United States v. Adan Hernandez ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4889
ADAN FLOREZ HERNANDEZ, a/k/a
Canela, a/k/a Flores Adam
Hernandez, a/k/a Jose Garcia,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4891
ELIGIO NARIO SOTO, a/k/a Juan
Camane,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4899
REMEDIOS NARIO SOTO,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-97-291)
Argued: December 3, 1999
Decided: January 10, 2000
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Lawrence Jay Fine, Winston-Salem, North Carolina, for
Appellant Remedios Soto; Bryan Emery Gates, Jr., Winston-Salem,
North Carolina, for Appellant Hernandez; Thomas Norman Cochran,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant Eligio Soto. Sandra Jane Hairston, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF:
Walter C. Holton, Jr., United States Attorney, Greensboro, North Car-
olina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants Eligio Nario Soto (Eligio), Remedios Nario Soto
(Remedios), and Adan Flores Hernandez (Hernandez) were convicted
of conspiracy to possess with intent to distribute cocaine hydrochlo-
ride, in violation of 21 U.S.C.A. § 846 (West 1999). Eligio and Reme-
dios each received a sentence of 204 months imprisonment, five years
supervised release, and a $100 special assessment. Hernandez
received a sentence of 155 months imprisonment, five years super-
vised release, and a $100 special assessment. Appellants now appeal,
claiming that several errors were committed at their trial and sentenc-
2
ing proceedings. We reject each of Appellants' arguments and affirm
their convictions and sentences.
I.
On December 4, 1997, Eligio, his brother Remedios, and Her-
nandez were arrested based upon a warrant and complaint. In con-
junction with the arrests, law enforcement officers conducted a valid
search of Remedios's Asheboro, North Carolina residence and dis-
covered two firearms, an unloaded assault rifle and an unloaded hunt-
ing rifle, in a closet of the master bedroom. Also in the closet were
$5000 in cash and a bag containing two rifle magazines and twenty-
eight rounds of ammunition for the assault rifle. Police officers also
found an additional $5520 in cash and approximately twenty-five
grams of cocaine in the master bedroom. A search of Eligio's Ashe-
boro residence uncovered, among other things, $5930 in cash in items
of Eligio's clothing, approximately twenty-eight grams of cocaine in
a bedroom, and photographs of Hernandez posing with various fire-
arms, including assault weapons. The police found the photographs in
the bedroom of Hernandez, who stayed at Eligio's residence.
On December 15, 1997, Appellants were named in a twelve-person
indictment charging all indicted with conspiracy to possess with
intent to distribute cocaine hydrochloride, in violation of 21 U.S.C.A.
§ 846 (West 1999).1 Appellants' trial in the United States District
Court for the Middle District of North Carolina began on May 18,
1998. Evidence presented at trial indicated that Eligio, Remedios, and
Hernandez were intimately involved in an extensive drug operation in
Asheboro that had its roots in Mexico. Mike Bittle (Mike), an original
codefendant who agreed to testify on the Government's behalf in
exchange for the dismissal of charges against him, and his cousin
Mark Bittle (Mark), who agreed to testify in exchange for the Govern-
ment's promise not to charge him in the case, testified that they had
purchased large quantities of illegal drugs from Appellants. Mike also
_________________________________________________________________
1 Of the nine other people named in the indictment, two remain fugi-
tives, two were dismissed by the Government, one agreed to become a
Government witness in exchange for a dismissal of the charge against
him, three entered pleas of guilty, and one was convicted in a separate
trial.
3
testified that Eligio had approached him seeking a handgun but then
declined to purchase it when Mike acquired one for him. Mark testi-
fied that each of the Appellants had delivered cocaine to him on occa-
sion. The Bittles also identified Eligio's and Remedios's voices on
lawfully intercepted phone conversations that implicated the brothers
in the conspiracy. A translator responsible for monitoring wiretaps for
the Drug Enforcement Administration who was familiar with Her-
nandez's voice offered testimony specifically identifying Hernandez's
voice on other taped phone calls conducted in Spanish that implicated
Hernandez in the drug ring. The district court allowed the Govern-
ment to introduce three of the photographs seized from Hernandez's
room that depicted Hernandez posing with assault weapons.
