United States v. Chavez

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 1 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-2200

SANDRA CHAVEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-98-240-BB)

Fred J. Federici (Robert J. Gorence, Acting United States Attorney, with him on
the brief), Assistant United States Attorney, Albuquerque, New Mexico, for
Plaintiff-Appellee.

Stephen C.M. Long (Ron Koch on the briefs), Albuquerque, New Mexico, for
Defendant-Appellant.

Before BRORBY, ANDERSON and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

Sandra Chavez appeals her conviction of conspiracy to distribute a

controlled substance (less than fifty kilograms of marijuana – a Schedule I
controlled substance – 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D)) and aiding and

abetting, contrary to 21 U.S.C. § 846 and 18 U.S.C. § 2. Ms. Chavez also appeals

her sentence. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. BACKGROUND

The United States Border Patrol stopped Lorenzo Maldonado at a

checkpoint about twenty-five miles from the United States border with Mexico.

After questioning Mr. Maldonado and observing his action and the unusual

appearance of his truck, the agent on duty became suspicious Mr. Maldonado was

transporting drugs in his truck, and asked Mr. Maldonado for his permission to

allow a drug-sniffing dog to check the truck. Mr. Maldonado agreed, and the dog

alerted to the gas tank. Mr. Maldonado admitted the truck contained marijuana

and expressed a desire to cooperate with the authorities by delivering the truck to

its destination. The agent called United States Customs Service Special Agent

Dan Lane, who arrived shortly thereafter.

Mr. Maldonado told Special Agent Lane “he had been hired by somebody

down in Juarez to transport [the] pickup truck containing marijuana to

Albuquerque, where he was supposed to arrange for delivery to somebody there.”

Mr. Maldonado referred to the person who hired him as “Alonso.” According to

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Special Agent Lane, Mr. Maldonado stated “he was to be paid $1,000. He was

given a slip of paper with instructions as to what to say when he called the

person, who would be a woman, at a telephone number which was written on th[e]

scrap of paper.” Mr. Maldonado told Special Agent Lane “his instructions were

to call the telephone number ... at the top of the [scrap of paper], 505-239-6648,

and to tell the woman who answered that he was de parte de Alonso, on behalf of

Alonso.” Mr. Maldonado explained he did not know the people Alonso instructed

him to call. Whoever answered the telephone “was supposed to pay him his

$1,000 for transporting the marijuana.”

After discussing the planned transaction with Mr. Maldonado, Special

Agent Lane spent a couple of hours obtaining the authorization and the equipment

needed to execute the controlled delivery. Special Agent Lane then started the

drive to Albuquerque with Mr. Maldonado as his passenger in the pickup truck

Mr. Maldonado originally drove. Other agents accompanied them to Albuquerque

in their vehicles. They arrived in Albuquerque at about 12:30 at night and Mr.

Maldonado agreed to make a monitored call to the telephone number on the scrap

paper. After discussing what Mr. Maldonado should tell the person who answered

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the phone, Special Agent Lane dialed the number at about 1:10 a.m. 1

At trial, Ms. Chavez admitted she answered the phone and spoke to Mr.

Maldonado. The conversation took place in Spanish, but was translated into

English, transcribed and admitted into evidence at the trial. According to the

transcript of the conversation, Mr. Maldonado first explained he was at a Taco

Cabana restaurant and asked Ms. Chavez if she knew where it was located. Ms.

Chavez responded she did. Mr. Maldonado then stated, “I’m here ... I got here a

little late because ... the gasoline ... I was very low on gasoline.” Ms. Chavez

responded, “Listen ... I was going to [ask] if you could bring it all the way over

here.” Mr. Maldonado replied he ran out of gasoline and “need[ed] a can for the

gasoline.” After confirming Mr. Maldonado was at the restaurant, Ms. Chavez

responded, “Well ... then we’ll leave right now.” Mr. Maldonado then reminded

Ms. Chavez not to forget “the money that I’m going to take to Alonso.” Ms.

Chavez responded, “OK.” Mr. Maldonado then reminded her to bring the money

she was to pay him as well. Ms. Chavez responded affirmatively, and told Mr.

