                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2038
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                  Wayne J. Jones, II

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Waterloo
                                 ____________

                             Submitted: April 15, 2019
                               Filed: June 14, 2019
                                  [Unpublished]
                                  ____________

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

        Wayne Jones pled guilty to being a felon and unlawful drug user in possession
of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and
924(a)(2). The district court1 sentenced him to 43 months imprisonment, to be
followed by three years of supervised release. Jones appeals his sentence on four
separate grounds. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

       First, Jones challenges the district court’s application of a two-level
enhancement to his base offense level for possession of at least three firearms
pursuant to United States Sentencing Commission, Guidelines Manual,
§ 2K2.1(b)(1)(A). “This court reviews the district court’s construction and
application of the Sentencing Guidelines de novo, and . . . review[s] its factual
findings regarding enhancements for clear error.” United States v. Augustine, 663
F.3d 367, 374 (8th Cir. 2011) (internal quotation marks omitted). “A finding is
clearly erroneous when the reviewing court, on the basis of all the evidence, is left
with the definite and firm conviction that a mistake has been made.” United States
v. Wells, 127 F.3d 739, 745 (8th Cir. 1997); see also Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (“Th[e clear-error] standard plainly does not entitle
a reviewing court to reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.”).

        Jones argues that the district court erred because there was insufficient
evidence that he possessed at least three firearms. However, he concedes that he
possessed two firearms, see Appellant’s Br. 14, and admits that he intended to use a
third firearm at a shooting range, but did not do so. Id. at 15. Under § 2K2.1(b)(1),
a court may count any firearm that was “unlawfully sought to be obtained”
or “unlawfully possessed[.]” USSG § 2K2.1, comment. (n.5). The district court
found Jones did not use this third firearm only because he brought the wrong
ammunition, concluding that sufficient evidence demonstrated Jones’s possession of
this firearm. Sent. Hr’g Tr. 66, Dist. Ct. Dkt. 60. Overall, the court found Jones


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

                                         -2-
possessed three guns photographed on a couch at his residence; found Jones
possessed long guns used at a shooting range; and found that Jones attempted to
purchase a long gun using his son as a straw purchaser. Sent. Hr’g Tr. 66. Further,
witnesses told the FBI that they had gone target shooting with Jones during the prior
year and that they all had fired three handguns. We find no clear error in the district
court’s factual findings, and conclude that the district court properly applied the two-
level enhancement under § 2K2.1(b)(1)(A).

       Second, Jones argues that the district court erred in not granting him a
downward variance based on his community and civic activities. “We review the
district court’s refusal to grant a downward variance for abuse of discretion.” United
States v. Jackson, 852 F.3d 764, 777 (8th Cir. 2017). “A district court abuses its
discretion when it fails to consider a relevant 18 U.S.C. § 3553(a) sentencing factor,
when it gives significant weight to an irrelevant or improper factor, or when it
considers only appropriate factors but nevertheless commits a clear error of
judgment.” United States v. Stokes, 652 F. App’x 481, 482 (8th Cir. 2016) (per
curiam).

        We have upheld a district court’s “choice to assign relatively greater weight to
the nature and circumstances of the offense than to the [defendant’s] mitigating
personal characteristics” because such a choice “is well within the wide latitude
[given] to individual district court judges in weighing relevant factors.”
Id. at 483 (second alteration in original) (internal quotation marks omitted). Here, the
district court found that, although “[t]here are certainly cases and instances where
involvement in civic and religious activities could be a factor for a variance or a
departure,” this was not such a case because “[t]he aggravating factors far outweigh
any mitigating factors.” Sent. Hr’g Tr. 79. The district court did not abuse its
discretion in refusing to grant the requested downward variance.




                                          -3-
       Third, Jones argues that the district court erred in granting the government’s
motion for an upward departure pursuant to USSG § 4A1.3(a)(1). “We review an
upward departure under § 4A1.3 for abuse of discretion.” United States v. Taylor,
864 F.3d 851, 852 (8th Cir. 2017) (per curiam). However, although the government
moved for an upward departure or variance, see Sent. Hr’g Tr. 79, contrary to Jones’
argument, the district court did not depart upward; it “var[ied] upward.” Sent.
Hr’g Tr. 79-84. Jones acknowledges this in his brief. See Appellant’s Br. 11 (“The
Court varied upward to 43 months.”). Section 4A1.3(a) applies only to upward
departures and the cases Jones cites involved upward departures. Accordingly, we
will not consider Jones’s argument, as it is premised on something the district court
did not do. To the extent Jones argues that the district court abused its discretion in
varying upward, see United States v. Brown, 743 F. App’x 708, 709, 711 (8th Cir.
2018) (per curiam), the district court did not abuse its discretion. Upon review of the
record, we have not identified any relevant § 3553(a) sentencing factors that the
district court failed to consider, nor any improper or irrelevant factors that it should
not have considered, nor any clear error of judgment on the part of the district court.

       Finally, Jones argues that the district court erred in imposing a two-level
enhancement to his base offense level for obstruction of justice pursuant to USSG
§ 3C1.1. “We review the district court’s factual findings underlying an adjustment
for obstruction of justice for clear error, giving great deference to the . . . court’s
determination.” United States v. McDonald, 826 F.3d 1066, 1071 (8th Cir.
2016) (per curiam) (citation omitted); see also Anderson, 470 U.S. at 573; Wells, 127
F.3d at 745. The obstruction-of-justice enhancement “applies when the district court
finds by a preponderance of the evidence that a defendant committed perjury by
willfully testifying falsely on a material matter.” United States v. Nshanian, 821 F.3d
1013, 1018 (8th Cir. 2016). “[T]he district court must make an independent finding
that the defendant obstructed justice.” Id. (citing United States v. Dunnigan, 507 U.S.
87, 95 (1993)). “It is preferable for the district court to address each element of
perjury in a separate and clear finding, but it is sufficient if the court makes a finding

                                           -4-
that ‘encompasses all of the factual predicates for a finding of perjury.’” Id. (quoting
Dunnigan, 507 U.S. at 95).

       Notwithstanding Jones’s argument that the district court’s findings do not
adequately support an obstruction-of-justice enhancement, see Appellant’s Br. 24-25,
the district court found, by a preponderance of the evidence, that Jones “gave false
material testimony” on “a number of matters[,]” including “the number of firearms
that he possessed” and “his denial of an attempt to purchase the long gun using his
son as a straw purchaser.” Sent. Hr’g Tr. 67. The court found that Jones’s “false
testimony was not a result of mistake or confusion” and that “[h]e gave false
testimony in the hopes of reducing his exposure under the advisory guidelines.” Sent.
Hr’g Tr. 67. Although the district court did not expressly state that Jones’s false
testimony was willful, we have upheld an obstruction-of-justice enhancement in the
absence of such an express finding when a defendant’s false testimony “was not the
product of confusion, mistake or faulty memory.” McDonald, 826 F.3d at 1071-72
(“The district court pointed to a specific portion of [the defendant]’s testimony that
concerned a material matter—that is, that he denied possession of the firearms despite
overwhelming evidence to the contrary.”). We find no clear error in the district
court’s factual findings, and conclude that the district court properly applied the two-
level enhancement under § 3C1.1.

      The judgment is affirmed.
                     ______________________________




                                          -5-
