[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 29, 2011
No. 08-17157 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00095-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES NEIL WALLACE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 29, 2011)
Before BARKETT, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
James Neil Wallace appeals his sentence, imposed after a jury convicted him
of possession of a firearm and ammunition by a convicted felon, and possession of
a firearm and ammunition by an individual subject to a domestic violence
restraining order, pursuant to 18 U.S.C. §§ 922(g)(1) and (g)(8). On appeal,
Wallace asserts the district court erred in applying a two-level obstruction
enhancement under § 3C1.1 because his trial testimony was truthful in material
respects.1 After careful review, we affirm Wallace’s sentence.2
To obtain a two-level enhancement for obstruction of justice at sentencing,
the burden is on the Government to show by a preponderance of the evidence that
“the defendant willfully obstructed . . . the administration of justice with respect to
the investigation, prosecution, or sentencing of the instant offense of conviction.”
See U.S.S.G. § 3C1.1; see also United States v. Turner, 626 F.3d 566, 572 (11th
Cir. 2010) (“The government bears the burden of establishing by a preponderance
of the evidence the facts necessary to support a sentencing enhancement.”)
(quotation omitted).
1
At trial, Wallace testified on his own behalf to facts that were contradicted by the
Government. Based on Wallace’s testimony, the Government sought a two-level Guidelines
enhancement for obstruction of justice. The district court applied this enhancement over
Wallace’s objection, finding portions of Wallace’s testimony “to be untrue” and designed to
instill sympathy in the jurors.
2
We review the district court’s application of an obstruction-of-justice enhancement for
clear error. United States v. Patti, 337 F.3d 1317, 1324 (11th Cir. 2003).
2
For sentencing purposes, obstructive conduct includes the commission of
perjury. U.S.S.G. § 3C1.1, cmt. n.4(b). Perjury occurs when a witness, testifying
under oath, “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.” United States v. Dunnigan, 507 U.S. 87, 94-95 (1993). For
§ 3C1.1 purposes, material matters are those that “if believed, would tend to
influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n.6.
The district court did not clearly err in imposing a two-level obstruction
enhancement. At trial, Wallace’s testimony, found to be untrue, undercut the
offense element that he must knowingly possess the gun and ammunition charged.
See United States v. Farley, 607 F.3d 1294, 1336 n.27 (11th Cir. 2010) (observing
that the record fully supported an obstruction enhancement because the defendant
gave false testimony that went to an element of the offense). His false statements
undermining the credibility of the government’s primary witness were a similar
attempt to undercut the government’s ability to prove this element. Wallace was
aware of as much, explicitly arguing before the jury that the defense he presented
established his possession was not knowing. Because Wallace testified falsely to
facts that went directly to a required element of the offense, we affirm his two-level
obstruction enhancement.
AFFIRMED.
3