United States v. Washington , 171 F. App'x 986 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge. (CR-
02-27-JFM)
Submitted: February 28, 2006 Decided: March 22, 2006
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Alan R.L. Bussard, Towson, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Michael J. Leotta, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Washington appeals the 120-month sentence imposed
by the district court after his case was remanded for resentencing
consistent with United States v. Booker, 543 U.S. 220 (2005). See
United States v. Washington, 398 F.3d 306 (4th Cir.), cert. denied,
125 S. Ct. 2558 (2005). Washington was convicted of being a felon
in possession of a firearm after Joseph Gilmore called the police
alleging that Washington had assaulted him. Gilmore led Baltimore
City Police Officer Todd Tugya to Washington’s home at 3037
Monument Avenue. At trial, Officer Tugya identified Washington as
the man who opened the door holding a loaded handgun, then dropped
the gun and fled. Gilmore later recanted his statements to police
and his identification of Washington from a photo array, claiming
that he had been coerced by the police. Mrs. Washington testified
at trial that James Hill, another man with whom she was
romantically involved, was at her house that night and that
Washington had moved out some time earlier. The district court
determined on remand, as at the first sentencing hearing, that
Washington obstructed justice by suborning his wife’s perjured
trial testimony. U.S. Sentencing Guidelines Manual § 3C1.1 (2004).
Washington contends that the district court erred in so finding.
For the reasons explained below, we affirm the district court’s
determination that Washington obstructed justice.
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The government suggests that, in light of Booker, this
court need not review the district court’s decision to enhance
Washington’s sentence under § 3C1.1 because the ultimate sentence
was reasonable. However, after Booker, “the district court must
consider the correct guideline range before imposing a
sentence . . . .” United States v. Hughes, 401 F.3d 540, 556 (4th
Cir. 2005). Therefore, we will address the propriety of the
§ 3C1.1 adjustment. We review the court’s fact finding concerning
obstruction of justice for clear error. Hughes, 401 F.3d at 560.
Obstruction of justice includes “committing, suborning,
or attempting to suborn perjury.” USSG § 3C1.1, comment. (n.4(b)).
Obstruction of justice is not defined in the guidelines.
Application Note 3 to § 3C1.1 states that “[o]bstructive conduct
can vary widely in nature, degree of planning, and seriousness.”
Application Note 4 provides a “non-exhaustive list of examples of
the types of conduct” to which the adjustment applies. The list
includes, but is not limited to, “committing, suborning, or
attempting to suborn perjury.” USSG § 3C1.1, comment. (n.4(b)).
Subornation of perjury consists of three elements: (1) “the
suborner should have known or believed or have had good reason to
believe that the testimony given would be false;” (2) “should have
known or believed that the witness would testify willfully and
corruptly, and with knowledge of the falsity;” and (3) have
“knowingly and willfully induced or procured the witness to give
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false testimony.” Petite v. United States, 262 F.2d 788, 794 (4th
Cir. 1959), vacated on other grounds, 361 U.S. 529 (1960); see also
United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995)
(“Subornation of perjury consists of procuring or instigating
another to commit perjury.”). On remand, Washington’s attorney
conceded, albeit reluctantly, that the first two elements “were
probably met.”
The district court inferred that Washington took an
active part in procuring his wife’s false testimony, although there
was no direct evidence that Washington had instigated his wife’s
testimony. The court based its determination in part on its belief
that Washington knew in advance that she would give false
testimony, in part on Washington’s marital relationship with his
wife, and in part on its belief that Washington had influenced
Gilmore to keep him from testifying for the government.
We noted previously that the case presented a question
unresolved in this Circuit: “whether the calling of a witness whom
the defendant knows will testify falsely could constitute
obstruction of justice under § 3C1.1,” Washington, 398 F.3d at 313
n.8. Several circuits have upheld an adjustment for obstruction of
justice in this circumstance, based in each case on an inference
that the defendant suborned the false testimony. See United
States v. Calderon-Avila, 322 F.3d 505, 507 (8th Cir. 2003); United
States v. Miller, 159 F.3d 1106, 1112-13 (7th Cir. 1998); United
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States v. Lowder, 148 F.3d 548, 552-53 (5th Cir. 1998). We
conclude from these decisions that the district court’s
determination that Washington obstructed justice by knowingly
calling his wife to give perjured testimony could be affirmed if
the court’s factual finding is supported by the record.
However, we need not reach the question of whether
Washington suborned his wife’s perjury. In the circumstances of
this case, the district court’s determination that Washington
knowingly based his defense on his wife’s perjured testimony is not
clearly erroneous and is sufficient to warrant the adjustment.
Washington’s wife’s testimony was central to his defense. The
defense attorney’s emphasis on Mrs. Washington’s testimony in his
opening statement indicates that he knew what her testimony would
be. The court’s conclusion that Washington also knew how she would
testify is not clearly erroneous. Mrs. Washington’s testimony
contradicted the testimony of Officer Tugya, who testified that the
door to Washington’s house was opened by a man who resembled
Washington rather than her description of James Hill. Her
testimony also contradicted Washington’s statement at arrest that
he lived at 3037 East Monument Street, and contradicted Gilmore’s
initial statements to the police and identification of Washington
as his assailant. Even if Washington did not induce his wife’s
false testimony, when Washington knowingly presented her false
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testimony as his defense, he evinced a clear attempt to obstruct
the administration of justice.*
Although the district court made the additional finding
that Washington suborned perjury, we may affirm the judgment for
any reason appearing by the record. United States v. Swann, 149
F.3d 271, 277 (4th Cir. 1998); see also United States v. Garnett,
243 F.3d 824, 830 (4th Cir. 2001) (sentence enhancement may be
affirmed on the basis of “‘any conduct [in the record] that
independently and properly should result in an increase in the
offense level’ by virtue of the enhancement.” (quoting United
States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992)).
We therefore affirm the sentence imposed by the district
court. 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.
AFFIRMED
*
Because of Gilmore’s decision to recant his prior statements,
Mrs. Washington’s failure to tell the police that her husband was
not home on November 11, 2001, and defense counsel’s focus on Mrs.
Washington’s testimony in his opening statement, this case is
distinguishable from United States v. Lesczynski, 86 F. App’x 551
(4th Cir. 2004) (No. 02-4431).
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