1
Beside the fact Ms. Chavez answered the number called, evidence
presented at trial showed the telephone number corresponded with the cell phone
Ms. Chavez had with her the night of her arrest. Evidence also established the
same cell phone was used to call the dealership where the truck transporting the
marijuana was purchased, one day before its purchase. Moreover, her address
book contained the name “Alonso” and his telephone number, which matched the
other telephone number written on Mr. Maldonado’s scrap of paper.

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Maldonado she would meet him in “[a]bout half an hour”. The conversation

terminated at that point.

A few minutes later, Special Agent Lane placed another call to Ms. Chavez

because Mr. Maldonado failed to determine who would be coming and what type

of vehicle they would be driving. Special Agent Lane felt this information was

critical to arranging the controlled delivery. In the second recorded conversation,

Mr. Maldonado described himself as having a thick mustache. He also asked Ms.

Chavez who was “going to come to pick up the truck.” Ms. Chavez said she

would come in a blue Blazer with her mother-in-law, Ms. Dominguez. Mr.

Maldonado reminded her not to forget the gasoline can.

Ms. Chavez and Ms. Dominguez subsequently arrived at the restaurant

parking lot, and Ms. Chavez briefly spoke with Mr. Maldonado. Their taped

conversation revealed further incriminating statements by Ms. Chavez. 2 The

2
For instance, Ms. Chavez inquired whether anyone followed Mr.
Maldonado. When Mr. Maldonado asked if she brought the money, she said yes,
but she wanted him to drive the truck to the house. Ms. Chavez then told Mr.
Maldonado she would pay him “there.” At trial, Ms. Chavez claimed the taped
conversation involved Ms. Dominguez, not her. However, based on Special
Agent Lane’s and an expert interpreter’s testimony identifying Ms. Chavez as the
predominant female voice on the tape, the jury rejected Ms. Chavez’s assertions.

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agents then arrested Ms. Chavez

At trial, Special Agent Lane testified, without objection, regarding Mr.

Maldonado’s post-arrest out-of-court statements. Mr. Maldonado did not testify

at trial. The trial court allowed the government to enter into evidence the scrap of

paper bearing Mr. Maldonado’s Albuquerque contact’s phone number. Ms.

Chavez’s attorney objected to the introduction of the piece of paper on the

grounds of hearsay, but the district court overruled her objection, concluding it

was not offered for the truth of the matters asserted, but to provide a link between

the conspirators.

Ms. Chavez testified at trial she did not know with whom she was speaking

when Mr. Maldonado called her. Ms. Chavez claimed she was not expecting

anyone to call and had no prior knowledge of the purpose of the call. Ms. Chavez

claimed she rushed to the Taco Cabana in her pajamas in the middle of the night

to take gasoline to the caller as a favor. She assumed the caller was referring to

her friend Alonso, even though Alonso is a common name. She never tried to

verify that the Alonso the caller mentioned was in fact her friend Alonso. Ms.

Chavez testified she took Ms. Dominguez with her to the Taco Cabana in order to

see if she could recognize the caller. Ms. Chavez denied she intended to pick up

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the truck. She also testified she thought Mr. Maldonado’s admonitions to her to

not forget the money regarded the money for the gasoline. When they arrived at

the Taco Cabana, Ms. Chavez claimed she never spoke to Mr. Maldonado, and

instead, Ms. Dominguez spoke with Mr. Maldonado and made the incriminating

taped remarks. She also denied knowing the truck contained marijuana.

The jury convicted Ms. Chavez. Following the probation officer’s

recommendation in the presentence report, the district court increased Ms.

Chavez’s sentence two levels for obstruction of justice concluding she committed

perjury. The district court refused Ms. Chavez’s request to reduce her sentence

two levels, concluding she failed to show she acted as a minor participant in the

transaction. The district court sentenced Ms. Chavez to 41 months imprisonment.

II. DISCUSSION

A. Hearsay Statements

Ms. Chavez contends the trial court admitted hearsay statements in

violation of her Sixth Amendment right to confrontation by allowing Special

Agent Lane to testify concerning Mr. Maldonado’s out-of-court statements, and

by admitting the piece of paper bearing the phone number of Mr. Maldonado’s

contact. In general, we review the admission of evidence at trial for abuse of

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discretion. 3 United States v. McHorse, 179 F.3d 889, 901 (10th Cir.), cert.

denied, 120 S. Ct. 358 (1999). “Because hearsay determinations are particularly

fact and case specific,” our review of those decisions is especially deferential.

