United States v. Randy Eugene Greene ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13631
Non-Argument Calendar
________________________
D.C. Docket No. 5:18-cr-00503-AKK-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY EUGENE GREENE,
Defendant-Appellant
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 8, 2021)
Before JILL PRYOR, LAGOA and BRASHER, Circuit Judges.
PER CURIAM:
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Randy Eugene Greene appeals his convictions, following a jury trial, and 30-
month sentence for 11 counts of odometer tampering and three counts of bank
fraud. He contends that there was insufficient evidence presented at trial to
support his convictions and argues that, at sentencing, the district court erred in
calculating the loss amount and in applying a two-level enhancement for
obstruction of justice. After careful review, we affirm Greene’s convictions and
sentence.
I. BACKGROUND
A federal grand jury indicted Greene on 12 counts 1 of odometer tampering,
in violation of 49 U.S.C. §§ 32703(2) and 32709(b), and three counts of bank
fraud, in violation of 18 U.S.C. § 1344. The indictment alleged that Greene
“knowingly disconnected, reset, and altered and had disconnected, reset, and
altered” the odometers of 12 motor vehicles he sold, three of which were financed
by Redstone Federal Credit Union. Doc. 1 at 1–13.2 The three counts of bank
fraud were based on the three vehicles purchased with loans the buyers obtained
from the credit union. The indictment alleged that Greene knowingly defrauded
Redstone when he received funds from the credit union for the sale of these three
1
The government dismissed one of the 12 odometer tampering counts, Count 6, because
the alleged victim was unavailable to testify at trial.
2
“Doc.” numbers refer to the district court’s docket entries.
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vehicles, whose odometers displayed lower mileage than the vehicles actually had.
Greene pled not guilty and proceeded to trial.
A. The Criminal Trial
Over the course of a four-day jury trial, the government presented evidence
establishing that Greene sold 11 vehicles whose odometers had been altered to
reflect lower mileage, three of which were financed by Redstone Federal Credit
Union. The jury heard from Greene’s former employees, who testified about his
practice of altering odometers on the cars sold by Greene’s sales lot, RJ’s Auto
Sales.
Joseph Gaudet testified that he bought a car from Greene and then came to
work for him at RJ’s as a salesperson. Gaudet testified that while working for
Greene he became concerned about the accuracy of odometers in vehicles they
sold because he saw “odometers laying everywhere” and heard “customers
complaining about the[ir cars’] miles.” Doc. 75 at 28–29. This prompted Gaudet
to investigate the mileage of the car he had purchased from RJ’s, and he found
paperwork indicating that his vehicle actually had higher mileage than the
odometer indicated when he purchased it. Gaudet also testified that Greene asked
him to hide documents and a computer disc showing that Greene altered odometers
on the cars RJ’s sold because Greene was being audited by the Internal Revenue
Service.
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Julian Curry, Greene’s former repair person, testified that Greene instructed
him to change the mileage shown on the odometer of at least five vehicles. On all
but one such occasion, Greene instructed him to lower the mileage. Curry
explained that typically when he repairs or changes the mileage on an odometer,
the repair shop will provide documentation from Carfax—a service that provides a
report of the vehicle’s history—indicating the car’s true mileage, but Greene never
provided him with documentation. Instead, while working at RJ’s, Curry would
set the mileage to “[w]hatever [] Greene told [him].” Doc. 75 at 89.
The government also introduced evidence about the investigation into
Greene. The United States Secret Service agent who performed the investigation
testified that he identified 11 vehicles Greene purchased from auto auctions and
then sold to consumers with lower mileage listed on the odometers than when
Greene purchased them. The buyers of these 11 vehicles each testified that the
mileage shown on the odometer of the car they bought was lower than the car’s
actual mileage and confirmed they would not have purchased the vehicle had they
known its true mileage.
The jury also heard from Tara Perez, the senior assistant vice president of
consumer lending at Redstone, who testified that for the three vehicles Redstone
financed, the credit union received documents showing mileage that was lower
than when Greene purchased the vehicles. Perez explained that the mileage was
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used to determine the value of the cars, and, consequently, how much Redstone
was willing to lend the buyers to purchase the cars.
