The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12510
Non-Argument Calendar
________________________
D.C. Docket No. 4:12-cr-00133-CLS-MHH-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EARL ALLEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 5, 2014)
Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
David Earl Allen appeals his convictions and sentence of 97 months of
imprisonment for conspiring to distribute and possess with intent to distribute five
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grams or more of methamphetamine, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B),
846, and distributing five grams or more of methamphetamine, see id. § 841(a)(1),
(b)(1)(B). Allen argues for relief from his convictions on the ground that the
district court erred when it refused to accept his plea of guilty to the distribution
offense and later when it denied his motion for a judgment of acquittal on the
charge of conspiring to distribute methamphetamine. Allen also challenges the
enhancement of his sentence for obstruction of justice and the denial of relief under
the safety valve. We affirm.
I. BACKGROUND
Allen and his coconspirators were charged, in a six-count indictment, for
crimes related to their conspiracy to distribute methamphetamine. Allen was
indicted for two crimes: conspiring to distribute and possess with intent to
distribute 50 grams or more of methamphetamine between January 24, 2011, and
August 19, 2011, id. §§ 841(a)(1), 841(b)(1)(A), 846, and distributing five grams
or more of methamphetamine on August 19, 2011, id. §§ 841(a)(1), (b)(1)(B).
Allen initially pleaded not guilty to the charges.
Allen entered a written agreement to plead guilty to distributing
methamphetamine in exchange for the dismissal of his charge for conspiracy and
for recommendations by the government to reduce his offense level for his
acceptance of responsibility and to impose a sentence at the low end of the
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advisory guidelines range. The factual basis stated that Allen agreed to sell a
confidential informant $1,600 of methamphetamine; the informant delivered the
cash to Allen at his tile shop; Allen handed the money to Andres Hernandez, who
left the shop in Allen’s truck to obtain the methamphetamine; the informant also
left Allen’s shop and later returned after Allen notified him that the drugs had been
delivered; the informant collected the methamphetamine, which was lying on the
floor of the shop wrapped inside a towel; and Allen also sold the informant half of
a pound of marijuana for $650, which was wrapped in a towel. When tested, the
methamphetamine weighed 22.2 grams.
At the change of plea hearing, Allen tendered a plea of guilty and stated that
he had not been coerced to change his plea to guilty. But when asked if he was
tendering his plea of guilty voluntarily, Allen stated that his father had received a
telephone call in which the caller threatened to harm Allen’s family if he did not
plead guilty.
THE COURT: Other than the terms of the plea agreement we have
just briefly discussed, has anybody promised you anything or given
you any other assurance of any kind in an effort to induce you to enter
this plea of guilty?
THE DEFENDANT: No, sir.
THE COURT: Has anyone attempted in any way to force you to plead
guilty in this case?
THE DEFENDANT: No, sir.
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THE COURT: Are you pleading guilty voluntarily and of your own
personal decision to do so?
THE DEFENDANT: Well, can I say something, Your Honor?
THE COURT: Yes, sir.
THE DEFENDANT: My and my dad’s name are the same. And I was
— I was kind of — somebody called my dad and threatened if I didn’t
plead into it, you know, or that they were going to harm my family.
And they called his number thinking that was me, because I’m a
junior and it’s not listed in the phone book as a junior. So, but I
understand, yes, sir.
THE COURT: Well, are you pleading guilty because somebody made
a threat on your life, or your father’s, or your family’s, or are you
pleading guilty because you are, in fact, guilty?
...
THE DEFENDANT: It was today when they called.
THE COURT: No. That’s not my question.
Are you pleading guilty because you are, in fact, guilty?
THE DEFENDANT: No, sir. I’m guilty. I’m guilty, sir, you — but,
you know, I’m guilty, yes, sir.
When asked to state a factual basis for his plea, Allen stated that he
participated in the drug transaction because he worked as a confidential informant
for the Etowah County Drug Task Force. Allen stated that he had worked for the
task force for years and that he was trying to gain the confidence of drug dealers
and infiltrate a drug organization to “work off” criminal charges incurred by his
son.
