UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10197
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLAYTON FIDEL MANNING,
Defendant-Appellant.
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Appeal from the United States District Court
For the Northern District of Texas
USDC No. 1:99-CR-3-1
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October 19, 2001
Before JOLLY, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Clayton Fidel Manning appeals his convictions for possessing
with the intent to distribute marijuana and conspiring to
distribute, and to possess with the intent to distribute, over 50
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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kilograms of marijuana. Manning asserts that the district court
erred in adjusting his sentence for obstruction of justice pursuant
to U.S.S.G. § 3C1.1 because the court’s finding that he committed
perjury at trial was clearly erroneous.
Manning’s appeal of the obstruction-of-justice enhancement is
without merit for two reasons. First, the enhancement is
independently based upon the district court’s finding that Manning
attempted to escape from pretrial custody on more than one
occasion. Because Manning has not challenged this finding, he has
waived any challenge to the obstruction-of-justice enhancement.
United States v. Valdiosera-Godinez, 932 F.2d 1093, 1099 (5th Cir.
1991). Second, the district court did not commit clear error in
determining that Manning committed perjury.
Section 3C1.1 of the United States Sentencing Guidelines
instructs the district court to enhance a defendant's offense level
by two points "[i]f the defendant willfully impeded or obstructed,
or attempted to impede or obstruct the administration of justice
during the investigation, prosecution, or sentencing of the instant
offense." The Commentary specifically lists "committing,
suborning, or attempting to suborn perjury" as examples of conduct
to which the enhancement applies. U.S.S.G. § 3C1.1, comment n.
4(b). A district court's factual determination that a defendant
has obstructed justice under section 3C1.1 is reviewed for clear
error. United States v. Laury, 985 F.2d 1298, 1305 (5th Cir.
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1993).
After reviewing the record, we conclude that the district
court properly reviewed the evidence and made the findings
necessary to establish perjury. The district court specified the
portions of Manning’s testimony which were false, found that the
false testimony was given willfully and deliberately, and found
that the false testimony was relevant and material to the issue of
guilt or innocence. See United States v. Dunnigan, 507 U.S. 87, 94
(1993) (holding that a witness testifying under oath commits
perjury if he gives 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). Based upon the
convincing evidence presented by the government at trial concerning
Manning’s involvement in the marijuana distribution conspiracy, the
district court did not clearly err in determining that Manning
committed perjury during his testimony.
AFFIRMED.
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