Greene testified in his defense. He denied giving Gaudet any documents and
said Curry was lying when he testified that Greene instructed him to lower
vehicles’ mileage. Greene told the jury that for all but two cars (the subjects of
Counts 12 and 14), the reason for the differences in the mileage between when he
purchased the vehicles and when he sold them was that the odometers did not work
and thus had to be replaced. He testified that he personally did not participate in
the three transactions with Redstone, but he confirmed that he made money from
them. He also testified repeatedly that his salespeople told the credit union that the
odometers in the three financed vehicles were inaccurate; however, he was unable
to identify any Redstone personnel with whom his employees spoke.
At the close of the government’s case, and again at the close of all evidence,
Greene moved for a judgment of acquittal. Both times the district court denied
Greene’s motion because the evidence in the record was sufficient for the jury to
find Greene guilty on all counts. The jury returned a verdict convicting Greene on
all counts.
B. Presentence Investigation Report and Sentencing
Before sentencing, the probation office prepared a presentence investigation
report (“PSR”). Based on Greene’s convictions, the PSR applied a base offense
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level of seven pursuant to U.S.S.G. § 2B1.1(a)(1). The PSR recommended several
enhancements to the base offense level. It determined that the aggregate loss
amount was $109,103.95—the total purchase price of the 11 vehicles that were the
subject of the trial, the vehicle belonging to the witness who was unavailable for
trial, and two additional vehicles that were identified post-indictment. See U.S.S.G
§ 1B1.3(a)(2) (providing that enhancements “shall be determined on the basis of . .
. all acts . . . that were part of the same course of conduct or common scheme or
plan as the offense of conviction”). The PSR contained a chart listing the purchase
price of each vehicle. The PSR applied an eight-level enhancement because the
loss amount was more than $95,000 but less than $150,000. Id. § 2B1.1(b)(1)(E).
The PSR also recommended a two-level enhancement because the offense
involved more than 10 victims. Id. § 2B1.1(b)(2)(A). And it applied a two-level
enhancement for obstruction of justice because Greene perjured himself when he
testified at trial. See id. § 3C1.1, cmt. n.4(B). After application of the three
enhancements, Greene’s total offense level was 19. The PSR arrived at a criminal
history score of zero, resulting in a criminal history category of I. Based on his
total offense level and criminal history category of I, Greene’s recommended range
of imprisonment under the Sentencing Guidelines was 30 to 37 months.
Greene objected to two of the enhancements in the PSR, the enhancements
based on total loss amount and the enhancement for obstruction of justice. First,
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he objected to the PSR’s calculation of the total loss amount, arguing that the
amount should reflect the purchase price paid by those victims who testified at trial
and should not include the price of the vehicle purchased by the victim who was
unavailable for trial or of the two vehicles discovered post-indictment. Second, he
objected to the enhancement for obstruction of justice, arguing that it amounted to
a “fair trial tax,” Doc. 79 at 19, and that his testimony may have resulted from
“confusion, mistake, or faulty memory and, thus, not all inaccurate testimony or
statements necessarily reflect a willful attempt to obstruct justice,” Doc. 51 at 1
(emphasis omitted).
At the sentencing hearing, the district court overruled both objections. First,
the court rejected Greene’s objection regarding the loss amount calculation
because although Greene’s convictions were not based on the three vehicles he
wished to exclude, the sale of these vehicles was “part of [the] relevant conduct”
and showed “a common scheme or plan as the offense of conviction.” Doc. 79 at
10. Second, the court concluded that the obstruction of justice enhancement was
warranted because Greene’s testimony contained “a litany of examples . . . that he
engaged in blatant perjury.” Id. at 20. For instance, Greene’s testimony
contradicted Curry’s statement that Greene instructed him to lower the mileage on
certain vehicles. The district court also found not credible Greene’s insistence that
Redstone knew the mileage on the vehicles was inaccurate, even though Greene
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denied speaking with Redstone and could not identify anyone at the credit union
with whom his employees purportedly spoke.
The district court calculated Greene’s total offense level as 19 and his
criminal history category as I, which yielded a Sentencing Guidelines range of 30
to 37 months’ imprisonment. The court then imposed a within-guidelines sentence
of 30 months’ imprisonment and ordered Greene to pay $109,103.95 in restitution.
This is Greene’s appeal.
II. DISCUSSION
Greene raises three arguments on appeal. First, he asserts that the
government presented insufficient evidence to support his convictions for
odometer tampering and bank fraud. Second, he contends that the district court
improperly calculated the loss amount at sentencing. Third, he argues that the
district court erred in applying a sentencing enhancement for obstruction of justice.