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THE DEFENDANT: I was working — I sold narcotics — I worked
for Etowah County for seven years. I have worked for Etowah
County as a C.I.
THE COURT: C.I.?
THE DEFENDANT: Yes, sir. And to the point — to the point I have
listed things I have done for them that I was under the influence of
whatever I had to do to get to the Avilas is what I was asked to do.
And I got — I was also in a process, these other guys here with
me, I have cases on them that I — I was actually trying to work
something off for my son. My son was in some trouble. And I got
involved in it and was trying to help him in on it.
And when the physical evidence come back against my son, I
couldn’t — they said it wouldn’t count. So all this that I have done
for — for my son, the trafficking cases with these guys here that are
listed on this, they don’t count.
So I was still trying to get to the Avilas through Andres and the
other Mexican trying to bring down an organization that Etowah
County’s been trying to get for the past 10 or 15 years, I guess, maybe
longer. And I got caught up in it too much and — and was trying to
do whatever I had to do, do whatever I had to do to get involved in it.
And I got caught selling also.
THE COURT: Well —
THE DEFENDANT: Without — without the — their authorization,
but was under the influence that I was told specially to do what I had
to do, we went to Avilas.
THE COURT: So did you think you were working for the drug task
force, or were you doing it for your own profit?
THE DEFENDANT: There was no profit involved, sir. I was trying
to further more — my influence of getting involved with them, you
know. They come to my shop, like a few days before that, five of
them did, with Andres. Come to my shop. And Steve Guthrie knows
about that the — of Etowah — Steve Guthrie and [sic] narcotic agent
that I have been working for, for the past five years and brought down
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big cases for them all over Georgia, Alabama, you know. I was in the
other states, too, doing work for them.
But he knew about them coming to the shop, meeting with me.
And this was exact words, the organization . . . . They were in
Roebuck, these guys were. And they were in an organization.
The district court interrupted Allen and asked the prosecutor why Allen was
being charged for distributing methamphetamine. The prosecutor acknowledged
that Allen had served extensively as an informant before the drug transaction, but
the prosecutor argued that Allen did not conduct the transaction on behalf of the
government. Allen’s attorney interjected that the government had video and audio
recordings of the transaction.
THE COURT: Why are we here, Ms. Hodge?
...
MS. HODGE: It’s the Government’s position — we agree in part with
what Mr. Allen says.
There was a period of time where he was working with the
Etowah County Drug Task Force Unit extensively in the past for
credit for things on state-related cases, things related to his son, things
of that nature. He was, in fact, working to help make some of the
deals that are part of this indictment. And then he fell off the wagon,
so to speak.
There was a period of time in between . . . . And the last buy
that we have in which he was involved working for law enforcement
was April 6th of 2011.
So it’s the Government’s position there was a period of
approximately four months when he was not in contact with law
enforcement where he was not working at their behest. He was not
conducting otherwise illegal activity under the authority of law
enforcement, which is how we were able to make this buy from him
on August the 19th. That was not part of any authorized activity that
he was supposed to be doing as a confidential informant.
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THE COURT: So you sent a C.I., a C.I. informant in to make a buy on
this date from Mr. Hernandez and Mr. Allen?
MS. HODGE: Yes, Your Honor. And that was based on information
that they were hearing — that law enforcement was hearing about Mr.
Allen going off on his own ventures.
MR. BROOME: I might also add, there is a video and audio of that
C.I. buying from Mr. Allen on August the 19th.
The district court questioned Allen about his conduct. Allen acknowledged
that he was not instructed by the task force to sell the methamphetamine, but he
insisted that he made the sale on behalf of the task force.
THE COURT: Mr. Allen, did you hear and understand what Ms.
Laura Hodge the assisting supervisor said?
THE DEFENDANT: Yes, sir.
THE COURT: Is she correct?
THE DEFENDANT: Yes, sir, she is. But I was under the influence
— you know —
The district court refused to accept Allen’s change of plea to guilty. Allen
and his attorney appeared prepared to proceed to trial, but the prosecutor requested
a recess for Allen to confer with his attorney.
