William Andrew Hamilton pled guilty to assaulting his ex-girlfriend as he drove her from West Palm Beach, Florida to Nashville, Tennessee. He was convicted of knowingly intimidating a witness by hindering her communication with law enforcement officers of a possible commission of a federal offense, in violation of 18 U.S.C. § 1512(b). Hamilton was sentenced to three years and five months imprisonment, three years of supervised release with conditions of restitution, and participation in a mental health program. On appeal, Hamilton argues that the district court erred in imposing a four-level enhancement to his base offense for “otherwise using” a knife, and in imposing a two-level enhancement for a willful obstruction of justice. For the following reasons, we affirm.
The events that led to Hamilton’s conviction are as follows: On September 2, 1989, Hamilton persuaded his former girlfriend, Ann Pye, to meet him at the apartment of a mutual friend in West Palm Beach. Shortly after Pye arrived, Hamilton became agitated and began to savagely beat her, striking her repeatedly with his fists. When Pye attempted to call for help, Hamilton choked her to the point of unconsciousness. When Pye awoke Hamilton was holding a knife against her throat, threatening to kill her and her children.
Hamilton temporarily calmed down; after he professed remorse for his outburst, the two left the apartment in Pye’s car, with Hamilton at the wheel. Pye testified that she agreed to enter the automobile out
A two-count indictment was filed against Hamilton in the Middle District of Tennessee. Count one charged him with kidnapping Pye on or about September 3, 1989, in violation of 18 U.S.C. § 1201(a). Count two charged him with knowingly using threats, intimidation, and physical force against a witness (Pye), in violation of 18 U.S.C. § 1512(b). On March 26, 1990, Hamilton entered into a plea agreement under which in exchange for pleading guilty to count two of the indictment, count one of the indictment would be dismissed and Hamilton’s sentence would be calculated under the Federal Sentencing Guidelines § 2A2.2, with a two-level downward adjustment for acceptance for responsibility.
A presentence report was prepared by the probation officer providing the mathematical basis for the recommended sentence. To facilitate our review, we have reduced the calculations to the following equation. See Guidelines Manual, § 1B1.1 (Nov.1990) (Application Instructions).
STEP 1: ADJUSTED OFFENSE LEVEL
A. OFFENSE GUIDELINE: Guidelines App.A permits Guidelines §§ 2A1.2 (Assault With Intent To Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), or 2J1.2 (Obstruction of Justice) to apply to violations of 18 U.S.C. § 1512(b). By stipulation of the parties, Guidelines § 2A2.2 is to apply.
B. BASE OFFENSE LEVEL: The base level offense for § 2A2.2 is 15. 15
C. SPECIFIC OFFENSE CHARACTERISTICS: The following specific offense characteristics for § 2A2.2 were found to apply:
1. Dangerous Weapon Otherwise Used: four-level enhancement +4 + 4^
2. Bodily Injury To The Victim: three-level enhancement for degree of injury between “bodily injury” and “serious bodily injury.” +3 CO +
3. Total offense characteristic enhancement: seven
D. Guidelines CHAPTER THREE ADJUSTMENTS:
1. Parts A, B, C, and D of Chapter Three allow adjustments for particular victims, defendant’s role in the offense, obstruction of justice, and multiple counts.
a. Victim-Related Adjustments: Zero o +
b. Role In The Offense: Zero o +
c. Obstruction: Zero o +
d. Multiple Counts: Zero o +
2. Part E of Chapter Three allows a two level downward adjustment for acceptance of responsibility for the crime: Minus two levels. - 2
E. ADJUSTED OFFENSE LEVEL: 20(15+7 + 0-2) 20
STEP 2: CRIMINAL HISTORY
A. Juvenile Adjudications: Zero
B. Prior Sentences: Zero_
C. Criminal History Points: Zero
D. Criminal History Category: I; (0 or 1 point); § 5.2
STEP 3: GUIDELINE RANGE CALCULATION
wt> Adjusted Offense Level: 20
B Criminal History Category: I
p Career Offender/Criminal Livelihood: N/A
At the sentencing hearing, Hamilton denied a number of the allegations not included under the plea agreement. He denied that he had tricked Pye into meeting him, that he had forced her to accompany him to Tennessee against her will, or that he had used a weapon. The court rejected these denials, making findings that he had tricked Pye into a meeting, that he had attacked Pye with a knife, although the court notes the evidence does not establish that the defendant intentionally stabbed the victim, and that he had forced Pye to accompany him to Tennessee against her will. The court found Hamilton’s denials to be perjurious attempts to minimize his involvement; accordingly, the court ruled a two-level enhancement for obstruction of justice was warranted. However, the court also applied a two-level downward adjustment for acceptance of responsibility because of Hamilton’s earlier acknowledgement of wrongdoing.