Remedios testified in his own defense and denied participation in
the conspiracy. Remedios was allowed to present testimony concern-
ing a conversation he had with Eligio while the two were in custody
awaiting trial. According to Remedios's testimony, before his arrest
he had no knowledge of the cocaine and money found in his bedroom.
He purportedly learned from Eligio, while the two were in custody,
that Eligio had stored the drugs and money in Remedios's bedroom.
Remedios testified that he "scolded" Eligio upon learning of this
information:
Q. What if anything did you say to him, first off, about the
drugs and the money?
[Remedios]. I - I scolded him. I said, what are you doing,
why have you been doing that, because I've got a family at
home.
(J.A. at 303.)
Following Remedios's initial testimony, the district court expressed
its concern that some of Remedios's testimony regarding this conver-
sation might contain inadmissible hearsay. The district court permit-
ted Remedios's defense counsel to examine Remedios outside the
presence of the jury to see what potential evidentiary problems his
testimony might have. During this examination, Remedios testified as
follows:
4
Q. Did [Eligio] tell you how -- did your brother tell you
how the drugs got into your bedroom?
[Remedios]. Because he put them there.
Q. Did he tell you when he put them there?
[Remedios]. No.
Q. What did you say to him after he told you that?
[Remedios]. I got mad. I yelled at him. I said, why are you
going around doing that sort of thing. I've got a family at
home and I --
....
Q. What, if anything, Mr. Soto, did you request of your
brother to do after you learned of this information?
[Remedios]. I asked him to talk to his lawyer to straighten
it out so that they wouldn't blame me and to let me go home
because I wasn't involved.
(J.A. at 306-08.)
After hearing this testimony outside the presence of the jury, the
district court ruled that it would allow Remedios to testify that he did
not put the drugs and money in his bedroom, that Eligio told Reme-
dios that Eligio put the items in Remedios's bedroom, and that Reme-
dios "was angry at [Eligio]." (J.A. at 322.) The district court ruled that
it would not allow Remedios to testify about what he told Eligio dur-
ing the conversation.
When the trial resumed, Remedios testified in part as follows:
Q. And did you ask [Eligio] if he knew anything about the
money and the drugs that were found in your home?
[Remedios]. Yes.
5
....
Q. What did he say to you in response to that question?
[Remedios]. That he had put them there.
Q. Did you know he was going to do that?
[Remedios]. No.
Q. Did you give him permission to do that?
[Remedios]. No.
Q. I'm sorry, I don't know -- I don't recall if I asked you
this yesterday. When was the first time you learned that the
cocaine and $10,000 was found in your home?
[Remedios]. When they brought me here to Greensboro.
Q. Was that after you were arrested?
[Remedios]. Yes. Yes, when they arrested me, they
brought me here and they told me.
Q. Let me ask you, did you participate in the drug conspir-
acy as it is charged in the indictment and as the evidence --
as has been tried here this week?
[Remedios]. No.
(J.A. at 329-30.)
At the completion of the trial, the jury found Remedios, Eligio, and
Hernandez guilty of conspiracy to possess with intent to distribute
cocaine, as charged in the indictment.
At the December 3, 1998, sentencing proceedings, the district court
enhanced Remedios's and Eligio's sentences by two levels, pursuant
6
to U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1998), for pos-
sessing a firearm in connection with the drug conspiracy. The district
court based this increase upon the presence of the two rifles found in
Remedios's bedroom closet. The court stated at Remedios's sentenc-
ing that "the assault rifle was in the closet of[Remedios's] bedroom
which contained over $10,000 in cash and contained cocaine, there
were 28 rounds of ammunition and two magazines next to the assault
rifle, and I think that clearly warrants the enhancement." (J.A. at 415.)
