United States v. Kanga , 43 F. App'x 678 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 01-4437
KOFFI GEORGES KANGA, a/k/a
Georges Bambara,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-00-53)
Submitted: June 24, 2002
Decided: August 23, 2002
Before WILKINS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
COUNSEL
Paul C. Pooley, Durham, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Arnold L. Husser, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. KANGA
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Koffi Georges Kanga appeals from the thirty-seven month sentence
imposed following his convictions for making, and aiding and abet-
ting in the making of, false statements to the Social Security Adminis-
tration, 18 U.S.C.A. §§ 1001, 1002 (West 2000). He contends that the
district court failed to make sufficient findings prior to enhancing his
sentence for obstruction of justice, erred in also imposing sentence at
the high end of the guideline range based on his obstruction of justice,
and increased his sentence based on a finding made by the court and
not the jury, in violation of the rule in Apprendi v. New Jersey, 530
U.S. 466 (2000). We dismiss in part and affirm in part.
Prior to applying the two-level obstruction enhancement,* the sen-
tencing court must find by a preponderance of the evidence that: (1)
the defendant gave "false testimony," (2) "concerning a material mat-
ter," and (3) "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 (1993). The court’s findings at
Kanga’s sentencing clearly satisfy the first and third elements. The
court adopted the probation officer’s recommended finding that
Kanga "willfully provided false testimony during his trial." The court
also noted that Kanga denied being in a Social Security office assist-
ing others to obtain documents, when "at least four witnesses posi-
tively identified him as being in social security offices and different
offices." The remaining required finding is that the testimony "con-
cern[ed] a material matter." Id. A "material matter" is one that "would
tend to influence or affect the issue under determination." USSG
§ 3C1.1, comment. (n.6). Where the materiality of perjured testimony
is clear as a matter of law, the lack of an explicit finding on material-
ity does not require remand for additional findings. United States v.
*U.S. Sentencing Guidelines Manual § 3C1.1 (1998).
UNITED STATES v. KANGA 3
Haas, 171 F.3d 259, 268 (5th Cir. 1999); see United States v. Romer,
148 F.3d 359, 372 (4th Cir. 1998).
The relevant testimony was clearly material. Kanga denied being
present in the Social Security offices in spite of the testimony of four
Social Security Administration employees identifying him as the per-
son who was present and acting as the leader or interpreter for persons
seeking to obtain social security numbers by presenting false docu-
ments. Kanga’s testimony, if believed, would have resulted in an
acquittal as to counts two through eighteen (aiding and abetting) of
the second superceding indictment. This meets the test for materiality.
See USSG § 3C1.1, comment. (n.6); Romer, 148 F.3d at 372. Accord-
ingly, we find that the sentencing court’s findings as to Kanga’s per-
jury were sufficient under Dunnigan and therefore affirm the two-
level enhancement for obstruction of justice.
Kanga’s challenge to the court’s consideration of his obstruction of
justice in determining where, within the applicable guideline range,
to impose a sentence is not reviewable on appeal. United States v.
Jones, 18 F.3d 1145, 1151 (4th Cir. 1994); United States v. Porter,
909 F.2d 789, 794 (4th Cir. 1990). Therefore we dismiss this portion
of the appeal.
Kanga’s last claim is that his sentence was imposed in violation of
the rule announced in Apprendi, because the court increased his
offense level by six levels based on the court’s findings as to the num-
ber of documents involved, rather than submitting the issue to the
jury. He argues that the maximum sentence for an offense is that set
by the Sentencing Guidelines, and not the statutory maximum. Thus,
he asserts that the maximum sentence to which he was exposed under
the guidelines was 14 months. See USSG Chapter 5, Pt. A (Sentenc-
ing Table). However, we recently held that "Apprendi does not apply
to a judge’s exercise of sentencing discretion within a statutory range,
[therefore] the current practice of judicial factfinding under the
Guidelines is not subject to the Apprendi requirements—at least so
long as that factfinding does not enhance a defendant’s sentence
beyond the maximum term specified in the substantive statute."
United States v. Kinter, 235 F.3d 192, 201 (4th Cir. 2000), cert.
denied, 532 U.S. 937 (2001). Kanga contends that our Kinter decision
was in error and invites us to reconsider it here. We decline to do so.
4 UNITED STATES v. KANGA
See United States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987)
(only an en banc court, not a subsequent panel, has authority to over-
turn a previous panel’s published decision); Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (issue raised for the
first time on appeal generally will not be considered, unless refusal
to consider issue would be plain error or result in a fundamental mis-
carriage of justice). Because Kanga’s thirty-seven month sentence
does not exceed the sixty-month statutory maximum, 18 U.S.C.A.
§§ 1001, 1002, the sentence was properly determined by the district
court.
In conclusion, we dismiss the portion of the appeal in which Kanga
challenges the district court’s determination of where, within the
applicable guideline range, to impose sentence, and affirm in all other
respects. 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.
DISMISSED IN PART; AFFIRMED IN PART