                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-1698
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
v.                                        * District Court for the
                                          * Northern District of Iowa.
Efrain Garcia-Gonon,                      *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: October 13, 2005
                                 Filed: January 4, 2006
                                  ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       Efrain Garcia-Gonon was charged in a one count indictment with transporting
illegal aliens, knowing or in reckless disregard of their status as illegal aliens, in
violation of 8 U.S.C. § 1324(a). A jury found Garcia-Gonon guilty, and the district
court1 sentenced him to 24 months of imprisonment, 2 years of supervised release, a
$2,144.00 fine, and a $100.00 special assessment. Garcia-Gonon appeals, arguing that
the district court erred (1) in submitting a "reckless disregard" instruction to the jury


      1
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
and (2) in applying an obstruction of justice enhancement to his applicable Sentencing
Guidelines range based on its perjury finding. We affirm.

                                         I. Facts
        Garcia-Gonon, a Guatemalan national, and his co-defendant, Macario-Chavez,
were detained after a routine traffic stop on Interstate 80 near Victor, Iowa. They were
driving with eight additional passengers, all Guatemalan illegal aliens, in the rear of
a rented 2004 Mercury Mountaineer. An Iowa State Trooper contacted Immigration
and Customs Enforcement, and Garcia-Gonon and Macario-Chavez were arrested and
later indicted for violation of 8 U.S.C. § 1324(a).

       Garcia-Gonon rented the Mercury Mountaineer in Los Angeles, California, two
days before being stopped in Iowa. Macario-Chavez testified that Garcia-Gonon hired
him to help drive to Chicago, Illinois, and that he knew the passengers were illegal
aliens. Several of the illegal-alien passengers testified by videotaped deposition and
stated that Garcia-Gonon, whom they had never met, picked them up at a park in Los
Angeles. Each deponent stated that Garcia-Gonon did not speak to them much but fed
them along the way. The passengers were going to Chicago to look for work. Each
passenger paid a lump sum of $1500 for assistance in crossing the border and
transportation to Chicago.

       At trial, Garcia-Gonon testified in his defense. He stated that he was traveling
to Chicago from Los Angeles to purchase a vehicle. He claimed that he met the eight
additional Guatemalan passengers at a park during a soccer match. According to
Garcia-Gonon, the Guatemalans begged for a ride after becoming aware that he was
traveling to Chicago. Garcia-Gonon also testified that he told his passengers that they
would be more comfortable without their luggage, so his passengers left their bags
behind. He testified that he did not know the immigration status of his passengers, but
he assumed that the "majority" of immigrants from his country "have documents" and
are legally in this country.

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       At the conclusion of the presentation of evidence, the district court instructed
the jury and gave an instruction on "reckless disregard," as referenced in § 1324(a).
Garcia-Gonon objected to the use of this instruction, stating that it was a "willful
blindness" instruction and no facts were presented to support such an instruction; his
objection was overruled. The jury found Garcia-Gonon guilty on Count I of the
indictment.

       At sentencing, the district court enhanced Garcia-Gonon's criminal offense level
by two for obstruction of justice based on its perjury finding. Garcia-Gonon objected,
but his objection was overruled. This adjustment raised Garcia-Gonon's offense level
to 17, with a criminal history category of I, making the Sentencing Guidelines range
24 to 30 months. Applying the Guidelines as advisory, the district court imposed a 24-
month term of imprisonment, 2 years of supervised release, a fine of $2,144.00, and
a $100.00 special assessment.

                                    II. Discussion
                                 A. Jury Instructions
      Garcia-Gonon argues that the district court erred in giving a "reckless
disregard" instruction to the jury because it was, in essence, an improper "deliberate
ignorance" or "willful blindness" instruction. Garcia-Gonon states that he objected
twice to the use of what he characterized as the deliberate ignorance or willful
blindness instruction—Jury Instruction No. 17.2 Garcia-Gonon considered the

      2
       Jury instruction No. 17, reads as follows:

       An act is done "knowingly" if a defendant realized what he was doing and did
not act through ignorance, mistake or accident. The government is not required to
prove that a defendant knew that his acts or omissions were unlawful. You may
consider the evidence of a defendant's acts and words, along with all other evidence,
in deciding whether a defendant acted knowingly.

      To act with "reckless disregard" means to be aware of, but to consciously or

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instruction unnecessary because the district court had already set forth the charges and
elements to be proven in Jury Instructions Nos. 14 & 15. Garcia-Gonon claims that
the deliberate ignorance or willful blindness instruction requires evidence that he
lacked actual knowledge of the facts, and a showing that he tried to avoid obtaining
actual knowledge. Garcia-Gonon contends that no such evidence was offered.

