no custody where defendant was initially handcuffed but the handcuffs were removed when defendant was questioned, and she was told she was not under arrest
How later courts described this case
- no custody where defendant was initially handcuffed but the handcuffs were removed when defendant was questioned, and she was told she was not under arrest
Written by the judges who cited it.
The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 16, 2006
No. 05-16590 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00187-CR-2-SLB-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MEENYA TANESH THOMAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 16, 2006)
Before MARCUS, WILSON and FAY, Circuit Judges.
PER CURIAM:
Meenya Tanesh Thomas appeals her 21-month concurrent sentences,
imposed after a jury convicted her of two counts of committing perjury before a
grand jury, both violations of 18 U.S.C. § 1623(a). On appeal, she argues that the
district court erred by (1) denying her motion to suppress statements made to
police; (2) her motion to disqualify the prosecuting attorney; and (3) applying a
two-level sentencing enhancement for obstruction of justice. For the reasons set
forth more fully below, we affirm.
Prior to trial, Thomas filed a motion to have the prosecutor withdraw himself
from the case because Thomas intended to call him as a witness. The government
opposed the motion, and described in detail the robbery that triggered the grand
jury testimony at issue in this case. Thomas, according to the government, was the
girlfriend of one of the suspects in the robbery, Xavier Perkins, and when
interviewed by police, she said that Perkins had told her that he had robbed a CVS
Pharmacy and gotten into a shootout with police. When she testified before the
grand jury, however, Thomas denied making the statement to police and claimed
that she fabricated a second, written statement because Detective Eddie Morrissette
had threatened her. The government opposed Thomas’s motion because Thomas
had failed to demonstrate a compelling need to call the prosecutor as a witness.
Thomas responded by arguing that she intended to call the prosecutor as a
2
witness, and, therefore, it was improper for him to simultaneously prosecute the
case in which he was going to testify. She argued that it was unfair for the
prosecutor’s credibility to be gauged by the jury based upon his presentation of the
case (voir dire, opening statement, examination of witnesses) prior to giving his
own testimony. Next, Thomas argued that she did not have to show a compelling
need for the prosecutor to be called as a witness because she should not be placed
in a position where she would have to disclose trial strategy. In addition, she
argued that her Sixth Amendment interests in obtaining witnesses outweighed any
interest Simpson had in avoiding testifying.
The district court denied the motion after finding that Thomas failed to
demonstrate any compelling need to call the prosecutor as a witness. Thomas filed
a motion for reconsideration of the court’s order and argued that she had a
compelling need to call Simpson because he was the only witness, other than
Thomas herself, to her testimony before the grand jury. She further argued that the
grand jury transcript of her testimony was not a substitute for the prosecutor’s
testimony, which would better capture the overall veracity of Thomas’s grand jury
testimony. Lastly, she argued that the district court’s refusal to call the prosecutor
as a witness would deny her Sixth Amendment right to confront the only witness
with first-hand knowledge of her testimony. That motion was denied. At a later
3
hearing, Thomas was given an opportunity to clarify her compelling need for the
prosecutor to be called as a witness, and she stated that the grand jury transcript
“can’t capture the body language, the dynamics, of what was said and how it was
said. Only a live witness can convey that to this court.” The district court found
no compelling need.
The morning of the trial, Thomas filed a motion in limine that was converted
to a Miranda1 hearing to determine whether Thomas was in custody when she gave
statements to the police. Thomas called Detective Eddie Morrissette, who spoke to
Thomas and her mother regarding a CVS robbery. Thomas was in plain clothes,
but had his badge and firearm showing. Morrissette first spoke with Thomas’s
mother, Lorene, because Thomas was not present at her home when Morrissette
arrived. Thomas later arrived, and Morrissette began questioning her. Morrissette
observed that, at the time, Thomas was handcuffed but not arrested. After Thomas
had identified herself, however, Morrissette unhandcuffed her “within moments.”
Morrissette questioned Thomas and explained to her that, if in fact she had picked
up the men from the scene of the robbery, she could get in trouble because it was
against the law. However, Morrissette never told Thomas that she was facing any
charges. Morrissette then asked Thomas if she would accompany him to the police
1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
4
department, and Thomas replied that she would. Morrissette asked Thomas’s
mother if she could pick Thomas up, and she agreed. Thomas was not placed in
handcuffs, and, in fact, sat in the front seat of the police cruiser and used her cell
phone.