United States v. Trujillo, 136 F.3d 1388, 1395 (10th Cir.), cert. denied, 525 U.S.

833 (1998). 4 Even if the admission of a hearsay statement violated the rules of

evidence, it does not violate the Sixth Amendment Confrontation Clause “‘if it

bears adequate indicia of reliability.’” Paxton v. Ward, 199 F.3d 1197, 1207

(10th Cir. 1999) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)). Whether

hearsay statements are reliable is a mixed question of law and fact which we

review de novo. United States v. Gomez, 191 F.3d 1214, 1222 (10th Cir. 1999).

1. Special Agent Lane’s Testimony

Ms. Chavez contends the court erred by allowing Special Agent Lane to

3
As discussed later, Ms. Chavez did not object to Special Agent Lane’s
testimony at trial, resulting in a plain-error review.

4
According to Federal Rule of Evidence 802, “[h]earsay is not admissible
except as provided by [the Federal Rules of Evidence] or by other rules prescribed
by the Supreme Court pursuant to statutory authority or by Act of Congress.”
Fed. R. Evid. 802. Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” Fed. R. Evid. 801(c). “Hearsay included within
hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these
rules.” Fed. R. Evid. 805.

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testify as to Mr. Maldonado’s statements, particularly that: 1) a man named

Alonso in Juarez hired Mr. Maldonado to deliver the marijuana to people in

Albuquerque who Mr. Maldonado did not know, and who were to pay him $1,000

on delivery; and 2) Alonso instructed Mr. Maldonado to dial a number written on

a slip of paper and to tell the woman who answered he was calling “de parte de

Alonso,” or “on Alonso’s behalf.” Ms. Chavez contends this evidence constituted

hearsay within hearsay, and, even though her counsel failed to object at trial to

the out-of-court statements, we should determine the trial court committed plain

error when it allowed the testimony.

Because Ms. Chavez did not object to Special Agent Lane’s testimony at

trial, we review the admission of this evidence for plain error to determine

whether it violated Ms. Chavez’s Sixth Amendment right to confrontation. See

United States v. Cass, 127 F.3d 1218, 1225 (10th Cir. 1997) (holding that absent

an objection asserting the hearsay evidence violated the defendant’s

Constitutional rights under the Confrontation Clause, our review is for plain error

only), cert. denied, 522 U.S. 1138 (1998); see also United States v. Perez, 989

F.2d 1574, 1582 (10th Cir. 1993) (en banc) (“[W]here a Confrontation Clause

objection is not explicitly made below we will not address the constitutional issue

in the absence of a conclusion that it was plain error for the district court to fail

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to raise the constitutional issue sua sponte.”); United States v. Roberts, 583 F.2d

1173, 1175 (10th Cir. 1978) (“Ordinarily, a confrontation clause objection cannot

be raised on appeal unless it was also raised sometime during the trial court

proceedings.”), cert. denied, 439 U.S. 1080 (1979). In order to constitute plain

error under the Sixth Amendment Confrontation Clause, the district court’s error

must be obvious and substantial, affecting the fairness and integrity of the judicial

proceeding, and we must conclude the “error had an unfair prejudicial impact on

the jury’s deliberations.” Perez, 989 F.2d at 1583 (quotation marks and citation

omitted); United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir. 1991).

“Although the rigidity of the plain-error rule is relaxed somewhat when a

potential constitutional error is involved, the defendant bears the burden of

demonstrating that he was prejudiced by the error before this court can grant him

relief.” United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir.) (citation

omitted), cert. denied, 522 U.S. 845 (1997).

Having determined the plain-error standard applies, we proceed to Mr.

Chavez’s specific contentions concerning Special Agent Lane’s testimony. First,

Ms. Chavez contends the district court committed plain error, violating her right

to confrontation under the Sixth Amendment, by allowing Special Agent Lane to

testify regarding Mr. Maldonado’s out-of-court statements without first

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determining their reliability in accordance with Fed. R. of Evid. 801(d)(2)(E).

This Rule requires the trial court to make findings regarding the alleged existence

of, and the co-conspirator’s participation in, the drug conspiracy, and that the

statements were made in the course and furtherance of that conspiracy, before the

statements can be admitted. 5 Ms. Chavez asserts Special Agent Lane’s testimony

on the “pieces of paper” and Mr. Maldonado’s statements do not meet the

requirements of Rule 801(d)(2)(E) and are consequently inadmissible hearsay.