The court also found that the presence of these firearms was foresee-
able to Eligio.
The court also enhanced Remedios's sentence an additional two
levels, pursuant to U.S.S.G. § 3C1.1, for giving perjurious testimony.
The district court found Remedios's trial testimony"inherently
incredible," (J.A. at 412), and adopted the factual findings contained
in the presentence report, which set forth in greater detail the reasons
for enhancing Remedios's sentence under § 3C1.1.
In this appeal, Remedios first argues that the district court improp-
erly prevented him from presenting testimony concerning what he
told Eligio after learning that Eligio had placed drugs and money in
Remedios's bedroom. Next, Hernandez argues that the district court
abused its discretion by admitting photographs of him posing with
various firearms. Appellants also assert that the admission of testi-
mony from the Bittles violated 18 U.S.C.A. § 201(c)(2) (West Supp.
1999). Remedios and Eligio argue that their two-level sentence
enhancements pursuant to U.S.S.G. § 2D1.1(b)(1) were in error.
Eligio and Remedios further contend that § 2D1.1(b)(1) impermiss-
ibly shifts the burden to defendants to prove that the presence of a
firearm was unconnected to the underlying drug conspiracy. Finally,
Remedios argues that he should not have received a sentence
enhancement pursuant to U.S.S.G. § 3C1.1. We now address Appel-
lants' arguments in turn.
II.
Remedios argues that the district court erred in refusing to admit
his testimony concerning statements he made to Eligio after Reme-
dios purportedly first learned about the narcotics and large sums of
money found in his home. Remedios contends that the district court
7
should have admitted his statements under either the excited utterance
hearsay exception, Fed. R. Evid. 803(2),2 or the "then existing state
of mind" hearsay exception, Fed. R. Evid. 803(3). 3 We review the dis-
trict court's evidentiary ruling for an abuse of discretion, subject to
harmless error analysis. See United States v. Brooks, 111 F.3d 365,
371 (4th Cir. 1997).
The district court refused to allow Remedios to testify concerning
a specific statement he made to Eligio that, Remedios argues, demon-
strates his lack of involvement in the crime.4 The court permitted
Remedios to present other testimony, however, that was substantially
similar to the testimony that was excluded. Through this other testi-
mony, Remedios was permitted to explain that he was generally
unaware that there were drugs and large sums of money in his bed-
room until after he was arrested; that Eligio had put the drugs and
money in Remedios's bedroom without Remedios's knowledge or
permission; that Remedios scolded Eligio when he learned that Eligio
had hidden these items in Remedios's bedroom; and that Remedios
was not involved in the drug conspiracy.
_________________________________________________________________
2 Federal Rule of Evidence 803(2) provides that the hearsay rule does
not exclude "[a] statement relating to a startling event or condition made
while the declarant was under the stress of excitement caused by the
event or condition."
3 Federal Rule of Evidence 803(3) provides that the hearsay rule does
not exclude
[a] statement of the declarant's then existing state of mind, emo-
tion, sensation, or physical condition (such as intent, plan,
motive, design, mental feeling, pain, and bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the execution, revo-
cation, identification, or terms of declarant's will.
4 The testimony in question, which Remedios proffered in an examina-
tion outside the presence of the jury, is as follows:
Q. What, if anything, Mr. Soto did you request of your brother
to do after you learned of this information?
[Remedios]. I asked him to talk to his lawyer to straighten it
out so that they wouldn't blame me and to let me go home
because I wasn't involved.
(J.A. at 308.)
8
Even assuming, without deciding, that Remedios's proffered testi-
mony fell within an exception to the hearsay rule, 5 and that the district
court improperly prevented Remedios from testifying that he asked
Eligio to talk to Eligio's lawyer to help Remedios get out of trouble,
any error was certainly harmless. The district court permitted Reme-
dios to testify to virtually all aspects of his conversation with Eligio.
