FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30395
Plaintiff-Appellee,
v. D.C. No.
1:09-cr-00033-EJL-3
RICHARD C. ARMSTRONG,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
August 2, 2010—Seattle, Washington
Filed August 31, 2010
Before: William C. Canby, Jr., John T. Noonan and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
13095
UNITED STATES v. ARMSTRONG 13097
COUNSEL
R. Wade Curtis, Belnap Law PLLC, Boise, Idaho, for the
defendant-appellant.
13098 UNITED STATES v. ARMSTRONG
Thomas E. Perez, Assistant Attorney General; Jessica Dunsay
Silver and April J. Anderson, Attorneys, U.S. Department of
Justice, Civil Rights Division, Washington, D.C., for the
plaintiff-appellee.
OPINION
BERZON, Circuit Judge:
Richard C. Armstrong was convicted by a jury of partici-
pating in a racially motivated assault against an African
American man. Armstrong now appeals his sentence. He con-
tends that the district court erred in imposing two enhance-
ments: one for selecting a victim on the basis of race and one
for obstruction of justice. Additionally, he argues that the sen-
tence as a whole was procedurally flawed and substantively
unreasonable. We address whether a defendant may avoid an
enhancement for selecting a victim on the basis of race if his
co-defendant selected the victim before he did. We decide that
he may not. Because we also disagree with Armstrong’s other
two contentions, we affirm the sentence imposed by the dis-
trict court.
I.
We begin by reciting the evidence favoring the jury’s ver-
dict: Armstrong, Michael Bullard, and James Whitewater
went to Wal-Mart around midnight on a Saturday night to buy
orange juice. In the juice aisle, they noticed Raylen Smith, an
African American man, shopping for milk. Smith did not
interact with the three strangers but noticed they were talking
and laughing among themselves. He was not aware that they
were using racially derogatory remarks like “spook” and “nig-
ger” in reference to him. On the way to the checkout aisle,
Bullard told his companions that he would fight Smith, and
the group began to discuss the idea. As Smith got in line
UNITED STATES v. ARMSTRONG 13099
behind them, he noticed Bullard staring at him. Smith did not
stare back or say anything to the group.
After Armstrong, Whitewater, and Bullard purchased the
orange juice, they waited outside the store for Smith. When
Smith left the store and walked to the parking lot, he was con-
fronted by Bullard, who flicked his cigarette at Smith and
asked, “Do you know what country you’re in?” Smith, sur-
prised and fearful, attempted to run away. The three men
chased after Smith, Armstrong yelling, “Get him, get that
fucking nigger.” Bullard caught up with Smith first, at the end
of the parking lot, and tackled him; both rolled down a hill
toward a canal. Armstrong and Whitewater approached the
fight moments later and began hitting and kicking Smith
while he was on the ground. The three assailants beat Smith
until he was unconscious. The assailants then fled the scene,
returning to Armstrong’s apartment. After bragging about and
congratulating each other on the attack, they agreed among
themselves that, if anyone asked, there was no racial aspect to
the assault and Bullard would take the blame, “saying it was
a one-on-one fight, nothing racial was ever said.”
Security footage from Wal-Mart enabled the police to
locate the attackers about a month after the incident. The foot-
age showed Bullard, Whitewater, and Armstrong chasing
Smith into the parking lot but did not capture the beating.
Armstrong spoke to the police in a recorded interview and
admitted that members of the group, including him, directed
racial slurs at Smith.
The United States filed a two-count indictment against
Armstrong, Bullard, and Whitewater: the first count charged
the defendants with conspiring to injure, oppress, threaten,
and intimidate Smith in the free exercise of his right to use a
place of public accommodation free from interference based
on race, in violation of 18 U.S.C. § 241; and the second with
using force to willfully injure, intimidate, and interfere with
Smith because of his race and because he was enjoying the
13100 UNITED STATES v. ARMSTRONG
goods and services of an establishment that serves the public,
in violation of 18 U.S.C. §§ 245(b)(2)(F), 2. Whitewater pled
guilty to the first count.
