                         United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2340
                                   ___________

United States,                          *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Duane Collins Thundershield,            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 17, 2006
                                Filed: January 22, 2007
                                 ___________

Before LOKEN, Chief Judge, MELLOY, Circuit Judge, and SCHILTZ,1 District
      Judge.
                             ___________

SCHILTZ, District Judge.

      Duane Collins Thundershield, Jr. (“Thundershield”) was convicted by a jury of
one count of sexual abuse of a person “incapable of appraising the nature of the
conduct; or . . . physically incapable of declining participation in, or communicating
unwillingness to engage in, that sexual act[.]” 18 U.S.C. § 2242(2) (2000) (amended


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, sitting by designation.
2006). The district court2 sentenced Thundershield to a term of 151 months in prison
and 10 years of supervised release. Thundershield appeals his sentence, arguing that
the district court erred in applying a two-level obstruction-of-justice enhancement.
Thundershield also argues that his sentence is unreasonable. We affirm.

                                    I. Background

      Thundershield is a 22-year-old member of the Spirit Lake Sioux Indian Tribe.
His victim, Marisha Mesteth Loefer (“Loefer”),3 is his 24-year-old step-sister.
Thundershield’s father, Duane Sr., married Loefer’s mother, Susan, when
Thundershield was 11. For the most part, Thundershield lived with his father and
step-mother until he turned 18. At the time of the offense that is the subject of this
appeal, Thundershield lived at the home of his aunt, Margaret Cutt, in Wanblee, South
Dakota.

      On the evening of February 12, 2005, Thundershield visited his father and
stepmother’s house in Wanblee. Both his father and stepmother were there, along
with a number of other relatives. Loefer was also there, visiting from Sioux Falls.
Everybody drank a lot, and eventually Susan helped the very intoxicated Loefer to
bed.

      What happened next is disputed. At trial, Thundershield testified that he left
the home after a family argument, returned to his aunt’s house, watched television




      2
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
      3
       In the parties’ briefs and in the indictment, Loefer’s name is spelled “Loafer.”
It appears from the trial transcript, however, that the correct spelling is “Loefer.” Tr.
3-4.

                                          -2-
with his nephew, and then slept until he was awakened by the police the next day.
Thundershield’s nephew corroborated this version of events.

       According to Susan, after she put Loefer to bed, she returned to the living room.
Thundershield left the living room sometime later, and, when Thundershield did not
promptly return, Susan grew suspicious and went looking for him. Susan noticed that
the door to Loefer’s bedroom was ajar, opened it, and saw Thundershield raping
Loefer (who was unconscious). Susan threw Thundershield out of the house and, with
difficulty, revived Loefer. Loefer was taken by ambulance to Pine Ridge Hospital,
where she was found to have vaginal bruising. No seminal fluid was present, and
Thundershield’s DNA did not match any sample taken from Loefer.

       During the investigation and trial of the case, Thundershield changed his
version of events a number of times. Most significantly, Thundershield gave a taped
statement to FBI agent Charles Cresalia when Cresalia arrested him on July 1, 2005.
In that statement, Thundershield claimed that he went into Loefer’s bedroom because
he wanted to have sex with her, but that Susan interrupted him “[b]efore he could get
anything started.” Tr. 235-36; see also Thundershield Tr. 26-27, 49, 52, 62.4 At trial,
Thundershield testified that he had lied to Cresalia. Thundershield insisted that he
never wanted to have sex with Loefer and that he never went into her bedroom.
Thundershield Tr. 26-27, 28, 42, 49.

      Thundershield made a number of other conflicting statements. For example:

      •      Thundershield told Cresalia that he was drunk on the night of the alleged
             rape, but he testified at trial that he had not been drunk and that his
             earlier statement to Cresalia was a lie. Thundershield Tr. 35.