The testimony that Remedios was allowed to present amply informed
the jury of his version of the story. The excluded testimony was suffi-
ciently cumulative of this other admitted testimony for us to conclude
that any possible error in its exclusion was harmless and did not "sub-
stantially sway[ ]" the judgment.6 See Kotteakos v. United States, 328
U.S. 750, 765 (1946).
III.
Hernandez argues that the admission of photographs portraying
him posing with various assault weapons was an abuse of discretion
because the district court should have excluded the evidence under
Federal Rule of Evidence 403. Rule 403 instructs that district courts
may exclude otherwise relevant evidence if the probative value of the
evidence "is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation of
cumulative evidence." Fed. R. Evid. 403. We will not overturn a dis-
trict court's Rule 403 judgment "except under the most extraordinary
of circumstances, where [a trial court's] discretion has been plainly
_________________________________________________________________
5 We note that Remedios's reliance on the excited utterance exception
seems particularly misplaced. At the time of Remedios's conversation
with Eligio concerning the drugs and money found in Remedios's bed-
room, Remedios was already in custody for the drug conspiracy. We are
skeptical of Remedios's contention that his learning that Eligio placed
the items in Remedios's bedroom was a sufficiently"startling event" to
trigger invocation of the excited utterance exception. See Fed. R. Evid.
803(2). In addition, we think it strains the senses to conclude that Reme-
dios's reaction to Eligio was made under the "stress of excitement" of
this "startling event." See id.6 We also reject Remedios's argument that the exclusion of this testi-
mony prevented him from presenting a complete defense in violation of
the Sixth Amendment to the Constitution.
9
abused." United States v. Love, 134 F.3d 595, 603 (4th Cir.) (internal
quotation marks omitted), cert. denied, 118 S. Ct. 2332 (1998). More-
over, we will "examine the evidence in the light most favorable to its
proponent, maximizing its probative value and minimizing its prejudi-
cial effect." Id. (internal quotation marks omitted).
We, and other courts, have long recognized that firearms are "tools
of the drug trade." United States v. Ward, 171 F.3d 188, 195 (4th
Cir.), cert. denied, 120 S. Ct. 137 (1999); see also United States v.
White, 875 F.2d 427, 433 (4th Cir. 1989); United States v. Terzado-
Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990) ("It is uniformly rec-
ognized that weapons are often as much `tools of the trade' as the
most commonly recognized narcotics paraphernalia."). As such, fire-
arms evidence is often relevant in cases involving illegal narcotics
operations. See Ward, 171 F.3d at 195.
Hernandez's involvement in the drug conspiracy was well sup-
ported by the evidence as was the use of firearms. His voice was iden-
tified in phone conversations discussing aspects of the conspiracy and
Mark testified that Hernandez had delivered cocaine to him. Mike tes-
tified that Eligio had asked Mike to buy a firearm for Eligio although
Eligio eventually declined to purchase the firearm that Mike acquired.
Firearms were also found during a search of Remedios's residence.
This evidence suggests that firearms may have been employed in the
course of the conspiracy. The photographs of Hernandez posing with
assault weapons was consistent with this other evidence and provided
further support for the conclusion that Hernandez was an illegal par-
ticipant in the drug ring. Moreover, in light of this other evidence, we
conclude that any potential prejudice stemming from the introduction
of this evidence would not have outweighed its probative value.
Viewing the evidence in the light most favorable to the Govern-
ment and maximizing its probative value while minimizing its pre-
judical effect, as we must, we hold that the district court did not abuse
its discretion in allowing the Government to introduce the three pho-
tographs of Hernandez posing with firearms.
10
IV.
