Submitted: May 17, 2019
from United States District Court for the District of
Nebraska - Omaha
COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
convicted David Ruelas-Carbajal of conspiracy to distribute
and possess with intent to distribute methamphetamine, and
one count of distributing methamphetamine, but acquitted him
on a second count of distribution. See 21 U.S.C.
§§ 841(a)(1), (b)(1), 846. In calculating the
advisory sentencing guideline range, the district
court applied a base offense level of 32, on the
ground that Ruelas-Carbajal was responsible for at least 150
grams but less than 500 grams of methamphetamine.
See USSG § 2D1.1(a)(5), (c)(4). The court also
applied a two-level increase under USSG § 3C1.1 for
obstruction of justice, finding that Ruelas-Carbajal
committed perjury at trial. The court then imposed a term of
151 months' imprisonment, at the bottom of the advisory
range. Ruelas-Carbajal challenges the calculation of drug
quantity and the enhancement for obstruction of justice. We
reject both claims of procedural error and affirm the
dispute on drug quantity turns on a single incident during
the conspiracy. Ruelas-Carbajal acknowledges that he is
accountable for 124.45 grams of methamphetamine that
co-conspirator Manuel Quiroz distributed to an undercover
officer on three dates in July and August 2015, because
Ruelas-Carbajal was the source of the drugs. But
Ruelas-Carbajal disputes the district court's finding
that he is responsible for another 26.9 grams that Quiroz
sold to the officer on July 15. That amount brought the
quantity over 150 grams and established the base offense
level of 32.
objects to counting the July 15 quantity because the jury
acquitted him of a distribution charge based on that
incident. It is settled, however, that an acquittal
"does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that
conduct has been proved by a preponderance of the
evidence." United States v. Watts, 519 U.S.
148, 157 (1997) (per curiam). The district court applied the
proper standard of proof, and its finding was adequately
supported. Quiroz testified that Ruelas-Carbajal was his
source during July 2015, and that his routine was to leave
work, pick up the drugs from Ruelas-Carbajal, and then meet
the undercover officer for the sale. His testimony was
corroborated by a surveillance officer who saw Quiroz drive
from his workplace to Ruelas-Carbajal's residence on July
15 and meet with him briefly before leaving to meet the
undercover officer. The district court thus did not clearly
err in holding Ruelas-Carbajal responsible for the 26.9 grams
distributed on July 15.
also disputes the district court's finding that he
obstructed justice at trial by committing perjury. The
guidelines provide for a two-level increase if a defendant
commits perjury at trial. USSG § 3C1.1, comment.
(n.4(B)); see United States v. Dunnigan, 507 U.S.
87, 94-95 (1993). The district court must make a finding,
independent of the jury's verdict, that the defendant
willfully testified falsely as to a material matter. See
Dunnigan, 507 U.S. at 95. The district court preferably
will address each element of perjury in a separate and clear
finding, but it is sufficient if the court makes a finding
that "encompasses all of the factual predicates for a
finding of perjury." Id. The standard of proof
is a preponderance of the evidence, and we review the
district court's finding for clear error. United
States v. Reid, 827 F.3d 797, 801-02 (8th Cir. 2016).
probation office recommended the obstruction adjustment
because "the defendant testified under oath that he
never delivered or sold any methamphetamine, and that he had
an affair with [Quiroz's] wife," but "[t]he
wife testified that she had never seen the defendant before,
and the jury found him guilty of conspiring to deliver
methamphetamine as well as actually delivering
methamphetamine." In overruling Ruelas-Carbajal's
objection, the district court adopted the presentence report
and also found: "I do believe, based upon the totality
of evidence at trial, first of all, that Mr. Ruelas indicated
that he never dealt or dealt with drugs, and Mr. Quiroz-the
issue with Mr. Quiroz's wife, I believe that the
two-level upward adjustment is proper."
complains that the court failed to make adequate findings on
the elements of perjury, i.e., that his testimony
was false, willful, and concerned a material matter. While it
is true that the court's oral findings were brief,
"our cases have affirmed an independent finding of
obstruction of justice, even without explicit mention of each
factual predicate, where the finding is strongly supported by
the record." Id. at 802; see also United
States v. Nshanian, 821 F.3d 1013, 1018-19 (8th Cir.
2016). The court here made an independent finding "based
upon the totality of evidence at trial." We conclude
that the record is sufficient to support the adjustment.
record strongly supports a finding that Ruelas-Carbajal
testified falsely when he claimed that he never sold or
delivered methamphetamine. Quiroz testified that
Ruelas-Carbajal had supplied him with methamphetamine several
times. Officers corroborated this testimony with observations
of Quiroz visiting Ruelas-Carbajal before meeting the
undercover officer for two drug sales. Another witness,
Gumaro Cuevas, also testified that Ruelas-Carbajal offered to
sell him methamphetamine. There was also ample support for a
finding of willfulness. Ruelas-Carbajal stated unambiguously
multiple times that he had never sold or delivered
methamphetamine; there is no plausible claim of confusion or
mistake. And there is no doubt that this testimony was
material: whether Ruelas-Carbajal distributed methamphetamine
was central to whether he committed the charged offenses.
was likewise a sufficient basis to find that Ruelas-Carbajal
testified falsely when he claimed that he had an affair with
Quiroz's wife in order to suggest that Quiroz falsely
implicated him in retaliation. Quiroz's wife testified
that she had never met Ruelas-Carbajal and had never visited
the bar where Ruelas-Carbajal claimed they met. She also
denied Ruelas-Carbajal's assertion that she was fluent in
Spanish and spoke with him in that language. There was ample
support for a finding of willfulness, as Ruelas-Carbajal
testified at length and in detail about the alleged affair.
This testimony was also material, because it was designed to
undermine the credibility of a key government witness by
insinuating a motive to lie about Ruelas-Carbajal's
criminal activity. For these reasons, there was no clear
error in applying the two-level increase under USSG §
judgment of the ...