United States v. VanBuren , 97 F. App'x 419 ( 2004 )

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4877
ERIC MARTIN VANBUREN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-00-66)
Argued: January 21, 2004
Decided: May 13, 2004
Before WILKINS, Chief Judge, and NIEMEYER and
TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Peter Randolph Roane, LAW OFFICE OF DAVID L.
HEILBERG, Charlottesville, Virginia, for Appellant. Ray B. Fitzger-
ald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for
Appellee. ON BRIEF: David L. Heilberg, Charlottesville, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Charlottes-
ville, Virginia, for Appellee.
2 UNITED STATES v. VANBUREN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric Martin VanBuren was convicted of conspiring to distribute
more than 50 grams of cocaine base and he was sentenced to life
imprisonment. On appeal, VanBuren raises three challenges to his
sentence: (1) whether the district court erroneously determined the
drug quantity upon which to set VanBuren’s base offense level; (2)
whether the court erroneously enhanced his offense level based on
VanBuren’s leadership role in the conspiracy; and (3) whether the
court had a sufficient basis for imposing a sentencing enhancement
for obstruction of justice. We reject VanBuren’s challenges to his
base offense level and the enhancement based on his leadership role.
We also affirm the application of the obstruction of justice enhance-
ment to the extent it is based upon a finding that VanBuren gave per-
jured testimony at trial. Accordingly, we affirm VanBuren’s sentence.1
I.
As a result of his involvement in a drug distribution conspiracy that
operated in Culpeper, Virginia, from January 1995 until the fall of
2000, VanBuren was convicted by a jury of conspiracy to possess
with intent to distribute and to distribute more than 50 grams of crack
cocaine. See 21 U.S.C.A. §§ 841(a)(1), 846 (West 1999). At trial, the
government presented evidence that VanBuren obtained large quanti-
1
VanBuren also challenges the sufficiency of the evidence to support
his conviction. After reviewing the parties’ written submissions and con-
sidering the arguments of counsel, we conclude that there was more than
sufficient evidence to sustain the verdict. See United States v. Myers, 280
F.3d 407, 415 (4th Cir. 2002) (A challenge to the sufficiency of the evi-
dence must be rejected if "any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." (internal
quotation marks omitted)). Because this issue clearly lacks merit, we
affirm VanBuren’s conviction summarily.
UNITED STATES v. VANBUREN 3
ties of crack in the Washington, D.C., metropolitan area, which he
moved to the Culpeper area for distribution. Several witnesses testi-
fied that they routinely obtained various amounts of crack from Van-
Buren or saw VanBuren in possession of various amounts of crack.
VanBuren categorically denied selling or distributing cocaine in any
form and claimed that his trips to Culpeper were taken essentially for
the purpose of sexual adventure.
The Presentence Investigation Report ("PSR") attributed 205 kilo-
grams of crack to VanBuren based on trial testimony from several of
VanBuren’s co-conspirators, resulting in a recommended base offense
level of 38. See United States Sentencing Commission, Guidelines
Manual ("U.S.S.G.") § 2D1.1(c)(1) (Nov. 2000). The PSR recom-
mended a two-level upward adjustment for VanBuren’s leadership
role in the conspiracy, based upon testimony that VanBuren recruited
his brother and other individuals to transport and sell narcotics he
supplied them. See U.S.S.G. § 3B1.1(c). The PSR also recommended
a two-level increase in VanBuren’s offense level for obstruction of
justice. See U.S.S.G. § 3C1.1. This enhancement was based on two
factual predicates: (1) that VanBuren perjured himself during his tes-
timony at trial; and (2) that he provided a false name and date of birth
to law enforcement officers on December 30, 2001, the date of his
arrest. The adjusted offense level, as calculated by the PSR, was level
44, which mandates the imposition of a life sentence under the Sen-
tencing Guidelines, regardless of the defendant’s criminal history cate-
gory.2
After considering VanBuren’s objections, the district court deter-
mined, as recommended by the PSR, that VanBuren’s adjusted
offense level was 44 with a resulting sentencing range of life impris-
onment. In its Statement of Reasons accompanying its formal judg-
ment, the court indicated that it had "adopt[ed] the factual findings
and guideline application in the presentence report." J.A. 492.