THE COURT: — I tell you what. I think we better try this case. And
let Mr. Allen explain himself to the jury. And if they believe that he
thought he was still under the influence of the Government, even
though the Government sent a confidential informant in, then he can
be found not guilty, but I am not going to take this plea. I wouldn’t
touch it with a ten foot pole.
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MR. BROOME [Defense counsel]: Yes, Your Honor.
THE COURT: So you just get ready for trial, Mr. Allen. And that
way you won’t have to worry about any personal —
THE DEFENDANT: Your Honor, I would, just speaking what I feel,
you know, I’m sorry. . . . You know, but I — you know, I do other
work. I’ve actually got . . . other things, too, you know.
THE COURT: Okay.
MS. HODGE: Your Honor, if I may.
Could we have a few moments outside the presence of the
Court to give Mr. Broome an opportunity to talk to his client and then
to ask any questions of us that he might have in an effort to clarify this
matter and resolve it today?
THE COURT: I will give you some time.
When the hearing resumed, defense counsel announced that Allen wanted to
plead guilty. The district court continued to express its reservations about
accepting Allen’s plea of guilty in the light of his protestations of innocence.
MR. BROOME: Judge, we would like to go forward with our change
of plea, Your Honor.
THE COURT: Well, I’m concerned about doing that, Mr. Broome.
As I understand what your client is saying, is that he . . . was
under the mental impression that he was doing what the Government
wanted him to do when he sold 5 grams or more of methamphetamine
to a confidential informant on the 19th day of August of 2011 in
Etowah County.
MR. BROOME: Judge, I don’t think that’s what the facts show, and I
don’t really think that’s what Mr. Allen meant to tell the Court.
THE COURT: He stated it pretty clearly, as far as I heard.
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MR. BROOME: Your Honor, he wouldn’t have been — Judge, he can
probably tell the Court must better than I can.
Allen acknowledged that the information included in the factual basis was
accurate. Allen admitted that his truck was used to obtain the methamphetamine
because “[t]hey always used my vehicle”; he knew the confidential informant, Sam
Greenwood, because Greenwood had sold Allen illegal drugs in the past; and he
instructed Greenwood to retrieve from the floor a towel containing the
methamphetamine. But, when questioned by the district court, Allen maintained
that he was acting for the task force.
THE COURT: Well, when you were doing all these things, did you
think you were working on behalf of the Government, or was it for
your own profit?
MR. BROOME: You have got to tell the truth. That’s all I can tell
you.
THE DEFENDANT: I felt like I was, but I guess I wasn’t, sir. I felt
like I was, though, in my heart.
The district court questioned Allen about the threatening telephone call.
Allen’s father stated that the caller said “they [would] get rid” of Allen. Based on
Allen’s hesitation to admit his guilt and the threatening phone call, the district
court refused to enter a plea of guilty.
THE COURT: And do you know who called your father’s house
today and threatened him?
THE DEFENDANT: No, sir. Other than being part of that
organization.
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THE COURT: And what exactly did they say?
THE DEFENDANT: What exactly did they say, daddy?
MR. DAVID ALLEN, SR.: Said they was going to get rid of him.
THE COURT: Well, I’m not prepared to take this plea. And if there’s
a threat against Mr. Allen’s life, best protection that we can give him
is to try his case. That way nobody will think that he is acting as a
snitch, as an informant.
...
MR. BROOME: Judge, I respect Your Honor’s opinion on that, but it
would come out during a trial that he was actually working — it
would be more information than the public, as far as him working for
the Etowah County Drug Task Force, if he went to trial. He would
testify to that. I would ask the agents information about that.
THE COURT: Well, if you want to waive venue, we could try it some
place other than Gadsden and Etowah County.
MR. BROOME: Then that is a —
THE COURT: That’s up to you . . . .
...
MR. BROOME: Thank you, Your Honor.
