                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                 APR 29, 2011
                               No. 08-17157                       JOHN LEY
                                                                    CLERK
                           Non-Argument Calendar
                         ________________________

                    D. C. Docket No. 07-00095-CR-3-MCR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JAMES NEIL WALLACE,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (April 29, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

     James Neil Wallace appeals his sentence, imposed after a jury convicted him
of possession of a firearm and ammunition by a convicted felon, and possession of

a firearm and ammunition by an individual subject to a domestic violence

restraining order, pursuant to 18 U.S.C. §§ 922(g)(1) and (g)(8). On appeal,

Wallace asserts the district court erred in applying a two-level obstruction

enhancement under § 3C1.1 because his trial testimony was truthful in material

respects.1 After careful review, we affirm Wallace’s sentence.2

       To obtain a two-level enhancement for obstruction of justice at sentencing,

the burden is on the Government to show by a preponderance of the evidence that

“the defendant willfully obstructed . . . the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant offense of conviction.”

See U.S.S.G. § 3C1.1; see also United States v. Turner, 626 F.3d 566, 572 (11th

Cir. 2010) (“The government bears the burden of establishing by a preponderance

of the evidence the facts necessary to support a sentencing enhancement.”)

(quotation omitted).




       1
          At trial, Wallace testified on his own behalf to facts that were contradicted by the
Government. Based on Wallace’s testimony, the Government sought a two-level Guidelines
enhancement for obstruction of justice. The district court applied this enhancement over
Wallace’s objection, finding portions of Wallace’s testimony “to be untrue” and designed to
instill sympathy in the jurors.
       2
         We review the district court’s application of an obstruction-of-justice enhancement for
clear error. United States v. Patti, 337 F.3d 1317, 1324 (11th Cir. 2003).

                                                2
      For sentencing purposes, obstructive conduct includes the commission of

perjury. U.S.S.G. § 3C1.1, cmt. n.4(b). Perjury occurs when a witness, testifying

under oath, “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, 94-95 (1993). For

§ 3C1.1 purposes, material matters are those that “if believed, would tend to

influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n.6.

      The district court did not clearly err in imposing a two-level obstruction

enhancement. At trial, Wallace’s testimony, found to be untrue, undercut the

offense element that he must knowingly possess the gun and ammunition charged.

See United States v. Farley, 607 F.3d 1294, 1336 n.27 (11th Cir. 2010) (observing

that the record fully supported an obstruction enhancement because the defendant

gave false testimony that went to an element of the offense). His false statements

undermining the credibility of the government’s primary witness were a similar

attempt to undercut the government’s ability to prove this element. Wallace was

aware of as much, explicitly arguing before the jury that the defense he presented

established his possession was not knowing. Because Wallace testified falsely to

facts that went directly to a required element of the offense, we affirm his two-level

obstruction enhancement.

      AFFIRMED.

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