Armstrong and Bullard went to trial. Contradicting his
police interview, Armstrong denied that the group directed
any racial slurs at Smith; denied that he himself had used any
racial slurs that night; and denied that there was any racial
motivation for the attack. Armstrong also claimed that he took
no part in the assault against Smith and only chased after Bul-
lard to pull him off of Smith. Opposing testimony by White-
water and Smith supported the jury’s finding that Armstrong
had committed the offense and had done so because of
Smith’s race. The jury returned verdicts of guilty for Bullard
and Armstrong on both counts.
The Presentence Report (“PSR”) determined Armstrong’s
base offense level to be 12 and recommended a “victim
related adjustment,” because the jury determined beyond a
reasonable doubt that the defendant intentionally selected the
victim because of the victim’s race. Under U.S.S.G.
§ 3A1.1(a), Armstrong’s racial motivation in attacking Smith
increased the offense level by 3. Thus, the PSR calculated a
total offense level of 15 and a criminal history category of V,
suggesting an imprisonment range of 37-46 months.
At sentencing, the court imposed not only the three-level
upward adjustment under U.S.S.G. § 3A1.1(a) but also an
additional two-level upward adjustment under U.S.S.G.
§ 3C1.1 for Armstrong’s false testimony at trial, as proposed
by the government in a letter to the probation officer. The
court calculated a total offense level of 17 and an imprison-
ment range of 46-57 months. The court then imposed the low-
est within-Guidelines sentence, 46 months.
II.
We review factual findings underlying the district court’s
sentencing decision for clear error. See United States v. Loew,
UNITED STATES v. ARMSTRONG 13101
593 F.3d 1136, 1139 (9th Cir. 2010). We review the district
court’s application of the Sentencing Guidelines to the facts
for abuse of discretion. See id.; see also Gall v. United States,
552 U.S. 38, 51 (2007).
A.
[1] Sentencing Guideline 3A1.1(a) provides for a three-
level enhancement when “the finder of fact at trial . . . deter-
mines beyond a reasonable doubt that the defendant intention-
ally selected any victim or any property as the object of the
offense of conviction because of the actual or perceived race
. . . of any person.” In this case, the jury was required to find
—and did find—that Armstrong used force or the threat of
force; that he willfully injured, intimidated, and interfered
with Smith; and that Armstrong acted because Smith is Afri-
can American. To establish the third element, the Government
was required to prove that the victim’s race was a motivating
factor for the attack. Thus, under U.S.S.G. § 3A1.1(a), the
court acted properly in imposing the three-level enhancement
at sentencing.
Armstrong argues that the district court should have been
required to make a separate finding as to selection before
imposing the enhancement because there was no finding by
the jury that Armstrong himself selected Smith as the victim.
Because he was convicted as an aider and abettor and it was
Bullard who initially chose Smith, Armstrong maintains that
he did not personally select the victim, even if he was moti-
vated by racial animus.
[2] The Tenth Circuit rejected essentially the same argu-
ment in United States v. Woodlee, 136 F.3d 1399 (10th Cir.
1998). The defendant in Woodlee, who was charged only with
aiding and abetting a hate crime, also claimed that the evi-
dence did not support use of the enhancement. Rather, he
argued, it demonstrated that he “played no role in the selec-
tion of the victims but joined the offense only toward the con-
13102 UNITED STATES v. ARMSTRONG
clusion of a crime already in progress.” Id. at 1414. The Tenth
Circuit disagreed: “[T]he victims were chosen because of
their race and [the defendant] knew this fact. By aiding and
abetting the continuing crime, [the defendant] must have also
made the same choice.” Id. at 1413.
[3] We are persuaded by the Tenth Circuit’s analysis.
Armstrong’s insistence that the judge make a separate finding
as to selection misses the point of U.S.S.G. § 3A1.1(a). The
purpose of the Guideline is to punish those who have a hate
crime motivation and to deter future hate crimes. It does not
matter whether Armstrong was the first to select Smith as a
victim because of his race; it is enough that Armstrong too
“selected” Smith as the victim of his actions for that reason,
by using force to injure, threaten, or intimidate Smith merely
because of his race. See U.S.S.G. § 3A1.1 cmt. background
(“Subsection (a) reflects the directive to the Commission . . .
to provide an enhancement of not less than three levels for an
offense when the finder of fact at trial determines beyond a
reasonable doubt that the defendant had a hate crime motiva-
tion (i.e., a primary motivation for the offense was race, color,
religion, national origin, ethnicity, gender, disability, or sex-
ual orientation of the victim).”) (emphasis added). Although
the jury was not asked to find that Armstrong personally
selected Smith in the first instance, it was asked to and did
find that Smith was the victim of Armstrong’s attack because
of his race. That is sufficient reason to impose the enhance-
ment.
