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

### NOV 3 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ARLENE ELIZABETH ROHDE,

Defendant-Appellee. No. 98-4000

Appeal from the United States District Court

for the District of Utah (D.C. No. 97-CR-200G)

Brooke C. Wells, Assistant United States Attorney, Salt Lake City, Utah (David J. Schwendiman, United States Attorney, Salt Lake City , Utah, on the brief), for Plaintiff-Appellant. James D. Gilson, VanCott, Bagley, Cornwall & McCart hy, Salt Lake City, Utah (Stephen K. Christiansen, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, on the brief), for Defendant-Appellee.

Before BRORBY, McKAY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 Ms. Rohde notes that, although her name was spelled “Arlene” in both the

district court and in the captioning of this appeal , her name is actually “Arlyne.”

2 This statute gives the courts of appeals jurisdicti on to hear appeals by the United States in criminal cases “except . . . where the double jeopardy clause of the United States Constitution prohibits further pr osecution.” 18 U.S.C. § 3731. This court, however, has interpreted this double je opardy proviso as requiring a merits analysis: when the United States appeals a d ouble jeopardy decision, this -2- The United States appeals the dismissal on double j eopardy grounds of a perjury indictment against Arlyne Rohde. 1 After pleading guilty to bank robbery and a related firearm offense, but before being sen tenced, Rohde testified falsely at her accomplice’s trial. Because she thereby obs tructed justice, the sentencing court enhanced her sentence for the bank robbery an d firearm offenses. In light of the sentencing enhancement, the district court h eld that the Double Jeopardy Clause prevented the government from prosecuting Ro hde for perjury based on the same testimony. For double jeopardy purposes, the consideration of related but uncharged criminal conduct in calculating a sentence, or the enhancement of a sentence for obstructing justice by failing to appear at a heari ng, do not constitute “punishment.” See Witte v. United States , 515 U.S. 389, 399 (1995); United States v. Hawley , 93 F.3d 682, 688 (10 thCir. 1996). Rohde notes differences between those sentencing calculations and a sentenc e enhancement for obstructing justice by perjury. Those differences, however, do not distinguish Witte and Hawley . This court thus exercises jurisdiction under 18 U.S.C. § 3731 2 and holdscourt evaluates the merits of the decision before a scertaining its jurisdiction. See

United States v. Martinez , 667 F.2d 886, 889 (10 thCir. 1981). If this court concludes that the Double Jeopardy Clause does not bar further prosecution, it assumes jurisdiction and reverses the dismissal; on ly if it concludes that the Clause does bar further prosecution does it let the dismissal stand, albeit technically by dismissing for lack of jurisdiction rather than affirming. -3- that a sentence enhancement for perjury, even if th e perjury was committed after conviction for the underlying offense, does not bara subsequent prosecution for the same perjury.
I. BACKGROUND Arlyne Rohde pleaded guilty to bank robbery in viol ation of 18 U.S.C. § 2113(a) and to carrying a firearm during the comm ission of a violent felony in violation of 18 U.S.C. § 924(c). See United States v. Rohde , 989 F. Supp. 1151, 1152 (D. Utah 1997). Along with her plea, Rohde fi led a statement admitting that she had planned the bank robbery with Paul Jones an d Tracy Brown and that Jones and Brown had given her a gun which she carri ed during the robbery. She also admitted these facts under oath at her plea he aring. The district court, per Judge Dee Benson, accepted Rohde’s plea but postponed sentencing until after Jones’s trial, at which she was to testify pursuant to a government subpoena. The court stated that he r truthfulness at the Jones trial would likely affect her sentence.-4-

