                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4422


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

ALBERT LEE ANDREWS, III,

                Defendant − Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00117-NCT-1)


Argued:   September 15, 2015                Decided:   October 30, 2015


Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.


Affirmed by published opinion.       Judge Wilkinson          wrote   the
opinion, in which Judge Motz and Judge Keenan joined.


ARGUED: Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Robert Albert Jamison Lang, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.        ON
BRIEF: W. Michael Dowling, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Winston-Salem, North Carolina, for Appellee.
WILKINSON, Circuit Judge:

      Petitioner             Albert        Lee     Andrews        challenges         here      the

imposition of a U.S.S.G. § 3C1.1 enhancement for obstructing the

administration          of     justice.          The     district      court     applied       the

enhancement against the defendant for knowingly presenting false

testimony     at       his    trial.       Inasmuch       as    the    court’s       finding    of

obstruction was not clearly erroneous, we affirm the imposition

of the enhancement.

                                                  I.

      In    the    early       morning       hours       of    March    27,    2011,     Andrews

entered a Domino’s Pizza store in Kannapolis, North Carolina

armed with a handgun. He ordered an employee at gunpoint back

into the office where the manager was working and demanded that

the manager open the store safe. When he was told the safe was

empty, Andrews stole money from the cash register and from two

employees,        as     well     as       the     manager’s          wallet.     During       the

encounter,        he    pointed        his       gun     at    Domino’s        personnel       and

threatened to shoot on two occasions.

      The    manager           immediately             reported       the     robbery.      While

searching     for       Andrews,       a    police       officer       found    an    abandoned

automobile that had run off the road and hit two other vehicles.

He recovered two wallets from the car, one belonging to Andrews

and   the    other       to     the    Domino’s           manager.      The     vehicle      also

contained a cell phone with photos of Andrews’ family, a traffic

                                                  2
citation issued to Andrews, and a bill of sale showing that

Andrews owned the vehicle. The cell phone record listed calls

made and received in Kannapolis at the time of the robbery.

Finally,      the   officer         found    a       baseball   cap   that     fitted   the

description of that worn by the robber and was shown through DNA

analysis to belong to Andrews.

     Andrews        was   charged      with          interference     with   commerce   by

robbery under 18 U.S.C. § 1951 and carry and use of a firearm

during and in relation to a crime of violence under 18 U.S.C.

§ 924(c)(1)(A)(ii). The defendant pled not guilty and invoked

his right to a jury trial. He filed several pro se motions, one

of which accused prosecutors of intimidating potential witnesses

and blocking their testimony. Prior to trial, he submitted a

notice   of    alibi      and   a    brief       describing     the    alibi   testimony.

During his opening statement, Andrews’ attorney identified two

alibi witnesses: Jerrika Hunter, Andrews’ girlfriend, and her

mother, Monica Moffet. His counsel went on to preview the alibi

testimony that each witness intended to give. At trial, Hunter

and Moffet testified that Andrews was at their home on the night

of the robbery. Another witness, Brandi Lark, the mother of one

of Andrews’ children, testified that he had visited her home

during the night in question and told her that he had robbed a

Domino’s pizza store. Andrews chose not to testify. The jury

found him guilty on all counts.

                                                 3
     Upon reviewing Andrews’ sentence, this court ruled that he

no longer qualified for sentencing as a career offender, vacated

his sentence, and remanded for resentencing. United States v.

Andrews, 547 Fed.Appx 248 (4th Cir. 2013). Upon remand, the U.S.

Probation Office issued a Memorandum that calculated Andrews’

total offense level as 22. The government then requested a two-

level enhancement for obstruction of justice under U.S.S.G.

§   3C1.1.      A     revised     Memorandum      added     the     enhancement     as

requested, increasing the total offense level to 24. Andrews

objected to the two-level enhancement for obstruction.

     The district court found sufficient evidence to support the

obstruction enhancement. The court stressed that Andrews knew

that his attorney was going to present Hunter and Moffet as

alibi    witnesses.       Given    his   regular      communications       with     his

attorney,    Andrews      must    have   been     aware    of     the   substance    of

Moffet    and       Hunter’s    testimony       before    trial.    Andrews’      prior

knowledge of the false testimony and subsequent silence during

trial, the court stated, amounted to obstruction of justice:

        [W]hen a defendant sees somebody take the stand called
        by the defendant’s lawyer and realizes that person is
        not telling the truth, that is absolutely telling
        something that is untrue, whether that defendant in
        sitting silently and ‘allowing that to proceed,’ takes
        a part in trying to deceive the Court. . . . [I]n this
        case, that’s not all of it, because those witnesses
        testified one after the other. Mr. Andrews watched and
        heard the testimony of one provide false alibi
        evidence and sat there while the second was being
        called, which even if he had not been aware of the

                                            4
       alibi information a week before, or the trial brief,
       which it stretches the imagination to think that he
       was not aware of it, he understood somebody was being
       called knowingly for the purpose of giving false
       information, all of which was being offered for the
       purpose of deceiving the jury into believing there was
       a reasonable doubt as to his whereabouts on the night
       of the armed robbery.