B.
[4] Sentencing Guideline 3C1.1 provides for a two-level
increase in the offense level if a defendant willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice. An example of obstructive conduct
is “committing, suborning, or attempting to suborn perjury.”
U.S.S.G. § 3C1.1 cmt. n.4(b). A witness commits perjury if he
gives false testimony under oath or affirmation, “concerning
UNITED STATES v. ARMSTRONG 13103
a material matter, with the willful intent to provide false testi-
mony, rather than as a result of confusion, mistake, or faulty
memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993);
see 18 U.S.C. § 1621. The sentencing judge need only find by
a preponderance of the evidence that the defendant committed
perjury. See United States v. Tidwell, 191 F.3d 976, 982 (9th
Cir. 1999).1
Although it is “preferable” for the court to make a separate
and clear finding for each element of the alleged perjury,
doing so is unnecessary where the court makes a determina-
tion of an obstruction of justice “that encompasses all of the
factual predicates for a finding of perjury.” Dunnigan, 507
U.S. at 95.2 The district court in Dunnigan, for example,
found that “the defendant was untruthful at trial with respect
to material matters in this case. [B]y virtue of her failure to
give truthful testimony on material matters that were designed
to substantially affect the outcome of the case, the court con-
cludes that the false testimony at trial warrants an upward
adjustment by two levels.” 507 U.S. at 95 (quoting district
court decision). The Supreme Court upheld the district court’s
sentencing decision even though it lacked a separate and clear
finding for each element of perjury. The Court stated, “Given
the numerous witnesses who contradicted respondent regard-
ing so many facts on which she could not have been mistaken,
there is ample support for the District Court’s finding.” Id. at
95-96.
1
Armstrong maintains that the judge was required to find beyond a rea-
sonable doubt that he had committed perjury, but the case he cites does
not support his argument; on the contrary, it applies a preponderance of
the evidence standard. See United States v. Alvarado-Guizar, 361 F.3d
597, 607 (9th Cir. 2004).
2
The factual predicates for a finding of perjury are that the defendant’s
testimony under oath was false; that the defendant knew that the testimony
was false, so as not to punish him for faulty memory; and that the false
testimony was material to the matters before the court. See Dunnigan, 507
U.S. at 95.
13104 UNITED STATES v. ARMSTRONG
Here, the district court found that Armstrong had perjured
himself in testifying that he did not conspire to assault the vic-
tim because the victim was African American.3 Furthermore,
Armstrong’s denial of “using racial slurs referring to the vic-
tim during and after the attack” was contrary to the evidence
and “material to [Armstrong’s] racial motivation.” (emphasis
added). Thus, the court made a finding that encompassed all
of the factual predicates for a finding of perjury. Additionally,
as in Dunnigan, Armstrong could not be mistaken about his
racial motives or his involvement in the assault against Smith.
[5] Armstrong argues that his testimony was a general
denial of guilt that did not amount to perjury. He maintains
that if he did give a false statement, it was either not material,
in that it would not influence or affect the issues under deter-
mination, or not willful, in that he believed the false statement
to be true at the time he gave it. Although the § 3C1.1 “en-
hancement ‘is not intended to punish a defendant for the exer-
cise of a constitutional right’ such as a ‘denial of guilt,’ ” it
does apply to “ ‘a denial of guilt under oath that constitutes
perjury.’ ” United States v. Jimenez, 300 F.3d 1166, 1171 (9th
Cir. 2002) (quoting U.S.S.G. § 3C1.1 cmt. n.2). If false testi-
mony is material to and significantly impedes the administra-
tion of justice with respect to prosecution or sentencing, it is
more than mere denial of guilt. While a defendant “has a right
3
Armstrong claimed that he took no part in the assault against Smith,
that he had only chased after Bullard in an attempt to stop him, and that
there was no racial aspect to the assault. The district judge explained why
he rejected this position, stating: “[T]he jury determined beyond a reason-
able doubt that you, along with the others, selected the victim because of
his race, color, and national origin . . . . I know your story was that you
went down there and hit Mr. Bullard in the back and tried to pull him off.