In her trial testimony, Rohde initially reiterated her plea account of the bank robbery. During her second day of testimony, however, she recanted and testified instead that Jones had not participated i n or known of the robbery. The government responded in two ways. It indicted her for perjury in violation of 18 U.S.C. § 1621 and, at sentencing on the robbery and firearms charges, it requested an increase of two in her offense level u nder Sentencing Guideline § 3C1.1 for obstruction of justice. At her sentencing hearing, Rohde admitted having c hanged her testimony in an effort to help Jones. The court increased he r offense level by two “for obstruction of justice for lying on that witness st and.” Relying on the resulting sentence enhancement, Rohde moved to dismiss the pe rjury indictment on double jeopardy grounds. The court, per Judge J. Thomas G reene, granted the motion and dismissed the indictment. See id. at 1156–59.
II. DISCUSSION This court reviews de novo a district court’s decision to dismiss an indictment on double jeopardy grounds. See United States v. McAleer , 138 F.3d 852, 855 (10 thCir. 1998) (reviewing de novo a denial of a motion to dismiss on double jeopardy grounds). Neither party challenges the court’s factual findings. The Double Jeopardy Clause of the Fifth Amendment p rovides that no person “shall . . . be subject for the same offense to be twice put in jeopardy of-5-

life or limb.” U.S. Const. amend V. The Supreme C ourt has long construed the Clause to bar two distinct types of government cond uct: punishing a person twice for the same offense or prosecuting a person twice for the same offense. See,
e.g. , United States v. Dixon , 509 U.S. 688, 704 (1993) (citing North Carolina v.
Pearce , 395 U.S. 711 (1969)); Ex Parte Lange , 85 U.S. (18 Wall.) 163, 173 (1874). The district court held, and Rohde argues on appeal, that the enhancement constituted both punishment and a prose cution for perjury. See Rohde , 989 F. Supp. at 1157.
A. The sentence enhancement did not “punish” Rohde for her perjury. When a court bases a sentence under the Guidelines in part on relevant conduct, i.e., related but uncharged criminal condu ct, it does not thereby punish the defendant for that conduct. See Witte v. United States , 515 U.S. 389, 399 (1995). In Witte , the defendant pleaded guilty to a charge arising from a 1991 drug sale. The district court based its sentence n ot only on the amount of drugs involved in the 1991 sale but also on amounts of dr ugs Witte had conspired to distribute in 1990. See id. at 392–94. The court relied on Guideline § 1B1.3, which directs courts to determine the sentencing ra nge for an offense by considering all relevant conduct, not just the cond uct constituting the offense of conviction. See U.S. Sentencing Guidelines Manual § 1B1.3 (1997) [ “U.S.S.G.”]. The Supreme Court held that, despite the incorporat ion of the 1990 conduct in3 For property, tax, fraud, and drug offenses, like W itte’s, on which the

Guidelines are largely quantity-dependent, such con duct includes acts or omissions of the defendant “that were part of the s ame course of conduct or common scheme or plan as the offense of conviction. ” U.S.S.G. § 1B1.3(a)(2); see also id. , cmts. 3, 9(B) & bckgrnd.

4 The commentary to section 3C1.1 specifies that it applies to perjury. See U.S.S.G. § 3C1.1 commentary, app. note 3(b). -6- Witte’s sentence, the government did not violate th e Double Jeopardy Clause when it later prosecuted Witte separately for that conduct. See Witte , 515 U.S. at 397, 403–04. The Court reasoned that a defendant i n Witte’s situation “is punished, for double jeopardy purposes, only for th e offense of which the defendant is convicted.” Id. at 397. Rohde attempts to distinguish Witte by noting that § 1B1.3 applies only to conduct “that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. § 1B1.3 (a)(1). 3 Rohde notes that the district court did not take her perjury into accoun t under § 1B1.3 but used it to enhance her sentence under § 3C1.1, which directs t he court to increase an offense level by two “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the in stant offense.” Id. § 3C1.1. 4 Rohde further notes that her perjury occurred years after the conduct comprising her offenses of conviction, not in the same time pe riod, as is generally true of-7-

conduct taken into account under § 1B1.3. See id. § 1B1.3(a)(1), (a)(2) & cmt. 9(B). Tenth Circuit precedent, however, forecloses Rohde’ s attempt to distinguish Witte