      Further, Garcia-Gonon argues that Jury Instruction No. 17 should not have been
given because it may have confused the jury and created the "possibility that the jury
[would] be led to employ a negligence standard and convict a defendant on the
impermissible ground that he should have known [an illegal act] was taking place."
United States v. White, 794 F.2d 367, 371 (8th Cir. 1986). Thus, according to Garcia-
Gonon, Jury Instruction No. 17 should not have been given because no facts put him
on notice that criminal activity was probably occurring.

       The government responds by pointing out that even though Garcia-Gonon
characterizes Jury Instruction No. 17 as a "willful blindness" instruction, it was, in
fact, a "reckless disregard" instruction, and the district court, in actuality, gave no
"willful blindness" instruction. The government submits that the jury instructions,
taken as a whole, correctly state the law. Therefore, it is the government's contention
that the district court did not abuse its discretion in formulating and charging the jury
using Jury Instruction No. 17.


deliberately ignore, facts and circumstances clearly indicating that the person being
transported was an alien who had entered or remained in the United States in violation
of law.

       You may not find that the defendant acted knowingly, however, if you find that
the defendant actually believed that the aliens were legally present in the United States
or if you find that the defendant was simply careless. A showing of negligence,
mistake or carelessness is not sufficient to support a finding of knowledge.

Appellant's Addendum at 9.

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       We review the district court's jury instructions for abuse of discretion, and this
court will affirm "[i]f the instructions, taken as a whole, fairly and adequately
submitted the issues to the jury." United States v. Florez, 368 F.3d 1042 (8th Cir.
2004) (quoting United States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001)). "A district
court has broad discretion in instructing the jury, and jury instructions do not need to
be technically perfect or even a model of clarity." United States v. Gianakos, 415 F.3d
912, 920 (8th Cir. 2005).

       In its prosecution under 8 U.S.C. § 1324(a), the government had to prove that
Garcia-Gonon knew or acted in reckless disregard of the fact that his eight passengers
were not lawfully in the United States. Accordingly, the district court did not err in
instructing the jury on the definition of reckless disregard. Moreover, seeing as there
is no Eighth Circuit model jury instruction defining reckless disregard, the district
court did not abuse its discretion by using the Eleventh Circuit definition. In addition,
the district court included language in the instruction addressing Garcia-Gonon's
concerns about the jury finding him guilty of negligence or carelessness, so as to
avoid any unfair prejudice. We hold the instructions, taken as a whole, fairly and
adequately submitted the relevant issues to the jury, and that Garcia-Gonon's
challenge to the jury instructions is without merit.

                                B. Sentence Enhancement
        Next, Garcia-Gonon asserts that the district court impermissibly applied a
sentencing enhancement for obstruction of justice. Garcia-Gonon claims that he made
no false or materially false statements, and the district court erred when it concluded
that he obstructed justice without making specific findings as to what specific
statements he made that were materially false. Garcia-Gonon states that the district
court must find that he committed perjury before making this upward departure, and
if a reasonable trier of fact could find the testimony to be true, then there should be no
imposition of the enhancement. Moreover, Garcia-Gonon contends that his denial of
guilt does not constitute perjury.

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       After hearing all of the evidence, the district court determined that Garcia-
Gonon gave false testimony regarding his guilt. The district court stated that Garcia-
Gonon testified falsely as to his "role" in the offense, but Garcia-Gonon points out that
the district court did not identify where in the transcript he testified about his role.
Garcia-Gonon maintains that he was not asked specifically what his role in this
offense was; he was only asked about how he met the alien passengers. Further,
Garcia-Gonon states that he was not asked if someone hired or paid him to transport
the aliens from Los Angeles to Chicago.

       "We review a district court's factual findings underlying an obstruction of
justice enhancement for clear error and its construction and application of the
Guidelines de novo." United States v. Nichols, 416 F.3d 811, 821 (8th Cir. 2005)
(citing United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004)).
Whether Garcia-Gonon committed perjury and in doing so obstructed justice is a
factual finding, and we will reverse the district court's imposition of a sentencing
enhancement only upon a showing of clear error. United States v. Kessler, 321 F.3d
699, 702–03 (8th Cir. 2003). Pursuant to U.S.S.G. § 3C1.1, a defendant is subject to
an enhancement if he testifies falsely under oath in regard to a material matter and
does so willfully rather than out of confusion or mistake. "If a defendant objects to an
obstruction enhancement relying on perjury, the district court must make findings that
the defendant willfully gave false testimony concerning material matters in the case.
We give 'great deference' to a district court's decision to grant an enhancement for
obstruction of justice, and will reverse an enhancement only when the district court's
findings are insufficient." Nichols, 416 F.3d at 821 (internal citations omitted).