We consider each argument in turn.
A. There Was Sufficient Evidence to Support Greene’s Convictions.
Greene argues that we must reverse his convictions because there was
insufficient evidence to support the jury’s verdict. We review the sufficiency of
the evidence de novo, considering the evidence in the light most favorable to the
government and drawing all reasonable inferences in favor of the jury’s verdict.
United States v. Langford, 647 F.3d 1309, 1319 (11th Cir. 2011). A jury is free to
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choose among reasonable constructions of the evidence. United States v. Godwin,
765 F.3d 1306, 1320 (11th Cir. 2014). Thus, we may not overturn a jury’s verdict
“if any reasonable construction of the evidence would have allowed the jury to find
the defendant guilty beyond a reasonable doubt.” United States v. Capers,
708 F.3d 1286, 1297 (11th Cir. 2013) (internal quotation marks omitted).
Additionally, “[c]redibility determinations are left to the jury” and we will not
disregard them unless the testimony is incredible as a matter of law, meaning it
contains “facts that the witness could not have possibly observed or events that
could not have occurred under the laws of nature.” United States v. Flores,
572 F.3d 1254, 1263 (11th Cir. 2009) (internal quotation marks omitted).
Applying this standard, we conclude that there was sufficient evidence to support
Greene’s convictions.
1. The Evidence Was Sufficient to Establish that Greene Committed
Odometer Tampering.
To sustain a conviction for odometer tampering, the government was
required to present evidence establishing, beyond a reasonable doubt, that Greene
“disconnect[ed], reset, or alter[ed], or ha[d] disconnected, reset, or altered,” the
odometers of the 11 charged vehicles “intending to change the mileage registered
by [each] odometer,” 49 U.S.C. § 32703(2), and that he “knowingly and willfully
violate[d]” the odometer tampering statute, id. § 32709(b). To establish a willful
violation of a statute, “generally the [g]overnment must prove that the defendant
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acted with knowledge that his conduct was unlawful.” United States v. Clay,
832 F.3d 1259, 1308 (11th Cir. 2016) (internal quotation marks omitted). But
“guilty knowledge can rarely be established by direct evidence”; thus, a jury may
infer knowledge and intent from circumstantial evidence. Id. at 1309 (internal
quotation marks omitted).
Greene concedes the government established that he sold “each of the
vehicles listed in the odometer tampering counts” with an odometer showing
mileage “lower than the actual mileage of the vehicle,” but he argues that there was
insufficient evidence to prove that he intended to change the mileage because his
testimony offered a “reasonable explanation” for the lowered mileage on all but
two of the charged vehicles. Appellant’s Br. at 35, 41. Greene contends that the
government’s only support for the proposition that Greene intended to alter the
odometers was Curry’s testimony. We disagree.
Here, there was sufficient direct and circumstantial evidence to convict
Greene on all counts of odometer tampering. In addition to Curry’s testimony that
Greene instructed him to change the mileage on at least five odometers, the jury
heard Gaudet’s testimony that Greene asked him to hide documents showing that
Greene rolled back odometers on the cars RJ’s sold. And, as Greene
acknowledges, the government presented evidence that he sold the 11 vehicles
with lower mileage than when he purchased them. The jury was entitled to credit
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Gaudet and Curry’s testimony and conclude that Greene altered, or had altered, the
odometers in the 11 charged vehicles. See Flores, 572 F.3d at 1263 (“Credibility
determinations are left to the jury”).
Greene asks us to adopt his version of the events—that he had a reasonable
explanation for the lowered mileage in all but two vehicles—but the jury’s verdict
indicates it rejected Greene’s explanation. The jury was entitled to discredit
Greene’s testimony and treat it as evidence proving the opposite of what he said.
See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (stating that if a
defendant testifies in his own defense, the jury is free to disbelieve that testimony
and may determine that the opposite of his testimony is true).
We conclude that the evidence was sufficient for a reasonable factfinder to
conclude beyond a reasonable doubt that Greene willfully tampered with the
odometers of the charged vehicles. We therefore affirm his convictions on Counts
1–3, 5, 7–10, and 12–14.
2. The Evidence Was Sufficient to Establish that Greene Committed
Bank Fraud.