. See United States v. Hawley , 93 F.3d 682 (10 thCir. 1996). While released on bond, Hawley failed to appear forhis arraignment. The court forfeited his bond. See id. at 685. After Hawley was recaptured, he eventuall y pleaded guilty. See id. The court enhanced his offense level under § 3C1. 1 for obstruction of justice because of his failure to ap pear. See id. at 686. He appealed, arguing that the bond forfeiture and sent ence enhancement constituted multiple punishments for the same conduct and thus violated the Double Jeopardy Clause. See id. This court disagreed for two reasons. See id. at 687–88. First, the bond forfeiture was a remedial civil penalty and not pun ishment in the sense of double jeopardy jurisprudence. See id. Second, under Witte , “the enhancement for obstruction of justice was not punishment for any c onduct other than the conduct to which Hawley pleaded guilty.” Id. at 688. Rohde argues that Hawleydoes not control this case because, in light of it s holding that the bond forfeiture was not punishment , its comments about the enhancement were dicta . Concededly, the holding that the bond forfeiture was not punishment for purposes of double jeopardy coul d have alone resolved5 Were this panel inclined to engage in the business of labeling as dicta one

of the two alternative grounds in Hawley , it would then confront defendant’s failure to demonstrate why that label ought not adh ere to the alternative which is innocuous to her theory, rather than to the alternative which undermines it. -8- Hawley’s appeal. The Hawley opinion, however, discusses Witte so thoroughly and applies it so unequivocally that it leads this panel to treat the § 3C1.1 rationale as an alternate holding, not dicta . The Hawleypanel summarized and quoted Witte at length and then applied it in no uncertain terms : “We conclude that the facts of this case are governed by Witte . The enhancement of Hawley’s sentence under U.S.S.G. § 3C1.1 was punishment for the underlying offense to which he pleaded guilty, not punishment for failing to appear.” Id. The Hawley panel’s use of the terms “conclude” and “governed,” undiluted by such language as “may not have been punishment,” indicate a holdi ng, not dicta

. 5 Rohde also notes that a subsequent prosecution was not at issue in Hawley. Nonetheless, the court’s unequivocal conclusion that the § 3C1.1 enhancement “was . . . not punishment” suggests, if it does notdictate, the result in this case, which does involve a prosecution for the enhancing conduct. Finally, Rohde argues that Hawleyis unavailing because the government did not rely upon or even cite it in the district c ourt. Failing to cite a specific case, however, even if precedential, does not invar iably have the same consequence as failing to present an issue, particu larly when the failure is that of6None of these cases involved obstruction by perjury . The distinction

between obstruction by perjury and obstruction by o ther means, however, is only relevant to Rohde’s multiple-prosecution argument, discussed in part II.B of this opinion. See infra at 13–19. -9- the prevailing party. Cf., e.g., Gowan v. United States Dep’t of the Air Force , 148 F.3d 1182, 1189 (10 thCir. 1998) (noting that court of appeals “may affi rm on any ground supported by the record”). The government a rgued in the district court that indicting a defendant for perjury after a sent encing enhancement for obstruction of justice based on that perjury does n ot constitute double jeopardy. The government cited Witte and specifically argued its application to perjury

. The government acknowledged that no reported case a ddressed the double jeopardy implications of a perjury enhancement; it simply failed to note that Hawleydid address more generally the implications of a § 3C1.1 enhancement. These are not the makings of appellate preclusion. Even were Rohde able to avoid Hawley , she could not distinguish Witte by differentiating § 3C1.1 from § 1B1.3. Several othe r circuits have applied Witte to § 3C1.1 enhancements for obstruction of justice. See United States v. Grisanti , 116 F.3d 984, 987 (2 dCir. 1997); United States v. Ross , 77 F.3d 1525, 1550 (7 th Cir. 1996); United States v. Bellrichard, 62 F.3d 1046, 1051–52 (8 thCir. 1995); United States v. Jernigan , 60 F.2d 562, 564–65 (9 thCir. 1995). 6 Those decisions, however, all apply Witte summarily, without analyzing an argument premised on7 The Court extensively discussed and relied on its o pinion in a particular

pre-Guidelines case involving the same criminal tra nsaction. See United States v. Witte , 515 U.S. 389, 398–400 (following Williams v. Oklahoma , 358 U.S. 576 (1959)). It also quoted its opinions in several ca ses involving criminal history under either the Guidelines or state recidivist statutes. See id. at 400 (quoting Nichols v. United States , 511 U.S. 738 (1994); Gryger v. Burke , 334 U.S. 728 (1948); and Moore v. Missouri , 159 U.S. 673 (1895)) (other citations omitted). -10- differentiating § 3C1.1 from § 1B1.3. Such an argu ment is nonetheless unavailing. Rohde’s argument adopts the district court’s two-part reasoning about temporality: (1) unlike a court that uses relevant conduct under § 1B1.3 to calculate a sentence, Rohde’s sentencing court coul d not have premised its enhancement of her sentence under § 3C1.1 on aggrav ating circumstances of her robbery and firearm offenses, because her perjury d id not precede or accompany those crimes; (2) the § 3C1.1 enhancement must ther efore have been punishment for the perjury itself, barring further prosecution or punishment as double jeopardy. See Rohde , 989 F. Supp. at 1155. Similar reasoning, however , did not persuade the Court in Witte

. The Court determined that Witte’s appeal was contro lled by its pre- and post-Guidelines precedent, in which it had consiste ntly rejected double jeopardy challenges to sentences based in part on “conduct a rising out of the same criminal transaction” as the crime of conviction or on “a de fendant’s background.” Witte , 515 U.S. at 400. 7Justice Stevens argued in dissent that a sentenci ng court’s use8 The Court reasoned that relevant conduct and crimin al history each relate

to the character both of the offense and of the off ender. See Witte , 515 U.S. at 403. “[W]hile relevant conduct . . . may relate to the severity of the particular crime,” the Court reasoned, “the commission of mult iple offenses in the same course of conduct also necessarily provides important evidence that the character of the offender requires special punishment.” Id. -11- of relevant conduct under § 1B1.3 bars further pros ecution or punishment for that conduct because, unlike criminal history under § 4A 1.1, which measures the character of the offender, relevant conduct measure s only the character of the offense. See id. at 408–12 (Stevens, J., dissenting). Basing a sen tence in part on relevant conduct, Justice Stevens concluded, thus s erves only to punish the offense constituted by the relevant conduct. See id. The Court specifically rejected this argument. See id. at 402–03. 8 Minimizing the importance of temporality, the Court noted that “the difference b etween ‘criminal history’ and ‘relevant conduct’ is more temporal than qualitativ e, with the former referring simply to a defendant’s past criminal conduct . . . and the latter covering activity arising out of the same course of criminal conduct as the instant offense.” Id . at 402 (citations omitted)

. Rohde’s argument and the district court’s reasoning similarly rely on a distinction that is “more temporal than qualitative .” Rohde committed perjury after her crimes of conviction, not before or in th e same general time period as those crimes. The pertinent difference, then, betw een the conduct underlying her-12-

§ 3C1.1 enhancement, and conduct qualifying as crim inal history under §§ 4A1.1–.3 or as relevant conduct under § 1B1.3, i s merely temporal. Despite that temporal distinction, her willingness to lie under oath, like a defendant’s willingness to commit multiple offenses , “necessarily provides important evidence that the character of the offend er requires special punishment.” See Witte , 515 U.S. at 403. A criminal who perjures herself to escape responsibility for her crime poses a greaterthreat to society, and deserves less leniency, than one who does not. See United States v. Dunnigan , 507 U.S. 87, 97 (1993) (upholding constitutionality of sente nce enhancements for perjury). While Rohde intended her perjury to benefit an acco mplice, the resultant threat to society was no less imminent than had she lied to p rotect herself. She showed the same willingness as the defendant in Dunnigan to place an individual’s interests above those of society and the criminal justice sys tem by lying under oath. The perjury enhancement in this case, like that in Dunnigan , thus “further[ed] legitimate sentencing goals relating to the princip al crime, including . . . retribution and incapacitation.” Id. By obstructing the prosecution of her accomplice, R ohde did not only show that her character deserved special punishment. Sh e also aggravated the character of her charged offenses. Cf. Witte , 515 U.S. at 402–03 (discussing distinction between character of offender and character of offe nse). Her perjury aggravated9 Rohde argued that the § 3C1.1 enhancement was inval id because her