      4
       Thundershield’s trial testimony is separately bound and paginated.

                                          -3-
      •      On the day after the alleged rape, Thundershield told Bureau of Indian
             Affairs investigator Carl Martinez that, when he had arrived at his
             father’s house on the prior evening, only his brother was home, and he
             and his brother watched television for about an hour until his father,
             stepmother, and Loefer arrived.           (Shortly after their arrival,
             Thundershield told Martinez, Thundershield went to his aunt’s home.)
             Tr. 204-05. At trial, Thundershield testified that he had lied to Martinez.
             Thundershield admitted that a number of family members, including
             Loefer, had been at the house when he arrived. Thundershield Tr. 33-34,
             36.

      •      Thundershield testified at trial that Cresalia had called him in late June
             — before Cresalia arrested him — to arrange a meeting for July 1.
             Thundershield Tr. 40-41. Cresalia adamantly denied doing so. Tr. 229.

      The jury convicted Thundershield of sexual abuse. At sentencing, the
government requested an enhancement for obstruction of justice based on the lies that
Thundershield told to investigators and based on Thundershield’s alleged perjury
during trial. The district court found that Thundershield “committed perjury by
providing false information” and specified the pages of the trial transcript on which
evidence of Thundershield’s perjury appeared. Sentencing Tr. 7. On those pages,
Thundershield denies sexually assaulting Loefer, claims that his statements to Cresalia
were lies, and claims that Cresalia called him prior to his July 1 arrest.

     Based on its finding of perjury, the district court applied a two-level
enhancement to Thundershield’s offense level under U.S.S.G. § 3C1.1 (2005),5




      5
      Thundershield was sentenced under the 2005 edition of the United States
Sentencing Guidelines. Presentence Investigation Report § 12 (“PSR”).

                                          -4-
resulting in a sentencing range of 151 to 188 months.6 The district court then
sentenced Thundershield to 151 months in prison, with a 10-year term of supervised
release. Thundershield appeals that sentence.

                                     II. Analysis

       In United States v. Booker, 543 U.S. 220 (2005), the United States Supreme
Court rendered the Sentencing Guidelines advisory, but not irrelevant. The
Guidelines “remain[] the critical starting point for the imposition of a sentence under
§ 3553(a).” United States v. Mashek , 406 F.3d 1012, 1016 n.4 (8th Cir. 2005). In
imposing a sentence, district courts should first determine the proper sentencing range
under the Guidelines, then analyze whether any departure or variance from that range
is appropriate, and finally apply the factors set forth in 18 U.S.C. § 3553(a). See
United States v. Rivera, 439 F.3d 446, 448 (8th Cir. 2006). In reviewing a sentence,
we ask first whether the district court correctly applied the Guidelines, and then
whether the sentence was reasonable in light of the § 3553(a) factors. Booker, 543
U.S. at 261; United States v. Hadash, 408 F.3d 1080, 1082 (8th Cir. 2005); see also
United States v. Beal, 463 F.3d 834, 836 (8th Cir. 2006) (standard of review is
whether the sentence was reasonable and whether the district court abused its
discretion), pet. for cert. filed, No. 06-8498 (Dec. 21, 2006).

                      A. Obstruction-of-Justice Enhancement

     We review the district court’s construction and application of the Sentencing
Guidelines de novo. United States v. Nichols, 416 F.3d 811, 821 (8th Cir. 2005), cert.


      6
       On page 26 of his opening brief, Thundershield states that his sentencing
range, including the enhancement, was 121 to 151 months, and that eliminating the
enhancement would yield a range of 97 to 121 months. According to the PSR,
however, the original range, without the enhancement, was 121-151 months. PSR ¶¶
12-21, 39.

                                         -5-
denied, 126 S. Ct. 1633 (2006), and cert. denied, 126 S. Ct. 1807 (2006). But
“[w]hether [Thundershield] 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. Garcia-Gonon,
433 F.3d 587, 592 (8th Cir. 2006). The government bears the burden of proving the
facts necessary to support a finding of obstruction by a preponderance of the evidence.
United States v. Flores, 362 F.3d 1030, 1037 (8th Cir. 2004); United States v. O’Dell,
204 F.3d 829, 836 (8th Cir. 2000).7

      Section 3C1.1 of the Guidelines provides:

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the defendant’s
      offense of conviction and any relevant conduct; or (ii) a closely related
      offense, increase the offense level by 2 levels.