2
VanBuren also received a two-level increase for possession of a dan-
gerous weapon based on trial testimony that he generally carried a hand-
gun while operating his crack distribution business. See U.S.S.G.
§ 2D1.1(b)(1). VanBuren does not challenge this enhancement.
4 UNITED STATES v. VANBUREN
On appeal, VanBuren first argues that the district court incorrectly
attributed to him 205 kilograms of crack cocaine, resulting in an
inflated base offense level of 38. Based on the jury’s verdict that he
conspired to distribute "more than 50 grams," as charged in the indict-
ment, VanBuren contends that he should have been sentenced for
"[a]t least 50 G but less than 150 G of Cocaine Base," which trans-
lates to a base offense level of 32. U.S.S.G. § 2D1.1(c)(4). Second,
VanBuren contends that the district court failed to make sufficient
factual findings to support its imposition of a two-level enhancement
for a leadership role in the conspiracy pursuant to U.S.S.G.
§ 3B1.1(c). Third, VanBuren argues that there was insufficient factual
support for either of the recommended bases for the two-level
obstruction of justice enhancement under U.S.S.G. § 3C1.1.
II.
We turn first to VanBuren’s challenge to the district court’s use of
205 kilograms to determine the base offense level. The government
must prove by a preponderance of the evidence the quantity of drugs
attributable to a defendant for purposes of sentencing. See United
States v. Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). In satisfying
this burden, the government may rely upon information set forth in
the PSR unless the defendant demonstrates that the information is
inaccurate or unreliable. See id. at 1014; United States v. Carter, 300
F.3d 415, 425 (4th Cir. 2002) (per curiam) (A defendant "objecting
to drug quantities as set forth in the Presentence Report . . . has an
affirmative duty to show that the information contained in the report
is inaccurate or unreliable."). Once a defendant has objected to the
factual accuracy of a given finding in the PSR, Federal Rule of Crimi-
nal Procedure 32(i)(3)(B) is triggered: "[F]or any disputed portion of
the presentence report or other controverted matter—[the court must]
rule on the dispute or determine that a ruling is unnecessary . . . ." The
district court, of course, can satisfy the requirement that it make a fac-
tual finding by "expressly adopt[ing] the recommended findings con-
tained in the presentence report." United States v. Morgan, 942 F.2d
243, 245 (4th Cir. 1991). If the court "make[s] clear on the record that
it has made an independent finding and that its finding coincides with
the recommended finding in the presentence report," id., we will not
disturb these findings unless they are clearly erroneous. See United
States v. D’Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
UNITED STATES v. VANBUREN 5
At sentencing, VanBuren filed a pro se objection to the 205 kilo-
gram drug quantity, arguing that the testimony at trial did not support
such a finding. According to VanBuren, the largest quantity of crack
that could have been attributed to him based on the evidence at trial
was "no more than (181 kilos)." J.A. 500. On appeal, VanBuren con-
tinues to take the position that the district court used the 205 kilogram
amount in error; however, his primary contention is not that the evi-
dence is insufficient to support a finding of 205 kilograms. Instead,
the primary focus of his argument is that the district court intended
"to sentence [VanBuren] on what the jury found." J.A. 456. Because
the jury found VanBuren guilty of conspiracy to distribute more than
50 grams of cocaine base, he argues that the district court was in fact
making the finding that VanBuren’s base offense level should have
been 32, which applies to offenses involving "[a]t least 50 G but less
than 150 G of Cocaine Base." U.S.S.G. § 2D1.1(c)(4). Alternatively,
VanBuren contends that the record is ambiguous as to the quantity of
crack found by the district court and that any such ambiguity should
be resolved in his favor. In other words, VanBuren believes that it is
not clear from the record whether the court intended to adopt the
quantity used in the PSR or the amount alleged in the indictment and
found by the jury.