perjury had not obstructed “the investigation, pros ecution, or sentencing of the instant offense, ” i.e., her offense. U.S.S.G. § 3C1.1 (emphasis ad ded). A different panel of this court, however, upheld the enhancement. See United States v. Alexander , No. 97–4105, 1998 WL 380529, at *2 (10th Cir. Jul y 1, 1998) (unpublished disposition). (Alexander is Rohde’s n ew, married name; she declined, however, to move this court to recaption this appeal.) Rohde has properly conceded that she “cannot and does not use this appeal to collaterally attack the sentence enhancement.” -13- the character of her offenses as plainly as the com mission of related, uncharged crimes aggravates the character of a defendant’s ch arged offenses. If the prosecution of a crime is obstructed, then that cri me becomes more dangerous to society than an otherwise identical crime whose pro secution is not obstructed. A crime whose prosecution is obstructed thus deserves greater punishment. In the usual case, the convict who receives a § 3C1 .1 enhancement will have obstructed the prosecution of his or her own c rime. In this unusual case, Rohde’s perjury obstructed the prosecution of Jones ’s offense, not her own. This makes the relation of her perjury to her underlying offense less immediately obvious. Rohde, however, has already unsuccessfull y appealed her § 3C1.1 enhancement. 9 That failure precludes her from relying in this appeal on the unusual nature of her obstruction to avoid the gene ral rule outlined above: a perjury enhancement punishes the underlying offense , not the perjury, because the perjury both reveals the bad character of the offen der and aggravates the character-14-

of the offense. Because the perjury enhancement do es not punish the perjury itself, Rohde’s multiple-punishments argument fails

. B. The sentencing court’s consideration of Rohde’s per jury did not constitute a prosecution for double jeopardy purposes. While Rohde’s sentence enhancement did not punish h er perjury, the Double Jeopardy Clause would still require dismissa l of the perjury indictment if the enhancement constituted a prosecution for perju ry. This court, however, has specifically rejected the argument that a sentencin g hearing in which a court based a sentence in part on relevant conduct consti tuted a de facto prosecution for the relevant conduct. See United States v. Koonce , 885 F.2d 720, 722 (10 thCir. 1989) (rejecting argument by dissenting panel membe r); compare id . at 722 (McKay, J., dissenting). Rohde’s attempt to distinguish Koonce rests on her interpretation of a special rule for sentence enhancements based on per jury established in United States v. Dunnigan , 507 U.S. 87 (1993). In Dunnigan , the Court held that “if a defendant objects to a [§ 3C1.1] sentence enhanceme nt resulting from her trial testimony, a district court must review the evidenc e and make independent findings necessary to establish a willful impedimen t to or obstruction of justice, or an attempt to do the same, under the [standard f ederal] perjury definition.” Id. at 95. Quoting a phrase from Dunnigan , Rohde argues that its requirement of an independent finding of perjury converts a sentencin g hearing into a “surrogate for-15-

a perjury prosecution.” Id. at 97. Rohde’s argument, however, ignores the purpose and context both of Dunnigan ’s reference to a “surrogate . . . prosecution” and, more broadly, of its independent- findings rule. In requiring independent findings, the Court was de fusing the argument that a § 3C1.1 perjury enhancement unconstitutionally impairs a defendant’s right to testify. See id. at 91–92, 96–97. Dunnigan argued that perjury enh ancements burden the right to testify because they create a r isk “that courts will enhance sentences as a matter of course whenever the accuse d takes the stand and is found guilty.” See id. at 96. The Court agreed that not every accused wh o testifies and yet is convicted should incur a perjury enhancement , noting ways in which testimony may be inaccurate or unconvincing, yet no t perjurious. See id. at 95. But the independent-findings rule, the Court then e xplained, dispels the risk that every such convict will receive an automatic enhanc ement. See id. at 96–97. The rule’s purpose is thus to shield defendants in the exercise of their right to testify in their own defense. The purpose of the ban on multiple prosecutions in double jeopardy jurisprudence, on the other hand, is to shield indi viduals from any danger that the government will use its superior resources to subje ct them to the fiscal and emotional burdens of repeated trials: [T]he State with all its resources and power shouldnot be allowed to make repeated attempts to convict an individual foran alleged-16-

