U.S. v. Whiting

• Decision Date: 10 April 2008
• Docket Number: No. 07-2599.,07-2599.
• Citation: 522 F.3d 845
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tramain M. WHITING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

522 F.3d 845

UNITED STATES of America, Plaintiff-Appellee, v. Tramain M. WHITING, Defendant-Appellant.

No. 07-2599.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2008.

Filed: April 10, 2008.

F. David Eastman, argued, Clear Lake, IA, for appellant.

Chadwick L. Groover, AUSA, argued, Cedar Rapids, IA, for appellee.

Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Tramain Whiting was convicted of multiple drug and firearm offenses and was sentenced to 195 months. Whiting appeals his sentence, alleging that the district court¹ erred by enhancing his sentence for obstruction of justice, by including too much as relevant conduct, and by not crediting him for a minimal role. He also contends that the district court should have granted his request for a variance based on a pending amendment which would reduce the advisory guideline ranges associated with crack cocaine. We affirm the district court's application of the sentencing guidelines then in effect but remand for its consideration of whether Whiting's sentence should be modified in light of the now effective amendments which have been made retroactive by the United States Sentencing Commission.

Tramain Whiting and his cousin, Brian Whiting, drove from Chicago to Cedar Rapids on November 5, 2006. They stayed in Cedar Rapids for a few days with Tramain's brother Darius before a planned trip to Tennessee. The Whitings were unaware that Darius and Brian were under investigation for drug trafficking and that Darius's house was under surveillance by the Cedar Rapids police. When officers saw the three men leave the house by car on November 7, they attempted an identification stop of the car which Tramain was driving. He initially pulled over, but then decided to speed off. After driving a few blocks, he stopped briefly to let Darius and Brian out of the car and then continued a little farther before coming to a stop and being taken into custody. Darius and Brian tried to flee on foot but were caught after a short chase.

All three were arrested, and officers seized a handgun from Brian and 2.6 grams of crack cocaine from Darius. A handgun and magazine were found in the area where Darius had been running. Although the magazine had Tramain's fingerprints on it, he did not have any weapons or drugs when arrested. Officers searched Darius's residence pursuant to a warrant and found 192 grams of cocaine, 208.2 grams of cocaine base, 14.62 grams of marijuana, two handguns (one of which had an obliterated serial number), and more than $34,000 in cash. Following his arrest and Miranda warning, Darius admitted that the seized drugs and firearms belonged to him.

Tramain, Darius, and Brian Whiting were all indicted on multiple counts related to drugs and firearms, but a superseding indictment followed which charged only Darius and Tramain. Tramain's case went to trial before a jury, which heard conflicting evidence about his involvement in the drug activity. When the three Whitings were arrested, they had been on their way to do a drug transaction at a local store, but both brothers denied at trial that Tramain had known about the planned deal. Tramain testified that after his arrest he had learned about it from Officer Moyle. Officer Moyle testified to the contrary, telling the jury that Tramain had told him during his post arrest interview that he had been aware that they were on their way to a drug deal. Brian testified that he had also seen Tramain retrieve drugs from a bedroom and hand them to two of Darius's customers, but both brothers denied that Tramain had handed drugs to any customer or otherwise assisted with manufacturing or dealing drugs.

The jury acquitted Tramain Whiting of conspiracy to manufacture, distribute, and possess with intent to distribute a mixture or substance containing crack and cocaine within 1000 feet of a protected location (Count 1), but convicted him of: possessing with intent to distribute and aiding and abetting the possession with intent to distribute less than 5 grams of crack (Count 2)² and 2.6 grams of crack (Count 3) within 1000 feet of a protected location; carrying, using, and possessing a firearm in furtherance of a drug offense and aiding and abetting such use of a firearm (Count 4); and conspiracy to aid and abet using carrying, and possessing a firearm in furtherance of a drug offense (Count 5).