Appellants contend that the district court improperly admitted testi-
mony from the Bittles because they provided testimony in exchange
for the Government's agreement not to prosecute them, purportedly
in violation of 18 U.S.C.A. § 201(c)(2) (West Supp. 1999).7 We have
recently held that § 201(c)(2) does not prevent the United States from
"acting in accordance with its statutory authority to use immunity,
leniency, and plea agreements to obtain truthful testimony." United
States v. Richardson, No. 98-4139, 1999 WL 686892, *4 (4th Cir.
Sept. 3, 1999). Our holding in Richardson forecloses Appellants'
§ 201(c)(2) argument, and we thus hold that the testimony of the Bit-
tles was properly admitted.
V.
Eligio and Remedios next challenge the offense level enhance-
ments in their sentences for possession of a firearm under U.S.S.G.
§ 2D1.1(b)(1). The district court imposed a two-level adjustment
because two firearms -- an unloaded assault weapon and an unloaded
hunting rifle -- were found in a closet in Remedios's bedroom during
a search. The closet also contained $5000 in cash and a bag contain-
ing ammunition for the assault rifle. An additional $5520 in cash and
twenty-five grams of cocaine were found outside the closet in the
bedroom. Remedios argues that the enhancement was improper
because the firearms were not connected to the drug conspiracy.
Eligio argues, in addition, that he should not be held responsible for
_________________________________________________________________
7 Section 201(c)(2) provides that
Whoever . . . directly or indirectly, gives, offers or promises any-
thing of value to any person, for or because of the testimony
under oath or affirmation given or to be given by such person as
a witness upon a trial, hearing, or other proceeding, before any
court, any committee of either House or both Houses of Con-
gress, or any agency, commission, or officer authorized by the
laws of the United States to hear evidence or take testimony, or
for or because of such person's absence therefrom . . . shall be
fined under this title or imprisoned for not more than two years,
or both.
18 U.S.C.A. § 201(c)(2).
11
firearms that were found in Remedios's residence. Finally, Remedios
and Eligio both argue that Application Note 3 to§ 2D1.1(b)(1) uncon-
stitutionally requires them to prove that the firearms were uncon-
nected to the underlying conspiracy.
Section 2D1.1(b)(1) provides that "[i]f a dangerous weapon
(including a firearm) was possessed, increase by 2 levels." U.S.S.G.
§ 2D1.1(b)(1). Application Note 3 to that section explains that
[t]he enhancement for weapon possession reflects the
increased danger of violence when drug traffickers possess
weapons. The adjustment should be applied if the weapon
was present, unless it is clearly improbable that the weapon
was connected with the offense. For example, the enhance-
ment would not be applied if the defendant, arrested at his
residence, had an unloaded hunting rifle in the closet.
U.S.S.G. § 2D1.1, comment. (n. 3). In construing § 2D1.1(b)(1), we
follow "the Application Notes as authoritative unless they are incon-
sistent with the Constitution, a federal statute, or a plain reading of
the Guidelines." United States v. Harris, 128 F.3d 850, 852 (4th Cir.
1997) (citing Stinson v. United States, 508 U.S. 36, 45 (1993)).
We review the district court's factual findings related to its
enhancement determination for clear error. See id. at 852. We review
the district court's legal interpretation of the sentencing guidelines
and Appellants' constitutional challenge to the Sentencing Guidelines
de novo. See United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.
1989).
A.
Remedios argues that the district court erred in finding that the
presence of unloaded rifles in his bedroom closet warranted an
increase in his base offense level under § 2D1.1(b)(1). In following
the instructions set forth in Application Note 3, the district court
expressly found that it was not clearly improbable that the firearms
were connected to the drug conspiracy.8 The mere fact that one of the
_________________________________________________________________
8 The court noted that it "[c]ertainly [could not] find from [the evi-
dence] that there was an improbable connection between the drug busi-
ness and the possession of the firearm." (J.A. at 385.)
12
firearms found in the bedroom closet was an unloaded hunting rifle,
the very example excepted from a § 2D1.1(b)(1) sentence enhance-
ment in Application Note 3, does not undermine the district court's
determination because here, there was also an assault weapon present.