Once at the police department, Thomas gave a formal statement to an officer
other than Morrissette. At no point was Thomas ever placed under arrest, and she
was at the police department just over an hour while giving her statement.
Morrissette further testified that he never told Thomas that she had to come with
him and Thomas never expressed any reluctance to talk to him or a desire to leave.
Next, Thomas called her mother, Lorene. She testified that, on January 7,
she was at home with her granddaughter when a “team of police” knocked on her
door. The police rushed them out of the house and she was eventually approached
by Morrissette. While she was talking to Morrissette, Thomas drove up and
Morrissette asked Thomas if she knew where Perkins was before walking off with
her. Thomas was not handcuffed. Some time later, Morrissette told Lorene that he
was taking Thomas “downtown” for questioning, but did not indicate that Thomas
was under arrest. Lorene, however, was under the impression that Thomas was
under arrest because of “the way [Morrissette] turned around and said he was
going to take her downtown, the way he was talking to her and everything,
5
motioning his hands and everything.” In Lorene’s opinion, Thomas was not
leaving of her own volition.
Morrissette was re-called by the court, and he clarified that, while at
Thomas’s home, he spoke with Thomas for approximately 30 minutes, but at no
time placed her or told her that she was under arrest. When asked if she would go
with Morrissette to the police station, Thomas showed no reluctance and made no
statement indicating that she would rather not go.
The court then denied the motion to suppress, first finding that the 30-
minute investigative detention was not unreasonable and that Thomas was not
under arrest either at her home or when she went to the police station. It further
found that, under the totality of the circumstances, a reasonable person in
Thomas’s situation “would not have believed that she was not free to go.”
At trial, the government called as witnesses both Keith Kennedy, the court
reporter of Thomas’s grand jury testimony, and FBI Agent Greg Gauger, who also
was present during Thomas’s grand jury testimony. The only reference made to
the prosecutor’s participation in the grand jury proceeding was made by Kennedy,
who identified the transcript as “the testimony of Meenya Thomas on March 30,
2005, conducted by yourself.” The government read the transcript of Thomas’s
grand jury testimony, during which she was informed that she had an obligation to
6
tell the truth and her failure to do so could lead to a perjury charge that carried a
five-year maximum term of imprisonment for each lie. During her testimony,
Thomas stated that she was called by her boyfriend, Perkins, and another man, both
of whom asked her to come pick them up near a CVS in Hoover, Alabama. She
denied that either man told her that they had been involved in a robbery and a
shooting. The prosecutor then asked Thomas if she remembered giving a
statement to police indicating that the men she picked up described a shooting.
Thomas denied making the statement. Thomas was reminded that she was under
oath and subject to perjury, and then he showed her the statement with her
signature on it and asked her if she wrote the statement. Thomas admitted to
writing the statement, but then claimed that she had “made it up.” Thomas’s
written statement also indicated that the two men told her that they had “held up
CVS.” Thomas denied that the men said that to her, at which point Thomas was
again warned that every lie to the grand jury could cost her five years in prison.
Thomas admitted writing the statement, but again said that it had been made up,
and the police, specifically Detective Morrissette, had threatened her.
Additionally, the government introduced into evidence Morrissette’s testimony
regarding Thomas’s oral statement, the actual written statement provided by
Thomas at the police station, and a videotape of the interview at the police station,
7
conducted by Detective Laura Brignac. Thomas also testified in her own defense
and asserted, as she did to the grand jury, that she made up the statements she gave
to police indicating that the men in her car told her about the shooting and robbery
at CVS because Morrissette told her that she was going to be charged with “two
counts of attempted murder and first-degree.” However, as the undisputed facts in
the PSI make clear, a review of the videotape of the interview revealed that the
interview was conducted by Detective Brignac, not Morrissette, and Thomas never
complained about any alleged threats made by Morrissette. A jury convicted
Thomas on both counts as charged in the indictment.
The PSI set Thomas’s offense level at 14, pursuant to U.S.S.G. § 2J1.4.
Two levels were added for obstruction of justice, pursuant to U.S.S.G. § 3C1.1,
because Thomas provided false testimony during her trial concerning statements
made to police and to the grand jury under oath. Thomas received no reductions
for a total offense level of 16. Thomas had no assessable criminal history, for
criminal history category I, which, at offense level 16, provided for an advisory
guidelines range of 21 to 27 months’ imprisonment.
