* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 28 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. EUGENE CHEE, Defendant-Appellant. No. 03-4057 (District of Utah) (D.C. No. 02-CR-66-TC)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

I. INTRODUCTION Defendant Eugene Chee was convicted by a jury for a ggravated sexual abuse and abusive sexual contact while within Indian Country. At sentencing, the district court concluded Chee’s base offense level was thirty-five and his criminal history was category I. The district court made a two-level upward adjustment to-2-

his base offense level based on obstruction of just ice and sentenced Chee to 210 months’ incarceration. Chee appeals his sentence, arguing the district court erred by including the adjustment. This court exercises jurisdiction pursuant to 18 U.S.C. § 3742(a) and affirms Chee’s sentence. II. BACKGROUND After receiving information from the victim’s mothe r, FBI agents began an investigation into whether Chee had sexually abuseda young girl eleven years earlier. Agent Jim Lyman and Navajo Nation Crimina l Investigator Michael John located Chee near a visitors’ center in Monument Va lley, Utah. Lyman and John asked Chee if he would be willing to speak with the m privately and Chee agreed. All three rode to the visitors’ center, where Lyman interviewed Chee in an unused office. During the interview Chee admitted that se veral years earlier there had been two incidents of sexually related contact betw een himself and his stepdaughter who was six years old at the time. Ch ee described taking the victim into a bedroom to show her “how our babies [are] ma de or where do they come from.” Chee stated he had acted in response to que stions from the victim. Chee also described another incident during which he hadthe victim wash his genitals while he was in the bath tub. Chee stated he asked for the victim’s assistance in washing because he had injured his hands in a fall. Agent Lyman recorded these descriptions in writing during the interview and re viewed the contents of his-3-

description with Chee. At trial, Lyman testified t hat Chee specifically approved the descriptions and did not ask him to make any ch anges. Chee testified, however, that the agents had forced him to include damaging details within the descriptions. Agent Lyman asked Chee to take a polygraph examinat ion. Agent Trace Kirk conducted the examination, during which Chee a gain described the two incidents. After describing the incidents to Kirk, Chee himself recorded his description in writing. After Chee had written the descriptions, Lyman and Kirk compared the two written descriptions and pointed o ut some details missing in the version Chee had written. Kirk testified that Chee voluntarily added details to his written statement after he and Lyman pointed out th e inconsistencies. At trial, Chee testified on his own behalf and admi tted he had signed the written statements. Chee testified that the two in cidents occurred but denied he had been motivated by sexual gratification and chal lenged certain details of the written statements. Chee also asserted there had b een no sexual contact between himself and the victim during the incident in the b edroom. Chee stated the agents had forced him to include the damaging details with in the descriptions. The jury found Chee guilty. At sentencing, the gov ernment sought an upward adjustment for obstruction of justice under § 3C1.1 of the United States Sentencing Guidelines (“U.S.S.G.”). The governmentargued Chee had committed perjury while testifying at trial. The d istrict court agreed with the1 We admonish defense counsel for failing to comply with 10th Cir. R.

28.2(A)(2) by failing to attach to his brief a copy of the transcript of the district court’s pronouncement at the sentencing hearing. -4- government and adjusted Chee’s offense level accord ingly. Chee appeals, arguing the district court erred in concluding an adjustmen t was warranted because Chee had consistently maintained he was coerced into add ing details to his statements and he did not willfully impede justice. 1
III. DISCUSSION The U.S. Sentencing Guidelines allow an upward adju stment to the base offense level for the obstruction of justice. See U.S.S.G., § 3C1.1. When examining an adjustment under U.S.S.G. § 3C1.1, thi s court reviews the district court’s factual findings for clear error and its le gal interpretations de novo

. United States v. Hawthorne , 316 F.3d 1140, 1145 (10th Cir. 2003). The sentencing guidelines permit an adjustment for obstruction of justice based on perjury. See U.S.S.G. § 3C1.1, cmt. n.4(b). In United States v. Dunnigan , the Supreme Court determined that for the purpose s of § 3C1.1, a witness commits perjury by (1) giving false testimo ny under oath (2) concerning a material matter (3) with the willful intent to prov ide false testimony, rather than as a result of confusion, mistake, or faulty memory . 507 U.S. 87, 95 (1993). A district court’s findings regarding the obstructionof justice adjustment must encompass all of the factual predicates of perjury, but generalized findings will-5-

suffice. Id . Under the law of this circuit, the district court must identify the perjurious testimony before making an adjustment un der § 3C1.1. United States v. Massey , 48 F.3d 1560, 1573 (10th Cir. 1995). Chee concedes his testimony concerned a material matter, but argues the district court failed to find he made a false state ment under oath and failed to find he acted willfully. Chee also argues that he did n ot, in fact, willfully commit perjury. A. The false statement At the sentencing hearing the district court stated : “[W]hen [Chee] said that he did these things because–not for any sexual grat ification but because he wanted to teach her about the birds and the bees, I really found that to be false.” Thus, the district court found specific testimony b y Chee to be false. This is a sufficient finding to meet the requirements of Dunnigan

