Defendant’s conviction and sentence.

                                  ENTERED FOR THE COURT


                                  Harris L Hartz
                                  Circuit Judge




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