United States 4th Circuit Court of Appeals Reports


U.S. v. MONTOYA-CARMONA, 05-4706 (4th Cir. 1-4-2007) UNITED
MONTOYA-CARMONA, Defendant-Appellant. No. 05-4706. United
States Court of Appeals, Fourth Circuit. Submitted:
November 17, 2006. Decided: January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk. Jerome B.
Friedman, District Judge. (CR-05-8)

Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Frank W. Dunham, Jr., Federal Public Defender, Larry W.
Shelton, Supervisory Assistant Federal Public Defender,
Kurt J. Mayer, Assistant Federal Public Defender, OFFICE OF
Appellant. Paul J. McNulty, United States Attorney, Darryl
J. Mitchell, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this


Luis Fernando Montoya-Carmona (“Defendant”) was convicted
of various drug-related offenses. At sentencing, the
district court assessed a two-level obstruction-of-justice
enhancement for perjury pursuant to United States
Sentencing Guidelines (“Guidelines”) § 3C1.1,
sentencing Defendant to eighty-four months’ imprisonment.
On appeal, Defendant challenges the perjury enhancement.
Because the district court made the independent findings of
fact necessary to sustain the enhancement, we affirm.


The critical facts underlying Defendant’s conviction are
undisputed. Defendant’s niece received a package containing
a bicycle from Defendant’s son in Colombia. The bicycle had
heroin hidden in its frame and previously had been
intercepted by law enforcement agents at customs. When
confronted by agents, Defendant’s niece agreed to cooperate
and contacted Defendant to collect the package according to
their pre-arranged plan. After Defendant arrived at his
niece’s house, the package was opened and Defendant was

Once in custody, Defendant admitted that he had received a
similar bicycle shipment from his son several months
earlier. He had been contacted after receipt of the first
package by an unknown person and arranged to exchange the
bicycle for $400. Defendant stated that he assumed he would
be asked to perform a similar “favor” for his son in
connection with the second bicycle. J.A. 399. He insisted
that he did not know that there were drugs hidden in the
second bicycle.

At Defendant’s trial for various drug charges, he testified
that he did not know that the bicycle contained drugs and
that he harbored no suspicions that his son might be
conducting criminal activity. The district court offered a
willful blindness instruction to the jury, which in turn
returned a guilty verdict on all counts. At the subsequent
sentencing hearing, the district court found that Defendant
had perjured himself by denying knowledge of the presence
of drugs in the bicycle. The court calculated Defendant’s
Guidelines range by applying, over Defendant’s objection, a
§ 3C1.1 enhancement for obstruction of justice based
on his perjured testimony at trial. The district court then
imposed a sentence of eighty-four months’ imprisonment,
within the Guidelines range of seventy-eight to
ninety-seven months. Defendant now appeals the application
of the § 3C1.1 enhancement to his sentence.


The factual findings of the district court supporting the
§ 3C1.1 enhancement are reviewed for clear error.
United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).
Legal issues regarding proper application of the
enhancement, however, are reviewed de novo. United States
v. Williams, 152 F.3d 294, 302 (4th Cir. 1998).

Section 3C1.1 of the Guidelines requires a sentencing court
to impose a two-level enhancement to a defendant’s offense
level 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 offense 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 (2005).[fn1] The adjustment applies,
for instance, when a defendant “commit[s] . . . perjury.”
U.S.S.G. § 3C1.1, cmt. n. 4(b); see also United
States v. Dunnigan, 507 U.S. 87, 94 (1993). A defendant
commits perjury when he “[1] gives false testimony [2]
concerning a material matter [3] with the willful intent to
provide false testimony.” Dunnigan, 507 U.S. at 94. The
government carries the burden of persuading the court by a
preponderance of the evidence that the enhancement should
apply in a particular case. United States v. Smith, 62 F.3d
641, 646-47 (4th Cir. 1995).

The enhancement does not apply merely because a defendant
is convicted, however. For example, a defendant may testify
truthfully but “the jury may nonetheless find the testimony
insufficient to excuse criminal liability or prove lack of
intent.” Dunnigan, 507 U.S. at 95. The district court
should “preferabl[y] address each element of the alleged
perjury in a separate and clear finding” but must at least
“make[] a finding of an obstruction of . . . justice that
encompasses all of the factual predicates for a finding of
perjury.” Id. These findings must be express and
independent of the jury’s verdict. Smith, 62 F.3d at 647 n.
3. That is, the district court must “itself be convinced”
that the defendant perjured himself, regardless of whether
the jury returned a conviction. Id.


Defendant’s primary contention is that the district court
impermissibly relied on the jury verdict to support its
finding of perjury, in contravention of Dunnigan and Smith.
This argument misreads the district court’s explanation at
the sentencing hearing.

The district court repeated the central holding of
Dunnigan, stating that “an obstruction enhancement does not
apply automatically every time a defendant who testifies is
convicted.” J.A. 548. The court then found that “[i]n
testifying as to his complete lack of knowledge that the
bicycle contained drugs and that he had no suspicions of his
son’s criminal activity, the Court may find that the
defendant willfully gave false testimony concerning a
material matter.” J.A. 551. Although it might have been
preferable to have the benefit of further elaboration on
this explanation, we nevertheless conclude that the district
court “itself [was] convinced” that the defendant perjured
himself, independent of the jury verdict. See Smith, 62
F.3d at 647 n. 3.

Nevertheless, Defendant highlights other statements made by
the district court as evidence of its alleged improper
reliance on the jury verdict. For example, the district
court found at sentencing that Defendant’s “testimony is at
odds with the finding by the jury . . . that the defendant
was guilty.” J.A. 551. Even if such statements would
violate Smith standing alone, however, the district court
concluded by making its own independent finding of perjury.
See 62 F.3d at 647 n. 3. Viewed as a whole, the district
court’s explanation of its finding of perjury is sufficient
to support the obstruction-of-justice enhancement. [fn2]

We have considered Defendant’s other arguments and find
them to be without merit. Accordingly, we affirm the
sentence imposed by the district court.


[fn1] Section 3C1.1 was amended on November 1, 2006. See
U.S.S.G. app. C, amendment 693. We cite to the Guidelines,
however, that were “in effect on the date that the
defendant [was] sentenced.” See U.S.S.G. § 1B1.11.

[fn2] Defendant also argues that the district court failed
to make an adequate factual finding of perjury. It is
sufficient, however, for the district court to “make a
single global finding that encompasse[s] the three
essential elements” of perjury. See Smith, 62 F.3d at 647.
Here, the district court “f[ou]nd that the defendant
willfully gave false testimony concerning a material matter
[and] . . . that the government has met its burden by a
preponderance of the evidence.” J.A. 551. This finding
easily qualifies as a “single global finding that
encompasse[s] the three essential elements” of perjury and
does not constitute clear error. See Smith, 62 F.3d at 647.