U.S.S.G. 3C1.1. A finding of perjury is sufficient to support an enhancement under
this Guideline. O’Dell, 204 F.3d at 836. But a district court cannot find that a
defendant committed perjury “simply because a defendant testifies on his own behalf
and the jury disbelieves him.” Flores, 362 F.3d at 1037 (8th Cir. 2004) (citation and
quotations omitted). Instead, the district court must find that the defendant gave “false
testimony concerning a material matter with the willful intent to provide false




      7
       At the time of Thundershield’s conviction, the statutory maximum term of
imprisonment for a violation of 18 U.S.C. § 2242 was 20 years. 18 U.S.C. § 2242
(2000). Because Thundershield’s prison sentence is below this statutory maximum,
he cannot, and does not, challenge the propriety of the district court’s application of
the preponderance-of-the-evidence standard in finding sentence-enhancing facts. See
Booker, 543 U.S. at 233; Garcia-Gonon, 433 F.3d at 593.

                                          -6-
testimony, rather than as a result of confusion, mistake, or faulty memory.” United
States v. Dunnigan, 507 U.S. 87, 94 (1993).

       Thundershield raises various objections to the manner in which the district court
enhanced his sentence under U.S.S.G. § 3C1.1. Before turning to those objections,
we note that there is little doubt that an enhancement under the Guideline was
available. The Guideline applies not only to conduct that occurs at trial, but also to
conduct that occurs during the investigation of a charge. By Thundershield’s own
admission, he told one set of lies to FBI agent Cresalia and another set of lies to BIA
agent Martinez. Those lies involved the heart of the case — Thundershield’s activities
on the evening of the alleged rape. The district court found that, at trial,
Thundershield told yet more lies. As to certain facts (such as whether Thundershield
went into Loefer’s bedroom), Thundershield argues that he lied to investigators but
told the truth at trial, while the government argues that Thundershield told the truth
to investigators but lied at trial. Everyone agrees, though, that Thundershield lied.

       Thundershield first argues that the district court failed to make the findings
necessary to support an obstruction-of-justice enhancement based on perjury. We
cannot agree. The district court specifically found that Thundershield had lied at trial
(“I find by a preponderance of the evidence that the defendant committed perjury”),
cited the pages of the transcript on which his perjury occurred (“particularly on pages
35, 36, 40, 46, 50, 61 to 62, and 64 and 65 of the transcript of the defendant’s trial
testimony”), found that the false testimony was material (“I also find the defendant’s
perjury concern[ed] material matters”), and found that Thundershield’s perjury was
willful (“I also find the defendant’s perjury . . . was willfully done”). Sentencing Tr.
7. The district court made all of the findings necessary to support an obstruction-of-
justice enhancement.

      Thundershield next argues that the district court’s findings were clearly
erroneous. We disagree. Thundershield either lied during the investigation, or during

                                          -7-
trial, or both. There is absolutely no doubt that he lied. The district court concluded
that Thundershield’s statements to Cresalia were closer to the truth than his statements
to the jury, and that conclusion is supported by the evidence. For example, the
description that Thundershield gave Cresalia of the events of the night of the alleged
rape, unlike the description that Thundershield gave at trial, closely matched the
descriptions of the other witnesses. Thundershield Tr. 46-47, 49-50; cf. Garcia-
Gonon, 433 F.3d at 592 n.3 (describing inconsistencies in the defendant’s testimony
that supported the district court’s finding of perjury). The district court also
concluded that Thundershield lied when he testified that he did not have sexual
contact with his stepsister and when he testified that Cresalia had arranged a meeting
with him prior to his arrest. Both of these findings are supported by the evidence
adduced at trial, and neither finding is clearly erroneous. See United States v. Lewis,
436 F.3d 939, 945 (8th Cir. 2006) (where there are two permissible views of the
evidence, a district court’s finding that the defendant gave perjurious testimony is not
clearly erroneous), pet. for cert. filed, No. 05-11582 (U.S. June 13, 2006).