That is just not the believable evidence.” The judge then drew from the
record the bases for the jury’s finding. He cited Armstrong’s extensive use
of the “N-word”; the fact that Smith was the only African American in the
store; the footage from the surveillance camera showing Armstrong and
the others waiting for and then running after Smith; and the absence of any
other reason for attacking Smith.
UNITED STATES v. ARMSTRONG 13105
to put the government to its proof . . . ‘there is no constitu-
tional right to lie.’ ” United States v. Baker, 200 F.3d 558, 562
(8th Cir. 2000) (quoting United States v. Lange, 918 F.2d 707,
709 (8th Cir. 1990)); see also Dunnigan, 507 U.S. at 96 (“[A]
defendant’s right to testify does not include a right to commit
perjury.”).
[6] Here, the prosecution pointed to, and the district court
relied on, specific and material instances of Armstrong’s false
testimony. Although Armstrong insists that the prosecution
did not plead the alleged false statements with sufficient spec-
ificity, we disagree. The prosecution, at the sentencing hear-
ing and in a detailed letter to the Presentence Investigator
(“PSI”), explained that Armstrong’s statement denying that he
and his co-conspirators used racial slurs in reference to Smith
before, during, and after the attack “was contradicted by
Raylen Smith, James Whitewater, Natalie Whitewater, and an
excerpt of the video-taped Nampa Police Department inter-
view of defendant Armstrong, which the United States pres-
ented as an exhibit in its rebuttal case.” Armstrong currently
claims that he never denied using racial slurs to refer to
Smith, and that, if anything, he only stated truthfully that he
couldn’t remember whether he had used racial slurs. In fact,
Armstrong clearly and unmistakably testified that he had
never used the “N-word” with regard to Smith on the night of
the attack. When asked whether he had used the word “nig-
ger” while he was inside the store, in the exit foyer, or outside
the store, Armstrong flatly and outrightly stated that he had
never called Smith by any racial slurs. Contrary to this testi-
mony, he stated in his interview with the police that he was
sure he had called Smith a “nigger” on the night of the
assault. Whitewater and Smith also testified that Armstrong
used racially derogatory terms that night.
[7] Moreover, the prosecution specifically pled, and the
district court found, that Armstrong testified falsely in deny-
ing his involvement in the assault and his racial motivation.4
4
The prosecution’s letter to the PSI reads: “[D]efendant Armstrong
denied at trial that he committed these offenses because Raylen Smith was
13106 UNITED STATES v. ARMSTRONG
Armstrong contends that the judge relied solely on the incon-
sistency between the jury’s verdict and defendant’s testimony,
and therefore failed to “personally make a judicial finding of
perjury based on the records.” The judge made clear, how-
ever, that he had considered the record and all of the argu-
ments of both parties and found Armstrong’s testimony not
logical when compared to all of the other evidence in the
record. The judge stated:
. . . I just think if you step back from the evidence
and just look at it with an open mind, you can clearly
see that you perjured yourself when you testified that
you did not conspire to assault the victim because he
was African American. It is just not logical. It cer-
tainly is not consistent with the language you were
using, some of the past problems you have been in.
The court therefore did not clearly err in finding that Arm-
strong testified falsely with respect to material matters,
namely his use of racial slurs, his involvement in the assault,
and his own racial motivation.
C.
Finally, Armstrong argues that the sentence was “procedur-
ally flawed and substantively unreasonable” because the court
failed to consider the § 3553(a) factors,5 thereby treating the
African American. This was contradicted by witness testimony regarding
defendant Armstrong’s actions and statements before, during, and after the
attack, as well as by the evidence of defendant Armstrong’s racial animus
(use of racial slurs, dissemination of racist jokes, drawing and display of
symbols of white supremacy, tattoos of swastikas and Nazi ‘SS’ lightening
bolts).” At the sentencing hearing the prosecution again clearly specified
that Armstrong “denied participating in the offense. He denied chasing
after Mr. Smith. He denied physically attacking Mr. Smith.” Because the
prosecution sufficiently delineated which statements were false, Arm-
strong’s right to due process was not violated.