The bank-fraud statute, 18 U.S.C. § 1344, provides “two alternative
methods” for establishing the offense. United States v. Dennis, 237 F.3d 1295,
1303 (11th Cir. 2001). Subsection 1344(1) makes it a crime to “knowingly
execute[], or attempt[] to execute, a scheme . . . to defraud a financial institution,”
18 U.S.C. § 1344(1), and § 1344(2) criminalizes knowingly executing a scheme:
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to obtain any of the moneys, funds, credits, assets, securities, or other
property owned by, or under the custody or control of, a financial institution,
by means of false or fraudulent pretenses, representations, or promises.
Id. § 1344(2). 3 The two subsections “overlap substantially but not completely.”
Shaw v. United States, 137 S. Ct. 462, 468 (2016). Subsection 1334(1) requires
that a defendant intended to defraud a financial institution; by contrast, § 1334(2)
does not require a “specific intent to deceive a bank.” Loughrin v. United States,
573 U.S. 351, 356–57 (2014).4
Greene argues that the government failed to prove that he intended to
defraud Redstone or that he made false statements to the credit union because the
evidence presented at trial consisted only of “generalized observations.”
Appellant’s Br. at 33. Additionally, Greene asserts that there was no evidence that
intended to expose Redstone to a risk of loss, that Redstone faced risk or suffered
any loss by making the loans at issue, or that Redstone’s conduct would have been
3
Proof of “federally-insured status of the affected institution” is a “jurisdictional
prerequisite as well as an element of the substantive crime” of bank fraud under § 1344. Dennis,
237 F.3d at 1303 (internal quotation marks omitted). Greene and the government stipulated that
Redstone Federal Credit Union was insured by the federal National Credit Union Association
(NCUA), so this element is not at issue.
4
The district court’s jury instructions gave the jury the option to convict Greene for
engaging in a scheme either to defraud a financial institution or to obtain money from a financial
institution through false pretenses. However, the instructions incorrectly stated that either
scheme required the jury to find that Greene intended to defraud a financial institution. As
Loughrin instructs, only the former requires the specific intent to deceive a financial institution.
Loughrin, 573 U.S. at 356–57. The court’s error is harmless, though, because the government
proved Greene intended to defraud Redstone. Additionally, we note that Greene failed to object
to this jury instruction before the trial court, and he makes no argument on appeal that the jury
instruction was erroneous.
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different had it known the true mileage of the vehicles. We reject Greene’s
arguments.
The jury had sufficient evidence to convict Greene of bank fraud. Perez, a
senior employee at Redstone, testified that the credit union received lower,
inaccurate mileage for three of the vehicles it financed. Perez explained that
Redstone relied on the inaccurate mileage when assessing the vehicles’ values and
determining the appropriate loan amounts. And Greene admitted that he profited
from these three transactions. Although Greene testified that he did not personally
participate in the relevant transactions that led to the bank fraud charges, the jury
was entitled discredit his testimony and believe that of Perez, Curry, and Gaudet.
See Flores, 572 F.3d at 1263; Brown, 53 F.3d at 314.
Greene cites the Fifth Circuit’s decision in United States v. Perez-Ceballos
for support, but his reliance is misplaced. 907 F.3d 863 (5th Cir. 2018). In Perez-
Ceballos, the Fifth Circuit reversed the defendant’s conviction for bank fraud,
holding that the government failed to produce sufficient evidence to support the
conviction. Id. at 867. The defendant was convicted of defrauding Chase Bank
but, as the court pointed out, no one from Chase testified at trial and there was no
evidence that Chase received any of the defendant’s false statements. Id. at 868.
The government’s case rested on “speculative” inferences and the testimony of
non-Chase employees who primarily offered “generalized observations about
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banking industry regulations.” Id. at 868–69. Thus, the Fifth Circuit determined,
there was “no basis” for upholding the defendant’s conviction. Id. at 869. Here, in
contrast, the jury heard from Perez, a senior employee at Redstone, who testified
about the specific transactions underlying the three bank fraud counts. And Perez
confirmed that Redstone received from RJ’s inaccurate mileage, which affected the
values of the loans the credit union approved. Therefore, Perez-Ceballos is
inapposite.
We conclude that the jury had sufficient evidence to find that Greene
defrauded Redstone and therefore affirm his convictions on Counts 4, 11, and 15.