. See Hawthorne, 316 F.3d at 1146. The district court’s finding that Chee’s testimony was false is not clearly erroneous. The district court found the trial test imony of the victim to be credible. During her testimony the victim graphica lly described the encounters with Chee and the sexual contact which occurred. L ikewise, the victim described Chee’s sexual excitement during the encounters. In addition, the testimony of Lyman and Kirk regarding the statements Chee made t o them also contradicted Chee’s testimony. Both agents testified Chee freel y described having sexual2 Chee separately argues that the district court mad e insufficient findings to

support an upward adjustment for perjury based on C hee’s testimony concerning coercion. It is true that the district court also noted Chee’s testimony concerning coercion was perjury. In deciding to make the adju stment, however, the district court’s focus was clearly on Chee’s testimony descr ibing the encounters as nonsexual in nature. Accordingly, it is not necessaryto analyze whether the district court’s findings regarding the testimony on coercio n were sufficient under Dunnigan

. -6- contact with the victim. Thus, the district court’ s conclusion that Chee’s testimony was false is not clearly erroneous. Chee also argues the district court should not have concluded he committed perjury because he consistently maintained the written statements were inaccurate and he was forced to add the damning details. 2 Chee compares his situation to the facts inUnited States v. Alexander , 292 F.3d 1226 (10th Cir. 2002). In Alexander , the defendant first testified in a suppression he aring that he had not waived his Miranda rights. Id . at 1233. After the court denied his motion to suppress, the defendant testified he had voluntaril y waived his rights. Id . at 1233- 34. The district court adjusted the defendant’s se ntence pursuant to § 3C1.1. Id

. Chee argues that unlike the defendant in Alexander , he has consistently maintained the statements he gave to the agents wer e inaccurate. Chee’s argument, however, is misplaced.
InAlexander , this court upheld the adjustment not based on the perjured testimony itself, but on the obstruction of justice caused by the defendant pursuing a suppression hearing with the knowledge that his argument for-7-

suppression had no basis in fact. Id . at 1235-36. Thus, the decision in Alexander says nothing concerning the situation in this case. In Dunnigan , the Supreme Court held there was “ample support” for an upward adjustment when the defendant’s testimony was contradicted by the otherevidence presented at trial. Dunnigan , 507 U.S. at 95-96. Likewise in Hawthorne , the defendant’s mere statement that he was presenting his version of the events in good faith did not prevent this court from concluding the evidence sup ported an adjustment for perjury. See Hawthorne , 316 F.3d at 1147-48. As discussed above, there was substantial evidence that the testimony Chee gave at trial was false. Accordingly, the district court’s finding that Chee’s testimony was false is not clearly

erroneous. B. Willfulness At the sentencing hearing, the district court state d: “[w]hen Mr. Chee said that what he was doing was not for physical gratifi cation but simply to teach the victim about the birds and the bees, and all these times, I find that that was knowing perjury.” This finding is sufficient to me et the requirements of Dunnigan

. See Dunnigan, 507 U.S. at 95

. In addition, the district court’s factual finding t hat Chee willfully made false statements under oath is not clearly erroneou s. Chee argues his testimony was not willfully false because, in light of the el even years between the sexual abuse and the trial his memory of the events might not have been entirely clear.-8-

Chee maintains he could not have been committing pe rjury merely by presenting his version of the events as he remembers them. Th e testimony of the agents, however, supports the district court’s conclusion that Chee knew his testimony to be false when he gave it. At trial, Chee denied having sexual contact with th e victim. Chee’s denial involved some of the same details he initially leftout in the written statement given to Kirk. Kirk testified about the written de scription of the events Chee recorded during their interview. In the written st atement, Chee first left out certain details about the events. Noting the discr epancy between the statement Chee had given Lyman and the one Chee had written f or Kirk, Kirk asked Chee which statement was true. Kirk testified Chee ackn owledged the statement given to Lyman was true. In addition, the written statem ent recorded by agent Lyman contained Chee’s affirmation that it was accurate. Thus, the district court’s conclusion that Chee willfully presented false test imony was not clearly

erroneous.-9-

IV. CONCLUSION For the foregoing reasons, this court affirms the district court’s upward adjustment based on perjury. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge