U.S. v. Beaulieu

• Decision Date: 17 April 1990
• Docket Number: No. 88-2580,88-2580
• Citation: 900 F.2d 1537
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John BEAULIEU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1537

900 F.2d 1537

UNITED STATES of America, Plaintiff-Appellee, v. John BEAULIEU, Defendant-Appellant.

No. 88-2580.

United States Court of Appeals, Tenth Circuit.

April 17, 1990.

Edward Y. Crandall, Midwest City, Okl., for defendant-appellant.

Robert G. McCampbell, Asst. U.S. Atty. (William S. Price, U.S. Atty., with him on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Before TACHA and SETH, Circuit Judges, and BROWN, District Judge ^*.

SETH, Circuit Judge.

This is an appeal from the trial court's upward adjustment of defendant's sentence imposed under the United States Sentencing Guidelines ("Guidelines"). John Beaulieu, defendant-appellant, contends that the trial court's upward adjustment based on the court's finding that he obstructed justice by testifying untruthfully is unconstitutional and based on insufficient evidence. Finding no constitutional error in the trial court's upward adjustment and that the court was not clearly erroneous in its finding that defendant testified untruthfully, we affirm the trial court's sentence.

The defendant was charged, along with his brothers Darrell and Ronald Beaulieu, with conspiracy to manufacture amphetamines in violation of 18 U.S.C. Sec. 846. See United States v. Ronald Beaulieu, 900 F.2d 1531 (10th Cir.); United States v. Darrell Beaulieu, 893 F.2d 1177 (10th Cir.). In a joint trial with his brother Ronald, defendant denied all involvement with the manufacturing of amphetamines. Defendant's version of the facts was contradicted by several government witnesses. After the jury returned a guilty verdict, in a hearing prior to sentencing, the defendant objected to a pre-sentence report recommendation that his base offense level of 26 be adjusted by two levels on the ground that he obstructed justice by testifying untruthfully. See Guidelines Sec. 3C1.1, n. 1(c). The trial court accepted the pre-sentence report recommendation and concluded that defendant testified untruthfully. At sentencing, the court applied the Guidelines and adjusted the defendant's base offense level by two levels for obstruction of justice to result in a total offense level of 28. Defendant was sentenced to 80 months' imprisonment, within the Guidelines range for his total offense level.

Defendant does not contest his underlying conviction, but objects to the sentencing court's two level upward adjustment for obstruction of justice based on its finding that he testified untruthfully. Defendant first asserts that sentencing in this manner is unconstitutional in violation of due process and his right to testify. We review defendant's constitutional challenges de novo since they involve contested issues of law. See United States v. Frederick, 897 F.2d 490, 491-92 (10th Cir.). The standard of review on appeal for issues of law is the same as that applied by the trial court in making its initial ruling. Id. For the reasons stated below, we hold that defendant's constitutional challenges have no merit.

Section 3C1.1 of the Guidelines allows the sentencing judge to adjust a defendant's sentence for obstruction of justice. Application Note 1(c) to Sec. 3C1.1 states, in relevant part, that "testifying untruthfully ... concerning a material fact" is conduct that may justify a finding of obstruction of justice. Application Note 3 further states that "[t]his provision is not intended to punish a defendant for the exercise of a constitutional right. A defendant's denial of guilt is not a basis for application of this provision."

Defendant contends that the sentencing court's consideration of his untruthful testimony inhibits exercise of his right to testify. As support he urges that "he has a right to put on a defense and not be placed on the horns of a dilemma by having to decide whether the trial Judge will punish him harsher at the sentencing stage if the jury returns a verdict of guilty and he testifies at trial." Defendant's Brief at 13.

It is clear that prior to the Guidelines, it was not unconstitutional for a sentencing judge to consider a defendant's false testimony as observed by the judge at trial. See United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582; Humes v. United States, 186 F.2d 875, 878 (10th Cir.). The Supreme Court in Grayson expressly rejected an indistinguishable argument from the one presented by defendant that consideration of a defendant's untruthful testimony at sentencing would violate his right to testify. In rejecting this argument, the Court held that there is no protected right to commit perjury. See Grayson, 438 U.S. 41, 54, 98 S.Ct. 2610, 2617, 57 L.Ed.2d 582. The Court further stated:

"That argument misapprehends the nature and scope of the practice we find permissible.... [W]e are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the stand, determine--with a consciousness of the frailty of human judgment--whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his prospects for rehabilitation and restoration to a useful place in society. Awareness of such a process realistically cannot be deemed to affect the decision of an accused but unconvicted defendant to testify truthfully in his own behalf."

Id. at 55, 98 S.Ct. at 2618.

Although Grayson is a pre-Guidelines case, there is nothing to indicate that the same result would not apply under the facts of this case. Our holding is consistent with other circuits which have similarly found this argument to be unpersuasive under the Guidelines. See United States v. Wagner, 884 F.2d 1090, 1098 (8th Cir.) (rejecting argument that an adjustment for testifying untruthfully violated defendant's constitutional right to testify); United States v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 255, 107 L.Ed.2d 204 (defendant's right to testify is not violated where the sentencing judge believes that the defendant attempted to obstruct justice under Sec. 3C1.1 by lying during his testimony).

Defendant's next contention that the trial court's consideration of his untruthful trial testimony deprived him of due process is likewise without merit. Defendant asserts that sentencing in this manner violates due process because it is arbitrary in that it allows the court to "draw the line" between what is true or false. Defendant's Brief at 13. Moreover, defendant urges that he is being punished for perjury, a crime for which he was not convicted.

Initially, we note that these arguments were flatly rejected in Grayson. The Supreme Court held that it did not violate due process and was within proper judicial discretion for a sentencing judge, who observed the defendant at trial, to consider the defendant's alleged perjury at trial, a crime for which the defendant was not tried or convicted. See Grayson, 438 U.S. at 52-54, 98 S.Ct. at 2616-18. The Court explained:

"[T]he evolutionary history of sentencing ... demonstrates that it is proper--indeed, even necessary for the rational exercise of discretion--to consider the defendant's whole person and personality, as manifested by his conduct at trial and his testimony under oath, for whatever light those may shed on the sentencing decision."

Id. at 53, 98 S.Ct. at 2617.

The fact that Grayson is a pre-Guidelines case does not, as a matter of due process, change the result. "As a matter of due process ... the enactment of the Sentencing Reform Act of 1984 requires no different rules with respect to what evidence may be used in determining a sentence than were already in place." Beaulieu, 893 F.2d at 1180 (10th Cir.) (citing United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.)). Since a sentencing judge's consideration of the defendant's untruthfulness at trial did not violate due process prior to the Guidelines and we find nothing in the Guidelines which supports a contrary result, we must reject defendant's argument.

Furthermore, defendant's argument essentially restates a challenge which we have already rejected. We recently held that the quantum of proof required by due process for the trial court to make factual determinations during sentencing under the Guidelines is a preponderance-of-the-evidence and not beyond-a-reasonable-doubt. Frederick, 897 F.2d at 491-94 (10th Cir.). Accordingly, we found no due process violation by the sentencing court's consideration, based on a preponderance of the evidence, of criminal activity for which the defendant had never been charged or convicted. Id. See also United States v. Barnerd, 887...