United States v. Jorge Zamora , 277 F. App'x 869 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 8, 2008
No. 07-13253 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00352-CR-VEH-VEO
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE ZAMORA,
a.k.a. Nono,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 8, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
A Northern District of Alabama jury convicted Jorge Zamora on three
counts of a multi-count indictment: Count One, conspiracy to possess with intent to
distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§
846 and 841(b)(1)(A); Count Eight, distribution of 50 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and Count Nine,
possession with intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1).1 The district court sentenced Zamora on each
count to concurrent prison sentences of 235 months. The sentences were at the low
end of the Guidelines sentence range, which called for a prison term of 235 to 293
months for an offense level of 38 and a category I criminal history. Zamora now
appeals his sentences.
At trial, Zamora testified in his own defense. In determining his sentence
range under the Guidelines, the district court enhanced his base offense level by
two levels under U.S.S.G. § 3C1.1, obstruction of justice, finding that Zamora’s
testimony constituted perjury. Zamora contends that the court clearly erred in
making that finding.
An obstruction of justice enhancement is appropriate if “the defendant
willfully obstructed . . . the administration of justice during the course of the
investigation, prosecution, or sentencing of the instant offense of conviction.”
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Five others were indicted along with Zamora. Three of them were Government
witnesses against him.
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U.S.S.G. § 3C1.1. Obstructive conduct includes the commission of perjury. Id.,
comment. (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, 113 S. Ct. 1111, 1116, 122 L. Ed. 2d 445
(1993). Material matters include those that “would tend to influence or affect the
issue under determination.” U.S.S.G. § 3C1.1, comment. (n.4(b)).
“[I]f a defendant objects to a sentence enhancement resulting from [his] trial
testimony, a district court must review the evidence and make independent findings
to establish a willful impediment to or obstruction of justice.” Dunnigan, 507 U.S.
at 95, 113 S.Ct. at 1117. Although the district court should make specific findings
regarding perjury, a general independent finding of perjury is sufficient if the
record demonstrates all the factual predicates of perjury. United States v. Dobbs,
11 F.3d 152, 155 (11th Cir. 1994) (applying Dunnigan).
Here, the district court’s general finding of that Zamora had committed
perjury was sufficient to support the enhancement because it was an independent
finding and all the factual predicates of perjury were present. Specifically,
Zamora’s testimony directly contradicted the testimony of several co-defendants.
Zamora willfully gave false testimony under oath regarding material matters.
AFFIRMED.
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