Blanche E. Dyer v. United States ( 1996 )

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No. 95-4250
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Blanche Elizabeth Dyer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: May 24, 1996
Filed: June 4, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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PER CURIAM.
Blanche Elizabeth Dyer appeals from the final judgment of the
District Court1 for the Southern District of Iowa denying her third 28
U.S.C. § 2255 motion to vacate her sentence. For the reasons discussed
below, we affirm.
Dyer was convicted of sixteen counts of drug trafficking offenses.
At sentencing, over Dyer's objection, the district court imposed a two-
level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1.
based on Dyer's perjured trial testimony that her husband and another
codefendant had no knowledge of the drug transactions. The district court
found Dyer "testif[ied] both before the jury and before this Court strictly
to use testimony to her own benefit, if possible, and not to enlighten the
jury or the
1
The Honorable Charles R. Wolle, Chief Judge, United States
District Court for the Southern District of Iowa.
Court on what the facts are," and that she "lie[d] on the witness stand,
intentionally trying to use the opportunity to testify to mislead the
Court." The district court then sentenced Dyer to 230 months imprisonment.
Dyer appealed the obstruction-of-justice enhancement. This court,
affirming Dyer's sentence, concluded the district court's findings of
perjury were not clearly erroneous. United States v. Dyer, 910 F.2d 530,
533 (8th Cir.), cert. denied, 498 U.S. 907 (1990). This court also
affirmed the subsequent denials of Dyer's first and second section 2255
motions. Dyer v. United States, 23 F.3d 1424 (8th Cir. 1994); id., 972
F.2d 353 (8th Cir. 1992) (Table).
In this third section 2255 motion, Dyer alleged that the district
court failed to make independent findings necessary to establish any
perjury to support the obstruction-of-justice enhancement as required by
United States v. Dunnigan, 507 U.S. 87, 95-96 (1993). The government
argued that Dyer's section 2255 motion constituted an abuse of the writ and
that the district court's findings met the requirements of Dunnigan and
Eighth Circuit precedent.
The district court addressed the merits and concluded that the
evidence had persuaded it beyond a reasonable doubt that Dyer testified
falsely at trial and at sentencing, that she knew when she testified that
her testimony was false, and that she knew her testimony would cause the
government more difficulty in proving her husband's guilt. Thus, because
Dyer committed perjury that obstructed justice and the enhancement under
U.S.S.G. § 3C1.1 was proper, the district court denied Dyer's motion to
vacate.
Although Dyer's third section 2255 motion may constitute an abuse of
the writ, we address the merits because the district court
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did so. See Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994)
(per curiam).
In United States v. Dunnigan, 507 U.S. at 95, the Supreme Court
concluded that "if a defendant objects to a sentence enhancement resulting
from her trial testimony, a district court must review the evidence and
make independent findings necessary to establish a willful impediment to
or obstruction of justice, or an attempt to do the same, under the perjury
definition." See 18 U.S.C. § 1621 (perjury requires false testimony
concerning a material matter with willful intent to provide false
testimony, rather than from confusion, mistake or faulty memory).
We conclude that the district court's findings encompassed all the
factual predicates for a perjury finding and were sufficiently specific to
support the enhancement. See United States v. Dunnigan, 507 U.S. at 93-94;
United States v. Turk, 21 F.3d 309, 313 (8th Cir. 1994) (statement judge
examined defendant's testimony and was convinced she committed perjury by
denying her involvement was sufficiently specific finding).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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