At trial, the government presented testimony and audio recordings
establishing that Allen sold methamphetamine and marijuana to Greenwood, who
was another informant for the county task force. Michael Martin, an agent of the
Federal Bureau of Investigation, testified that Allen had worked as a confidential
informant when making controlled purchases of methamphetamine between
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January and April 2011; Allen purchased the drugs from Hernandez, who the
Bureau believed had connections to a drug trafficking organization run by the
Avila family; and Allen always was equipped with a recording device and gave the
drugs that he purchased to his supervising agents. After Martin learned that Allen
had been selling drugs and had sold methamphetamine to Greenwood, Martin
arranged for Greenwood to make a controlled purchase from Allen.
Martin and Greenwood testified about the drug transaction between
Greenwood and Allen on August 19, 2011, and Greenwood identified the audio
recording of the sale. Martin testified that, while Greenwood was waiting inside
Allen’s shop for Hernandez to return with the methamphetamine, Martin visited
the shop to talk to Allen, but Allen did not mention that he was selling drugs to
Greenwood. Greenwood admitted that he used methamphetamine and testified
about his drug transaction with Allen; stated that Allen had demanded payment for
methamphetamine he had given Greenwood one day earlier; and recalled a
conversation in which Allen boasted that he was going to perform tile work in a
federal agent’s house and “smoke some stuff in [the] bathroom.” At the
conclusion of Greenwood’s testimony, Allen moved for a judgment of acquittal on
the ground that there was insufficient evidence to prove that he had conspired with
Hernandez to distribute methamphetamine, but the district court denied Allen’s
motion.
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Allen testified that he was acting on behalf of the task force when he sold
methamphetamine to Greenwood. Allen testified that he began working for the
Etowah County Drug Task Force in 2008 in exchange for the dismissal of a drug
charge and later he made controlled buys for compensation because “it made [him]
feel like one of [the officers].” Allen testified that he ceased working as an
informant in 2009, but he resumed the work about a year later to “work off charges
against his son.” Allen acknowledged that his supervising agent, Agent Steve
Guthrie, had told him to wait before transacting with Greenwood, but Allen sold
methamphetamine to Greenwood because Guthrie said to “do whatever you have
got to do” to “bring down the organization”; Allen wanted to continue cultivating
his relationship with Hernandez, whom Allen believed had connections to the
Avila organization; and Allen needed to dispel suspicions expressed recently by
Hernandez and others that Allen was working for the government. Allen
acknowledged that he did not contact Guthrie about the transaction with
Greenwood, but Allen said that he hinted that he was “working on something right
now” to Agent Martin when he visited Allen’s shop.
Guthrie testified that Allen had worked regularly as an informant for the task
force; he was an “enthusiastic” informant; and he liked to “brag [that] his initials
were DEA.” Guthrie testified that all government informants were instructed not
to buy or sell drugs unless at the direction of the task force, but Allen had
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purchased drugs without permission on a couple of occasions and been allowed to
continue working as an informant. Guthrie also testified that Allen had been
warned to “quit [making purchases without permission] . . . because [the task
force] can’t make prosecutable cases [that] way.” On cross-examination, Guthrie
stated that he was introduced to Greenwood by Agent Martin; he never gave Allen
permission to make uncontrolled drug purchases; he never instructed Allen to “do
whatever it takes”; and Allen had bought, but never sold drugs as an informant.
The government called Agent Martin to rebut Allen’s testimony. Martin
denied that Allen mentioned having “something going on right now” or that he
gestured to Greenwood to suggest that Allen was conducting a drug transaction for
the government. Martin testified that Allen did not report to the task force that he
had sold methamphetamine to Greenwood, nor did Allen confess immediately
when he was questioned by agents. Allen renewed his motion for a judgment of
acquittal on the charge of conspiracy, but the district court denied the motion.
The jury found Allen guilty of conspiring to distribute and of distributing
methamphetamine. The jury found that Allen was responsible for more than five
grams, but less than 50 grams of methamphetamine that the conspiracy distributed.