B. The District Court Did Not Err in Calculating the Loss Amount.
Greene next challenges the application of the eight-level enhancement under
U.S.S.G. § 2B1.1(b)(1)(E) for offenses with loss amounts between $95,000 and
$150,000, arguing that the district court erred when it relied on the PSR, which
calculated the loss amount as $109,103.95, the total sales price of the 14 vehicles
with tampered odometers. Before the district court, Greene contended that the
appropriate loss amount was $86,418.37, the total sales price paid by the 11
victims who testified at trial. On appeal, Greene argues instead that the district
court plainly erred by using the full sales price of the vehicles without giving him
credit for any inherent value the vehicles retained. Greene now suggests that the
loss amount should have been the difference between the amount each victim paid
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for the car and the amount he or she could recover upon resale. Again, we
disagree.
As Greene concedes, because he raises this argument for the first time on
appeal, we review it for plain error. United States v. Bonilla, 579 F.3d 1233, 1238
(11th Cir. 2009). To “find plain error, (1) there must be error; (2) the error must be
plain; and (3) the error must affect substantial rights.” Id. (internal quotation
marks omitted). When “the explicit language of the statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (internal quotation marks
omitted).
Under U.S.S.G § 2B1.1, the loss amount is the greater of “actual loss”—the
reasonably foreseeable pecuniary harm that resulted from the offense—or
“intended loss”—the pecuniary harm the defendant purposely sought to inflict.
U.S.S.G § 2B1.1(b)(1), cmt. n.3(A)(i), (ii). The district court “need only make a
reasonable estimate of the loss,” and the court’s loss determination “is entitled to
appropriate deference.” Id. § 2B1.1(b)(1), cmt. n.3(C). The loss estimate must be
“based on available information, taking into account, as appropriate and
practicable under the circumstances, factors such as . . . [t]he fair market value of
the property unlawfully taken . . . [and] [t]he approximate number of victims
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multiplied by the average loss to each victim.” Id. § 2B1.1(b)(1), cmt. n.3(C)(i),
(iv).
The district court’s loss calculation of $109,103.95, the total sales price of
the 14 vehicles with altered odometers, is a “reasonable estimate” of the pecuniary
harm that resulted from Greene’s offense based on the information available to the
court. Id. § 2B1.1(b)(1), cmt. n.3(C). Although Greene objected to the number of
vehicles used in the calculation, he never objected to using their total purchase
price in the loss calculation, nor did he offer an alternative method for calculating
the loss. Without such objections, Greene effectively admitted that the purchase
prices listed in the PSR were accurate, and “there was no call for the government
to put on specific evidence” of the vehicles’ former or inherent value at sentencing.
United States v. Rodriguez, 751 F.3d 1244, 1257 (11th Cir. 2014); see also United
States v. Shelton, 400 F.3d 1325, 1330 (11th Cir. 2005) (holding that failure to
object to the PSR’s factual statements constitutes admission of those facts). The
uncontested purchase prices of the vehicles was the only information available to
the district court when it determined the appropriate loss amount; thus, the total of
the purchase prices was a reasonable estimate of the loss.
Greene points us to a case from the Tenth Circuit that he contends supports
calculating the loss amount as a fraction of the total purchase price. See United
States v. Sutton, 520 F.3d 1259, 1263 (10th Cir. 2008). In Sutton, the Tenth Circuit
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affirmed a loss amount of 40% of the average purchase price of the vehicles with
tampered odometers the defendant sold. Id. The Sutton court noted, however, that
in the context of odometer tampering, “[the] loss may be calculated in a variety of
ways.” Id. at 1264 (collecting cases). But even if Sutton offers some support for
Greene’s argument, it is of course not binding on us. Greene has failed to identify
any binding precedent—and we too find none—requiring that the loss calculation
in an odometer tampering case be a percentage of the vehicles’ total purchase
price. See Chau, 426 F.3d at 1322 (“[T]here can be no plain error where there is
no precedent from the Supreme Court or this Court directly resolving it” (internal
quotation marks omitted)).
Therefore, we conclude that the district court did not plainly err when it
calculated the loss amount and assessed Greene an eight-level enhancement.
C. The District Court Did Not Err in Applying the Obstruction of Justice
Enhancement.
Finally, Greene challenges the district court’s application of a two-level
obstruction of justice enhancement based on his testimony at trial. Greene
acknowledges that the district court assessed the enhancement because his
“testimony was contradicted by other witnesses,” but he argues that these instances
could be “chalked up to confusion or mistake” and “were not so severe as to
warrant” the enhancement. Appellant’s Br. at 44, 46. Greene also contends that
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because he was exercising his right to testify, it was inappropriate for the district
court to apply this enhancement. We discern no reversible error.
