United States v. Hayton , 38 F. App'x 871 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4231
MELVIN HAYTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-00-180)
Argued: May 9, 2002
Decided: June 6, 2002
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Marc Lanny Resnick, Washington, D.C., for Appellant.
John J. Frail, Assistant United States Attorney, Charleston, West Vir-
ginia, for Appellee. ON BRIEF: Kasey Warner, United States Attor-
ney, Steven I. Loew, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
2 UNITED STATES v. HAYTON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Melvin Hayton received a 120-month sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Hayton appeals the district court’s two-level enhancement
for obstruction of justice pursuant to U.S.S.G. § 3C1.1 and the court’s
refusal to grant him credit for acceptance of responsibility under
U.S.S.G. § 3E1.1. We affirm the sentence.
I.
The events leading up to Hayton’s conviction and sentence began
on July 8, 2000, when two deputies from the Mingo County, West
Virginia, Sheriff’s Department, Deputy Nathan Glanden and Deputy
Steve McAllister, went to Hayton’s house to serve him with a domes-
tic violence petition and a restraining order. Hayton was not home.
Hayton’s wife told the deputies that Hayton had left for his mother’s
house in his Ford Ranger truck. The officers found Hayton and his
truck in his mother’s driveway. Deputy Glanden served the papers on
Hayton and advised him that he could not have any firearms. At that
point Hayton’s wife, who had followed the deputies, asked Hayton,
"What did you do with the guns?" Hayton answered, "Don’t worry
about my guns." When Deputy Glanden asked Hayton if he had any
firearms, Hayton responded that he had none. Deputy Glanden looked
through a side window of Hayton’s truck and saw the stock of a shot-
gun sticking out from the corner of a camouflage blanket. After walk-
ing to the other side of the truck and looking through another window,
the deputy spotted more guns. According to Deputy Glanden, he
asked Hayton for the keys to the truck, which Hayton gave him. The
deputy found nine firearms in the truck. Mrs. Hayton then volunteered
that Hayton was a convicted felon. After radioing their dispatcher for
a criminal history check, the deputies seized the guns and arrested
Hayton for state firearms violations. Hayton was released on bond.
UNITED STATES v. HAYTON 3
Ten days later, on July 18, 2000, Deputy Glanden and Corporal
Sidney Gilman arrested Hayton for domestic assault. After he was
given Miranda warnings, Hayton gave a statement to Corporal Gil-
man that was taped. Hayton acknowledged on the tape that he had
received and understood his Miranda rights. In the statement Hayton
admitted that he owned the firearms recovered on July 8, 2000, and
that he obtained most of the guns by trading game chickens for them
or by buying them from people he knew. He further admitted that he
had piled all of his guns into his truck and taken them to his mother’s
because his wife was "raising Cain" and because he knew he was not
supposed to have any firearms. On November 14, 2000, Hayton was
charged in a superseding federal indictment with being a felon in pos-
session of nine firearms.
Hayton moved to suppress the firearms and his taped statement. At
the suppression hearing, held on December 7, 2000, Hayton claimed
among other things that when the officers searched his truck on July
8, he did not give them the keys or consent to the search; that he had
not been read Miranda warnings before he made the statement on
July 18 and that he had initialed a Miranda form without understand-
ing it; that the firearms in the truck were not his; and that Corporal
Gilman tricked him into admitting the guns were his by promising
him that he would not be prosecuted if he confessed on tape.
The district court denied the motion to suppress, finding that Hay-
ton had consented to the search of his truck and that Hayton had
received and understood all Miranda warnings before making his July
18 confession. The court also found that the confession was not the
result of duress or deceit: "It is suggested that the defendant was
tricked into making the statement and had been given a promise by
the officer that he would not be prosecuted beforehand, all of which
statements on the part of the defendant the Court finds not credible."
In short, the district court concluded that Hayton had testified falsely
during his suppression hearing.
Hayton pled guilty to unlawful possession of nine firearms by a
convicted felon on December 14, 2000. He acknowledged that the
guns were his and that he had swapped game chickens for some,
which is what he had said in his taped confession. On March 13,
2001, he was sentenced to 120 months in prison and three years of
4 UNITED STATES v. HAYTON
supervised release. In imposing this sentence, the district court
increased Hayton’s offense level by two for obstruction of justice
(testifying falsely at the suppression hearing), see U.S.S.G. § 3C1.1,
and denied any adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1. The district court explained the obstruction of jus-
tice enhancement as follows:
The Court finds that at the suppression hearing, the defen-
dant did testify falsely in several respects. In particular, the
defendant testified falsely that he had been tricked into mak-
ing the taped statement that was taken by the officers on that
occasion, and similarly he testified falsely in stating that he
had been given a promise by the officer that he would not
be prosecuted if he made the statement. And the Court
found at the time of ruling on the motion to suppress, that
the defendant’s testimony given at that hearing was not
credible, and consequently concluded to deny the motion to
suppress.
The Court similarly finds here that the defendant has, by
a preponderance of the evidence, plainly impeded adminis-
tration of justice in this case by thwarting the prosecution of
the case at the motion to suppress hearing, and accordingly
finds that the defendant has engaged in an obstruction of
justice that merits a two level enhancement.
Hayton appeals his sentence.
II.
