The Honorable Charles R. Wolle, Chief Judge, United States 1

District Court for the Southern District of Iowa.

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No. 95-4250

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Blanche Elizabeth Dyer, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa

United States of America, *

* [UNPUBLISHED]

Appellee. *

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 Submitted: May 24, 1996

 Filed: June 4, 1996

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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

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PER CURIAM.

Blanche Elizabeth Dyer appeals from the final judgment of the

District Court for the Southern District of Iowa denying her third 28

1

U.S.C. § 2255 motion to vacate her sentence. For the reasons discussed

below, we affirm.

Dyer was convicted of sixteen counts of drug trafficking offenses.

At sentencing, over Dyer's objection, the district court imposed a twolevel enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

based on Dyer's perjured trial testimony that her husband and another

codefendant had no knowledge of the drug transactions. The district court

found Dyer "testif[ied] both before the jury and before this Court strictly

to use testimony to her own benefit, if possible, and not to enlighten the

jury or the
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Court on what the facts are," and that she "lie[d] on the witness stand,

intentionally trying to use the opportunity to testify to mislead the

Court." The district court then sentenced Dyer to 230 months imprisonment.

Dyer appealed the obstruction-of-justice enhancement. This court,

affirming Dyer's sentence, concluded the district court's findings of

perjury were not clearly erroneous. United States v. Dyer, 910 F.2d 530,

533 (8th Cir.), cert. denied, 498 U.S. 907 (1990). This court also

affirmed the subsequent denials of Dyer's first and second section 2255

motions. Dyer v. United States, 23 F.3d 1424 (8th Cir. 1994); id., 972

F.2d 353 (8th Cir. 1992) (Table). 

In this third section 2255 motion, Dyer alleged that the district

court failed to make independent findings necessary to establish any

perjury to support the obstruction-of-justice enhancement as required by

United States v. Dunnigan, 507 U.S. 87, 95-96 (1993). The government

argued that Dyer's section 2255 motion constituted an abuse of the writ and

that the district court's findings met the requirements of Dunnigan and

Eighth Circuit precedent.

 

The district court addressed the merits and concluded that the

evidence had persuaded it beyond a reasonable doubt that Dyer testified

falsely at trial and at sentencing, that she knew when she testified that

her testimony was false, and that she knew her testimony would cause the

government more difficulty in proving her husband's guilt. Thus, because

Dyer committed perjury that obstructed justice and the enhancement under

U.S.S.G. § 3C1.1 was proper, the district court denied Dyer's motion to

vacate. 

Although Dyer's third section 2255 motion may constitute an abuse of

the writ, we address the merits because the district court
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did so. See Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994)

(per curiam).

In United States v. Dunnigan, 507 U.S. at 95, the Supreme Court

concluded that "if a defendant objects to a sentence enhancement resulting

from her trial testimony, a district court must review the evidence and

make independent findings necessary to establish a willful impediment to

or obstruction of justice, or an attempt to do the same, under the perjury

definition." See 18 U.S.C. § 1621 (perjury requires false testimony

concerning a material matter with willful intent to provide false

testimony, rather than from confusion, mistake or faulty memory). 

We conclude that the district court's findings encompassed all the

factual predicates for a perjury finding and were sufficiently specific to

support the enhancement. See United States v. Dunnigan, 507 U.S. at 93-94;

United States v. Turk, 21 F.3d 309, 313 (8th Cir. 1994) (statement judge

examined defendant's testimony and was convinced she committed perjury by

denying her involvement was sufficiently specific finding). 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.