UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4710
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LUIS ALBERTO NAPAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:10-cr-00384-TSE-1)
Submitted: March 30, 2012 Decided: June 28, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Assistant Federal Public Defender, Alexandria, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Andrew
Peterson, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Luis Alberto Napan appeals the twenty-seven-month
sentence imposed following his conviction by a jury of
conspiring to import a controlled substance, in violation of 21
U.S.C. §§ 952, 960(a)(1), 963 (2006). On appeal, Napan argues
that the sentencing court committed procedural sentencing error
by failing to establish an adequate factual predicate for its
obstruction of justice enhancement, in violation of United
States v. Perez, 661 F.3d 189 (4th Cir. 2011). We vacate and
remand for resentencing.
To impose an enhancement pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 3C1.1 (2010), for obstruction of
justice based on false testimony, “the sentencing court must
find that the defendant (1) gave false testimony; (2) concerning
a material matter; (3) with willful intent to deceive.” Perez,
661 F.3d at 192. The sentencing court must “make independent
findings necessary to establish a willful impediment to, or
obstruction of, justice,” which is accomplished if the court’s
finding “encompasses all of the factual predicates for a finding
of perjury.” United States v. Dunnigan, 507 U.S. 87, 95 (1993),
abrogated on other grounds by United States v. Wells, 519 U.S.
482 (1997). We will “decline[] to infer such findings when they
were not made with the specificity stated in Dunnigan.” United
States v. Smith, 62 F.3d 641, 647-48 (4th Cir. 1995). Recently,
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we clarified our standard for articulating such findings,
holding that “[i]f a district court does not make a specific
finding as to each element of perjury, it must provide a finding
that clearly establishes each of the three elements.” Perez,
661 F.3d at 193.
In imposing a USSG § 3C1.1 enhancement for false
testimony at a suppression hearing, the district court stated
that Napan’s testimony was not credible as to the disputed
points and contrary to the testimony provided by the
Government’s witnesses. However, we conclude that neither these
findings, nor the specific statements at issue, are sufficient
to establish that the testimony as to each disputed point was
both material and made with willful intent to deceive. Although
the court made lengthy factual findings in ruling on the motion
to suppress, we conclude the findings articulated by the court
do not provide a sufficient basis to clearly establish each
necessary element. See Perez, 661 F.3d at 193-94; cf. United
States v. Cook, 76 F.3d 596, 605-06 (4th Cir. 1996); United
States v. Quinn, 359 F.3d 666, 681 (4th Cir. 2004). We
therefore conclude that the district court procedurally erred in
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imposing the USSG § 3C1.1 enhancement without further
factfinding. *
The Government asserts that the court’s procedural
error is harmless. See United States v. Boulware, 604 F.3d 832,
838 (4th Cir. 2010) (discussing standard). Although the
district court granted Napan a substantial downward variance
from his Guidelines range and provided a sufficient explanation
for its chosen sentence, these facts, standing alone, do not
provide a sufficient basis to conclude that the court would not
have applied an equivalent variance, resulting in a lower
sentence, if the USSG § 3C1.1 enhancement was not applied. Cf.
United States v. Savillon-Matute, 636 F.3d 119, 124 (4th Cir.)
(finding error harmless when sentencing court stated on record
that sentence imposed was “absolutely” the appropriate
sentence), cert. denied, 132 S. Ct. 454 (2011); United States v.
Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) (“An error in the
calculation of the applicable Guidelines range, whether an error
of fact or of law, infects all that follows at the sentencing
proceeding . . . .”). Thus, we conclude the error was not
harmless.
*
We note that the district court did not have the benefit
of Perez at the time it sentenced Napan.
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Accordingly, we vacate the sentence and remand for
resentencing in light of Perez. In doing so, we express no
opinion as to the propriety of the USSG § 3C1.1 enhancement in
this instance. 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.
VACATED AND REMANDED
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