J.A.    39.    The    court    resentenced           Andrews     to     115    months

imprisonment on one count, 84 months consecutive on the other,

and five years of supervised release. This appeal followed.

                                        II.

                                        A.

       The    sole   issue    before     us     is    the      propriety      of   the

enhancement for obstruction of justice. U.S.S.G. § 3C1.1 sets

forth in rather broad language the enhancement’s scope:

       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 the instant offense of conviction, and
       (2) the obstructive conduct related to (A) the
       defendant's offense of conviction and any relevant
       conduct; or (B) a closely related offense, increase the
       offense level by 2 levels.

The commentary to § 3C1.1 lists many examples of covered conduct

of which subornation of perjury is one. U.S.S.G. § 3C1.1, cmt.

n.4. The commentary then notes further that the above list is

“non-exhaustive.”      Id.     Finally,       application       note     9    of   the

commentary     enumerates     several    ways    in    which     a    defendant    can

participate in the obstruction of justice: “[T]he defendant is

accountable for the defendant's own conduct and for conduct that

                                         5
the defendant aided or abetted, counseled, commanded, induced,

procured, or willfully caused.” U.S.S.G. § 3C1.1, cmt. n. 9. The

government bears the burden of proving the facts supporting the

enhancement by a preponderance of the evidence. United States v.

O’Brien, 560 U.S. 218, 224 (2010).

       In United States v. Dunnigan, the Supreme Court instructed

district courts to establish “all of the factual predicates” of

perjury when finding obstruction of justice on that basis. 507

U.S.   87,    95    (1993).     Following        that   language,         this    court    has

reversed      sentencing        enhancements          under       §     3C1.1     where    the

district     court     failed    to   find       a   required         factual    element    of

perjury and provided no other basis for the enhancement. E.g.,

United States v. Perez, 661 F.3d 189, 193-94 (4th Cir. 2011)

(faulting the district court for failing to find willfulness);

United States v. Smith, 62 F.3d 641, 646-47 (4th Cir. 1995)

(finding     the     court    below   erroneously           applied      the     enhancement

without      any    specific     factual         findings).           While     the   broader

Guidelines         language     and   commentary            certainly          suggest     that

obstruction of a trial may take other forms than subornation of

perjury, that language in no way lessens the district court’s

obligation under our case law to find facts on the critical

component of § 3C1.1, namely a willful obstruction or impediment

of the administration of justice. Therefore, the enhancement is

warranted      if     the     court   below          made     a       proper     finding    of

                                             6
obstruction even if it did not specifically find subornation of

perjury.

      Many of the purposes animating separate prosecutions for

perjury     also    underlie     sentencing        enhancements           for    perjurious

obstruction.       See     Dunnigan,      507    U.S.    at    97-98.       In   fact,       the

obstruction        enhancement       of     §    3C1.1        may    be     seen    as        an

intermediate option between condoning patently false testimony

altogether      and   undertaking         separate      prosecutions         for   perjury,

which    both      drain    prosecutorial        resources          and   raise     special

difficulties of proof. The Supreme Court has underscored this

relationship between the obstruction enhancement and prosecution

for perjury:

        A sentence enhancement based on perjury does deter false
        testimony in much the same way as a separate prosecution
        for perjury. But the enhancement is more than a mere
        surrogate for a perjury prosecution. It furthers
        legitimate sentencing goals relating to the principal
        crime,   including   the   goals   of   retribution   and
        incapacitation.   It  is   rational   for  a   sentencing
        authority to conclude that a defendant who commits a
        crime and then perjures herself in an unlawful attempt
        to avoid responsibility is more threatening to society
        and less deserving of leniency than a defendant who does
        not so defy the trial process.

Dunnigan, 507 U.S. at 97 (citations omitted).