Moreover, the district court stressed the close proximity that the guns
had to more than $10,000 in cash, twenty-five grams of cocaine, and
a considerable amount of ammunition found in the same closet. In
United States v. Harris, 128 F.3d 850 (4th Cir. 1997), we "unequivo-
cally affirm[ed] the rule, already recognized in several other circuits,
that the proximity of guns to illicit narcotics can support a district
court's enhancement of a defendant's sentence under Section
2D1.1(b)(1)." Id. at 852. In that particular case, we held the enhance-
ment proper when an unloaded firearm was found in the same dresser
as cocaine. See id. at 853. Likewise, we have also held that an
enhancement is appropriate when a firearm is found in one room and
cocaine is found in another. See United States v. Nelson, 6 F.3d 1049,
1054-1057 (4th Cir. 1993).
In this case, given the close proximity the firearms had to the drugs
and money, the district court's determination that the presence of the
two firearms in Remedios's closet warranted a two-level sentence
enhancement was sound and not clearly erroneous.
B.
Eligio also argues that his sentence enhancement under U.S.S.G.
§ 2D1.1(b)(1) was improper. As discussed above, the district court
did not err in concluding that the firearms found in Remedios's bed-
room closet were sufficiently connected to the narcotics conspiracy to
warrant an enhancement. The question we now consider is whether
Eligio should bear responsibility for the firearms found in his broth-
er's home.
In United States v. Kimberlin, 18 F.3d 1156 (4th Cir. 1994), we
ruled that a sentence enhancement under § 2D1.1(b)(1) was appropri-
ate for a defendant who reasonably could foresee that a coparticipant
would possess a weapon. See id. at 1160. As we explained, "`[a]bsent
evidence of exceptional circumstances . . . it [is] fairly inferable that
a codefendant's possession of a dangerous weapon is foreseeable to
a defendant with reason to believe that their collaborative criminal
13
venture includes an exchange of controlled substances for a large
amount of cash.'" Id. (quoting United States v. Bianco, 922 F.2d 910,
912 (1st Cir. 1991) (alterations in original).
We believe there was ample evidence in this case to support the
inference that Eligio reasonably could have foreseen Remedios's pos-
session of a firearm. The brothers were engaged in substantial illegal
drug activity, involving thousands of dollars, and both money and
cocaine were kept in Remedios's house. As the district court ruled at
Eligio's sentencing proceeding, "[b]ecause of the connection of
[Remedios's] residence with the drug business of Eligio and Reme-
dios, it certainly is foreseeable that the firearms would be there to pro-
tect the money as well as drugs, and I find that Eligio should be
accountable for the presence of the firearms." (J.A. at 385.) We hold
that the district court's determination to enhance Eligio's sentence by
two levels, pursuant to U.S.S.G. § 2D1.1(b)(1), was not clearly erro-
neous.
C.
We now turn to Eligio and Remedios's next argument that the lan-
guage used in Application Note 3, instructing that the enhancement
should apply "unless it is clearly improbable that the weapon was
connected with the offense," impermissibly shifts the burden of proof
to them to demonstrate that any weapon present was not connected to
the offense. According to Eligio and Remedios's argument, this
burden-shifting scheme violates the due process requirement that the
Government must prove sentence enhancements by at least a prepon-
derance of the evidence.
We have stated that the Government must prove factors that war-
rant a sentencing enhancement by a preponderance of the evidence.
See United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.
1989). The Supreme Court has expressly held that a preponderance
of the evidence standard for sentencing factors satisfies the require-
ments of due process. See McMillan v. Pennsylvania, 477 U.S. 79,
91-93 (1986). Remedios and Eligio contend that McMillan estab-
lished a due process floor concerning constitutionally permissible bur-
dens of proof to follow at sentencing. Because, in Eligio and
Remedios's view, Application Note 3 shifts to them the burden of
14
proving that the firearms were unconnected with the drug conspiracy
and thus falls below the floor established in McMillan, they suggest
that we ignore the application note as commentary violative of the
Constitution. See United States v. Harris, 128 F.3d 850, 852 (4th Cir.