At sentencing, Thomas objected to the obstruction of justice enhancement
for providing false testimony during her jury trial, which was not charged. The
court found that Thomas perjured herself during the trial on several occasions,
8
including stating to the jury that she made up the fact that she had been told about
the robbery and denying telling police that the men had robbed the CVS. The court
further found that Thomas lied about when the handcuffs were removed and by
testifying that she got the information about CVS from Morrissette. Thomas’s
objection, therefore, was overruled. At sentencing the court reiterated that it was
adamant in its belief that Thomas had lied, and it found it “unbelievable” that she
had chosen to go to trial and lie again. In particular, the court said, “because you
lied and lied and continued to lie in trial, you are getting a twenty-one month
sentence. It’s sad. . . . But I think it’s the right sentence.” Moreover the court did
not choose to exercise its discretion to depart from the advisory guidelines range.
The court then adopted the findings from the PSI and imposed a low-end
guidelines sentence of 21 months’ imprisonment on each count to run
concurrently.
I. Motion to Suppress
On appeal, Thomas argues that the district court erred by denying her motion
to suppress statements she made to police. Specifically, she argues that the court
erred by finding that a reasonable person would not have believed she was in
custody, and, therefore, erred by finding that she was not entitled to Miranda
warnings. Thomas argues that the totality of the circumstances, including being
9
separated from her mother and taken in a police cruiser to the police station for
questioning, demonstrate that a reasonable person would not have felt “free to
leave.”
We review “the district court’s findings of fact on a motion to suppress
evidence for clear error and the district court’s application of the law to those facts
de novo.” United States v. Chirinos, 112 F.3d 1089, 1102 (11th Cir. 1997). When
considering a ruling on a motion to suppress, all facts are construed in a light most
favorable to the successful party. United States v. Behety, 32 F.3d 503, 510 (11th
Cir. 1994). We will not reverse a district court’s factual findings unless “contrary
to the laws of nature, or . . . so inconsistent or improbable on [their] face that no
reasonable factfinder could accept [them].” United States v. Pineiro, 389 F.3d
1359, 1366 (11th Cir. 2004).
In Miranda v. Arizona, the Supreme Court considered the scope of the Fifth
Amendment privilege against self-incrimination and held that the government
“may not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation from the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694
(1966). “A defendant is in custody for the purposes of Miranda when there has
10
been a formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir.
2006) (quotation and citation omitted). “Whether [the defendant] was in custody
prior to his formal arrest depends on whether under the totality of the
circumstances, a reasonable man in his position would feel a restraint on his
freedom of movement to such extent that he would not feel free to leave.” Id.
“The test is objective: the actual, subjective beliefs of the defendant and the
interviewing officer on whether the defendant was free to leave are irrelevant.” Id.
“[U]nder the objective standard, the reasonable person from whose perspective
custody is defined is a reasonable innocent person.” Id. (emph. in original).
Taking the facts in a light most favorable to the government, we readily
conclude that the district court did not err by denying Thomas’s motion to
suppress. Although Thomas was handcuffed immediately after arriving at her
home, Morrissette testified that the handcuffs were removed before he questioned
Thomas, and, significantly, he informed Thomas that she was not under arrest.
Thomas’s own mother confirmed that Morrissette was not handcuffed while
Morrissette talked with her, nor was she handcuffed when she entered
Morrissette’s police cruiser to give her statement at the police station. Cf. United
States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995) (noting that “the fact that
11
police handcuff the person . . . does not, as a matter of course, transform an
investigatory stop into an arrest.”). Morrissette further testified that Thomas
voluntarily went with him to the police station, sat in the front, not the back seat of
the cruiser, made several phone calls on her cell phone, both while she was at her
home and in the cruiser, and returned home with her family after about one hour.
The only fact that weighs in Thomas’s favor is that Morrissette advised her that, if
she drove the car and helped the CVS robbers escape, she could get in trouble.
However, Morrissette never indicated that Thomas was to be charged for anything.
Under the totality of the circumstances, we conclude that Morrissette’s freedom of
movement was not restrained to the degree associated with a formal arrest, and,
therefore, she was not in custody for purposes of Miranda. See California v.
