UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4273
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRUCE ALAN DAVIDSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
Chief District Judge. (2:09-cr-00014-REM-JSK-2)
Submitted: February 24, 2011 Decided: March 18, 2011
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Deanna L. Pennington, Morgantown, West Virginia, for Appellant.
Betsy C. Jividen, United States Attorney, Stephen D. Warner,
Assistant United States Attorney, Elkins, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Alan Davidson pled guilty to conspiracy to
possess with intent to distribute more than 50 grams of
methamphetamine, 21 U.S.C. § 846 (2006), and was sentenced to a
term of 235 months imprisonment. Davidson appeals his sentence,
contending that the district court clearly erred by increasing
his sentence for obstruction of justice, U.S. Sentencing
Guidelines Manual § 3C1.1 (2009), and for an offense that
created a substantial risk of harm to human life or the
environment, USSG § 2D1.1(b)(10(C)(ii). * He also maintains that
the sentence is unreasonable. We affirm.
Davidson participated in a conspiracy that lasted
several years, involved a large number of people, and produced a
large quantity of methamphetamine. Davidson was initially
released on bond after his arrest, but his bond was revoked
after he tested positive in a field test for methamphetamine
use. At the revocation hearing before a magistrate judge,
Davidson testified that he had not used methamphetamine, had not
admitted using methamphetamine to the probation officer or a
deputy marshal on the day he was tested and the day he was
*
The government asserts that plain error review applies to
Davidson’s first two issues. However, Davidson preserved both
issues for appeal by objecting to the enhancements in the
district court. United States v. Lynn, 592 F.3d 572, 577 (4th
Cir. 2010).
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returned to custody, and did not check a box indicating that he
admitted using methamphetamine on the admission form. The
magistrate judge found Davidson’s testimony less credible than
the probation officer’s testimony to the contrary.
Davidson acknowledged when he subsequently entered his
guilty plea that he and co-defendant Jeremy Brown both cooked
methamphetamine, often at a farm owned by Brown’s mother. A few
days later, although his plea agreement required him to give
truthful testimony, Davidson was called to testify at Brown’s
trial. Out of the presence of the jury, Davidson denied
conspiring with Brown to manufacture methamphetamine, denied
ever seeing Brown with methamphetamine or seeing a
methamphetamine lab on Brown’s property, and denied that he had
ever known Brown to use methamphetamine or that anyone obtained
it from him.
At the sentencing hearing, Davidson argued that his
perjured testimony at the revocation hearing should not be the
basis for an obstruction of justice adjustment because his
subsequent guilty plea had given him “a clean slate.” He also
argued that he should not be held responsible for creating a
hazard to human life or the environment because he had no
control over what happened on Brown’s property, where much of
the methamphetamine was manufactured. The district court
overruled both objections and imposed sentence at the bottom of
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the advisory sentencing guideline range, finding that Davidson’s
arguments for a below-guideline sentence so that he could spend
time with his children were at odds with his prior conduct and
that a within-guideline sentence was necessary to reflect the
seriousness of the offense, instill a proper respect for the
law, and provide for Davidson’s rehabilitation. The 235-month
sentence was at the bottom of the guideline range.
On appeal, Davidson argues that the court failed to
make adequate findings to support the adjustment for obstruction
of justice, failed to consider properly the factors relevant to
the enhancement for creating a risk of harm, thus improperly
calculating the guideline range, and failed to consider
adequately the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2010)
factors. We review a sentence for procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
We must first ensure that the district court did not commit any
“significant procedural error,” such as failing to properly
calculate the applicable guidelines range, failing to consider
the 18 U.S.C.A. § 3553(a) factors, or failing to adequately
explain the sentence. Id.
An adjustment for obstruction of justice is warranted
if “the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the
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instant offense of conviction[.]” USSG § 3C1.1. The
application notes for § 3C1.1 specifically include perjury by
defendant and providing materially false information to a judge
or magistrate. USSG § 3C1.1 cmt. n.4(b), (f). For purposes of
§ 3C1.1, the Supreme Court has defined perjury as “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.” United States v.
