*1 1Q13 that, of the after substitution which as defendant § employee’simmunity extends to
the federal against the may not asserted
claims that 2680. In other by reason of
government § words, is an the FTCA exclusive because Martinez, Minn., Minneapolis, Arthur for by federal em- remedy for torts committed appellant. scope of their ployees acting within recovery if is not employment, available Dunne, (Je- Minneapolis, Andrew Minn. States under it against the United § Arnold, brief), appellee. rome G. for at all. is not available FAGG, Judge, Before Circuit reasons, foregoing judgment For the BOWMAN, Circuit Senior district court is affirmed. Judge. Circuit
BOWMAN, Judge. Circuit Eugene Onojaife Ogbeifun appeals from resulting his convictions and his sentence making on two counts of false statements America, Appellee, STATES UNITED application pass- on an for a United States port, 18 U.S.C. and two counts of OGBEIFUN, Onojaife Eugene a/k/a making citizenship claim of a false Clemon, Charles Patrick Charles a/k/a employment application, 18 911. Clemons, Appellant. Patrick argues that the District erred in (1) rejecting challenge govern- his to the peremptory ment’s use of one of its strikes United States Court (2) venireperson; and a black hancing by points offense level two Sen- Submitted Oct. Commission, Manual, tencing Guidelines (Nov.1990). Having considered the briefs and the are satisfied the Dis- appeal, record on government trict Court’s striking grounds had nonracial question is not clear- venireperson black ly erroneous. persuaded that the two-
Similarly, we are jus- point enhancement for obstruction ex- tice was based on District Court’s Ogbeifun per- committed plicit finding that and that that clearly Specifical- finding is not erroneous. Court, Ogbeifun’s sen- ly, the District “I tencing, commented that sat seldom, Judge, and I this trial as the ever, perjury coming from if heard more from a defendant than I the witness stand defendant. And conse- heard from this clearly perjured quently, believe that (Tr. 4.) p. Thus the two-level himself.” was *2 1014 exercising their penalizes defendants Ogbeifun’s failure to merely on
not based their behalf. innocence, right testify to on own in of his but jury the convince experienced trial on the based stead was Appeals for The United States the finding, express based judge’s recently compel- made a the Fourth Circuit observations, Ogbei- that personal judge’s against assessing an ob- ling argument light this jury. In of had lied to the fun circum- enhancement struction the finding perjury, we believe clear-cut of Ogbeifun’s. United stances similar to concurring opin in the expressed concerns (4th Dunnigan, 944 F.2d v. States in this compelling force ion are without case, the court stated: In that reason, this we believe For the same case. testimony by an that It disturbs us consideration. merit en banc case does not defense, to so basic in his own accused v. Dunni To the extent justice to “obstruct” justice, is deemed Cir.1991), would F.2d 178 gan, 944 jury. convinces the the accused unless for ob the two-level disallow logic hindsight of deems such The facile here, where, as even justice struction of lie; testimony inasmuch as a disbelieved of based strong there is lie, right there is no harm there is no to independent evaluation judge’s on the trial however, sanctioning Hindsight, it. in disagree testimony, we the defendant’s of help the accused when he must does not our sister circuit. that decision with to take the stand. decide whether Moreover, the established law of believe possibili- the already knows that faces in set forth United States our circuit as conviction, less ty and that he is much (8th Cir.1991), Willis, silent, acquitted if he remains likely to be Willis, here, as view. In reflects the better in right to do so and even the despite his upward adjustment for ob upheld an the to draw face of instructions to the trial court justice where struction silence. inference from his no adverse during defendant had lied determined the Moreover, dilemma does not arise the trial. guilty; solely the defendant is when to are reasons unrelated any there convinced that view Finally, we are against testifying. may militate in and in the view taken other than Willis prosecution’s among these is the by the deci- Chief present case is foreclosed impeach the defendant’s credi- power to Supreme in Court United States sion under Fed. bility prior with convictions help cannot but note R.Evid. 609. We (1978)(holding that a sentenc- prior an innocent defendant with appropriate sen- ing judge, setting in an weigh jury’s likeli- limits, convictions must statutory may consider tence within drawing impermissible one infer- testimony hood of false observed the defendant’s silence) (guilty against another trial). reject the ence judge during We by the propensity) deciding (guilt by criminal notion, concurring opinion in the expressed testify. to With an automatic whether Dunnigan, and in this case ante, enhancement added to analysis guide- does not to testifying not think the defendant sentencing. lines worth the risk. and sentence are AF- The convictions (cites and Dunnigan, 944 F.2d 183-84 FIRMED. omitted). footnotes Senior Circuit explained how the concurring. enhancement can chill a defen- right testify at trial: dant’s to that we should consider en banc
I believe already trial has A defendant who stands a two-level enhancement ob- whether up probably passed opportunity, appropriate is where struction of negotiated plea, for a determina- lesser testifies at trial and a defendant trial, charge and At he must was not sentence. tion is made that silent, remaining choose between with a such an enhancement truthful. believe resentencing remand for without the and heavy risk of sentence. facing an enhanced pain turn, encouraged to every he is forfeit At F.2d at Dunnigan, 944 185. The Fourth increased rights, subjected is are comments also reflected in the Circuit’s *3 refusing to do so. When punishment for distinguished of our dissenting opinion col- testify, simply he is not deciding to Myron Bright, Judge H. league, might take “process” of a “aware” 1216, O’Meara, account, he is into his untruthfulness counsel) (and ought by his to be advised retained, guidelines sentencing If is to be very fact of his aware rights must make sure that the basic him if he is used convict- will be defendants are not sacrificed. For the ed. reasons, I would refer this case to above Id. at 184-85. en the court banc. have recognize circuit courts held that the obstruction testify at who applied to defendants courts, however, relied
trial. These 41, 438 U.S.
on United States v. (1978), pre-
98 S.Ct. has little relevance to
guidelines cases that sentencing. The guidelines Grayson LEWELLEN, Appellant, E. James defendant’s that consideration of a sentencing alleged false at permissible to illuminate de- would be SULLIVAN, Secretary Louis W. fendant’s need for rehabilitation. and Human of Health 53-54, 98 S.Ct. at Grayson, 438 U.S. at Services, Appellee. guidelines reject Because the 2617-2618. factor, sentencing see 28 as a rehabilitation 994(k) (1988), the rationale of not under the
Grayson simply does Instead,
guidelines. an obstruction for false hancement under U.S.S.G. 3C1.1 Nov. Submitted testimony punishes person indictment, proof or by jury, without prac- This is a
beyond a reasonable doubt. rejected. Grayson,
tice 2617; at at at id. S.Ct. requires say today (“Nothing enhance, in some wood-
sentencing judge to fashion, testimony of all
en or reflex testimony is deemed
defendants whose
false.”). recognized Gray- sentenc- longer guidelines applies no
son
ing, and concluded guidelines makes the rigidity of the
[t]he for a disbelieved oath an intolerable
denial right to tes- upon the defendant’s
burden Consequently,
tify in his own behalf. Dunnigan’s
though affirm