offense, thereby subjecting him to embarrassment, e xpense and ordeal and compelling him to live in a continuing s tate of anxiety and insecurity, as well as enhancing the possibility th at even though innocent he may be found guilty. Green v. United States , 355 U.S. 184, 187–88 (1957). A sentencing hearing at which a court considers a § 3C1.1 enhancement is obviously not a formal prosecution. Rohde, however , argues that this court should treat the hearing as a surrogate prosecution for double jeopardy purposes. Her implicit premise, therefore, is puzzling: when a sentencing court protects a defendant’s exercise of the right to testify by mak ing independent findings of perjury, it thereby subjects the defendant to the embarrassment, expense, ordea l, and compulsion referred to in Green . Even if the sentencing court’s consideration of a defendant’s perjury has some such consequences , they are not so burdensome as to require this court to treat the sentencing he aring as a de facto prosecution. The proceedings required by Dunnigan fall far short of being a full-blown collateral “prosecution.” While the Court deemed i t “preferable for a district court to address each element of the alleged perjury in a separate and clear finding,” it held that an enhancement is proper “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. The district10 A jury convicted Dunnigan of conspiring to distribute cocaine after a trial

at which six witnesses testified to her drug-traffi cking activities, and she flatly contradicted almost all of their testimony. See United States v. Dunnigan , 507 U.S. 87, 89–90 (1993). The government requested a § 3C1.1 enhancement and, after argument from both sides, the court made a br ief, almost summary finding: “The court finds that the defendant was untruthful at trial with respect to material matters in this case. The defe ndant denied her involvement when it is clear from the evidence in t he case as the jury found beyond a reasonable doubt that she was involv ed in the conspiracy alleged in the indictment, and by virtue of her failure to give truthful testimony on material matters that we re designed to substantially affect the outcome of the case, the c ourt concludes that the false testimony at trial warrants an upward adj ustment by two levels." Id. at 91 (quoting district court). The Supreme Courtheld that, “[g]iven the numerous witnesses who contradicted respondent regarding so many facts on which she could not have been mistaken, there is ample support for the District Court’s finding.” Id. at 95–96.

11 [ROHDE’S ATTORNEY]: [S]omehow [Rohde] saw the goodin [her fellow robbers Jones and Brown] and was trying to i n essence save them. I think that the Court saw what happened when Arlyne testif ied. She clearly was attempting in a last-ditch effort to save Paul Jone s because he was . . . facing life in prison under [the three-strikes-and-you’re-out p rovision], and Arlyne abandoned all notions of what’s good for her, what would be good for her children, and she could not pour gasoline on Paul’s fire. That is it. I cannot explain what happened beyond that. I think a lot o f her bad situations have arisen from loyalty to her friends, loyalty which knows no bounds. -17- court’s proceedings and findings in Dunnigan , which the Court approved, were far from extensive. 10 Similarly, the sentencing court’s proceedings in th is case were not extensive. Rohde’s counsel briefly attempted to explain the perjury, 11 inspiring an12 [ASS’T U.S. ATT’Y]: [Rohde’s attorney said] that M s. Rohde had been a

model person while under pretrial supervision. I w ould differ with that. It was less than three weeks ago when under that supervision she committed perjury. . . . [Long discussion of Rohde’s uncharged criminal cond uct] [S]he should not be given three points for acceptan ce [of] responsibility based upon the testimony that she provided during t he trial. She reneged on all aspects of responsibility for herself as it related to the carrying of the firearm and the participation of Paul Jones and I don’t think . . ., based upon that testimony, that she is entitled to the three points . . . . C learly she should receive the two points for obstruction of justice under [section] 3 C1.1 because it specifically states [that it applies to] committing, suborning o r attempting to suborn perjury.