Beheler, 463 U.S. 1121, 1121-22, 103 S.Ct. 3517, 3518, 77 L.Ed.2d 1275 (1983)
(holding that Miranda warnings are not required if the person is not placed under
arrest, voluntarily comes to the police station, and is allowed to leave unhindered
by police after a brief interview). Thus, the district court properly denied
Thomas’s motion to suppress.
II. Motion to Disqualify
Next, Thomas argues that the district court erred by failing to remove the
prosecutor from the case because he also prosecuted the underlying robbery, which
12
entailed questioning Thomas before the grand jury. Thomas argues that the
prosecutor was a potential witness in the case because his “credibility was placed
before the jury by the utilization of the questions asked by him to Thomas, eliciting
the answers which [the] prosecutor later contended constituted the perjury charge
in this matter.” Thomas further argues that the prosecutor’s responses to her
answers—warning her about the commission of perjury—constituted indirect
testimony that violated the rule that the prosecutor cannot act as both prosecutor
and witness.
The decision whether to disqualify the prosecuting attorney because he was
“the sole witness whose testimony is necessary to establish essential facts
otherwise not ascertainable,” is reviewed for an abuse of discretion. United States
v. Hosford, 782 F.2d 936, 939 n.3 (11th Cir. 1986). That the prosecutor indirectly
testified by introducing the grand jury transcript was a theory not raised before the
district court, and, ordinarily, this Court will not address the issue. Id. at 938 n.1.
However, because the issue is a question of law, we, as we did in Hosford, choose
to exercise our discretion and will address the question. Id.
“It is clear that a prosecutor must not act as both prosecutor and witness.”
Id. at 938. “This is a part of the general ‘advocate-witness’ rule that counsel
should avoid appearing as both advocate and witness except under extraordinary
13
circumstances.” Id. However, “mere first-hand knowledge of facts that will be
proved at trial is not a per se bar to representation.” Id. We have further stated that
it would be
improper for a government attorney who has independent personal
knowledge about facts that will be controverted at the trial to act as
prosecutor (1) if he uses that inside information to testify indirectly by
implying to the jury that he has special knowledge or insight, or (2) if
he is selected as prosecutor when it is obvious he is the sole witness
whose testimony is necessary to establish essential facts otherwise not
ascertainable.
Id. at 939.
At issue here is the introduction of the grand jury transcript containing
Thomas’s perjured testimony because the same prosecutor trying the instant case
against her was also the prosecutor questioning Thomas at the grand jury
proceeding. However, the prosecutor’s testimony was clearly unnecessary to
establish the essential facts of the case. The transcript itself contained the relevant
information, and, to the extent the conduct, demeanor, or content of the questions
and answers was even relevant, two other witnesses—court reporter Keith
Kennedy and FBI Agent Greg Gauger—were both present at the grand jury
proceedings and available for examination by Thomas. The prosecutor’s mere
first-hand knowledge of facts that would be proved at trial was not sufficient, in
and of itself, to either create a compelling need to call him as a witness, or to
14
disqualify him from prosecuting the case. Accordingly, we conclude the district
court did not abuse its discretion by denying Thomas’s motion on this ground.
As to the “indirect testimony,” or de facto witness argument, see Hosford,
782 F.2d at 938, we conclude that Thomas’s argument is meritless. In Hosford, we
rejected the argument that the prosecutor should have been disqualified from
prosecuting the defendant for soliciting and attempting murder because he had
participated in the negotiations for a use and immunity agreement that the
government alleged the defendant had violated, enabling his prosecution. Id. at
937, 939. We found that all references at trial to the prosecutor’s participation had
been made in passing and the prosecutor at no point implied he was privy to
special knowledge about the agreement. Id. at 939. In the instant case, the only
reference to the prosecutor’s participation in the grand jury testimony was made by
the court reporter, Kennedy, who identified the grand jury transcript as “the
testimony of Meenya Thomas on March 30, 2005, conducted by yourself.” This
clearly was a passing reference. Moreover, at no point did the prosecutor imply
that he was privy to special knowledge about the grand jury proceedings. The
transcript was read for the jury’s benefit, the statements made to police were
presented, and Thomas herself testified consistent with her grand jury testimony,
giving the jury in Thomas’s perjury trial all the evidence it needed to sustain a
15
conviction. The prosecutor never highlighted his involvement and never intimated
to the jury that he had special knowledge about whether or not Thomas had
perjured herself. The evidence spoke for itself, and the jury convicted her. Like in
Hosford, we conclude that no reversible error has been shown.