The district court very clearly adopted the drug quantity set forth
in the PSR. After considering VanBuren’s objections, the district
court sentenced him in a manner consistent with the PSR’s recom-
mendations. Moreover, in the Statement of Reasons accompanying
the judgment entered by the district court, the court expressly "adop-
t[ed] the factual findings . . . in the presentence report." J.A. 492. See
United States v. Walker, 29 F.3d 908, 912 (4th Cir. 1994) (holding
Rule 32 requirements satisfied where the district court sentenced the
defendant "consistently with the PSR’s recommendations" and indi-
cated it was adopting the PSR’s findings on its "Statement of Rea-
sons" form accompanying the judgment).
The court’s statement that it intended to sentence VanBuren in
accordance with the jury’s verdict was not inconsistent with the adop-
tion of the PSR or the actual sentence imposed in this case. The
amount determined by the jury (50 grams or more) was significant
only because it set the statutory maximum penalty; as long as the sen-
tence imposed does not exceed the statutory maximum, a district
6 UNITED STATES v. VANBUREN
court may attribute more crack to the defendant than specified in the
indictment. See United States v. Kinter, 235 F.3d 192, 201 (4th Cir.
2000); see also United States v. Johnson, 335 F.3d 589, 591 (7th Cir.
2003) (per curiam).
The district court did not clearly err in attributing to VanBuren a
quantity of crack sufficient to warrant a base offense level of 38. The
threshold amount of crack cocaine required for the imposition of a
base offense level of 38 is 1.5 kilograms. See U.S.S.G. § 2D1.1(c)(1).
The testimony at trial was sufficient to support a factual finding attri-
buting far more than 1.5 kilograms to VanBuren. Richard Shirley,
who sold crack cocaine in the Culpeper area, testified that VanBuren
supplied him with large quantities of crack — usually between one-
half kilogram and one kilogram — on a weekly basis for nearly three
years. Roy Samuels indicated that VanBuren fronted him crack on a
regular basis for approximately one year; Samuels estimated that
VanBuren supplied him with a total of four or five kilograms over the
course of that year. Another crack dealer, Paul Brown, testified that
he generally received from VanBuren one-half kilogram of crack
every three to four days over a two-year period. This was just part of
the evidence supporting the district court’s findings of fact that put
VanBuren far in excess of the 1.5 kilograms of crack necessary to
trigger the application of a base offense level of 38. Moreover, Van-
Buren himself argued that the amount attributable to him, based on
the trial testimony, was 181 kilograms, which of course puts him far
above the 1.5 kilogram threshold.
In sum, we conclude that the district court satisfied its obligation
to make independent findings of fact as to the drug quantity attribut-
able to VanBuren by adopting the PSR’s findings, and that these find-
ings are not clearly erroneous.
III.
VanBuren next challenges the two-level enhancement he received
for a leadership role in the conspiracy. The Sentencing Guidelines
require the sentencing court to impose a two-level enhancement
where "the defendant was an organizer, leader, manager, or supervi-
sor" in the conspiracy. U.S.S.G. § 3B1.1(c). Our review of the sen-
tencing court’s application of an offense level enhancement based on
UNITED STATES v. VANBUREN 7
the defendant’s role in the offense of conviction is for clear error. See
United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
The PSR provided as follows: "Evidence in this case reveals the
defendant was a leader in a conspiracy that brought over 200 kilo-
grams of "crack" cocaine into Culpeper. He recruited his brother to
transport cocaine to Culpeper, Virginia for other dealers to sell in
street level quantities." J.A. 485. VanBuren’s pro se submission, filed
immediately prior to the sentencing hearing, stated merely that he
"object[ed] to the adjustment for role in the offense." J.A. 505.
Defense counsel did not raise this objection to the PSR prior to the
hearing and did not refer to the leadership role enhancement during
sentencing.