13 THE COURT: You don’t have to answer these question s if you don’t want to because apparently you’re under indictment for perjury. What in the world went wrong here in this courtroom in the tria l of Paul Jones? You took that witness stand and surprised me. You surprised yourlawyer, I would assume. MS. ROHDE: It surprised me too. THE COURT: You surprised yourself? MS. ROHDE: I did. . . . I have seen the good in P aul Jones before we got caught up in all of this. Based on my involvement in the whole thing . . . I don’t believe that he deserves a life sentence for what h appened. It breaks my heart to see it go that way. I also have heard rumors of ba d things that happen to people that tell bad things about people in courtrooms, an d I was afraid of doing that, which is why I have never cooperated with the gover nment.

14 THE COURT: [Y]ou have only just made this significantly worse for yourself. I cannot understand for the life of me, and perhaps I am being a little too harsh and maybe I do understand it at some leve l, and I can understand a problem with snitches in prison, but I don’t unders tand quite how it comes through to being under subpoena and taking an oath and being required to tell the truth. What you are before me today, Ms. Rohde, is one thing. What you were on that witness stand three weeks ago was another. I don’t know you. I don’t know who you are. [A character reference] writes and cla ims that Arlyne Rohde is a -18- equally brief comment by the prosecution. 12 There followed a short colloquy between the court and Ms. Rohde 13 and the court’s succinct finding and comments in imposing the enhancement. 14 This court cannot equate the proceedings relatingperson of the highest integrity. I have a hard tim e squaring that with the person

who lies under oath here to me. So I have difficul ty with you, Ms. Rohde. I really feel badly for your family, for your daughte rs. [But] [w]e are punishing the crime.

. . . . I am finding that there is a two[-]point addition f or obstruction of justice for lying on that witness stand. If you didn’t lie on the witness stand that time, you lied before me when I took your plea. I am fin ished being mocked by you, Ms. Rohde. I know you feel sympathy for yourself t oday and I know you mean what you say, but you’re being punished for what yo u did, not for how you feel today. -19- to perjury, which were scattered and decidedly seco ndary in importance to the other sentencing issues argued and addressed in the hearing, to a prosecution. Rohde cites no authority to suggest that Dunnigan sentencing proceedings are frequently extensive, grueling, or otherwise compar able to a prosecution. Nor has any other court treated the sentencing proceedings and findings required by Dunnigan as a de facto prosecution for double jeopardy or any other purpo se. Beyond misconstruing Dunnigan ’s purpose, Rohde also quotes out of context the Court’s reference to the § 3C1.1 enhanc ement as a “surrogate for a perjury prosecution.” The Court used that phrase i n rejectingDunnigan’s argument that perjury enhancements serve only the i mpermissible purpose of enabling the government to incarcerate a defendant for perjury while sparing it the time and expense of a separate prosecution. See Dunnigan , 507 U.S. at 97. The Court acknowledged that an enhancement based on perjury deters perjury in the same way as a separate perjury prosecution. See id. “But the enhancement,”-20-

the Court reasoned, “is more than a mere surrogate for a perjury prosecution. It furthers legitimate sentencing goals relating to th e principal crime, including . . . retribution and incapacitation.” Id. The Court was thus discussing the purpose of a perjury enhancement, and showing that it serves to measure how to punish andincapacitate the offender for the underlying offense, not just for the perjury. To note that the enhancement has some purposes in common with a prosecution, and als o serves additional purposes, is not to say that the enhancement is a de facto prosecution. As noted, this court has rejected the argument thata sentencing court’s consideration of relevant conduct constitutes a de facto prosecution for that conduct. See Koonce , 885 F.2d at 722. The only difference that Rohde notes between a sentencing court’s consideration of relev ant conduct under § 1B1.3 and its enhancement of a sentence for perjury under § 3 C1.1 is the independentfindings requirement for perjury. Nothing in Dunnigan suggests that the Court had that requirement in mind when it referred to a § 3C1.1 enhancement for perjury as “more than a mere surrogate for a perjury prosecution.” The Court’s opinion, read as a whole, simply does not suggest t hat the independent-findings requirement converts a perjury enhancement, unlike other considerations of conduct beyond the charged offense, into a surrogat e prosecution.-21-

III. CONCLUSION The order of the district court dismissing the perj ury indictment is
REVERSED . The matter is REMANDED for further proceedings.