                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                   FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              March 6, 2008
                              No. 07-11173
                                                           THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 06-20646-CR-FAM

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

MARTIN A. TINOCO MANZANARES,

                                                         Defendant-Appellant.

                        ________________________

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

                              (March 6, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Martin Tinoco-Manzanares, convicted of knowingly using a fraudulent visa,
in violation of 18 U.S.C. § 1546(a), appeals his sentence of 24 months’

imprisonment.

      On appeal, Manzanares-Tinoco argues that (1) his sentence - which was

double the high end of the guidelines range - was unreasonable; (2) the court

improperly applied an enhancement for obstruction of justice based on his

testimony at trial; and (3) the court improperly made factual findings that were not

proven to a jury beyond a reasonable doubt.

             1. Reasonableness

      We review the final sentence imposed by the district court for

reasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.

2005). Appellate courts should apply an abuse of discretion standard when

conducting reasonableness review whether the sentence is inside, outside, or

significantly outside the Guidelines range. Gall v. United States, 128 S.Ct. 586,

591 (2007). A sentence may be reviewed for procedural or substantive

unreasonableness, and a sentence may be substantively unreasonable regardless of

the procedure used. United States v. Hunt, 459 F.3d 1180, 1182 n. 3 (11th Cir.

2006). “Our review for reasonableness is deferential.” United States v. Thomas,

446 F.3d 1348, 1351 (11th Cir. 2006) (internal quotation omitted). After United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district

                                         2
court, in determining a reasonable sentence, must consider the correctly calculated

advisory guidelines range and the factors set forth in 18 U.S.C. § 3553(a).1 United

States v. Valnor, 451 F.3d 744, 749 (11th Cir. 2006).

       Initially, we must ensure that the district court committed no significant

procedural error, such as “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence-including an explanation for any

deviation from the Guidelines range.” Gall, 128 S.Ct. at 597. If the sentencing

court’s decision was procedurally sound, we then “consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.”

Id.

       District court judges must give serious consideration to the extent of a

departure and must explain their conclusions with sufficient justifications as to



       1
           The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence (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 training or medical
care; (3) the kinds of sentences available; (4) the Sentencing Guidelines range; (5) pertinent
policy statements of the Sentencing Commission; (6) the need to avoid unwarranted sentencing
disparities; and (7) and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-
(7).

                                                3
why an unusually harsh or lenient sentence is appropriate. Id. at 594, 597. In

reviewing the reasonableness of a sentence outside the Guidelines range, we may

take the degree of variance into account and consider the extent of the deviation

from the Guidelines. Id. at 594-95. However, we are prohibited from requiring

“extraordinary” circumstances to justify a sentence outside the Guidelines range.

Id. at 595. The fact that we might reasonably conclude that a different sentence is

appropriate is insufficient to justify reversal. Id. at 597.

      Here, the district court did not commit any procedural or substantive error

as it calculated the Guidelines correctly, treated the Guidelines as advisory,

considered relevant § 3553(a) factors, and explained why it imposed a sentence

above the range.

             2. Obstruction Enhancement

      When a district court imposes an enhancement for obstruction of justice, we

review the district court’s factual findings for clear error and its application of the

Sentencing Guidelines to those facts de novo. United States v. Massey, 443 F.3d

814, 818 (11th Cir. 2006).

      Section 3C1.1 of the guidelines provides for a two-level enhancement 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 offence of

                                            4
      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.

U.S.S.G. § 3C1.1. Among the several examples of conduct making a § 3C1.1

enhancement appropriate is committing perjury. Id., comment. (n.4(b)). In

addition, the enhancement is not intended to apply to a defendant’s denial of guilt,

unless it is a denial of guilt under oath that constitutes perjury. Id., comment.

(n.2). Importantly, the right to testify does not include a right to commit perjury.

United States v. Dunnigan, 507 U.S. 87, 96, 113 S.Ct. 1111, 1117, 122 L.Ed.2d

445 (1993).

      The Supreme Court has held that “if a defendant objects to a sentence

enhancement resulting from her trial testimony, a district court must review the

evidence and make independent findings necessary to establish a willful

impediment to or obstruction of justice.” Dunnigan, 507 U.S. at 95. To make a

finding of perjury, the district court must conclude that (1) the testimony was

given under oath; (2) the testimony was false; (3) the testimony was material; and

(4) the testimony was given with willful intent to provide false testimony and not

as a result of mistake, confusion, or faulty memory. United States v. Singh, 291

F.3d 756, 763 n.4 (11th Cir. 2002). Although “it is preferable for a district court

to address each element of the alleged perjury in a separate and clear finding,” a

                                          5
district court’s decision is sufficient 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.” Dunnigan, 507 U.S. at 95, 113 S.Ct. at 1117.

      Here, Tinoco-Manzanares’s constitutional right to testify was not impinged

by the imposition of the obstruction of justice enhancement because the right to

testify does not include a right to commit perjury, and the district court made a

finding that encompassed all of the factual predicates for perjury.

             3. Factual Findings

      We review a constitutional challenge to a sentence de novo. United States

v. Chau, 426 F.3d 1318, 1321 (11th Cir. 2005).

      Tinoco-Manzanares’s argument is without merit. We have repeatedly held

that, after Booker, “the use of extra-verdict enhancements in an advisory

guidelines system is not unconstitutional.” Chau, 426 F.3d at 1323. The court

may, by a preponderance of the evidence, use judge-found facts in formulating a

sentence, as long as it properly applies advisory guidelines. See id. at 1324.

      AFFIRMED.




                                           6