VanBuren now claims that the district court failed to satisfy its
obligation under Rule 32(i)(3)(B) to rule on "any disputed portion of
the presentence report." VanBuren objects to the PSR’s finding that,
based on the evidence at trial, he was a leader in the conspiracy, but
he has never offered evidence to the contrary or specifically explained
why the PSR was inaccurate or unreliable. VanBuren’s "mere objec-
tion" to the PSR’s findings, without more, is insufficient to put the
PSR’s findings into dispute. United States v. Terry, 916 F.2d 157, 162
(4th Cir. 1990); cf. Gilliam, 987 F.2d at 1013 ("[T]he Government
carries its burden if a defendant fails to properly object to a recom-
mended finding in a presentence report that the court determines to
be reliable."). Because VanBuren failed to make the required affirma-
tive showing that the PSR was inaccurate or unreliable, the district
court was "free to adopt the findings of the [PSR] without more spe-
cific inquiry or explanation." Terry, 916 F.2d at 162 (internal quota-
tion marks omitted). We affirm the imposition of a two-level
leadership role enhancement to VanBuren’s offense level.
IV.
Finally, VanBuren argues that he received the two-level
obstruction-of-justice enhancement in error because the district
court’s findings did not adequately support the PSR’s two recom-
mended bases for applying the enhancement. First, with respect to the
perjury basis, VanBuren argues that the court failed to specifically
identify the portion of his testimony that was false or to determine
8 UNITED STATES v. VANBUREN
whether the purportedly false testimony was material to the proceed-
ings. Second, VanBuren contends that the court’s alternative basis for
the enhancement — the false name and date of birth that VanBuren
gave the arresting officers — does not constitute obstruction as
defined by section 3C1.1 of the Sentencing Guidelines. Our review of
factual determinations is for clear error while our review of legal
questions is de novo. See United States v. Singh, 54 F.3d 1182, 1190
(4th Cir. 1995).
The Sentencing Guidelines prescribe a two-level upward adjust-
ment if "the defendant willfully obstructed or impeded . . . the admin-
istration of justice during the course of the investigation, prosecution,
or sentencing of the instant offense of conviction" and "the obstruc-
tive conduct related to . . . the defendant’s offense of conviction and
any relevant conduct." U.S.S.G. § 3C1.1.
At the sentencing hearing, the district court did not refer to the fact
that VanBuren supplied false information to law enforcement officers
as a basis for applying the obstruction enhancement under section
3C1.1. As noted earlier, the district court explained in its Statement
of Reasons accompanying its formal judgment that it adopted the fac-
tual findings and the guideline application contained in the PSR,
which, in turn, determined that the obstruction enhancement was
appropriate because VanBuren on the day of his arrest "provided law
enforcement with a false name and date of birth." J.A. 485. Trial testi-
mony established that VanBuren was detained on December 30, 2001,
initially as a passenger in a vehicle that Pennsylvania State Police
stopped for traffic violations. VanBuren told the arresting officers that
his name was Christopher Darnel Johnson and gave a false date of
birth. Later on the day of the arrest, officers learned through finger-
print analysis about VanBuren’s true identity and the outstanding
drug warrants for him.
VanBuren does not challenge the accuracy of this factual finding;
rather, he argues that section 3C1.1 simply does not apply to his con-
duct. This presents a question of law that we review de novo. The
Sentencing Commission’s commentary on the guideline provides sev-
eral examples of conduct that "ordinarily do[es] not warrant applica-
tion" of an obstruction enhancement, including "providing a false
name or identification document at arrest, except where such conduct
UNITED STATES v. VANBUREN 9
actually resulted in a significant hindrance to the investigation or
prosecution of the instant offense." U.S.S.G. § 3C1.1, application note
5(a).
We are unable to sustain the application of an enhancement under
section 3C1.1 on this basis. The district court did not make a finding
that VanBuren’s provision of the false name and date of birth signifi-
cantly hindered the investigation, nor is the impeding effect of the
false information so clear in the record that we can make that determi-
nation ourselves. See United States v. Banks, 347 F.3d 1266, 1270
(11th Cir. 2003).