       Thundershield next argues that his false testimony was not material.
Thundershield is incorrect. The district court supported its perjury finding by
specifically identifying testimony in which Thundershield denied committing the
offense and claimed that his inculpatory statements to Cresalia were lies. See
Thundershield Tr. 35, 50, 61, 62. “‘Material’ evidence, fact, statement, or information
. . . means evidence, fact, statement, or information that, if believed, would tend to
influence or affect the issue under determination.” U.S.S.G. § 3C1.1, comment. (n.6).
The testimony cited by the district court — testimony in which Thundershield
described the events of the night in question and denied raping his stepsister — was
about as material as testimony could be. See O’Dell, 204 F.3d at 837.

      Thundershield finally claims that the district court failed to apply an “objective
standard” under which no enhancement may be imposed if a reasonable factfinder
could have believed him. Thundershield relies primarily on United States v. Iversen,

                                          -8-
90 F.3d 1340 (8th Cir. 1996), and United States v. Cabbell, 35 F.3d 1255 (8th Cir.
1994). Both of those cases, however, were decided under an earlier version of
§ 3C1.1, which contained the following commentary: “‘In applying this provision in
respect to alleged false testimony or statements by the defendant, such testimony or
statements should be evaluated in a light most favorable to the defendant.’” Cabbell,
35 F.3d at 1261 (quoting then-current U.S.S.G. § 3C1.1, comment. (n.1)). Both
Cabbell and Iversen explicitly relied on the “most favorable” language in explaining
that an enhancement is improper if a reasonable trier of fact could have believed the
defendant’s testimony. Cabbell, 35 F.3d at 1261; Iversen, 90 F.3d at 1342; see also
United States v. Willis, 940 F.2d 1136, 1140 (8th Cir. 1991) (citing the “most
favorable” language). Other circuits similarly relied on the “most favorable”
language. See, e.g., United States v. Montague, 40 F.3d 1251, 1254 (D.C. Cir. 1994);
United States v. Onumonu, 999 F.2d 43, 45 (2d Cir. 1993).

       A 1997 amendment to § 3C1.1 removed this “most favorable” language and
substituted the following: “[T]he court should be cognizant that inaccurate testimony
or statements sometimes may result from confusion, mistake, or faulty memory and,
thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to
obstruct justice.” Compare U.S.S.G. § 3C1.1, comment. (n.1) (1995) with U.S.S.G.
§ 3C1.1, comment. (n.2) (2005); see also United States v. Simms, 285 F.3d 1098,
1101-02 (8th Cir. 2002) (describing change); United States v. Greer, 285 F.3d 158,
182-83 (2d Cir. 2002) (reversing and remanding because the district court erroneously
applied the outdated “most favorable” standard). Cases decided under the post-1997
version of § 3C1.1 apply a preponderance-of-the-evidence standard, under which a
district court’s choice between two permissible views of the evidence cannot be
considered clearly erroneous. See, e.g., Lewis, 436 F.3d at 945. We therefore reject
Thundershield’s argument that the district court applied an incorrect standard, and we
affirm the two-level enhancement for obstruction of justice.




                                          -9-
                          B. Reasonableness of Sentence

       Thundershield next contends that his terms of imprisonment and supervised
release are unreasonable under § 3553(a). Under § 3553(a), district courts must
consider a number of relevant factors in imposing a sentence, including, among
others:

      (1)    the nature and circumstances of the offense and the history and
             characteristics of the defendant;

      (2)    the need for the sentence imposed —

             (A) to reflect the seriousness of the offense, to promote
             respect for the law, and to provide just punishment for the
             offense;

             (B) to afford adequate deterrence to criminal conduct;

             (C) to protect the public from further crimes of the
             defendant; and

             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional
             treatment in the most effective manner[.]