      For    the      obstruction      enhancement            to    function       in    this

intermediate role and serve the purposes outlined by the Court,

the   district      courts    must     be   afforded      adequate          discretion       in

their    fact-finding        capacity.       See     Dunnigan,        507    U.S.       at   95


                                             7
(treating the basis for obstruction of justice as an issue of

fact    left    to    the    sentencing            judge).        District       courts     hold    an

especial       advantage          in        fact     finding           where     the     sentencing

enhancement is based upon testimony or trial proceedings that

they have personally observed. See Gall v. United States, 552

U.S. 38, 51-52 (2007); United States v. Bumpers, 705 F.3d 168,

173-74 (4th Cir. 2013). Of course, the advantages that district

courts     enjoy      in     their          fact-finding             capacities        impose      the

concomitant obligation to actually find the facts necessary for

meaningful       appellate             review.          Where          the     enhancement         for

obstruction      of    justice          is    based      on      a     defendant’s       perjurious

testimony, trial court findings should encompass “the factual

predicates” for perjury, namely that the defendant “(1) gave

false    testimony;         (2)    concerning           a   material           matter;     (3)   with

willful    intent      to     deceive.”            Perez,     661      F.3d     at   192   (quoting

United States v. Jones, 308 F.3d 425, 428 n. 2 (4th Cir. 2002)).

       Issues    of     law       do    often        arise        in    sentencing,        and     the

standard of review for such issues is obviously de novo. But to

routinely transform the fact finding and sentencing discretion

at the heart of a sentencing enhancement into broad matters of

law risks adopting an aerial perspective in circumstances where

the    ground    level      view        may    prove        the      more      valuable.    As     the

Supreme     Court      noted           in     Miller        v.       Fenton,      “the     fact/law

distinction at times has turned on a determination that, as a

                                                    8
matter     of    the    sound       administration        of    justice,      one    judicial

actor is better positioned than another to decide the issue in

question,”       and    close       calls    should     be     resolved       “in    favor     of

extending deference to the trial court[s]” where they hold the

institutional advantage. 474 U.S. 104, 113-15 (1985).

                                               B.

         In this case, the district court did not make an explicit

finding      that       Andrews         procured    his      alibi      witnesses’          false

testimony, a finding that would have been necessary to support

each element of perjury. What it did do, however, was rest the

enhancement upon the very essence of § 3C1.1 -- the willful

obstruction of justice. As we noted, the enhancement can rest on

this broader ground.

         Under   the    facts       and    circumstances        here,    we    can    find     no

clear      error       in     the       district    court’s       imposition           of     the

enhancement.           As     recounted       above,      the     court        below        found

overwhelming evidence that placed Andrews at the scene of the

crime in Kannapolis. Of course, courts should not assume that

any defendant who attempts to rebut substantial adverse evidence

is   a    candidate         for   the     obstruction     enhancement.         But    in     this

case, the extensive evidence against Andrews served to fortify

the district court’s firm conviction that the alibi testimony

from Andrews’ girlfriend and her mother placing him in Charlotte



                                               9
-- the lynchpin of Andrews’ defense -- could only have been

patently false. J.A. 38-41.

       Nor can there be any doubt that Andrews was aware well in

advance that his alibi witnesses were planning to present false

testimony.    That   testimony      was   repeatedly       highlighted       in   the

notice of alibi, in the trial brief, and in counsel’s opening

statement. Even if his attorney had somehow kept him in the

dark, which is hard to imagine, Andrews also filed a pro se

motion accusing the prosecution of intimidating his witnesses,

including one alibi witness, and blocking them from testifying.

He   presumably    knew     the   substance   of    the    testimony    that      his

motion sought to protect. Finally, as the district court noted,

the alibi witnesses “testified one after the other.” J.A. 39. In

the highly unlikely event that the first alibi witness surprised

Andrews,     the   second     certainly     did    not.    All   of    the    above

convinced the district court that the defendant was intimately

connected with an effort to present the jury with a whopping lie

as to his whereabouts on the night of the robbery, or as the

trial court described it, an elaborate deception for which there

was no innocent explanation.

       It is true, of course, that Andrews did not take the stand

and personally perjure himself. But the district court’s finding

that     Andrews     knowingly       presented       and     likely      actively

orchestrated the presentation of false testimony was not only

                                       10
supported by abundant evidence, but also fell squarely within

the     conduct       for      which     the        defendant        is     expressly        held

responsible,          namely     “conduct          that    the       defendant       aided    or

abetted, counseled, commanded, induced, procured, or willfully

caused.”    U.S.S.G.        §    3C1.1,        cmt.       n.    9.     Imposition      of     the

obstruction       enhancement          was    therefore         well      within    the     trial

court’s discretion.

                                             III.

                                              A.