Allen’s presentence investigation report provided a base offense level of 28,
based on the 22.2 grams of methamphetamine that he sold to Greenwood. See
United States Sentencing Guidelines Manual § 2D1.1(c)(6) (Nov. 2012). The
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report increased the offense level by two points because Allen had perjured himself
at trial by falsely “testif[ying] that he was working as a [CI] when the August [19],
2011, drug transaction took place.” See id. § 3C1.1. With a criminal history of I
and a total offense level of 30, Allen’s presentence report provided a sentencing
range between 97 and 121 months of imprisonment.
Allen objected to the two-point enhancement of his sentence for obstruction
of justice on the ground that he did not give “willful and intentional perjured
testimony at trial,” and he also sought a reduction of two points under the “safety
valve,” see U.S.S.G. § 2D1.1(b)(16); 18 U.S.C § 3553(f). The government
responded that Allen perjured himself by testifying that he was working as an
informant on August 19, 2011. The government also argued that Allen failed to
qualify for the safety valve because he “maintained through the course of the trial .
. . that he was working under the direction of the Government when he sold
methamphetamine . . . .”
The district court overruled Allen’s objections to the presentence
investigation report. The district court credited the testimony from Martin and
Guthrie that “Allen had never been instructed to sell methamphetamine to anyone
at any time” and that “[h]is sole function as a confidential informant was to
purchase controlled substances usually while wearing the wire or video equipment
and providing information” against Hernandez and another coconspirator. Based
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on its findings that the agents’ testimonies were “credible and truthful” and that
“Allen lied,” the district court determined that an enhancement for obstruction was
“a correct attribution for [Allen’s] false testimony during trial” and for “the denials
that he made in [the] Rule 11 plea colloquy.” The district court ruled that Allen’s
false statements “also deprive[d] him of the benefit of the . . . safety valve under
Guideline Section 5C1.2(a)(5), and . . . its . . . statutory corollary Title 18, U.S.
Code, Section 3553(f)(5).” The district court adopted the factual findings and
calculations in the presentence report, sentenced Allen to two terms of 97 months
of imprisonment, and ordered that the terms run concurrently.
II. STANDARDS OF REVIEW
We apply three standards of review. We review the refusal of the district
court to enter a plea of guilty for abuse of discretion. See United States v. Gomez-
Gomez, 822 F.2d 1008, 1010 (11th Cir. 1987). We review de novo the denial of a
motion for acquittal based on the sufficiency of the evidence and interpret all
inferences and credibility choices in favor of the jury’s verdicts. United States v.
Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014). We review for clear error the
enhancement of a sentence for obstruction of justice and the denial of relief under
the safety valve, United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002)
(obstruction); United States v. Johnson, 375 F.3d 1300, 1301 (11th Cir. 2004)
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(safety valve), and we “accord great deference to the district court’s credibility
determinations,” Singh, 291 F.3d at 763.
III. DISCUSSION
Allen argues for vacatur of his convictions and his sentence on three
grounds. First, Allen argues that the district court erred in refusing to accept his
plea of guilty to distributing methamphetamine “on [an] erroneous legal conclusion
that there is a ‘good faith’ defense to the offense of distribution of a controlled
substance.” Second, Allen argues that there is insufficient evidence to support his
conviction for conspiracy to distribute methamphetamine. Third, Allen argues that
the district court clearly erred by finding that he gave false testimony and by
enhancing his sentence for obstruction of justice without specifying that the false
testimony was material. Allen’s arguments fail. We address each in turn.
A. The District Court Did Not Abuse Its Discretion by Refusing to Accept Allen’s
Tendered Plea of Guilty.
“[W]e give the utmost deference to the decision of the trial judge in rejecting
guilty pleas.” Gomez-Gomez, 822 F.2d at 1011. A defendant has no absolute
right to have a plea of guilty accepted by the district court, id. at 1010, and “[w]hen
a defendant attempts to couple a guilty plea with an assertion of facts that would
negate his guilt, a judge may properly treat this assertion as a protestation of
innocence” and “is not required to . . . enter judgment upon a guilty plea under
these circumstances,” id. at 1011. “[W]hen a defendant casts doubts upon the
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validity of his guilty plea by protesting his innocence or by making exculpatory
statements, the court may resolve such doubts against the plea.” Id.