She also contends Mr. Maldonado’s statements do not fall within the exception to

the hearsay rule for statements against penal interest, because he made them in the

course of a custodial interrogation and they contain Alonso’s hearsay statements.

She further argues the district court violated the Confrontation Clause by the

admitting these statements because the reliability of Mr. Maldonado’s out-of-

5
Fed. R. Evid. 801(d)(2)(E) provides an exception to the general rule
against the admission of hearsay in a trial. Under Rule 801(d)(2)(E),

a statement is not hearsay if it is made by “a coconspirator of a party
during the course and in furtherance of the conspiracy.” Thus, under
Rule 801(d)(2)(E), statements of a defendant’s alleged conspirators
may not be admitted over objection unless the trial court finds the
following elements by a preponderance of the evidence: (1) that a
conspiracy existed; (2) that the declarant and the defendant were both
members of the conspiracy; and (3) that the statements were made in
the course of and in furtherance of the conspiracy.

United States v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997).

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court statements is questionable. She asserts Mr. Maldonado’s statements were

unreliable because he made them during a custodial interrogation, after agents

promised him leniency and while he was highly agitated. Ms. Chavez contends

the admission of these statements constitutes plain error that was not harmless

because without these statements being brought to the attention of the jury,

insufficient evidence existed for her conviction.

In reply, the government asserts if the district court erred in admitting Mr.

Maldonado’s post-arrest statements, Ms. Chavez invited any error and/or waived

any claim with respect to Mr. Maldonado’s post-arrest statements. Specifically, it

claims Ms. Chavez opened the door to admission of this evidence by referring to

Mr. Maldonado’s out-of-court statements during her opening statement and when

cross-examining Special Agent Lane. The government further argues it

introduced this evidence for the non-hearsay purpose of providing background to

the investigation.

Before addressing Ms. Chavez’s hearsay arguments, we must determine if

she invited the error of which she complains. If so, we need proceed no further,

as “[it] is fundamental that a defendant cannot complain of error which he invited

upon himself.” United States v. Cutler, 948 F.2d 691, 697 (10th Cir. 1991)

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(quotation marks and citation omitted); see also United States v. Burson, 952 F.2d

1196, 1203 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); Aves v. Shah, 997

F.2d 762, 766 (10th Cir. 1993). It is widely recognized that a party who raises a

subject in an opening statement “opens the door” to admission of evidence on that

same subject by the opposing party. See, e.g., United States v. Croft, 124 F.3d

1109, 1120 (9th Cir. 1997) (holding the defendant “opened the door” to bolstering

testimony of a prosecution witness by branding that witness a liar in opening

statement); United States v. Moore, 98 F.3d 347, 350 (8th Cir. 1996) (holding

defendant’s opening statement opened the door to Fed. R. Crim. P. 404(b)

evidence); United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir. 1995)

(holding counsel “opened the door” for prosecution to introduce on direct

examination plea agreements of witnesses with statements requiring truthful

testimony where defense counsel attacked credibility of government witness in

opening statement), cert. denied, 517 U.S. 1149 (1996); United States v. Segal,

852 F.2d 1152, 1155 (9th Cir. 1988) (holding it was not improper for government

to “step[] through the ‘open door’” on direct examination of witness when

defendant’s attorney brought up defendant’s cocaine use during defendant’s

opening statement).

Because Ms. Chavez invited the error of which she complains, we conclude

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Ms. Chavez has not shown the district court committed plain error in allowing

Special Agent Lane to testify concerning Mr. Maldonado’s out-of-court

statements. Specifically, Ms. Chavez’s attorney referred to the exact content of

those statements in his opening statement, 6 and before Special Agent Lane

testified, attempted to elicit details from Agent Alvarado on cross-examination

concerning Mr. Maldonado’s statements. Consistent with the use of these

statements, Ms. Chavez’s counsel later elicited more details from Special Agent

Lane, in an attempt to highlight discrepancies between his testimony and the

instructions given by “Alonso.” 7 Therefore, the district court did not commit

6
The government points out Ms. Chavez’s attorney first revealed the
contents of Mr. Maldonado’s post-arrest statements to the jury. In his opening
statement, Ms. Chavez’s attorney stated the government would produce a coached
witness who would testify Mr. Maldonado told the witness: “[H]e was to receive
$1,000 for taking this marijuana. [He] [h]ad been told that he was supposed to
pick up some unknown amount of money also, a person that had met this Alonso
through Ester, a family friend, who was the sister of Alonso.” Ms. Chavez’s
attorney further stated:

You’re going to hear in this conversation, in this taped conversation,
there is no mention of any amount of money. Maldonado doesn’t say
to Ms. Chavez, [“]Don’t forget you owe me $1,000.[”] That’s what
he told the agents that he was supposed to be paid and that the
recipients would pay this to him. There’s no mention of that on [the]
tape.

In addition, Ms. Chavez’s attorney informed the jury “this person named Alonso
... supposedly gave the marijuana to Maldonado.”

7
Ms. Chavez’s counsel first sought to refresh Agent Alvarado’s memory
about what Mr. Maldonado said concerning where he obtained the marijuana.

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plain error by allowing the government to use Mr. Maldonado’s out-of-court

statements on direct examination of Special Agent Lane. Because we have

concluded Ms. Chavez “opened the door” to the testimony of which she

complains, we need not address her argument concerning Rule 801(d)(2)(E) and

the reliability of this evidence.

2. The Piece of Paper

Prior to the trial, Ms. Chavez raised the issue of the hearsay nature of the

scrap of paper bearing the phone number of Mr. Maldonado’s contact in

Albuquerque and the phrase “de parte de Alonso.” The court decided to reserve

ruling on the matter until the evidence was offered at trial. When the government

entered the piece of paper into evidence, Ms. Chavez’s attorney objected on the

grounds it constituted inadmissible hearsay. The court, however, overruled this

However, Agent Alvarado could not remember any details. Ms. Chavez’s
attorney then cross-examined Special Agent Lane, and repeatedly referred to Mr.
Maldonado’s out-of-court statements, eliciting even more details concerning those
statements than the government introduced during its direct examination. In
closing, Ms. Chavez’s attorney argued the agents had conducted a shoddy
investigation, referring to Mr. Maldonado as a “mule.” It is clear from the record
the theory of the defense centered on the notion the agents too quick believed Mr.
Maldonado’s out-of-court statements, failed to investigate them sufficiently, and
too eagerly arrested Ms. Chavez based on those statements. It would have been
impossible to mount such a defense without reference to Mr. Maldonado’s out-of-
court statements. This explains trial counsel’s failure to object to these
statements and attempts to elicit further details concerning them.

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objection determining the evidence was introduced for the non-hearsay purpose of

linking the co-conspirators. Because Ms. Chavez entered a contemporaneous

objection, we review the court’s decision to allow the piece of paper into

evidence for abuse of discretion. See McHorse, 179 F.3d at 901.

The government submits it offered the scrap of paper for the non-hearsay

purpose of linking the conspirators. Ms. Chavez counters the government’s

argument by asserting the government offered the piece of paper not merely to

link the co-conspirators, but “to show that the person who answered the cell

phone was ‘Alonso’s’ co-conspirator.” In addition, Ms. Chavez asserts the piece

of paper “was offered to show that ‘de parte de Alonso’ was a code word which

had been given to Maldonado by ‘Alonso’ and would be recognized by the proper

recipient.” In short, she argues all the disputed out-of-court statements in this

case “are crucial for the truth that Ms. Chavez was involved in the drug

transaction.”

We are not convinced by Ms. Chavez’s arguments. The phone number on

the scrap of paper was clearly used to link Ms. Chavez to Mr. Maldonado and

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Alonso. 8 No “truth” can be gleaned from a mere phone number and thus, the

number could not have been submitted for the truth of the matter asserted. In

addition, the phrase “de parte de Alonso” is likewise too vague to be considered

for the “truth” of the statement “on behalf of Alonso.” Ms. Chavez

unsuccessfully tries to cast the disputed phrase as being offered for the “truth” of

the ultimate issue in this case – Ms. Chavez’s guilt. However, that phrase, by

itself, proves nothing. 9 Its only utility is to form a link between Ms. Chavez and

her co-conspirators. Thus, despite the fact Special Agent Lane’s testimony

indicated Ms. Chavez was Alonso’s contact and expecting a call at the number

written on the piece of paper, it does not necessarily follow the piece of paper

was offered for the “truth” of the matter asserted, i.e., that Ms. Chavez was

Alonso’s co-conspirator or the phrase “de parte de Alonso” was a code word

recognizable by the proper recipient. We therefore conclude the district court did

not err by admitting the piece of paper for the non-hearsay purpose of linking the

conspirators.