1997) (citing Stinson v. United States, 508 U.S. 36, 45 (1993)).
We first note that no federal Court of Appeals has adopted Eligio
and Remedios's view that Application Note 3 violates the Due Pro-
cess Clause of the Fifth Amendment. Indeed, at least two circuits
have explicitly rejected this argument. See United States v. Restrepo,
884 F.2d 1294, 1296 (9th Cir. 1989) (holding that the "clearly
improbable" language contained in Application Note 3 simply acts as
an "exception" to an enhancement imposed after the Government
proves that a firearm was possessed); United States v. McGhee, 882
F.2d 1095, 1099 (6th Cir. 1989) (holding that § 2D1.1(b)(1) does not
violate due process, partly because it is more favorable to the defen-
dant than the enhancement at issue in McMillan because the defen-
dant has the opportunity to show that it is clearly improbable that the
firearm is connected to the drug offense -- "an opportunity the defen-
dant in McMillan did not have"). In addition, the Eighth Circuit has
indicated that there is no Due Process Clause violation because "[t]he
`unless clearly improbable' language does not shift the burden of
proof to the defendant; the government must prove by a preponder-
ance of the evidence that the weapon is connected to the offense."
United States v. Payne, 81 F.3d 759, 764 (8th Cir. 1996). According
to Payne, the Government must "prove by a preponderance of the evi-
dence both that `the weapon was present and that it is at least proba-
ble that the weapon was connected with the offense.'" Id. at 762(quoting United States v. Hayes, 15 F.2d 125, 127 (8th Cir. 1994).
Considering these rulings from our sister circuits, we have serious
doubts about the viability of Eligio and Remedios's due process argu-
ment. Indeed, they cite no case in support of their position.
Moreover, in this case, the burden never shifted to Eligio and
Remedios because the district court found, based entirely upon the
evidence presented by the Government at sentencing, that not only
were the firearms present, but that it was not clearly improbable that
the firearms were connected to the conspiracy. The court stressed that
large amounts of money, ammunition, and cocaine were found
together with the assault weapons, either in the same closet or just
15
outside in the adjoining bedroom. In light of this substantial evidence,
the Government easily met its burden of proving by a preponderance
of the evidence that the firearms were not clearly improbably con-
nected to the drug conspiracy. Because this clear evidence indicated
the firearms' connection to the conspiracy, the burden never shifted
to Eligio and Remedios. Given this course of events at sentencing, it
is unnecessary for us to reach the due process question based upon
Eligio and Remedios's burden-shifting theory.
VI.
Finally, Remedios argues that the district court improperly
enhanced his offense level by two levels for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1. The district court based this adjustment
upon its finding that Remedios committed perjury while testifying.9
In United States v. Dunnigan, 507 U.S. 87 (1993), the Supreme
Court held that for a district court to increase a defendant's sentence
for perjury under § 3C1.1, the court must establish that a defendant
provided (1) "false testimony," (2) "concerning a material matter," (3)
"with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory." Id. at 94. The Court
further noted that district courts must either make a clear finding on
each separate perjury element or make one global finding that encom-
passes all of the necessary factual predicates for a finding that perjury
was committed. See id. at 95.
We review the district court's factual findings that serve as a basis
for an obstruction-of-justice enhancement for clear error and we
review de novo whether the district court properly stated its factual
findings as required by Dunnigan. See United States v. Daughtrey,
874 F.2d 213, 217-18 (4th Cir. 1989).
_________________________________________________________________
9 Section 3C1.1 provides that a sentencing court may impose a two-
level enhancement if "the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing of the instant
offense." U.S.S.G. § 3C1.1. The United States Supreme Court has held
that an adjustment under this section is appropriate if the sentencing
court determines that a defendant committed perjury in the course of the
proceedings. See United States v. Dunnigan, 507 U.S. 87, 92-98 (1993).