The district court did not abuse its discretion when it refused to accept
Allen’s plea of guilty. During the change of plea hearing, Allen stated that
someone had threatened to harm him if he did not plead guilty. See Fed. R. Crim.
P. 11(b)(2) (requiring the district court to determine that the defendant is entering a
plea of guilty voluntary and not due to coercion or promises). And Allen asserted
repeatedly that he sold the methamphetamine on behalf of the county drug task
force. See id. 11(b)(1)(B) (requiring the district court to ensure that the defendant
understands that he has the right to “persist” in a plea of not guilty). Allen insisted
that he conducted the drug transaction to maintain the confidence of a drug seller
whom he believed he could use to infiltrate a large-scale drug organization. Even
after Allen consulted with his attorney, who acknowledged that the evidence was
sufficient to substantiate a plea of guilty, and Allen admitted the elements of the
distribution offense, he maintained that he was innocent. Allen likens his situation
to United States v. Martinez, 486 F.2d 15 (5th Cir. 1973), where the district court
erred by refusing to accept a plea of guilty on the ground that Martinez’s statement
to authorities was arguably coerced and rendered his tendered plea involuntary. Id.
at 21. But, unlike Martinez, who “freely admitted his guilt,” id., Allen contended
that he was innocent because he distributed methamphetamine in cooperation with
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the task force and in the belief that he had been instructed to do “whatever [he] had
to do to get to the Avilas.” Allen argues that the district court erred by reasoning
that he had a viable “innocent intent” or “public authority” defense, but Allen
asserted that his actions were the result of a mistake of fact that would not be
consistent with criminal intent. See United States v. Tobin, 676 F.3d 1264, 1280
(11th Cir. 2012) (“[T]he term ‘knowingly’ means that ‘the act was performed
voluntarily and intentionally, and not because of a mistake or accident.’” (quoting
United States v. Woodruff, 296 F.3d 1041, 1047 (11th Cir. 2002)); see also United
States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n.18 (11th Cir. 1994).
Regardless of the validity of his defense, Allen’s continued protestation of his
innocence casted doubt on the voluntariness of his decision to plead guilty. The
district court had the discretion to resolve such doubt against accepting Allen’s
plea of guilty. See Gomez-Gomez, 822 F.2d at 1011.
B. Sufficient Evidence Supports Allen’s Conviction for Conspiring to Distribute
Methamphetamine.
The district court did not err by denying Allen’s motion for a judgment of
acquittal on the charge of conspiring to distribute methamphetamine. To convict
Allen, the government had to prove that Allen agreed with Hernandez to distribute
methamphetamine; Allen knew the purpose of the agreement; and Allen knowingly
and voluntarily participated in the agreement. See 21 U.S.C. § 846. Allen did not
dispute that on August 19, 2011, he sold methamphetamine to Greenwood; the task
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force had instructed him only to purchase, not to sell, methamphetamine; and he
continued to consort with Hernandez after the drug task force ceased making
controlled purchases from him. And the jury reasonably could have found that
Allen conspired with Hernandez to sell drugs based on the evidence that
Hernandez was waiting at Allen’s shop for Greenwood to arrive; Allen counted
Greenwood’s $1,600 payment in Hernandez’s presence and handed him that
money; Hernandez used Allen’s vehicle to transport the methamphetamine; Allen
also sold marijuana to Greenwood; and Allen later demanded payment from
Greenwood for the marijuana. See United States v. Gianni, 678 F.2d 956, 959
(11th Cir. 1982) (“There is rarely any direct evidence of an agreement to join a
criminal conspiracy, so that a defendant’s assent can be inferred from acts
furthering the conspiracy’s purpose.”). Sufficient evidence supports Allen’s
conviction for conspiracy.