III. Obstruction of Justice
On appeal, Thomas argues that the district court should not have applied a
two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. She
concedes that her trial testimony was material, but argues that it was not false and
she had no intent to provide false testimony. Thomas also argues that the
statements she gave to law enforcement officers were not made under oath and
that, only when placed under oath before the grand jury, did she make statements
inconsistent with the statements to law enforcement. Because her testimony during
trial was the same as that given to the grand jury, she argues the obstruction
enhancement is inappropriate and leads to a chilling effect on a defendant’s right to
testify. Thomas further argues that, while the jury’s determination of guilt was a
ruling that she had falsely testified to the grand jury, the district court should not
have punished her for insisting upon what she maintained was the truth—that her
statements to law enforcement were inaccurate. By doing so, Thomas argues the
court encouraged people who give false information to the police to continue to
16
repeat such false information for fear of perjury and a possible sentencing
enhancement. She further argues that, by enhancing her sentence, the district court
“double punished” her. Finally, Thomas argues that the district court failed to
make sufficient findings regarding her false statements.
When a district court imposes an enhancement for obstruction of justice, we
review the district court’s factual findings for clear error and its application of the
Sentencing Guidelines to those facts de novo. United States v. Massey, 443 F.3d
814, 818 (11th Cir. 2006). If, however, the defendant fails to clearly state the
grounds for his objection, we will review only for plain error. Id. “An appellate
court may not correct an error the defendant failed to raise in the district court
unless there is: (1) error, (2) that is plain, and (3) that affects substantial rights . . .
[and then] only if (4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Section 3C1.1 of the guidelines provides for a two-level enhancement if:
(A) 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 offence of
conviction, and (B) the obstructive conduct related to (I) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense.
U.S.S.G. § 3C1.1. Among the several examples of conduct making a § 3C1.1
enhancement appropriate is committing perjury. U.S.S.G. § 3C1.1, comment.
17
(n.4(b)). Moreover, the Supreme Court has held 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.” United States v. Dunnigan, 507 U.S. 87,
95, 113 S.Ct. 1111, 1117, 122 L.Ed.2d 445 (1993).
Here, a jury convicted Thomas for perjury before the grand jury, and, at trial
Thomas testified in her own behalf and maintained, as she did before the grand
jury, that her statements to law enforcement were inaccurate. As the jury convicted
her for perjury based on those statements to the grand jury, it follows that
Thomas’s trial testimony, given under oath, was also perjured. Moreover, while
Thomas did not object to the sufficiency of the court’s findings, a plain error
review shows that the district court explicitly found that Thomas lied at trial
regarding making up her statements to the police and the less material statements
about being handcuffed. Thus, the court found that Thomas had perjured herself at
trial, and applied the enhancement. Based on the foregoing, application of the
enhancement was not improper and the court’s findings were sufficient.
As to Thomas’s argument regarding infringement of her right to testify, the
Supreme Court in Dunnigan rejected that argument outright. Dunnigan, 507 U.S.
at 96, 113 S.Ct. at 1117. Thomas’s remaining argument is that application of the
18
enhancement resulted in double counting. She did not, however, object on this
ground in district court, and we will only review for plain error. “Impermissible
double counting occurs only when one part of the Guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” United States v.
Uscinski, 369 F.3d 1243, 1247 (11th Cir. 2004). “Double counting is permitted if
the Sentencing Commission intended the result, and if the result is permissible
because each section concerns conceptually separate notions related to sentencing.”
Id.
Here the district court’s application of the obstruction enhancement punished
a separate harm apart from her perjured grand jury testimony—the enhancement
punished her for perjuring herself a second time before the jury in her criminal
trial. Cf. Uscinski, 369 F.3d at 1247-48 (upholding the application of an
obstruction enhancement to a defendant convicted of tax evasion because the
defendant’s false statements were intended to prevent the government from
discovering his tax evasion, a separate and distinct notion from the tax evasion
itself).