18 U.S.C. § 3553(a) (2006). A sentence may be unreasonable if the district court fails
to consider a relevant factor that should have received significant weight; gives
significant weight to an improper or irrelevant factor; or considers the appropriate
factors but commits a clear error of judgment. See Beal, 463 F.3d at 836.

      Thundershield argues that this Court cannot conduct a meaningful
reasonableness review because the district court failed to make a proper record or to
consider the relevant § 3553(a) factors. A review of the sentencing transcript reveals
that Thundershield’s assertions are without merit. The district court first properly

                                        -10-
determined the applicable Guidelines range. Sentencing Tr. 7. The district court then
considered Thundershield’s motion for a downward departure and explained its
reasons for denying the motion. Sentencing Tr. 16-17. Finally, the district court
considered numerous facts relevant under § 3553(a), including Thundershield’s lack
of prior criminal history, his obstructive conduct, his lack of remorse, the fact that he
took advantage of his victim’s incapacitated state, and the fact that his victim trusted
and loved him as a brother. Sentencing Tr. 18. After considering these factors, the
district court imposed a sentence of incarceration at the bottom of the Guidelines
range and a supervised-release term of 10 years.8

       District courts are not required to conduct an explicit on-the-record discussion
of every § 3553(a) factor. Lewis, 436 F.3d at 946. Because Thundershield’s term of
imprisonment was within the Guidelines range, it is presumed reasonable. United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005), cert. denied, 126 S. Ct. 840
(2005). This presumption can be rebutted only under “highly unusual circumstances.”
United States v. Lazenby, 439 F.3d 928, 933 (8th Cir. 2006). Thundershield does not
identify any significant factor, much less any “highly unusual circumstance,” to which
the district court failed to give proper consideration. His most specific contention is
that his term of supervised release is unreasonably long because sex offenders are at


      8
        The probation office calculated the sentencing range for Thundershield’s term
of supervised release to be two years to life, citing U.S.S.G. § 5D1.2(b)(2) (2005).
PSR ¶ 42. But because Loefer was not a minor at the time of the offense, it appears
that § 5D1.2(b)(2) is not applicable in this case. See U.S.S.G. § 5D1.2, comment.
(n.1) (defining “sex offense” as “an offense, perpetrated against a minor . . .”).
Thundershield did not raise this issue on appeal, however, and it is therefore waived.
See XO Mo., Inc. v. City of Md. Heights, 362 F.3d 1023, 1025 (8th Cir. 2004). While
we have discretion to consider issues not raised in the briefs, see Hatley v. Lockhart,
990 F.2d 1070, 1073 (8th Cir. 1993), we decline to do so here, where the district court
properly treated the Guidelines as advisory, and where Thundershield’s 10-year term
of supervised release is well within the statutory limit of life. See 18 U.S.C.A.
§ 3583(k) (2005).

                                          -11-
no greater risk of recidivism than other offenders. But Thundershield’s complaint is
with Congress, not with the district court. Congress deliberately chose to impose
longer terms of supervised release on persons convicted of certain sex offenses,
including the offense of which Thundershield was convicted. See 18 U.S.C.A. §
3583(k) (2005). It is not for this Court to second-guess Congress’s policy choices.

       As noted, the district court explicitly weighed a number of mitigating and
aggravating circumstances that were relevant under § 3553(a) in determining
Thundershield’s sentence. We find that Thundershield’s sentence is reasonable in
light of those facts. Indeed, even if Thundershield’s within-Guidelines sentence were
not presumed to be reasonable under our precedents — that is, even if we were to
review Thundershield’s sentence de novo — we would still find that the district court
acted reasonably in imposing a sentence of 151 months in prison and 10 years of
supervised release.

      AFFIRMED.
                    __________________________________




                                        -12-