Nevertheless, we affirm the application of the obstruction enhance-
ment on the alternative perjury basis. When a defendant objects to the
imposition of an enhancement based on the defendant’s trial testi-
mony, the district court must determine that "the defendant when tes-
tifying under oath (1) gave false testimony; (2) concerning a material
matter; (3) with the willful intent to deceive (rather than as a result
of confusion, mistake, or faulty memory)." United States v. Jones,
308 F.3d 425, 428 n.2 (4th Cir. 2002); see United States v. Dunnigan,
507 U.S. 87, 94-95 (1993). An obstruction adjustment, however, is
not automatically appropriate "every time a criminal defendant who
testifies at trial is convicted." United States v. Smith, 62 F.3d 641, 647
(4th Cir. 1995). It is possible that "the defendant’s specific statements
on the stand were true, or were not intentionally false, or were not
material." Id.At the sentencing hearing, VanBuren asked for "specific statements
that the Court would hold [him] responsible for testifying falsely
under oath" and expressed doubt whether the district court had made
such specific findings. J.A. 459. The district court, which had
observed VanBuren’s testimony denying ever selling drugs in any
way, explained as follows:
The court can make that finding. I recall his testimony . . .
of course he denied that he was guilty of the charges. . . .
His testimony for the most part . . . lacked credibility, and
the jury certainly believed beyond a reasonable doubt — if
they had any doubts that he was not telling the truth, they
10 UNITED STATES v. VANBUREN
couldn’t have found him guilty. They believed he was guilty
beyond a reasonable doubt, so inferentially they had to
believe he was not telling the truth.
I certainly . . . thought he wasn’t telling the truth. I
couldn’t believe anyone would be testifying in the manner
that he did, which showed arrogance and disrespect for the
intelligence of the jury to sit there and put the defense on
that he offered. . . .
So I think there’s no question he committed perjury dur-
ing his trial, so the obstruction of justice points he should
receive.
J.A. 460.
VanBuren concedes that this statement reflects the district court’s
finding that he testified falsely under oath and with the intent to
deceive. He contends, however, that the district court’s findings were
insufficient because the court did not identify the specific testimony
underlying the perjury finding and did not expressly find that this tes-
timony concerned a material issue, as required by Dunnigan. See 507
U.S. at 94-95.
As we have observed more than once, Dunnigan does not require
a specific finding addressing each perjury element — it observes that
"it is preferable for a district court to address each element of the
alleged perjury in a separate and clear finding." Id. at 95; see, e.g.,
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995); Smith,
62 F.3d at 647; United States v. Stotts, 113 F.3d 493, 498 (4th Cir.
1997). It is sufficient if "the district court make[s] a single global
finding that encompasse[s] the three essential elements" of perjury.
Smith, 62 F.3d at 647. In Dunnigan itself, the Court approved of the
district court’s findings which, rather than engaging in an analysis of
each element, indicated that
the defendant was untruthful at trial with respect to material
matters in this case. The defendant denied her involvement
when it is clear from the evidence in the case as the jury
UNITED STATES v. VANBUREN 11
found beyond a reasonable doubt that she was involved in
the conspiracy alleged in the indictment, and by virtue of
her failure to give truthful testimony on material matters that
were designed to substantially affect the outcome of the
case, . . . the false testimony at trial warrants an upward
adjustment by two levels.
507 U.S. at 91. By contrast, a district court’s mere finding that the
defendant "‘falsely testified at trial’" is plainly insufficient to encom-
pass all of the elements of perjury. Stotts, 113 F.3d at 498. Indeed,
testimony can be false but not perjurious if the defendant’s testimony
sprang from confusion or mistake. See also Smith, 62 F.3d at 647(unable to infer elements of perjury from simple denial of defendant’s
objection to the obstruction enhancement).
The district court’s lack of specificity in its findings in this case
presents a close question, and certainly the better procedure is to be
specific. On the whole, however, we view the court’s findings as
closer to those at issue in Dunnigan than in Stotts or Smith. As Van-
Buren acknowledges, the district court clearly found his testimony to
be willfully false. VanBuren takes issue with the fact that the district
court did not specifically identify the perjurious testimony. It is fairly
apparent, however, that the district court was referring to VanBuren’s
categorical denial of any involvement in drug-related activities, the
materiality of which was obvious — the only issue was whether Van-
Buren distributed crack as part of the conspiracy alleged in the indict-
ment.
Accordingly, while we cannot affirm the enhancement to the extent
that it was based on the false information passed by VanBuren to law
enforcement officers, we affirm the application of the two-level
enhancement based on VanBuren’s trial testimony.
V.
For the foregoing reasons, we affirm VanBuren’s conviction and
sentence.
AFFIRMED