However, this point does not fully dispose of this issue. Although neither
party notes it, the Sentencing Commission did not intend for the obstruction
19
enhancement to be applied to a situation such as Thomas’s. Although Thomas was
convicted of perjury before the grand jury, an obstruction of an investigation
separate from her own trial, and later perjured herself again during her own trial, a
separate act of obstruction that ordinarily would call for the enhancement, the
Guidelines themselves explicitly except Thomas’s conduct from application of the
enhancement, and, therefore, double counting occurred here. The commentary to
§ 3C1.1 states that
[i]f the defendant is convicted of an offense covered by . . . § 2J1.3
(Perjury or Subornation of Perjury; Bribery of a Witness) . . . this
adjustment is not to be applied to the offense level for that offense
except if a significant further obstruction occurred during the
investigation, prosecution, or sentencing of the obstruction offense
itself (e.g., if the defendant threatened a witness during the course of
the prosecution for the obstruction offense).
U.S.S.G. § 3C1.1, comment. (n.7). Thomas’s offense level was covered under
§ 2J1.3, and, thus, on its face, the adjustment should not have been applied to
Thomas unless she did something that would be considered a “significant further
obstruction.” Cf. United States v. Hughes, 401 F.3d 540, 559 (4th Cir. 2005)
(persuasively noting that note 7 “prohibits an obstruction enhancement if the
defendant's underlying conviction is itself for an obstruction offense, unless the
conduct further obstructed the investigation, prosecution, or sentencing of the
obstruction offense significantly.”).
20
In the instant case, Thomas did not threaten a witness. The most that can be
said is that she maintained the same story at trial as she did before the grand
jury—that her statements made to police were inaccurate and made because of a
threat of prosecution. There does not appear to be any significant further
obstruction by Thomas testifying consistent with the grand jury testimony that
formed the basis for her criminal conviction for perjury. Under these
circumstances, it appears that the Sentencing Commission believed that the base
offense level for perjury, U.S.S.G. § 2J1.3, adequately took into account the
obvious obstruction of justice in perjury, but contemplated an additional two levels
only for a further “significant” obstruction.
We have identified no cases from this or any other circuit, however, that
have applied § 3C1.1, comment. (n.7) to a situation such as this. We previously
have held that, “at least where the explicit language of a statute or rule does not
specifically resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). Given the explicit
language of the commentary, we find that the district court probably committed an
error that was plain by applying the enhancement in this case.
The next question is whether, under prongs (3) and (4), Thomas’s substantial
21
rights were violated and the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings. Massey, 443 F.3d at 818. Under prong
(3), we have held that the burden of proving that the error made a difference lies
with the defendant, and, therefore, where the effect of the error is uncertain, no
plain error exists. United States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir.),
cert. denied 125 S.Ct. 2935 (2005). Here, the district court was adamant that it
believed Thomas had lied, and it found it “unbelievable” that she had chosen to go
to trial and lie again. In particular, the court said, “because you lied and lied and
continued to lie in trial, you are getting a twenty-one month sentence. It’s sad. . . .
But I think it’s the right sentence.” Moreover the court did not choose to exercise
its discretion to depart from the advisory guidelines range.
First, it is noted that, if the two-level enhancement had not been added,
Thomas’s offense level would have been 14, which would have provided for an
advisory range of 15 to 21 months. U.S.S.G. App. G. The sentencing judge made
it clear that under all the circumstances of this case a sentence of 21 months was
the “right sentence.” Therefore, Thomas has failed to show that any error resulted
in harm or prejudice. Consequently, no violation of her substantial rights
occurred. And, in addition, any possible error did not affect the fairness, integrity
or public reputation of judicial proceedings.
22
Thomas’s 21-month sentence was within the advisory sentencing range with
or without the enhancement, which, although not a per se sign of reasonableness,
see United States v. Talley, 431 F.3d 784, 787 (11th Cir. 2005), appears entirely
reasonable in light of the fact that Thomas was convicted of perjury and further
perjured herself again at trial. The maximum sentence was five years’
imprisonment, and Thomas’s 21-month sentence is not even half that.
In sum, we conclude that the district court did not err by denying Thomas’s
motion to suppress, did not err by failing to disqualify the prosecuting attorney,
and did not commit an error requiring a remand by applying the two-level
enhancement for obstruction of justice and sentencing Thomas to 21 months’
imprisonment. We, therefore, affirm.
AFFIRMED.
23