United States v. Tyrus Lamont Addison , 253 F. App'x 849 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 8, 2007
No. 07-12251 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00106-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRUS LAMONT ADDISON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(November 8, 2007)
Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Tyrus Lamont Addison appeals his 60-month sentence for possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). Addison argues that the district court’s application of an obstruction-
of-justice enhancement, pursuant to U.S.S.G. § 3C1.1, and the denial of an
acceptance-of-responsibility reduction, pursuant to U.S.S.G. § 3E1.1, (1) violated
his Fifth Amendment privilege against self-incrimination by effectively requiring
him to admit his guilt for another crime and (2) violated his Fourteenth
Amendment right to due process by effectively punishing him for a crime without
affording the procedural safeguards of indictment, arraignment, or trial. For the
reasons discussed below, we affirm.
At Addison’s change-of-plea hearing, the government proffered the
following facts. Federal officials arrested Addison on the firearm possession
charge after state officials notified them that Addison had threatened a 17-year-old
girl with a firearm and that state police had found a loaded firearm in Addison’s
car when they stopped him to investigate the girl’s report. In response to the
government’s proffered facts, Addison admitted that he was a convicted felon and
had possessed a firearm and ammunition, but stated that he had not pointed the
firearm at, and did not know, the 17-year-old girl.
In preparing a presentence investigation report, the probation officer applied
a 2-level obstruction-of-justice enhancement, pursuant to § 3C1.1, and declined to
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apply a 2-level acceptance-of-responsibility reduction, pursuant to § 3E1.1(a), on
the grounds that Addison had perjured himself at his change-of-plea hearing by
falsely denying his conduct toward the 17-year-old girl. In response, Addison
argued that the probation officer’s position effectively required him to waive his
right against self-incrimination and admit a crime, namely, aggravated assault, that
he denied committing and with which he had not been charged.1 The district court
notified Addison and the government that they should be prepared to offer further
evidence at sentencing as to Addison’s alleged conduct toward the girl.
Accordingly, at the sentencing hearing, the 17-year-old girl and her mother
testified. The girl stated that she knew Addison because his brother was the father
of her sister’s child. She also stated that she had met Addison when she was 13,
when he had asked her for her phone number and she had refused. She then
explained that, as she was walking home one day, Addison approached her in his
car and accused her of telling his then-girlfriend that Addison and she had dated.
She explained that Addison called her “the B word,” tried to run over her with his
car, and then pulled out a firearm and said “I’ll kill you, I’ll kill you.” Addison
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The probation officer also had applied a 4-level enhancement, pursuant to U.S.S.G.
§ 2K2.1(b)(6), because Addison possessed the firearm in connection with committing the felony
offense of aggravated assault. It is notable that Addison did not object to receiving this
enhancement before the district court, nor does he raise it on appeal. It also is notable that
Addison did not argue that he did not commit perjury at his change-of-plea hearing before the
district court or on appeal.
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cross-examined the 17-year-old girl on this testimony. The girl’s mother stated
that, after her daughter reported the incident to her, she followed Addison and saw
him exit his car with a firearm. Based on this testimony the district court adopted
the probation officer’s calculations.
We review questions of constitutional law de novo. United States v. Chau,
426 F.3d 1318, 1321 (11th Cir. 2005).
A. Fifth Amendment
The Fifth Amendment to the United States Constitution provides that “no
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. The Supreme Court has held, however, that “neither the
text nor the spirit of the Fifth Amendment confers a privilege to lie” and that
“[p]roper invocation of the Fifth Amendment privilege against compulsory
self-incrimination allows a witness to remain silent, but not to swear falsely.”
Brogan v. United States, 522 U.S. 398, 404, 118 S.Ct. 805, 810, 139 L.Ed.2d 830(1998) (quotation omitted).
Pursuant to § 3C1.1, a district court may apply a two-level obstruction-of-
justice enhancement to a defendant’s base offense level if the defendant willfully
obstructs the investigation, prosecution, or sentencing of his offense of conviction,
in a manner related to his offense of conviction, relevant conduct, or a closely
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related offense. The commentary to § 3C1.1 provides a non-exhaustive list of
conduct to which the enhancement might apply, including perjury and “providing
materially false information to a judge or magistrate.” U.S.S.G. § 3C1.1,
comment. (n.4(b) and (f)). The commentary to § 3C1.1 cautions, however, that the
provision “is not intended to punish a defendant for the exercise of a constitutional
right” and, therefore, does not apply to “[a] defendant’s denial of guilt (other than a
denial of guilt under oath that constitutes perjury), refusal to admit guilt or provide
information to a probation officer, or refusal to enter a plea of guilty.” U.S.S.G.
§ 3C1.1, comment. (n.2). However, there is no constitutional right to commit
perjury, and when sentencing a defendant, the court constitutionally may take into
account its conclusion that the defendant committed perjury at trial. United States
v. Grayson, 438 U.S. 41, 54-55, 98 S.Ct. 2610, 2617-18, 57 L.Ed.2d 582 (1978).
Pursuant to § 3E1.1(a), a district court can reduce a defendant’s base offense
level by two levels if the defendant demonstrates acceptance of responsibility for
his offense. In United States v. Henry, 883 F.2d 1010, 1011-12 (11th Cir. 1989),
this court held that § 3E1.1 was not unconstitutional with regard to the Fifth
Amendment right against self-incrimination because the provision was not
intended to punish defendants.
After a thorough review of the record, we conclude that the district court
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properly sentenced Addison. First, the application of an obstruction-of-justice
enhancement did not violate Addison’s privilege against self-incrimination because
Addison’s statements at the change-of-plea hearing constituted a false denial of
guilt under oath, rather than a mere refusal to admit guilt. See U.S.S.G. § 3C1.1
comment. (n.2). Moreover, Addison had no right to lie under oath, and the
sentencing court properly considered such perjury at sentencing. See Grayson, 438
U.S. at 54-55.
Second, the refusal to apply an acceptance-of-responsibility reduction did
not violate Addison’s privilege against self-incrimination because it did not impose
further punishment. See Henry, 883 F.2d at 1011-12.
B. Fourteenth Amendment
The Due Process Clause protects against deprivations of “life, liberty, or
property without due process of law.” U.S. Const. XIV. Specifically, “due process
assures the defendant he will be given adequate notice and an opportunity to
contest the facts relied upon to support his criminal penalty.” United States v.
Satterfield, 743 F.2d 827, 840 (11th Cir. 1984).
Here, we conclude that the district court did not violate Addison’s right to
due process. The district court put both Addison and government on notice of the
need for further evidence regarding the girl’s contentions, gave Addison the
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opportunity to cross-examine her and her mother, and gave Addison the
opportunity to present his own evidence regarding the incident. Thus, there was no
constitutional error.
For the foregoing reasons, we AFFIRM.
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