In evaluating a district court’s imposition of an obstruction of justice
enhancement, we review the court’s findings of fact for clear error and the
application of the Guidelines to those facts de novo. United States v. Bradberry,
466 F.3d 1249, 1253 (11th Cir. 2006). “A factual finding is clearly erroneous
when, upon review of the evidence, we are left with a definite and firm conviction
a mistake has been made.” United States v. Dimitrovski, 782 F.3d 622, 628 (11th
Cir. 2015). Where the facts give rise to “two reasonable and different
constructions, the factfinder’s choice between them cannot be clearly erroneous.”
United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012) (internal
quotation marks omitted). And we “accord great deference to the district court’s
credibility determinations” regarding a perjury finding. United States v. Singh,
291 F.3d 756, 763 (11th Cir. 2002) (internal quotation marks omitted).
The Sentencing Guidelines provide for a two-level obstruction of justice
enhancement if the defendant “willfully obstructed or impeded . . . the
administration of justice with respect to the investigation, prosecution, or
sentencing.” U.S.S.G. § 3C1.1. A defendant may obstruct justice by committing
perjury. Id. § 3C1.1, cmt. n.4(B). A defendant’s testimony constitutes perjury
when the testimony: (1) is made under oath or affirmation; (2) is false; (3) is
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material; and (4) is “given with the willful intent to provide false testimony and not
as a result of a mistake, confusion, or faulty memory.” Singh, 291 F.3d at 763 n.4.
A material statement is one which, “if believed, would tend to influence or affect
the issue under determination.” U.S.S.G. § 3C1.1, cmt. n.6. District courts should
include “specific findings as to each alleged instance of obstruction by identifying
the materially false statements individually”; however, “a general finding that an
enhancement is warranted suffices if it encompasses all of the [aforementioned]
factual predicates necessary for a perjury finding.” Singh, 291 F.3d at 763(internal quotation marks omitted).
The district court’s factual determination that Greene committed perjury was
not clearly erroneous. The court provided a “litany of examples” to support the
obstruction of justice enhancement. Doc. 79 at 20. These included, among others,
Greene’s denial that he instructed Curry to lower vehicle mileage and Greene’s
uncorroborated statement that his employees told Redstone the mileage on the
relevant vehicles was inaccurate. Greene argues that the contradiction between his
testimony and Curry’s was “not as bad[]” as the district court found because
Curry’s testimony was “general,” while Greene’s was “more specific.”
Appellant’s Br. at 44. As to his testimony regarding the credit union, Greene
contends that he did not “completely contradict” Perez. Id. at 45. Although his
testimony “may not have been the most accurate,” Greene asserts it was “possible”
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that he simply assumed his employees would have informed Redstone that the
vehicles’ mileage was unknown. Id.
We reject Greene’s arguments. He testified that Curry was “lying” when he
said Greene instructed him to alter vehicles’ odometers. Doc. 78 at 48. He also
repeatedly testified that RJ’s told Redstone the mileage was incorrect as to the
three vehicles at issue. Both statements are specific, material, and go beyond mere
“confusion or mistake.” Appellant’s Br. at 46. Greene does not dispute the factual
basis for the district court’s decision; instead, he asks this Court to adopt his
construction of the evidence. But, as explained above, where there are two
reasonable and different constructions of the facts, “the factfinder’s choice between
them cannot be clearly erroneous.” Almedina, 686 F.3d at 1315 (internal quotation
marks omitted). Because the district court’s construction is reasonable, we may
not second guess it.
The district court’s finding of obstruction of justice is supported by the
record and we are not left “with a definite and firm conviction a mistake has been
made.” Dimitrovski, 782 F.3d at 628. Thus, we affirm the court’s application of a
two-level enhancement under U.S.S.G. § 3C1.1.5
5
The government argues in the alternative that even if the district court erred in applying
the obstruction of justice enhancement, any error was harmless because, at sentencing, the
district court stated it would have imposed the same sentence in the absence of the enhancement.
We need not address this argument, however, because we affirm the district court’s application
of the enhancement.
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III. CONCLUSION
For the foregoing reasons, we affirm Greene’s convictions and sentence.
AFFIRMED.
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