425 F. App'x 841

UNITED STATES of America, Plaintiff-Appellee, v. James Neil WALLACE, Defendant-Appellant.

No. 08-17157

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 29, 2011.

E. Brian Lang, E. Brian Lang and Assoc., Pensacola, FL, for Defendant-Appellant.

*842Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

James Neil Wallace appeals his sentence, imposed after a jury convicted him of possession of a firearm and ammunition by a convicted felon, and possession of a firearm and ammunition by an individual subject to a domestic violence restraining order, pursuant to 18 U.S.C. §§ 922(g)(1) and (g)(8). On appeal, Wallace asserts the district court erred in applying a two-level obstruction enhancement under § 3C1.1 because his trial testimony was truthful in material respects.1 After careful review, we affirm Wallace’s sentence.2

To obtain a two-level enhancement for obstruction of justice at sentencing, the burden is on the Government to show by a preponderance of the evidence that “the defendant willfully obstructed ... the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” See U.S.S.G. § 3C1.1; see also United States v. Turner, 626 F.3d 566, 572 (11th Cir. 2010) (“The government bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement.”) (quotation omitted).

For sentencing purposes, obstructive conduct includes the commission of perjury. U.S.S.G. § 3C1.1, cmt. n. 4(b). Perjury occurs when a witness, testifying under oath, “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, 94-95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993). For § 3C1.1 purposes, material matters are those that “if believed, would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n. 6.

The district court did not clearly err in imposing a two-level obstruction enhancement. At trial, Wallace’s testimony, found to be untrue, undercut the offense element that he must knowingly possess the gun and ammunition charged. See United States v. Farley, 607 F.3d 1294, 1336 n. 27 (11th Cir.2010) (observing that the record fully supported an obstruction enhancement because the defendant gave false testimony that went to an element of the offense). His false statements undermining the credibility of the government’s primary witness were a similar attempt to undercut the government’s ability to prove this element. Wallace was aware of as much, explicitly arguing before the jury that the defense he presented established his possession was not knowing. Because Wallace testified falsely to facts that went directly to a required element of the offense, we affirm his two-level obstruction enhancement.

AFFIRMED.

United States v. Wallace
425 F. App'x 841

Case Details

Name
United States v. Wallace
Decision Date
Apr 29, 2011
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425 F. App'x 841

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United States

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