Hayton first argues that the district court improperly enhanced his
sentence pursuant to U.S.S.G. § 3C1.1. This guideline provides for a
two-level enhancement for obstructing or impeding the administration
of justice. The commentary lists perjury as an example of conduct that
triggers this enhancement. U.S.S.G. § 3C1.1, cmt. n.4(b) (2001); see
also United States v. Dunnigan, 507 U.S. 87, 93-95 (1993) (obstruc-
tion of justice enhancement proper when defendant commits perjury).
We have held that § 3C1.1 applies to perjury committed at a suppres-
sion hearing. United States v. Akinkoye, 185 F.3d 192, 205 (4th Cir.
1999).
UNITED STATES v. HAYTON 5
Hayton claims that his § 3C1.1 enhancement was improper because
Dunnigan requires that the district court make specific findings with
regard to each element of perjury as defined in 18 U.S.C. § 1621.
Hayton is only partly correct. The Dunnigan Court did say that in
determining what constitutes perjury the district court must rely on
the definition of perjury provided by § 1621 and that "[a] witness tes-
tifying under oath or affirmation violates this statute if she gives false
testimony concerning a material matter with the willful intent to pro-
vide false testimony, rather than as a result of confusion, mistake, or
faulty memory." Dunnigan, 507 U.S. at 94.
However, while Dunnigan encourages the district court to sepa-
rately address each of the three elements of perjury (falsity, material-
ity, and willfulness), it does not require that each of the elements be
mentioned by name. Rather, it is enough if the court "specifically
identif[ies] the perjurious statements," Akinkoye, 185 F.3d at 205, and
"makes a finding of obstruction of, or impediment to, justice that
encompasses all the factual predicates for a finding of perjury." Dun-
nigan, 507 U.S. at 95. Hayton maintains that the district court erred
because it failed to mention or cover materiality or willfulness.
Although this case presents a somewhat close question, we believe
that the district court satisfied the Dunnigan requirements by making
factual findings from which materiality and willfulness can be
inferred.
We have held that a district court fails to satisfy Dunnigan when
its findings are so bare that no inferences can be drawn about the
essential elements of perjury. See United States v. Stotts, 113 F.3d
493, 497-98 (4th Cir. 1997) (concluding that Dunnigan standards
were not met when district court merely said, [the defendant] falsely
testified at trial."); United States v. Smith, 62 F.3d 641, 647 (4th Cir.
1995) (vacating § 3C1.1 enhancement because district court denied
objections to the enhancement with no more than "All right. Well, I
will deny the objection to the increase for obstruction of justice."). On
the other hand, we have affirmed a § 3C1.1 enhancement when the
"district court, having observed the testimony, found by a preponder-
ance of the evidence that [the defendant] had ‘not testif[ied] truthfully
at trial with regard to the actual drug transaction and also with regard
to [a companion’s] age and also with regard to the gun at the time of
the transaction.’" United States v. Cook, 76 F.3d 596, 605 (4th Cir.
6 UNITED STATES v. HAYTON
1996). Although the district court in Cook did not specifically men-
tion materiality and willfulness, we nevertheless held: "Although the
district court did not fully articulate its analysis, its conclusion that
[the defendant] had not testified truthfully, and that his testimony was
‘strained’ in relation to material facts about which he had already con-
fessed, was sufficient to show that the court did find that [the defen-
dant] willfully obstructed justice." Id. We also affirmed the § 3C1.1
enhancement in Akinkoye because the essential elements could be
inferred from the district court’s finding "that [the defendant] lied
when he stated that he did not make any of the statements attributed
to him, and that the issue of whether the statements were lawfully
obtained ‘was the whole hearing.’" Akinkoye, 185 F.3d at 205.
Here, the district court expressly found that Hayton had testified
falsely in several respects during his suppression hearing. In particu-
lar, the court found that Hayton lied when he said an officer tricked
him into confessing and that he lied when he said the officer promised
that he would not be prosecuted if he made the taped confession. This
false testimony is directly relevant to the question of whether Hay-
ton’s taped confession was admissible. And the taped confession, in
which Hayton admitted owning the nine guns found in his truck, is
material to his felon-in-possession charge. The court’s finding that
Hayton testified falsely about the voluntariness of his confession in
an attempt to "thwart[ ] the prosecution of the case" is sufficient to
show that the court found that Hayton willfully obstructed justice.
The district court therefore did not err in imposing a two-level
enhancement under § 3C1.1.*
III.
Hayton next argues that the district court improperly denied him
credit for acceptance of responsibility under U.S.S.G. § 3E1.1. Only
in extraordinary circumstances may a defendant who is found to have
obstructed justice receive credit for acceptance of responsibility.
*Although we affirm the § 3C1.1 enhancement, we note that it would
have been better had the district court made more direct findings with
regard to materiality and willfulness. See Dunnigan, 507 U.S. at 95 ("[I]t
is preferable for a district court to address each element of the alleged
perjury in a separate and clear finding.").
UNITED STATES v. HAYTON 7
"Conduct resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.
There may, however, be extraordinary cases in which adjustments
under both §§ 3C1.1 and 3E1.1 may apply." U.S.S.G. § 3E1.1, cmt.
n.4 (2001). See United States v. Murray, 65 F.3d 1161, 1165-66 (4th
Cir. 1995). Hayton has offered no reason why his case should be con-
sidered extraordinary. Consequently, the district court did not err in
denying credit under § 3E1.1.
IV.
For the foregoing reasons, we affirm Hayton’s sentence.
AFFIRMED