Again, for clarity’s sake, we have distilled the district court’s Guideline calculation to the following equation:
STEP 1: ADJUSTED OFFENSE LEVEL
A. OFFENSE GUIDELINE: § 2A2.2 (Aggravated Assault).
B. BASE LEVEL OFFENSE: 15 15
C. SPECIFIC OFFENSE CHARACTERISTICS:
1. § 2A2.2(b)(2)(B) Dangerous Weapon Otherwise Used: four-level enhancement. +4
2. § 2A2.2(b)(3)(A) Bodily Injury: two-level enhancement. +2
3. Total offense characteristic enhancement: six levels.
D. Guidelines CHAPTER THREE ADJUSTMENTS:
1. § 3A.1.1-3D.5:
a. § 3A1.1-.3 Victim-Related Adjustments; Zero. + 0
b. § 3B1.1-.4 Role In The Offense: Zero + 0
c. § 3C1.1-.2 Obstruction: two-level upward adjustment. + 2
d. § 3D1.1-.5 Multiple Counts: Zero + 0
2. § 3E1.1 Acceptance of responsibility: two-level downward ad-_justment._=L_2
E. ADJUSTED OFFENSE LEVEL: 21(15 + 6 + 2-2) 21
STEP 2: CRIMINAL HISTORY
A. § 4A1.2(d) Juvenile Adjudications: Zero
B. § 4A1.1 Prior Sentences: Zero_
C. Criminal History Points: Zero
D. § 5.2 Criminal History Category: I; (0 or 1 point).
STEP 3: GUIDELINE RANGE CALCULATION
A. Adjusted Offense Level: 21
B. Criminal History Category: I
C. § 4B1.1 Career Offender/Criminal Livelihood: N/A
D. Guideline Range: § 5.2 establishes the guideline range for a level 21 offense by a criminal history category I offender as 3 years 1 month to three years 10 months (37 to 46 months) imprisonment.
Hamilton was sentenced to three years and five months imprisonment, with a period of supervised release and restitution.
Hamilton claims that the district court erred in applying the Sentencing Guidelines by assessing a four-level en
The Guidelines define “brandishing” as a weapon “pointed or waived about, or displayed in a threatening manner.” Guidelines Manual, § 1B1.1 Comment, (n. 1(c)). A weapon is “otherwise used" when the “conduct did not amount to the discharge of a firearm but was more than brandishing, displaying or possessing a firearm or other dangerous weapon.” Id. at (n. 1(g)). The district court found that Hamilton’s actions went beyond mere brandishing to actually using a dangerous weapon in his attack. Although the district court did not conclude that Hamilton intentionally stabbed Pye, her injury was a direct and foreseeable consequence of his use of a weapon.
This court will give due deference to a district court’s application of the Guidelines to the factual situation found to exist and will review such a decision only for clear error. United States v. Perez,
Hamilton also argues that the district court erred in imposing a two-level enhancement under § 3C1.1 for obstruction of justice. Hamilton admits to perjuring himself before the court at his sentencing hearing, but contends that a § 3C1.1 enhancement is inappropriate because his untrue statements were limited to specific areas he disputed in the plea agreement. We disagree.
Section 3C1.1 provides for a two-level enhancement where a defendant willfully attempts to impede or obstruct the administration of justice. United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov.1989).
testifying untruthfully or suborning un-truthfull testimony concerning a material fact ... during a preliminary or grand jury proceeding, trial, sentencing proceeding, or any other judicial proceeding. ...
Guidelines Manual, § 3C1.1, comment, (n. 1(c)).
Where a defendant has entered a guilty plea, § 3C1.1 does not act to limit that defendant’s right to object at the sentencing hearing to any factual findings relevant to the application of the Guidelines. In this case for instance, Hamilton’s argument that he merely “brandished,” rather than “otherwise used,” a weapon would not serve as a sufficient basis for an obstruction enhancement. However, a defendant’s right to contest the applicability of specific guideline provisions is not so broad as to entitle that defendant to perjure himself. This circuit has repeatedly stated that a defendant holds no constitutional right to perjure himself before a court. United States v. Alvarez,
Accordingly, the judgment of the district court is affirmed in all respects.
Notes
. Section 3C1.1 has been amended, effective November 1, 1990. See United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov. 1990). Hamilton was sentenced under the pre-amended version of § 3C1.1.
. The amended commentary to § 3C1.1 states that a defendant is subject to a § 3C1.1 enhancement for “committing, suborning, or attempting to suborn perjury [,]” or "providing materially false information to a judge or magistrate.” United States Sentencing Commission, Guidelines Manual, § 3C1.1, comment, (n. 3(b)(f)) (Nov.1990) (emphasis added). The propriety of Hamilton’s sentence would remain unchanged if the amended commentary were in force because Hamilton admits his untrue statements were perjurious and because the district court found those untrue statements to be perjurious as to a material fact.