16
We have strictly enforced the requirements of Dunnigan and will
not hesitate to remand a sentencing decision that failed adequately to
state the basis for a perjury finding. See, e.g., United States v. Stotts,
113 F.3d 493, 498 (4th Cir. 1997) (finding a § 3C1.1 adjustment
improper when the district court found that the defendant falsely testi-
fied at trial, but failed to "specify the testimony in question, . . .
whether the testimony related to a material matter, and . . . whether
[the defendant] willfully intended to give false testimony or whether
the false testimony resulted from confusion or mistake"); United
States v. Smith, 62 F.3d 641, 647 (4th Cir. 1995) (remanding for
resentencing after finding a § 3C1.1 enhancement improper because
the district court failed to make adequate findings that the elements
of perjury were met).
After hearing Remedios's objection to a sentence enhancement for
perjury, the district court indicated that it thought his testimony was
"inherently incredible." (J.A. at 412.) The district court also adopted
the factual findings and guideline applications of the presentence
report. The presentence report recommended a two-level adjustment
in Remedios's base offense level based upon § 3C1.1. Paragraph 21
of the presentence report provides:
Adjustment for Obstruction of Justice: [Remedios] elected
to testify in his own behalf at trial. During the course of his
testimony, [Remedios] denied he had ever delivered drugs
to Mark Bittle or received any money from him. [Remedios]
testified he had no knowledge of the cocaine and money
found in his bedroom and further stated that his brother
Eligio told him he (Eligio) had placed the cocaine and
money in his house. [Remedios] then testified that he told
Eligio to talk to his lawyer "to straighten it out so that they
wouldn't blame me and to let me go home because I wasn't
involved." In light of the evidence presented by the govern-
ment, the probation officer is of the opinion [Remedios] pro-
vided false testimony that was not the result of confusion,
mistake or faulty memory. [Remedios], therefore, has
obstructed the administration of justice. Pursuant to
[U.S.S.G.] § 3C1.1, two levels are added.
(J.A. at 486.)
17
We hold that the district court's adoption of these findings pro-
vided an adequate basis to impose a two-level enhancement under
§ 3C1.1. Paragraph 21 of the presentence report sets forth facts suffi-
cient to find each of the three essential elements of perjury, as
announced in Dunnigan: (1) that Remedios provided "false testi-
mony," (2) "concerning a material matter," (3) "with the willful intent
to provide false testimony, rather than as a result of confusion, mis-
take, or faulty memory." Dunnigan, 507 U.S. at 94. The presentence
report specifically finds that Remedios provided"false testimony" and
that he did so not as a "result of confusion, mistake, or faulty mem-
ory." Although the presentence report did not specifically find "mate-
riality," it is clear that the false statements made by Remedios
concerned matters central to his case, e.g., whether he delivered drugs
to Mark and whether he knew there was money and cocaine in his
bedroom. See United States v. Haas, 171 F.3d 259, 268 (5th Cir.
1999) (upholding a district court's § 3C1.1 enhancement after con-
cluding that the court's adoption of the factual findings set forth in the
presentence report provided the necessary factual predicates upon
which to satisfy Dunnigan, and finding the materiality element as a
matter of law when the presentence report failed to specifically find
"materiality"). We thus conclude that the district court's adoption of
the factual findings of the presentence report adequately met
Dunnigan's strict requirements. Furthermore, we find that the factual
findings contained in the presentence report that provided the basis
for the perjury finding were amply supported by the record and were
not clearly erroneous.
VII.
For the reasons stated herein, we reject Appellants' arguments con-
cerning their convictions and sentences and affirm the judgment of
the district court.
AFFIRMED
18