5
18 U.S.C. § 3553(a) lists the factors to be considered in imposing a
sentence, such as “the nature and circumstances of the offense and the his-
UNITED STATES v. ARMSTRONG 13107
Guidelines as mandatory.6 The judge made clear that the
Guidelines were not binding; he stated:
[J]ust for the record, having reviewed and looked at
all the 3553(a) factors, and taking into consideration
counsel’s arguments concerning the same, the Court
is going to sentence you to the Bureau of Prisons for
a period of 46 months, which is the low end of the
Guidelines. The Guidelines are not binding on the
Court, but you are trying to look at it as one factor
so that sentencing is fair and equitable under the cir-
cumstances.
The district judge also discussed several of the 3553(a) fac-
tors, namely the “nature and circumstances of the offense”
and the “history and characteristics of the defendant.” 18
U.S.C. § 3553(a). The judge then decided that 46 months
would “reflect[ ] the seriousness of the offense, promote[ ]
respect for the law, and provide[ ] just punishment [to] deter
others from . . . being involved in like conduct . . . .” 18
U.S.C. § 3553(a). It is unclear what more Armstrong believes
the judge should have said. We rejected a similar argument in
Carty, holding that when “the judge state[s] that he reviewed
the papers [and] the papers discussed the applicability of
§ 3553(a) factors . . . we take it that the judge considered the
relevant factors.” Carty, 520 F.3d 984, 996 (9th Cir. 2008) (en
banc).
tory and characteristics of the defendant.” It also states that “[t]he court
shall impose a sentence sufficient, but not greater than necessary . . . “ “to
reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; to afford adequate deterrence
to criminal conduct; to protect the public from further crimes of the defen-
dant; and to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment.”
6
The Supreme Court has held that mandatory application of the Guide-
lines would violate the Sixth Amendment. See United States v. Booker,
543 U.S. 220, 245 (2005).
13108 UNITED STATES v. ARMSTRONG
Certainly, a court must give a sufficient explanation to the
defendant once it selects a sentence. What constitutes a suffi-
cient explanation, however, varies and depends upon “the
complexity of the particular case, whether the sentence cho-
sen is inside or outside the Guidelines, and the strength and
seriousness of the proffered reasons for imposing a sentence
that differs from the Guidelines range.” Carty, 520 F. 3d at
992. A sentence inside the Guidelines range generally needs
little explanation. See id.
[8] In Rita v. United States, 551 U.S. 338, 347 (2007), the
Supreme Court held that a court of appeals may presume that
the sentence is reasonable when a district judge’s discretion-
ary decision accords with the sentence that the Commission
deems appropriate. Although we have declined to adopt the
“presumption of reasonableness” for sentences imposed
within the Guidelines range, we nonetheless acknowledge
“that a correctly calculated Guidelines sentence will normally
not be found unreasonable on appeal.”7 Carty, 520 F.3d at
988.
[9] In this case, the district judge explained his reasons for
imposing both the § 3C1.1 and the § 3A1.1 enhancements;
explained why he rejected Armstrong’s position by pointing
to the jury’s findings and the testimony and evidence in the
record; calculated the sentence according to the Sentencing
Guidelines; stated that the Guidelines were just one of the fac-
tors he considered; and finally stated that he had “reviewed
and looked at the 3553(a) factors and considered all argu-
ments concerning the same.” Perhaps most noteworthy is that
the judge gave a sentence that was within and at the low end
of the Guidelines. Because the arguments were straightfor-
7
We also agreed with the Supreme Court’s observation that “where a
matter is . . . conceptually simple . . . and the record makes clear that the
sentencing judge considered the evidence and arguments, we do not
believe the law requires the judge to write more extensively.” Carty, 520
F.3d at 995 n.11 (2008) (quoting Rita, 551 U.S. at 359).
UNITED STATES v. ARMSTRONG 13109
ward and uncomplicated, the district judge gave Armstrong
ample explanation. See Carty, 520 F.3d at 995.
III.
The district court correctly applied the enhancements for
selecting a victim based on race and obstruction of justice.
The judge’s findings are supported by the record and are not
clearly erroneous. The sentence is AFFIRMED.