      In addition to contesting the application of § 3C1.1 on its

face,     the     defendant       suggests          that       the     imposition      of    the

enhancement       penalized      him     for       exercising        his    Fifth    Amendment

right to remain silent, which is explicitly forbidden by the

Guidelines. U.S.S.G. § 3C1.1, cmt. n. 2. Andrews suffered no

such penalty. The fact that the dynamics of trial may present a

defendant with difficult tactical choices has not been held to

infringe that defendant’s right to remain silent. See Dunnigan,

507 U.S. at 96; United States v. Butler, 211 F.3d 826, 832-33

(4th Cir. 2000). For instance, the prosecution does not violate

the Fifth Amendment whenever damaging evidence exerts pressure

on a defendant to take the stand and offer a rebuttal. E.g.,

United States v. Zembke, 457 F.2d 110, 115 (7th Cir. 1972). If

adverse    trial       testimony       from        prosecution       witnesses       does    not

infringe        the    right      to     remain        silent,         then    the     knowing

                                               11
presentation        of    false     testimony         from    defense        witnesses         can

hardly be held to do so.                   That does not mean a defendant has

waived his right to remain silent. What it does mean, however,

is that a defendant who has countenanced the perjured testimony

of   his     own   witnesses       faces      separate      punishment       for    doing       so

without infringement of his Fifth Amendment rights.

       In addition to the right to remain silent, the obstruction

enhancement leaves intact the defendant’s right to present a

vigorous      defense.      The    right      to    offer     testimony       and    to    call

witnesses on one’s own behalf is fundamental to our system of

criminal      justice.      See     Nix      v.    Whiteside,        475   U.S.     157,       164

(1986); Washington v. Texas, 388 U.S. 14, 18-19 (1967). But that

right has never been thought to include the right to present

false testimony. Dunnigan, 507 U.S. at 96 (citations omitted).

As     the    Supreme      Court       put    it,        “Whatever     the    scope       of     a

constitutional right to testify, it is elementary that such a

right does not extend to testifying falsely.” Nix, 475 U.S. at

173.

       Nor has there been any violation of defendant’s right to

counsel.      Andrews      was    represented        by     counsel    throughout         these

proceedings,       and     Andrews      does       not    contend     that    the   district

court sought to probe the content of counsel’s communications

with    his    client.      There       was       further    no     impediment      to     such

communication.           That    the    district          court   drew       inferences         or

                                               12
proceeded circumstantially to conclude that Andrews well knew

his witnesses were attempting to deceive the court and jury is

not tantamount to a Sixth Amendment violation. It cannot be the

case that the imposition of a § 3C1.1 obstruction enhancement

for what happened here transgressed defendant’s constitutional

rights. Finding such a violation in these circumstances would go

some distance to nullifying the enhancement altogether.

                                         B.

     All   this   is   not   to   deny    a   certain   tension   between   the

exercise of the aforementioned rights and the imposition of the

obstruction enhancement. The Guidelines themselves anticipated

this tension, and the cautionary language following § 3C1.1 is

worth quoting in full:

      2. Limitations on Applicability of Adjustment.--This
      provision is not intended to punish a defendant for the
      exercise of a constitutional right. A defendant's denial
      of guilt (other than a denial of guilt under oath that
      constitutes perjury), refusal to admit guilt or provide
      information to a probation officer, or refusal to enter a
      plea of guilty is not a basis for application of this
      provision. In applying this provision in respect to
      alleged false testimony or statements by the defendant,
      the 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.

U.S.S.G. § 3C1.1, cmt. n. 2. The commentary thus makes clear

that the defendant must feel free to present a vigorous case

without    fear   of   triggering   the       obstruction   enhancement.    See


                                         13
generally        Dunnigan,   507   U.S.   at    96    (acknowledging       §   3C1.1’s

potential for chilling defendants’ rights); Alexandra Natapoff,

Speechless: The Silencing of Criminal Defendants, 80 N.Y.U. L.

REV. 1449, 1460 (2005) (noting the danger of using obstruction

enhancements to deter defendants from testifying). Recollection

is by nature an imprecise and uncertain exercise, and faulty

recall      is    far   different       from    deliberate        deception.     Here,

however, the district court properly applied the enhancement to

safeguard the integrity of the proceedings before it. It acted

to   ensure      that   trial   retained       its   most    basic   and   essential

purpose, that of reaching a true and accurate judgment at once

fair   to     the   interests      of   society      and    the   rights   of    those

accused. For the foregoing reasons, its judgment is affirmed.



                                                                               AFFIRMED




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