I disagree with the majority on their reading of the sentencing judge’s finding and upon their decision that the failure of counsel to object and argue the obstruction of justice enhancement prejudiced Phillips.
Phillips told the arresting officers that he did not know the drugs were in his car; and he testified at trial that he was proceeding to a lawyer’s office to make arrangements to surrender on the outstanding fugitive warrant, that he had no role or responsibility for the presence of methamphetamine in the car, and that he planned to give the drugs and weapon to the lawyer as a show of “good faith.”
Unsurprisingly, the presentence report recommended adjustment for obstruction of justice for this reason:
This defendant provided untruthful testimony concerning material facts at his trial wherein he attempted to obstruct the administration of justice during the investigation and prosecution of the instant offense.
Defense counsel objected only to the finding that defendant provided untruthful testimony at his trial, because “[t]he probation officer was not present at trial. He has no way of judging the credibility of any of the witnesses.”
At the sentencing the court adopted the factual statements of the report and, as to the controverted issue, said:
The court finds the Defendant impeded and obstructed justice, having heard trial testimony and the presentation of physical evidence.
The court went on to speak of the false statements to the arresting officers, which has never been the complaint of this petitioner until his successful plea to this court of appeals. His principal argument to the trial court even in this habeas proceeding was the failure of the sentencing court to make specific findings relative to perjury.
This panel’s discussion is irrelevant if the obstruction of justice enhancement was made due to “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.” See United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445 (1993).
It seems clear to me that the sentencing court did find that Phillips committed perjury and that the record supports that finding. If that finding is unclear, and if the judge failed to make the required findings, it is very certain that there was no prejudice to warrant our granting this writ for ineffectiveness of counsel. There is no likelihood of a different outcome on the resentencing, and the 1991 sentencing was neither unfair nor unreliable. See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 843, 122 L.Ed.2d 180 (1993). I dissent.