United States District Court, N.D. Texas, Amarillo Division
MEMORANDUM OPINION AND ORDER
A. FITZWATER UNITED STATES DISTRICT JUDGE
convicted defendant Moises Jimenez ("Jimenez") of
the offenses of distribution and possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C); distribution and possession with
intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(viii); and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A). Jimenez testified at trial.
Because the court finds that Jimenez committed perjury during
his testimony, the court adds two levels to the advisory
guideline offense level for obstruction of justice, and
enters these tentative findings in support of this
§ 3C1.1 provides that the offense level shall be
increased two levels "[i]f (1) the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the . . .
prosecution ... of the instant offense of conviction, and (2)
the obstructive conduct related to (A) the defendant's
offense of conviction and any relevant conduct[.]"
"Though the court may not penalize a defendant for
denying his guilt as an exercise of his constitutional
rights, a sentence may be enhanced if the defendant commits
perjury." United States v. Como, 53 F.3d 87, 89
(5th Cir. 1995) (citing United States v. Laury, 985
F.2d 1293, 1308 (5th Cir. 1993)). Under the Sentencing
Guidelines, the court is required to enhance a sentence upon
a proper determination that the accused committed perjury.
United States v. Humphrey, 7 F.3d 1186, 1191 (5th
Cir. 1993) ("If the district court finds that [the
defendant] did commit perjury, it must impose a two-level
enhancement of his sentence."); United States v.
Butler, 988 F.2d 537, 544 (5th Cir. 1993).
to the application notes, this enhancement applies to
"committing, suborning, or attempting to suborn
perjury." U.S.S.G. § 3C1.1, comment n. 4(b) (Nov.
1, 2016 Manual). Federal law defines perjury as giving false
testimony concerning a material matter with the willful
intent to provide false testimony rather than as a result of
confusion, mistake, or faulty memory. See United States
v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18U.S.C.
§ 1621(1)). Nevertheless, "not every accused who
testifies at trial and is convicted will incur an enhanced
sentence under § 3C1.1 for committing perjury."
Id. at 95. Because there are reasons why a defendant
may testify falsely without committing perjury, see
U.S.S.G. § 3C1.1, comment n.2 (Nov. 1, 2016 Manual),
"if a defendant objects to a sentence enhancement
resulting from [his] trial testimony, a district court must
review the evidence and make independent findings necessary
to establish a willful impediment to or obstruction of
justice, or an attempt to do the same, under the perjury
definition [the Supreme Court has] set out."
Dunnigan, 507 U.S. at 95. "[I]t is preferable
for a district court to address each element of the alleged
perjury in a separate and clear finding." Id; United
States v. Como, 53 F.3d 87, 89 (5th Cir. 1995)
(preferred course is to make clear finding on each element of
the alleged perjury). "The district court's
determination that enhancement is required is sufficient,
however, 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.
determinations at sentencing are made according to U.S.S.G.
§ 6A1.3(a). U.S.S.G. § 6A1.3(a) (Policy Statement)
(Nov. 1, 2016 Manual). "[T]he court may consider
relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided
that the information had sufficient indicia of reliability to
support its probable accuracy." United States v.
Bermea, 30 F.3d 1539, 1576 (5th Cir. 1994). The
preponderance of the evidence standard applies to such
determinations. See United States v. Mergerson, 995
F.2d 1285, 1291 (5th Cir. 1993) (holding that it is well
established in this circuit that, as a general matter, the
burden of proof at sentencing is by a preponderance of the
court enters these tentative findings in support of its
determination that Jimenez committed perjury during his trial
preponderance of the evidence standard, and based upon the
evidence adduced at trial, including defendant Jimenez's
testimony, the court finds that at least the following
testimony constituted (1) false testimony by
Jimenez, (2) given under oath at trial, (3) concerning a
material matter, (4) that Jimenez did not believe to be true,
and (5) that he gave with the willful intent to provide false
testimony rather than as a result of confusion, mistake, or
faulty memory. The court finds that Jimenez gave this
testimony willfully to obstruct or impede, or attempt to
obstruct or impede, the administration of justice during the
prosecution of the instant offense.
testimony on which the court bases the perjury enhancement is
Q. Now, the stuff that they found in the apartment, was any
of those drugs yours? A. No, sir.
Q. So none of the drugs were yours? A. No, sir.
Q. How about the money? A. No, sir.
Q. Is that $21, 000 yours? A. No, sir. Q. Was the money in
the bedroom in the little - in the little thing, ...