8
The government points out the importance of linking Ms. Chavez to
Alonso is emphasized by her counsel’s closing argument purporting nothing
linked her to him or the conspiracy.

9
In her brief, Ms. Chavez admits the piece of paper at issue possesses “no
inherent meaning.”

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 Moreover, even if the district court erred in admitting the piece of paper,

we conclude the error was harmless. Although Ms. Chavez claims a

constitutional violation in her briefs, at trial her only objection to the admission

of the piece of paper was on the grounds of hearsay. The Sixth Amendment is not

automatically violated simply because the hearsay rule is violated. United States

v. McIntyre, 997 F.2d 687, 705 (10th Cir. 1993), cert. denied, 510 U.S. 1063

(1994). Because the objection at trial was based on the hearsay rule, we apply the

nonconstitutional standard of harmless error: “Any error, defect, irregularity or

variance which does not affect substantial rights shall be disregarded.” Id. at 706;

Fed. R. Crim. P. 52(a); United States v. Wacker, 72 F.3d 1453, 1473 (10th

Cir.1995) (concluding that an error is deemed harmless “unless it had a

substantial influence on the outcome or leaves one in grave doubt as to whether it

had such effect”) (quotation marks and citations omitted).

Keeping the harmless-error standard in mind, we note Ms. Chavez’s taped

conversations with Mr. Maldonado alone presented sufficient evidence for the

jury to determine she participated in the marijuana conspiracy. Moreover, as

discussed above, Ms. Chavez’s attorney alluded to the link between Ms. Chavez,

Alonso, and Mr. Maldonado in his opening statement, and inquired into it on

cross-examination of Agent Alvarado and Special Agent Lane. Finally, Special

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Agent Lane’s testimony was also sufficient for a jury to conclude Ms. Chavez was

Alonso’s contact and was expecting delivery of the marijuana. Therefore, even if

the district court committed a procedural error by admitting the piece of paper

bearing Ms. Chavez’s phone number and the phrase “de parte de Alonso,” we do

not believe it substantially impacted on the outcome of the case.

B. Two-Point Increase for Obstruction of Justice

Ms. Chavez contends the district court erred by imposing a two-level

enhancement of her sentence for obstruction of justice pursuant to United States

Sentencing Guidelines § 3C1.1 after determining she committed perjury during

her trial testimony. We review for clear error the district court’s factual findings

supporting the application of a particular sentencing guidelines provision and its

legal conclusions de novo. United States v. Shumway, 112 F.3d 1413, 1426 (10th

Cir. 1997); United States v. Lang, 81 F.3d 955, 968 (10th Cir. 1996). The

sentencing guidelines mandate a two-point adjustment upward if a defendant

“willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation, prosecution, or

sentencing of the instant offense.” U.S.S.G. § 3C1.1. Obstruction of justice

includes perjured testimony at trial. U.S.S.G. § 3C1.1, comment, (n.4(b)); United

States v. Hargus, 128 F.3d 1358, 1365 (10th Cir. 1997), cert. denied, 523 U.S.

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1079 (1998); United States v. Copus, 110 F.3d 1529, 1535 (10th Cir. 1997); Lang,

81 F.3d at 968; United States v. Massey, 48 F.3d 1560, 1573 (10th Cir.), cert.

denied, 515 U.S. 1167 (1995). “The mere fact that a defendant testifies to his or

her innocence and is later found guilty by the jury does not automatically warrant

a finding of perjury.” United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993)

(noting “[a]n automatic finding of untruthfulness” would violate a defendant’s

constitutional rights). “To establish a defendant’s perjury, the court must find

that [s]he (1) when testifying under oath, gives false testimony; (2) concerning a

material matter; (3) with willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.” Copus, 110 F.3d at 1536

(quotation marks and citation omitted). “‘Material’ evidence, fact, statement or

information, as used in this section, means evidence, fact, statement, or

information that, if believed, would tend to influence or affect the issue under

determination.” U.S.S.G. § 3C1.1, comment. (n.6).