Dunnigan, 507 U.S. 87, 94 (1993). Application Note 6 defines
“material evidence” as “evidence, fact, statement, or
information that, if believed, would tend to influence or affect
the issue under determination.” Under Dunnigan, “it is
preferable for a district court to address each element of the
perjury in a separate and clear finding[,]” 507 U.S. at 95, but
it is sufficient if the district court makes a determination
“that encompasses all of the factual predicates for a finding of
perjury.” Id. Davidson contends that the district court failed
to identify the statements he made at the revocation hearing
that were false, whether they concerned a material matter, and
whether they were willfully made.
However, Davidson did not assert at sentencing that
his testimony at the detention hearing was not perjured or not
material or not given with the willful intent to influence the
outcome of the detention hearing. He thus conceded that it was
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all of the above. We conclude that it was not clear error for
the district court to base its finding of perjury on the
magistrate judge’s implied, and undisputed, finding that
Davidson’s testimony at the revocation hearing was not credible,
and the probation officer’s recommendation that the testimony
was material and willful. See United States v. Terry, 916 F.2d
157, 162 (4th Cir. 1990) (without defendant’s affirmative
showing that information in presentence report is inaccurate,
district court may adopt findings without more explicit
explanation).
Application Note 20(A) to § 2D1.1 sets out four
factors relevant to the court’s determination that, in an
offense involving the manufacture of methamphetamine, an
enhancement for creation of a substantial risk of harm to human
life or the environment is warranted. In the presentence
report, the probation officer discussed these factors in detail
and explained how they supported application of the enhancement
in this case. At the sentencing hearing, Davidson argued only
that he was not responsible for any hazard created by the
manufacture of methamphetamine on Brown’s property. He did not
contend that no substantial risk of harm was created there,
again conceding the point. The district court held that
Davidson was responsible for the actions of his co-conspirators
in furtherance of the conspiracy, see USSG § 1B1.3(a)(1)(B), but
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did not make detailed findings concerning the enhancement, since
none were called for under Terry. We conclude that the district
court did not clearly err in applying the enhancement for
creation of a substantial risk of harm.
Davidson maintains that the district court’s alleged
errors in calculating his guideline range resulted in a sentence
above the guideline range that, in his view, should have been
used and, therefore, the sentence should not be afforded a
presumption of reasonableness. However, we conclude that the
district court did not err in calculating the guideline range.
Davidson also claims that the district court failed to
consider adequately the § 3553(a) factors, resulting in a
sentence greater than necessary. This claim also fails. The
court “must place on the record an individualized assessment
based on the particular facts of the case before it [which]
. . . provide[s] a rationale tailored to the particular case at
hand and [is] adequate to permit meaningful appellate review.”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(internal quotation marks, footnote, and citation omitted).
This is true even when the district court sentences a defendant
within the applicable guidelines range. Id.
At the same time, a sentence imposed within a properly
calculated guidelines range enjoys a presumption of
reasonableness on appeal. United States v. Go, 517 F.3d 216,
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218 (4th Cir. 2008); see Rita v. United States, 551 U.S. 338,
346-56 (2007) (upholding appellate presumption of reasonableness
for within-guidelines sentence). Thus, an extensive explanation
is not required as long as the appellate court is satisfied
“that [the district court] has considered the parties’ arguments
and has a reasoned basis for exercising [its] own legal
decisionmaking authority.” United States v. Engle, 592 F.3d
495, 500 (4th Cir.) (quoting Rita, 551 U.S. at 356), cert.
denied, 131 S. Ct. 165 (2010) (internal quotation marks
omitted).
Although Davidson did not object to the alleged
inadequacy of the district court’s ruling at sentencing, he
preserved the issue for appeal simply by requesting a below-
guideline sentence. Lynn, 592 F.3d at 577-78. We are satisfied
that the court adequately considered the § 3553(a) factors, made
an individualized assessment of the relevant facts, and stated
its reasons for imposing a within-guideline sentence in a manner
sufficient to permit appellate review.
Thus, the district court did not commit procedural
error and we exercise our discretion to “apply a presumption of
reasonableness” to Davidson’s within-guideline sentence. United
States v. Wright, 594 F.3d 259, 268 (4th Cir.) (quoting Gall,
552 U.S. at 51), cert. denied, 131 S. Ct. 507 (2010) (internal
quotation marks omitted).
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We therefore affirm the 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
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