1

The Honorable Nanette K. Laughery, United States District Judge for the

Western District of Missouri.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3399

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States 

v. * District Court for the Western 

* District of Missouri.

Alexei Pena *

*

Defendant-Appellant. *

___________

Submitted: 

 Filed: August 11, 2003 

___________

Before 

___________

MELLOY, Circuit Judge.

Defendant-Appellant Alexei Pena appeals the sentence imposed by the district

court1

 on the grounds that: (1) the district court improperly considered his nationality

in determining his sentence, (2) the district court improperly applied an obstruction

of justice enhancement, and (3) the defendant’s conviction violated double jeopardy.

We affirm the defendant’s conviction and the sentence imposed by the district court.
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I.

Pena is a Cuban national who was given asylum in the United States. On June

26, 2001, Pena was charged with conspiring to distribute cocaine in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. Pena’s first trial in December of 2001

resulted in a hung jury. At Pena’s second trial, an undercover detective and other

surveillance officers testified that Pena had engaged in face-to-face drug transactions

in a McDonald’s parking lot. Pena denied ever having been to this McDonald’s. 

The jury in the second trial found Pena guilty on four of the indictment’s five counts.

On August 22, 2002, the district court sentenced Pena to a forty-one month

term of imprisonment, which was the maximum sentence allowed by the applicable

federal sentencing range of thirty-three to forty-one months. Pena’s base offense

level was enhanced due to obstruction of justice under U.S.S.G. § 3C1.1. At the

sentencing hearing the district court stated:

I have sentenced you to the high end of the guideline. I have done so in

part because you have failed, continually failed to show any remorse for

your drug dealing and to accept any responsibility for your drug dealing,

and, instead, you have impugned the integrity of Detective Florido, who

I believed.

And as I indicated previously, I am convinced that you have lied both in

your first trial and in your second trial. You’ve been given an

opportunity to come to the United States and become a productive

citizen, but, in fact, you have repaid this courtesy by becoming a drug

dealer.
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II.

Although Pena’s sentence was the maximum allowed under the federal

Sentencing Guidelines, Pena does not contend that the sentence exceeded the

Guidelines. “A sentence imposed within the applicable guidelines range is

reviewable only if it is imposed in violation of the law or as a result of an incorrect

application of the guidelines.” United States v. Onwuemene, 933 F.2d 650, 651 (8th

Cir. 1991). Pena asserts that his sentence was improper because at sentencing the

district court mentioned Pena had “been given an opportunity to come to the United

States.” Pena contends that this statement indicates that the court considered his

national origin in determining his sentence. U.S.S.G. § 5H1.10 prohibits such a

consideration. To find that the sentence imposed was a violation of law we would

have to determine (1) that the statement is a reference to national origin, and (2) that

the statement demonstrates that national origin was considered in determining Pena’s

sentence. The record does not support such a determination. The district court’s

statement is a reference to Pena’s being given asylum in the United States. There is

no mention that Pena came from Cuba. Thus the statement is not necessarily a

reference to “national origin.” Even if the statement is deemed a reference to national

origin, however, there is insufficient evidence to show that national origin was a

factor in the sentence imposed on Pena.

Pena directs this court to Onwuemene, in which a statement of the district court

regarding national origin resulted in remand. In Onwuemene, the district court judge

stated: “The other thing that I feel that warrants imposition at the high end of the

guideline range: You are not a citizen of this country. This country was good enough

to let you come in here . . . and you repay that kindness by committing a crime like

this.” Onwuemene, 933 F.2d at 651 (emphasis supplied). This statement, unlike the

statement at issue in the instant case, expressly indicated that nationality was a factor

in sentencing. 
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The Second Circuit has stated that, “[r]eference to national origin and

naturalized status is permissible, so long as it does not become the basis for

determining the sentence.” United States v. Jacobson, 15 F.3d 19, 23 (2d Cir. 1994)

(citation omitted). In Jacobson, the district court noted at sentencing that the

defendant was given the opportunity to come to the United States from what was then

the Iron Curtain. Id. at 20. Because the court offered independent reasons for the

sentence imposed–the defendant’s intelligence and lack of remorse–the conviction

was upheld. Id. at 23. In Pena’s case, the district court explicitly stated three factors

which warranted imposing the maximum sentence. The district court stated that

Pena: (1) failed to show remorse for drug dealing; (2) failed to accept responsibility

for drug dealing; and (3) impugned the integrity of a detective. In outlining these

factors, the court made no reference to national origin. The statement regarding

Pena’s political asylum was, unlike the statement in Onwuemene, not made as part

of an explanation for the sentence imposed. Rather, it was an observation about

testimony that Pena had introduced regarding his struggle to come to the United

States. We do not find that the district court’s statement regarding political asylum

was the basis for determining Pena’s sentence.

III.