In deciding to impose the two point increase for obstruction of justice, the

district court stated: “I can tell you, I presided over the trial, and I had the

distinct impression Ms. Chavez committed perjury. I was going to sentence her at

the top end of the guidelines, but since they’ve added the two points for that, I’ll

accept that as the appropriate adjustment.” The district court determined Ms.

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Chavez committed perjury by: (1) denying she knew the truck Mr. Maldonado

drove contained marijuana; (2) testifying she had no prior information or

knowledge about the purpose of Mr. Maldonado’s telephone call and did not

expect a telephone call; (3) denying she had any criminal intent when she went to

meet Mr. Maldonado the morning of her arrest; and (4) by testifying she was

referring to the money for gasoline when she responded to Mr. Maldonado’s

reminders not to forget the money for Alonso and him.

Ms. Chavez contends the district court made these determinations in error

and asserts her testimony does not rise to the level of perjury merely because the

jury and the court did not believe her. She further argues the quality of the

evidence against her is entirely circumstantial and subject to different

interpretations, and thus does not support an inference she lied about her

involvement in the drug delivery. At the sentencing hearing, the court rejected

Ms. Chavez’s explanation of her comments to Mr. Maldonado when he called

about the drug delivery – i.e., that she was confused during the telephone

conversations because she had just awakened and because she and the caller

switched back and forth between Spanish and English. The court pointed out Ms.

Chavez told the same story to the jury at trial, which the jury rejected. The court

concluded “the whole story about going to assist someone with gas in the middle

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of the night was inherently unbelievable.” The district court found Ms. Chavez’s

testimony was meant to influence the jury to acquit her, and her statements were

not the result of confusion, mistake or faulty memory, but willful. We agree with

the district court. Ms. Chavez’s story was inherently unbelievable. Furthermore,

ample evidence exists in the record to support the district court’s determination

Ms. Chavez lied under oath. The tape recordings of the telephone calls clearly

support the inference Ms. Chavez expected a drug delivery that night and went

out to meet the courier. Thus, we conclude the district court did not err by

imposing the two-level U.S.S.G. § 3C1.1 enhancement for perjury.

C. Denial of a Two-Point Decrease for Minor Participation

Finally, Ms. Chavez contends the district court erred by failing to grant her

a two-point decrease for acting as a minor participant in the crime. We review a

sentencing court’s refusal to award a defendant minor or minimal participant

status for clear error because it is a finding of fact. United States v. Ballard, 16

F.3d 1110, 1114 (10th Cir.), cert. denied, 512 U.S. 1244 (1994). Under U.S.S.G.

§ 3B1.2(b), the sentencing court may grant a two-point reduction if the defendant

proves by a preponderance of the evidence she acted as a minor participant in the

offense. United States v. Lockhart, 37 F.3d 1451, 1455 (10th Cir. 1994);

U.S.S.G. § 3B1.2(b). The presentence report indicated there were “no

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aggravating or mitigating circumstances” to warrant a role adjustment for Ms.

Chavez under § 3B1.2. Ms. Chavez objected to the report on the grounds she

acted merely as “a one-time courier carrying a small amount of drugs” who “had a

minor role in the entire scheme, even if that was not true of the offense of

conviction.” We conclude Ms. Chavez did not prove by a preponderance of the

evidence she performed merely as a one-time courier. Even if she had made a

sufficient showing she was a one-time courier, we have held a drug courier is not

per se a minor participant in a drug transaction. Ballard, 16 F.3d at 1115 (noting

a courier’s transportation of illegal drugs has been held to be “as indispensable to

the completion of the criminal activity as those of the seller ... and the buyer ...

and ... to debate which one is less culpable than the others is not productive.”)

(quotation marks and citations omitted). Furthermore, in this case, the evidence

weighs against such an interpretation. The evidence indicates Ms. Chavez

controlled the transfer of money in this transaction, became the only confirmed

recipient of the drugs, and acted as the contact person. Thus, we conclude the

district court did not err by determining Ms. Chavez failed to prove she was a

minor participant and correctly denied her request for a downward departure

under U.S.S.G. § 3B1.2.

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 For the reasons stated above, we AFFIRM the decision of the district

court.

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