At the sentencing hearing on July 2, 2007 the district court calculated Tramain Whiting's base offense level at 33 for Counts 2 and 3, then imposed a two level increase for obstruction of justice after finding that he had committed perjury and also suborned perjury from Darius Whiting. The court granted a two level reduction for minor role, arriving at an adjusted offense level of 33. Counts 2, 3, and 5 were then grouped as closely related offenses. See U.S.S.G. § 3D1.2.³ With a criminal history category of I, Tramain Whiting's guideline range was 135 to 168 months, although the court did not expressly state this in the transcript of the sentencing hearing. After considering the factors in 18 U.S.C. § 3553(a), the district court imposed a sentence of 135 months on Counts 2, 3, and 5, plus a consecutive 60 month sentence on Count 4. Whiting asked for a downward variance pursuant to 18 U.S.C. § 3553(a), arguing that he was entitled to a lower sentence based on a pending amendment to the guidelines affecting crack offenses and the sentencing disparities between powder and crack cocaine. The court denied the request and sentenced him to 195 months.

Whiting appeals his sentence, alleging that the district court erred in its calculation of his guideline range and that it should have granted the variance he requested, suggesting that his sentence is unreasonable. The government argues that the district court did not err or abuse its discretion in imposing the sentence, that it fell within the guideline range, and that it was reasonable. We review the sentence imposed for reasonableness, first "ensur[ing] that the district court committed no significant procedural error." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007); see also United States v. Washington, 515 F.3d 861, 865 (8th Cir.2008). If we determine the district court's decision is "procedurally sound," we move on to "consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall, 128 S.Ct. at 597; Washington, 515 F.3d at 865. We may apply a presumption of reasonableness to a sentence within the guideline range but are not required to do so. Gall, 128 S.Ct. at 597, citing Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). A district court's application of the advisory guidelines is reviewed de novo, while findings of fact are reviewed for clear error. See United States v. Flying By, 511 F.3d 773, 778 (8th Cir.2007) (citations omitted).

Whiting first challenges the district court's imposition of a two level enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We review a district court's factual findings underlying such an enhancement for clear error, United States v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir.2004), giving great deference to the sentencing court's determination. United States v. Denton, 434 F.3d 1104, 1114 (8th Cir.2006).

U.S.S.G. § 3C1.1 provides for a two level enhancement for obstruction of justice if the defendant has committed perjury or suborned perjury by another witness. U.S.S.G. § 3C1.1 & app. n. 4(b); see also United States v. Flores, 362 F.3d 1030, 1037 (8th Cir.2004). A defendant commits perjury by testifying falsely under oath in regard to a material matter and by doing so willfully, rather than out of confusion, mistake, or faulty memory. See United States v. Dunnigan, 507 U.S. 87, 94-95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); see also United States v. Vinton, 429 F.3d 811, 818 (8th Cir.2005). A defendant suborns perjury by procuring another to commit perjury. See 18 U.S.C. § 1622. Before imposing an enhancement under § 3C1.1, the district court "must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice." Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111; see also Mendoza-Gonzalez, 363 F.3d at 796. The government bears the burden of proving the facts to support such findings by a preponderance of the evidence. Vinton, 429 F.3d at 818.

Whiting argues that the government did not show that he willfully committed or suborned perjury. During the sentencing hearing the district court found by a preponderance of the evidence that Whiting had done both. These findings were supported by the testimony of Brian Whiting and Officer Moyle although it conflicted with that of Darius and Tramain Whiting. A sentencing enhancement under U.S.S.G. § 3C1.1 may be based on the experienced trial judge's finding that the defendant lied to the jury. Denton, 434 F.3d at 1114. Whiting contends that the district court did not make specific findings as to each element of obstruction of justice or perjury. While "it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding," it is sufficient if "the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury." Dunnigan, 507 U.S. at 95, 113 S.Ct. 1111; see also Denton, 434 F.3d at 1114; Vinton, 429 F.3d at 818. The sentencing judge here exceeded this standard by pointing to specific parts of the testimony of Tramain and Darius Whiting in which it found they had intentionally lied to the jury. We conclude that the district court did not clearly err in applying an adjustment for obstruction of justice.

Whiting next contends that the district court erred by counting the drugs and guns seized from his brother's house as relevant conduct for purposes of...