USA v. Derek Warner, Jr.

Filing

Per Curiam OPINION filed : the district court's sentencing order is VACATED and the case is REMANDED for further proceedings, decision not for publication. Martha Craig Daughtrey, Circuit Judge; Eric L. Clay, Circuit Judge and Jane Branstetter Stranch, Circuit Judge.

Case: 14-4067

Document: 31-1

Filed: 04/29/2016

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0233n.06
No. 14-4067

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEREK A. WARNER,
Defendant-Appellant.

BEFORE:

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FILED
Apr 29, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO

DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

PER CURIAM. Indicted on 12 drug and firearm counts, defendant Derek Warner moved
to suppress the evidence supporting four of the charges. During a pretrial hearing on his motion,
Warner’s testimony about the events leading up to the searches differed in some respects from
that of the police officers who testified. Warner also denied selling drugs on the days in question
and maintained that he was unaware of the drugs found in his house and vehicles. Ultimately,
the district court denied Warner’s motion to suppress. Warner was convicted on the drug
charges, and the government dismissed the firearm charge.
At sentencing, the government argued that Warner committed perjury during the
suppression hearing and therefore warranted a sentencing enhancement for obstruction of justice.
The district court found that Warner deserved a two-level enhancement “for attempting to
obstruct or impede the administration of justice with regard to the prosecution” and calculated
his range under the Sentencing Guidelines accordingly. However, the district court failed to

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No. 14-4067, United States v. Warner
identify the specific portions of Warner’s testimony it found to be false and also failed to find on
the record that the perjury was material and made with willful intent, as required by wellestablished Supreme Court and Sixth Circuit precedent. For this reason, we find it necessary to
vacate Warner’s sentence and remand the case to the district court.
Section 3C1.1 of the United States Sentencing Guidelines provides:
If (1) the defendant 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, and (2) the
obstructive conduct related to (A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense, increase the offense level by
2 levels.
U.S. Sentencing Guidelines Manual § 3C1.1 (2013). Application note 4(B) to § 3C1.1 explains
that one type of conduct to which the enhancement applies is “committing, suborning, or
attempting to suborn perjury, including during the course of a civil proceeding if such perjury
pertains to conduct that forms the basis of the offense of conviction.” Id. A person testifying
under oath commits perjury if he “gives 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 (1993).
Before applying the obstruction-of-justice enhancement based on a defendant’s perjury,
the 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 above definition of perjury. Id. at 95. We require the district court first to identify the
defendant’s perjured testimony and then to “either make specific findings for each element of
perjury or at least make a finding that encompasses all of the factual predicates for a finding of
perjury.” United States v. Bazazpour, 690 F.3d 796, 808 (6th Cir. 2012) (internal quotation
marks and citation omitted). “[I]t is preferable for a district court to address each element of the
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No. 14-4067, United States v. Warner
alleged perjury in a separate and clear finding.” Dunnigan, 507 U.S. at 95. “The district court
must be specific.” United States v. Lawrence, 308 F.3d 623, 633 (6th Cir. 2002). Hence, the
court must do more than simply state that it did not believe the defendant’s testimony. Id.
“[W]here the record reveals that the government has proffered a clear and detailed list of
the defendant’s perjurious statements, the district court need not parrot that list so long as it
makes clear that it has independently adopted the government’s version.” United States v.
Sassanelli, 118 F.3d 495, 501 (6th Cir. 1997). Our case law also suggests that the district court
need not specifically identify the perjury “where the defendant’s testimony appears to be
‘pervasively perjurious,’ . . . so long as its findings encompass the factual predicates necessary
for a finding of perjury.” See id. (quoting an unpublished opinion); United States v. MaciasFarias, 706 F.3d 775, 782 (6th Cir. 2013) (quoting Sassanelli).
Here, the district court failed to make the required findings before it applied the
obstruction-of-justice enhancement. The court did not identify instances of Warner’s allegedly
false testimony and, in fact, never mentioned the word “perjury,” although it seems apparent
from the record and from the parties’ briefs on appeal that the obstruction-of-justice
enhancement was based on perjury and not on another type of covered conduct. Nevertheless,
the only finding in the record is the district court’s observation that Warner “attempt[ed] to
convince the court that he was not at all involved in the criminal activities for which he was
indicted at the time he testified under oath.” This non-specific statement fails to “identify those
particular portions of the defendant’s testimony that [the court] considers to be perjurious.”
Sassanelli, 118 F.3d at 501. Moreover, the government does not suggest that Warner’s perjury
was so pervasive that it could not be listed, see id., because the government did in fact list the
testimony it considered false in its sentencing memorandum.

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No. 14-4067, United States v. Warner
Instead, the government argues that the district court implicitly adopted the list of
Warner’s false testimony set out in the government’s sentencing memorandum and discussed in
its statements at the sentencing hearing. We disagree. Although the court referenced the
prosecutor’s “comments as mimicked by his earlier writing,” it did so while discussing whether
the suppression hearing should be considered part of an “investigation” or the “prosecution.”
The court neither stated nor implied that it was adopting the government’s list of Warner’s
alleged perjury. Moreover, a mere inference that the district court’s ruling was based on the
government’s arguments is not enough for this court to affirm imposition of the enhancement.
See United States v. McRae, 156 F.3d 708, 713 (6th Cir. 1998).
Even if we were to find that the district court fulfilled the first requirement for imposing
the enhancement by implicitly adopting the government’s list of perjured statements, there is no
indication in the record that the court fulfilled the second requirement by finding that the perjury
was material and made with willful intent. See Bazazpour, 690 F.3d at 808. Although the
parties briefed the issue of whether Warner’s testimony at the suppression hearing was material,
“an appellate court is not well-placed to make factual findings of perjury in the first instance.”
Macias-Farias, 706 F.3d at 783. When the district court fails to make the required factual
findings concerning materiality or intent, the sentence must be vacated and remanded for further
proceedings. See United States v. Kamper, 748 F.3d 728, 748–49 (6th Cir. 2014).
Accordingly, we find it necessary to vacate Warner’s sentence and remand the case to
allow the district court either to find on the record that Warner “(1) made a false statement under
oath (2) concerning a material matter (3) with the willful intent to provide false testimony,”
Macias-Farias, 706 F.3d at 782 (internal quotation marks omitted), or to resentence him using
the correct initial guideline range, without the obstruction-of-justice enhancement.

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No. 14-4067, United States v. Warner
For the reasons set out above, we VACATE the district court's sentencing order and
REMAND the case for further proceedings.

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