Allen argues that the evidence was insufficient to prove that he had a
“personal stake” in the drug transaction or that he joined in the objective of the
conspiracy, but we disagree. Allen argues that he participated only in “an isolated
instance of distribution,” see United States v. Hardy, 895 F.2d 1331, 1335 (11th
Cir. 1990), but the jury reasonably could have found that Allen had an ongoing
agreement with Hernandez based on their past transactions and their coordinated
efforts to sell methamphetamine and marijuana to Greenwood. Allen also argues
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that he was “work[ing] to impede his alleged co-conspirators’ efforts to distribute”
drugs, but the jury rejected Allen’s testimony and credited the testimonies of
Agents Martin and Guthrie that Allen was selling drugs “on the side,” see United
States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997) (“It is well established
that credibility determinations are the exclusive province of the jury.” (internal
quotation marks and alteration omitted)). We will not disturb the credibility
determinations of the jury, particularly when Allen does not challenge the agents’
testimonies as incredible as a matter of law. See id.
C. The District Court Did Not Clearly Err by Enhancing Allen’s Sentence for
Obstruction of Justice or by Denying Him Relief Under the Safety Valve.
A defendant is subject to a two-level increase in his offense level if he
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” U.S.S.G. § 3C1.1. One way
in which a defendant obstructs justice is when he “commit[s], suborn[s], or
attempt[s] to suborn perjury.” Id. § 3C1.1 cmt. n.4. Perjury occurs when a
defendant offers “false testimony concerning a material matter 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, 113 S. Ct. 1111,
1116 (1993). Where the basis for the obstruction of justice enhancement is
perjury, “a general finding that an enhancement is warranted suffices if it
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encompasses all of the factual predicates for a perjury finding.” Singh, 291 F.3d at
763 (quoting United States v. Lewis, 115 F.3d 1531, 1538 (11th Cir. 1997)).
The district court did not clearly err when it enhanced Allen’s sentence for
obstruction of justice. Allen objected to the enhancement on the ground that he did
not give “willful and intentional perjured testimony at trial,” but the district court
was entitled to make a contrary finding. The district court found that Allen’s
testimony about acting on behalf of the task force was irreconcilable with the
testimony from Agents Martin and Guthrie that Allen never had been instructed to
sell drugs and that he had not followed the routine procedures for engaging a
controlled transaction on behalf of the task force. See United States v. Williams,
627 F.3d 839, 845 (11th Cir. 2010) (concluding that a defendant’s testimony which
is irreconcilable with evidence credited by the jury constitutes obstruction of
justice). Allen’s testimony warranted an enhancement for obstruction of justice.
Allen argues that the district court failed to identify the material facts about
which he testified falsely, but this argument fails. We can readily discern from the
statements of the district court at sentencing that it found Allen obstructed justice
by testifying falsely that he distributed methamphetamine in cooperation with the
drug task force. Because Allen’s perjurious statements were woven throughout his
testimony, more “detailed findings [by the district court] were not necessary and
would have been redundant.” See United States v. Smith, 231 F.3d 800, 820 (11th
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Case: 13-12510 Date Filed: 05/05/2014 Page: 22 of 22
Cir. 2000). Moreover, the district court was not obliged to make further findings
when it adopted the statement in Allen’s presentence investigation report that he
“perjured himself . . . at trial” when “[h]e testified that he was working as a
confidential informant when the . . . drug transaction took place, when in fact, he
was not,” and when Allen did not ask the district court to specify what statements
were material. Allen “failed to request more detailed findings of perjury at
sentencing, [and] it is too late now to complain in this court.” United States v.
Gregg, 179 F.3d 1312, 1317 (11th Cir. 1999) (internal quotation marks, citation,
and alteration omitted); see, e.g., United States v. Wayerski, 624 F.3d 1342, 1352
(11th Cir. 2010); Smith, 231 F.3d at 820.
We will not disturb the decision of the district court to deny Allen relief
under the safety valve. Allen requests an “opportunity to seek the safety valve
adjustment” if we conclude that the district court clearly erred by finding that
Allen’s testimony was false. Because we affirm the enhancement for obstruction
of justice based on perjury, we need not consider Allen’s request for the
application of the safety valve.
IV. CONCLUSION
We AFFIRM Allen’s convictions and sentence.
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