       The district court is not permitted to give the upward departure "simply because
a defendant testifies on his own behalf and the jury disbelieves him." Id. (United
States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004)). Once the defendant objects to
the enhancement, the district court must conduct an independent evaluation and
determine whether the defendant committed perjury. This determination is sufficient

                                          -6-
if "'the court makes a finding of an obstruction of, or impediment to, justice that
encompasses all of the factual predicates for a finding of perjury.'" Id. (quoting Flores,
362 F.3d at 1037).

      In making its ruling, the district court stated:

      I was the trial judge, and I'm not basing my decision on the jury verdict.
      I'm basing it on my evaluation of the Defendant's testimony at trial under
      oath in the context of the other evidence. I make the finding that the
      Defendant willfully obstructed or impeded or attempted to obstruct or
      impede the administration of justice during the course of the trial by
      knowingly lying in his testimony about his role in bringing these illegal
      aliens from Los Angeles until they were apprehended by law
      enforcement. The obstructive conduct related specifically to the
      Defendant's offense of conviction. His testimony was not as a result of
      confusion or mistake. It was willfully given in an attempt to avoid
      responsibility for this criminal act, and, therefore, I do find that the
      obstruction enhancement in scoring the advisory guidelines sentence is
      appropriate.

S.T. at 13–14. We conclude the district court's statement was a sufficiently specific
finding of perjury and in compliance with relevant precedent for imposing an
enhancement for obstruction of justice. Further, the record contains ample evidence




                                           -7-
to support the district court's perjury finding.3 As such, the district court's obstruction
of justice finding was not clearly erroneous.

       Lastly, we will briefly address Garcia-Gonon's argument that the Fifth and Sixth
Amendments require sentencing enhancements to be determined by a jury, and that
the standard of proof for applying sentencing enhancements should be beyond a
reasonable doubt. In addressing the Sixth Amendment issue, Garcia-Gonon concedes
that this argument is contrary to the suggested standard of proof in United States v.
Pirani, 406 F.3d 543 (8th Cir. 2005). Under an advisory Guidelines regime,
sentencing judges are only required to find sentence-enhancing facts by a
preponderance of the evidence. Pirani, 406 F.3d at 551 n.4. Because the district court
applied the Guidelines as advisory, there is no Booker error present in this case.

       In arguing a violation of Fifth Amendment due process, Garcia-Gonon states
that the reasonable doubt standard is derived from the due process clause of the Fifth
Amendment, and a potential loss of liberty requires that there be a finding beyond a
reasonable doubt to increase the maximum penalty for a crime. This constitutional due


       3
        The district court considered the credibility of several of Garcia-Gonon's
statements. First, Garcia-Gonon stated his reason for renting a car was to drive from
Los Angeles to Chicago to get a good deal on a car. Garcia-Gonon did not know the
name or location of a car dealership or auction house to buy a car from in Chicago. He
further stated that a cousin in Chicago was going to help him purchase a car, but he
had not seen this cousin in 14 years. Second, Garcia-Gonon stated that other
Guatemalans, after finding out that he was going to Chicago, begged him for a ride
and coincidentally got in the car with him. Garcia-Gonon testified that he did not
believe that 10 people in a Mercury Mountaineer was too crowded. Further, he
testified that he told his passengers that they would be more comfortable without their
luggage, so they left their baggage behind. Third, Garcia-Gonon claimed that he met
several of his passengers two weeks before the trip, but according to the passenger
witnesses, they had not yet entered the United States at that time. Lastly, Garcia-
Gonon's stated that he rented a large SUV because there were no smaller vehicles
available at LAX.

                                           -8-
process argument fails because "it is appropriate for a district court to consider
uncharged relevant conduct for purposes of sentencing, even if it increases the
sentence that would otherwise be applied, so long as the sentence does not exceed the
statutory maximum authorized for the charged offense." United States v. Red Elk, 368
F.3d 1047, 1051 (8th Cir. 2004) (vacated on other grounds, Red Elk v. United States,
___ U.S. ___, 125 S. Ct. 992 (2005); aff'd on reh'g, United States v. Red Elk, 426 F.3d
948 (8th Cir. 2005)). As Garcia-Gonon was not sentenced in excess of the statutory
maximum, and in light of the fact that under an advisory system, the district court is
entitled to determine sentences based upon judge-found facts and uncharged conduct,
Garcia-Gonon's Fifth Amendment challenge is without merit. United States v. Red
Elk, 426 F.3d 948, 951 (8th Cir. 2005).

      Therefore, the district court's sentence is affirmed.
                       ______________________________




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