United States v. Nelson

276 F. App'x 331

4th Cir.

2008

Check Treatment

Docket

UNITED STATES of America v. Lawrence W. NELSON, a/k/a Zikee

No. 06-4456

United States Court of Appeals, Fourth Circuit

May 9, 2008

331

Submitted: April 23, 2008.

tention to extraneous matters,” that the statement was isolated, and that the government adduced “strong competent proof” of N-Jie‘s guilt; prongs 2, 3, and 4, respectively. App. Br. at 24. There is no evidence that any statement “was invited by improper conduct of defense counsel.” Wilson, 135 F.3d at 299. Though no immediate curative instruction was given, the district court‘s final jury instructions prevented the statement from misleading the jury or prejudicing N-Jie. Thus even if the prosecutor made an improper vouching statement, we would affirm the district court‘s conclusion that the statement did not materially affect N-Jie‘s substantial rights or “‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.‘” Loayza, 107 F.3d at 262 (quoting Francisco, 35 F.3d at 120).

III. Obstruction of Justice Enhancement

At the sentencing hearing, the district court found that N-Jie committed perjury during his testimony. The district court accordingly applied a two-level enhancement for obstruction of justice, as set forth in USSG § 3C1.1. To apply an obstruction of justice enhancement, the district court must find by the preponderance of the evidence that the defendant gave “(1) false testimony (2) concerning a material matter (3) given with the willful intent to deceive (rather than as a result of, say, confusion, mistake, or faulty memory).” United States v. Smith, 62 F.3d 641, 646 (4th Cir.1995) (citing United States v. Dunnigan, 507 U.S. 87, 92-93 (1993)). When reviewing the district court‘s application of the Sentencing Guidelines, we accept the district court‘s findings of fact unless they are clearly erroneous and give due deference to the district court‘s application of the Guidelines to the facts. United States v. Cutler, 36 F.3d 406, 407 (4th Cir.1994). The district court made a specific finding as to each element, stating that:

I think it is clear to me as the presiding judge that the defendant perjured himself when he testified as to his involvement in the conspiracy of possession with intent to distribute marijuana. That was false testimony. It was involving material fact, and it was given in my opinion with the willful intent to deceive. It wasn‘t confused testimony. It wasn‘t mistaken testimony. And it wasn‘t faulty testimony in the sense that it was somehow accidental. So I think independent of his testimony . . . there is sufficient evidence to show obstruction of justice.

J.A. 747. We conclude that the district court did not clearly err in finding that N-Jie gave false testimony about a material matter with the willful intent to deceive. Therefore, the two-level adjustment for obstruction of justice was warranted.

IV. Conclusion

For the foregoing reasons, the district court‘s judgment is AFFIRMED.

Christopher A. Davis, Davis Law Offices, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, Zelda E. Wesley, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee.

Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

This case is before us on remand from the United States Supreme Court for further consideration in light of Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). In United States v. Nelson, 237 Fed.Appx. 819 (4th Cir. 2007), vacated, 552 U.S. 1163, 128 S.Ct. 1124, 169 L.Ed.2d 946 (2008), we affirmed Lawrence W. Nelson‘s 360-month sentence imposed by the district court after a jury convicted Nelson of conspiracy to distribute and possess with intent to distribute more than fifty grams of crack cocaine, in violation of 21 U.S.C. § 846 (2000). After reviewing Nelson‘s appeal in light of Rita, we affirm.^*

In Rita, the Supreme Court held that “a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines.” 127 S.Ct. at 2462. The Court stressed “that the presumption is an appellate court presumption.” Id. at 2465. Importantly, “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply.” Id.

In sentencing a defendant after United States v. Booker, 543 U.S. 220 (2005), a district court must engage in a multi-step process. First, the court must correctly calculate the appropriate advisory guidelines range. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007) (citing Rita, 127 S.Ct. at 2465). The court then must consider that range in conjunc-tion with the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Id. The court “may not presume that the Guidelines range is reasonable” but, rather, “must make an individualized assessment based on the facts presented” in determining an appropriate sentence. Id. at 596-97. The district court also must “adequately explain the chosen sentence to allow for meaningful appellate review.” Id. at 597.

Appellate review of a district court‘s imposition of a sentence is for abuse of discretion. Id.; see also United States v. Pauley, 511 F.3d 468, 473 (4th Cir.2007). The appellate court:

must first 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 § 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. Assuming that the district court‘s sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard. When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.

Gall, 128 S.Ct. at 597.

Here, Nelson asserts that the district court applied the guidelines in a mandatory fashion. He relies on the district court‘s statement at sentencing “that ‘the guidelines are advisory but under the case law of the Fourth Circuit Court of Appeals ... the Guidelines are considered presumptively reasonable.... That means that unless there‘s a good reason in the factors that I just reviewed with you, the Guideline sentence is the reasonable sentence....‘”

Although Nelson asserts that the district court treated the guidelines as mandatory, we find, taking the district court‘s comments at sentencing as a whole, the court did not do so. See United States v. Go, 517 F.3d 216, 218-20 (4th Cir.2008). As in Go, the district court in Nelson‘s case understood that the guidelines were advisory and that it could impose a sentence outside of the guidelines range. For example, the district court considered the arguments from Nelson and his witnesses, the advisory guideline range, and the factors in § 3553(a), noting that Nelson was convicted of a crack offense, was a leader in the offense, possessed a firearm, had a significant criminal history, and had made laudable efforts at self-rehabilitation. Given the circumstances of Nelson‘s case, however, the district court exercised its discretion not to vary from the advisory guideline range and decided to impose a sentence at the bottom of the range. We therefore find that the district court did not procedurally err in sentencing Nelson. See Go, 517 F.3d at 218-20.

Accordingly, we affirm the 360-month sentence imposed by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED.

Notes

In the prior appeal, Nelson also challenged his conviction on several grounds. We reinstate our prior opinion affirming his conviction. See .