          Case: 15-11325   Date Filed: 01/15/2016   Page: 1 of 4


                                                    [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11325
                       Non-Argument Calendar
                     ________________________

               D.C. Docket No. 2:14-cr-00019-JES-CM-1



UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee,

versus

EDUARDO VICENTI VERA,

                                            Defendant - Appellant.



                     ________________________

              Appeal from the United States District Court
                  for the Middle District of Florida
                    ________________________

                           (January 15, 2016)
              Case: 15-11325     Date Filed: 01/15/2016    Page: 2 of 4


Before WILSON, ROSENBAUM, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Eduardo Vera appeals his 130-month sentence for conspiracy to possess

with intent to distribute marijuana and for manufacturing and possessing with

intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii),

and 846. Vera’s convictions stem from Vera’s involvement in a marijuana-

growing operation. On appeal, Vera challenges the district court’s application of a

two-level obstruction-of-justice enhancement, pursuant to U.S.S.G. § 3C1.1. No

reversible error has been shown; we affirm.

      In determining whether the district court applied correctly an obstruction-of-

justice enhancement, we review for clear error the district court’s factual findings

and review de novo the court’s application of the guidelines to those facts. United

States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006). “Under the clearly

erroneous standard, we must affirm the district court unless review of the entire

record leaves us with the definite and firm conviction that a mistake has been

committed.” United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir. 2003)

(quotation omitted).




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      In pertinent part, section 3C1.1 provides for a two-level increase to the

defendant’s base offense level if “(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 his offense of

conviction, and “(2) the obstructive conduct related to . . . the defendant’s offense

of conviction and any relevant conduct.” U.S.S.G. § 3C1.1. The Application

Notes to section 3C1.1 list examples of conduct warranting the enhancement,

including “committing, suborning, or attempting to suborn perjury.” Id. § 3C1.1,

comment. (n.4(B)).

      A defendant’s testimony constitutes perjury when the testimony: (1) is made

under oath; (2) is false; (3) is material; and (4) is “given with the willful intent to

provide false testimony and not a result of mistake, confusion, or faulty memory.”

United States v. Singh, 291 F.3d 756, 763 n.4 (11th Cir. 2002). For purposes of

section 3C1.1, “material . . . 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 record supports the district court’s factual determination that Vera

committed perjury. At trial, while under oath, Vera denied “absolutely” that he

was involved in marijuana cultivation, after being released from jail in November

2011. Two separate witnesses testified, however, about Vera’s involvement in a


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marijuana-growing operation in 2012. The testimony of these two witnesses

contradicted flatly and was irreconcilable with Vera’s testimony. Viewing the

record as a whole, we are not left “with the definite and firm conviction” that the

district court committed a mistake in determining that Vera testified falsely. See

McPhee, 336 F.3d at 1275. The district court’s determination is further supported

by the jury’s guilty verdict, which demonstrates necessarily that the jury credited

the testimony of the two witnesses over that of Vera. The district court committed

no clear error in determining that Vera perjured himself and, thus, applied properly

a two-level enhancement under section 3C1.1.

       We reject Vera’s contention that his trial testimony constituted only a

“general denial of guilt” and, thus, was not subject to the obstruction-of-justice

enhancement. The guidelines provide expressly that “[a] defendant’s denial of

guilt (other than a denial of guilt under oath that constitutes perjury), . . . is not a

basis for application of” an obstruction-of-justice enhancement. U.S.S.G. § 3C1.1,

comment. (n.2) (emphasis added). Because Vera’s denial of guilt was both made

under oath and constituted perjury, Vera’s argument that his testimony should be

exempted from section 3C.1.1 is without merit.

       AFFIRMED.




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