FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 8, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-13612

Non-Argument Calendar

________________________

D.C. Docket No. 03-00016-CR-1-DHB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RITA NZERIBE UDOM,

Defendant-Appellant.

__________________________

Appeal from the United States District Court 

for the Southern District of Georgia

_________________________

 (June 8, 2005)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

Appellant Rita Nzeribe Udom appeals her conviction and sentence for

unlawfully dispensing controlled substances, in violation of 21 U.S.C. § 841(a)(1). 
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On appeal, she challenges (1) her two-level enhancement for obstruction of justice

and (2) her sentence under the guidelines pursuant to United States v. Booker, 543

U.S. __, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

I.

Udom argues that the district court failed to make specific findings to

support an obstruction of justice enhancement, which was insufficient for

imposition of the enhancement. She asserts that she made specific objections to

each allegation of obstruction and requested that the district court make

particularized findings, which the district court failed to do. 

“This Court reviews the district court’s interpretation and application of the

sentencing guidelines de novo.” United States v. Machado, 333 F.3d 1225, 1227

(11th Cir. 2003). When reviewing the application of U.S.S.G. § 3C1.1, we have

determined

Where the district court must make a particularized assessment of the

credibility or demeanor of the defendant, we accord special deference to

the district court’s credibility determinations, and we review for clear

error. Conversely, where the defendant’s credibility or demeanor is not

at issue, and the defendant’s conduct can be clearly set forth in detailed,

non-conclusory findings, we review de novo the district court’s

application of the enhancement.

United States v. Amedeo, 370 F.3d 1305, 1318 (11th Cir. 2004) (citations and

quotations omitted). Section 3C1.1 provides that a two-level enhancement may be
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applied to the base offense level if “the defendant willfully obstructed or impeded,

or attempted to obstruct or impede, the administration of justice during the course

of the investigation, prosecution, or sentencing . . .” U.S.S.G. § 3C1.1. The

commentary to § 3C1.1 cites “committing, suborning, or attempting to suborn

perjury” and “providing materially false information to a judge or magistrate” as

examples of conduct to which the enhancement applies. See id., cmt. n.4(b), (f). 

“[T]he threshold for materiality under the commentary to § 3C1.1 is

‘conspicuously low.’” United States v. Odedina, 980 F.2d 705, 707 (11th Cir.

1993) (quoting United States v. Dedeker, 961 F.2d 164 (11th Cir. 1992)).

The Supreme Court has held 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 we have set out. When doing so, it is preferable for a district

court to address each element of the alleged perjury in a separate and

clear finding. The district court’s determination that enhancement is

required is sufficient, however, 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.

United States v. Dunnigan, 507 U.S. 87, 95, 113 S. Ct. 1111, 1117, 122 L. Ed. 2d

445 (1993) (citations omitted). “[C]ourts must not speculate concerning the

existence of a fact which would permit a more severe sentence under the
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guidelines.” United States v. Cataldo, 171 F.3d 1316, 1321 (11th Cir. 1999)

(quotation omitted).

After reviewing the record, we conclude that the district court did not err by

enhancing Udom’s sentence for obstruction of justice. While the district court

viewed the entirety of Udom’s conduct as warranting the enhancement, it

specifically pointed to her encouraging her assistant to lie to the grand jury as

sufficient conduct for the enhancement. The district court did not have to

speculate regarding Udom’s suborning or attempt to suborn the perjury, as the

government produced a tape of the relevant conversation at trial. Because the

conduct did not result from her trial testimony, it was not necessary for the district

court to make specific factual findings. Additionally, Udom’s untruthful

statements to the magistrate judge regarding her children and the conditions of her

bond were cited as the factual basis for the enhancement. The record supports the

conclusion that Udom lied to the magistrate judge. This conduct was sufficient to

impose an obstruction of justice enhancement. Therefore, the district court did not

err by enhancing Udom’s sentence for obstruction of justice. 

II.
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Udom argues that the district court plainly erred under Booker by

“calculating her sentence pursuant to the Federal Sentencing Guidelines in

violation of the Sixth Amendment.” 

A timely constitutional objection, such as one referring to the Sixth

Amendment, Apprendi or other related cases, or the right to have the jury decide

the disputed fact, or raise a challenge to the role of the judge as factfinder with

regard to sentencing, is necessary to preserve Booker error. See United States v.

Dowling, 403 F.3d 1242, 1246-47 (2005). “An appellate court may not correct an

error the defendant failed to raise in the district court unless there is: (1) error, (2)

that is plain, and (3) that affects substantial rights. If all three conditions are met,

an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1247 (citations and quotations omitted). 

Under Booker, the first two prongs are satisfied where “under a mandatory

guidelines system, [a defendant’s] sentence was enhanced as a result of findings

made by the judge that went beyond the facts admitted by the defendant or found

by the jury” and the error is plain at the time of appeal. United States v.

Rodriguez, 398 F.3d 1291, 1298-99 (11th Cir.), petition for cert. filed, No. 04-

1148 (U.S. Feb. 23, 2005) (emphasis in original). As to the third prong, “the
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defendant bears the burden of persuasion with respect to prejudice, and that he

cannot survive plain error analysis unless he can show there is a reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion by the sentencing judge in this case.” Dowling, 403

F.3d at 1247 (quotation omitted). We have generally held that absent evidence in

the record that the district court might have imposed a different sentence under the

new advisory guidelines regime, the defendant cannot satisfy the third prong. See,

e.g., id.; United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005); United

States v. Duncan, 400 F.3d 1297, 1302-04 (11th Cir. 2005).

We conclude from the record that the district court did not violate Booker

by sentencing Udom under the guidelines. Udom did not object on constitutional

grounds at sentencing, but on the factual basis, making plain error the standard of

review. Under Booker, the first two prongs of plain error are satisfied. However,

Udom failed to establish the third prong. She did not point to any evidence in the

record demonstrating “a reasonable probability of a different result if the

guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” Dowling, 403 F.3d at 1247. A review of the

sentencing transcript does not reveal any indication that the district court would
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have imposed a lower sentence had the guidelines been advisory. Therefore, the

district court did not plainly err by sentencing Udom under the guidelines. 

For the foregoing reasons, we affirm Udom’s sentence.

AFFIRMED.