We review the imposition of a sentence enhancement for clear error. United

States v. Berndt, 86 F.3d 803, 810 (8th Cir. 1996). Pena received a sentence

enhancement for obstruction of justice based on the recommendation of the

Presentence Investigation Report (PSR). “If a defendant objects to an obstruction

enhancement based on perjury, the district court ‘must review the evidence and make

independent findings’ that the defendant willfully gave false testimony concerning

a material matter in the case.” United States v. Esparza, 291 F.3d 1052, 1055 (8th

Cir. 2002) (quoting United States v. Dunnigan, 507 U.S. 87, 95 (1993)). In response

to Pena’s objection, the district court noted its belief that Pena lied in both of his

trials. This statement was based on the district court’s own observations, rather than
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just the jury’s verdict. Furthermore, although the district court did not state the

specific elements that constituted perjury: 

[W]e have affirmed obstruction enhancements when the evidence of

willfulness was unequivocal, without an express finding of willfulness

by the district court. See United States v. Simms, 285 F.3d 1098, 1101

(8th Cir. 2002); United States v. Robinson, 217 F.3d 560, 565-66 (8th

Cir. 2000). In these cases, the district court made a general finding of

perjury without making a specific finding of willfulness. Simms, 285

F.3d at 1101 (district court found the defendant "had committed perjury

on 'some pretty critical issues' "); Robinson, 217 F.3d at 565 (district

court found the defendant's testimony "was not truthful regarding

material facts"). Although there was no explicit finding as to

willfulness, we affirmed because the record left no doubt that the

defendant's false testimony at trial was not the result of confusion,

mistake, or faulty memory. See Simms, 285 F.3d at 1101; Robinson,

217 F.3d at 565-66. 

Esparza 291 F.3d at 1055.

The nature of Pena’s testimony is unequivocal. At trial, Detective Florido

testified that Pena sold him drugs multiple times at a particular McDonald’s. In

response to cross-examination questions about Florido’s testimony, Pena denied

having ever sold drugs. He also stated under oath: “I was never there. Not with [the

co-defendant], not even by myself because I don’t think I have ever gone to that

McDonald’s.” This testimony is directly contradictory to the testimony of Detective

Florido. Because the district court said, in sentencing, that it believed the testimony

of Detective Florido, the nature of Pena’s perjury is sufficiently clear to affirm the

sentence enhancement.

Pena also argues that because his obstruction of justice resulted in a sentence
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enhancement, it is “double counting” to use that same factor when determining the

specific sentence to be imposed within the Guideline range. “Double counting occurs

when ‘one part of the Guidelines is applied to increase a defendant's punishment on

account of a kind of harm that has already been fully accounted for by application of

another part of the Guidelines.’” United States v. Hipenbecker, 115 F.3d 581, 583

(8th Cir. 1997) (quoting United States v. Alexander, 48 F.3d 1477, 1492 (9th Cir.

1995)). Considering the same factor in multiple stages of the sentencing process is

not necessarily double counting, however. See Koon v. United States, 518 U.S. 81,

96 (1996) (“If the special factor is . . . already taken into account by the applicable

Guideline, the court should depart only if the factor is present to an exceptional

degree or in some other way makes the case different from the ordinary case where

the factor is present.”); United States v. Thin Elk, 321 F.3d 704, 709 (8th Cir. 2003)

(holding that based on the circumstances of the case it was not double counting to

consider psychological injury to the victim in increasing the base level of an offense

and in granting an upward departure from the Guidelines.). It stands to reason that

because a factor can, on occasion, be considered for a second time in imposing an

upward departure, a factor can also sometimes be considered for a second time in

imposing a sentence within the Guideline range. Here, Pena’s perjury did not consist

of a simple denial of the charges. The district court found that Pena lied at two trials

and his sentencing hearings, and that his lies impugned the integrity of a detective.

Additionally, although double counting of Pena’s perjury may be justified, it

is not clear that such double counting occurred. At sentencing, the district court

stated, “I am convinced that you have lied both in your first trial and in your second

trial,” but also offered three additional reasons for imposing the maximum sentence.

See United States v. Sykes, 46 F.3d 869, 871 (8th Cir. 1995) (holding that a

consideration of the amount of money involved in a fraud case was not double

counting when the district court also referred to the deterrent effect of the sentence);

United States v. Harris, 997 F.2d 1235 (8th Cir. 1993) (finding “no simple duplication
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of reasons already used” when the district court delved into the specific nature of the

defendant’s prior conviction). These reasons were not fully accounted for by another

part of the Sentencing Guidelines. Finding no clear error, we affirm the sentence

enhancement. 

IV.

Lastly, we address Pena’s contention that his conviction at a second trial

violates the Double Jeopardy Provision of the Constitution. “If a mistrial is declared

over the objections of a criminal defendant, double jeopardy will prevent a second

trial unless the mistrial was a manifest necessity.” United State v. Ford, 17 F.3d

1100, 1102 (8th Cir. 1994). Although the record is unclear as to whether Pena

actually objected to the declaration of a mistrial, we find, assuming arguendo that an

objection was made, no error in the district court’s declaration.

Pena cites this court’s opinion in Huss v. Graves, 252 F.3d 952 (8th Cir. 2001),

which held that “[t]he prohibition of a retrial prevents the government from ‘gain[ing]

an advantage from what it learns at the first trial about the strength of the defense case

and the weaknesses of its own.’” Id. at 957 (quoting United States v. DiFrancesco,

449 U.S. 117, 128 (1980)) (second alteration in original). This “advantage” was not

the reason for Huss’ conviction being reversed and remanded, however. Huss’ first

trial was to a judge who refused to enter a verdict. In Huss, we specifically noted that

the case was “not similar to those in which a mistrial is declared when a jury is unable

to reach a verdict, a situation in which a finding of manifest necessity is almost

always justified.” Id. at 956-57 (emphasis added). Because Pena’s mistrial resulted

from a hung jury, and because there are no additional extenuating circumstances, the

second trial of Pena did not constitute double jeopardy.
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A true copy.

Attest. 

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