FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 28, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-12820

Non-Argument Calendar

________________________

D. C. Docket No. 04-00103-CR-3-LAC

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

THONG C. TRAN, 

a.k.a. Thong Tran, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(February 28, 2006)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Thong C. Tran appeals his convictions and 60-month concurrent sentences
 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 1

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for one count of bankruptcy fraud and two counts of making a false

declaration/certificate/verification/statement under penalty of perjury in relation to

a bankruptcy proceeding, in violation of 18 U.S.C. §§ 152 and 157. On appeal,

Tran argues that the district court reversibly erred by denying Tran’s motion to

suppress his post-Miranda statement when the court failed to address explicitly 1

Tran’s argument that, before receiving Miranda warnings, he had invoked his postindictment Sixth Amendment right to counsel when he allegedly requested his

bankruptcy lawyer’s business card. Second, he argues that the evidence presented

at his suppression hearing concerning the request for his bankruptcy attorney’s

card and the court’s finding that he testified falsely was insufficient to support

court’s application of a two-level obstruction-of-justice enhancement under

U.S.S.G. § 3C1.1.

I. Invocation of the Right to Counsel

“A district court’s ruling on a motion to suppress presents mixed questions

of law and fact.” United States v. Ramirez-Chilel, 289 F.3d 744, 748-49 (11th Cir.

2002). We are “required to accept the district court’s factual findings as true

unless they are clearly erroneous, but the district court’s application of the law to

the facts is reviewed de novo.” Id. at 749 (quotation omitted). 
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“The Sixth Amendment provides that in all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defence.” Texas v. Cobb, 532 U.S. 162, 167, 121 S.Ct. 1335, 1340, 149 L.Ed.2d

321 (2001) (quotation and alteration omitted). The Supreme Court has explained

that:

The Sixth Amendment right to counsel . . . is offense specific. It

cannot be invoked once for all future prosecutions, for it does not

attach until a prosecution is commenced, that is, at or after the

initiation of adversary judicial criminal proceedings – whether by way

of formal charge, preliminary hearing, indictment, information, or

arraignment.

Id. at 167-68 (quotation and alterations omitted). The Sixth Amendment attaches

at the initiation of adversary judicial proceedings. Michigan v. Jackson, 475 U.S.

625, 631, 106 S.Ct. 1404, 1408, 89 L.Ed.2d 631 (1986). “[O]nce a criminal

defendant invokes his Sixth Amendment right to counsel, a subsequent waiver of

that right – even if voluntary, knowing, and intelligent under traditional standards –

is presumed invalid if secured pursuant to police-initiated conversation.” Michigan

v. Harvey, 494 U.S. 344, 345, 110 S.Ct. 1176, 1177, 108 L.Ed.2d 293 (1990)

(citing Jackson, 475 U.S. 625, 106 S.Ct. 1404). The district court must determine

if the accused actually invoked his right to counsel. Smith v. Illinois, 469 U.S. 91,

95, 105 S.Ct. 490, 492, 83 L.Ed.2d 488 (1984). Whether a defendant has invoked

his right to counsel is an objective inquiry. Davis v. United States, 512 U.S. 452,
4

458-59, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). 

In Davis, the petitioner was interviewed regarding his possible involvement

in a homicide. Id. at 454, 114 S.Ct. at 2353. Before being interviewed, Davis

waived his rights to remain silent and to counsel. Id. at 455, 114 S.Ct. at 2353. A

hour and a half into the interview Davis said, “Maybe I should talk to a lawyer.” 

At that point in the interview, the agents inquired as to whether the petitioner was

asking for a lawyer or was just making a comment about a lawyer. Davis replied

that he was not asking for a lawyer and that he did not want a lawyer. The

interview then continued for another hour until Davis said, “I think I want a lawyer

before I say anything else.” The interview then ceased. Id. The Supreme Court

stated that: 

if the suspect makes a reference to an attorney that is ambiguous or

equivocal in that a reasonable officer in light of the circumstances

would have understood only that the suspect might be invoking the

right to counsel, our precedents do not require the cessation of

questioning. Rather, the suspect must unambiguously request

counsel.

Id. at 459, 114 S.Ct. at 2355 (citations omitted). The Supreme Court recognized

that the requirement for a clear assertion of the right to counsel might disadvantage

suspects who because of a lack of linguistic skills would not clearly articulate their

right to counsel although they actually wanted to have a lawyer present. Id. at 460,

114 S.Ct. at 2356. Nonetheless, the Court believed requiring police officers to
 United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 2

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make difficult judgment calls about whether a suspect invoked his right to counsel

was more problematic. See id. at 461, 114 S.Ct. at 2356. 

In the instant case, the district court did not make a specific finding as to

whether Tran made his alleged request for his bankruptcy lawyer’s card and, thus,

did not explicitly address whether Tran invoked his right to counsel. Nevertheless,

remand is unnecessary because, even if Tran had made the request to retrieve his

bankruptcy lawyer’s business card, this request was too ambiguous to have

constituted an invocation of his right to counsel. See Davis, 512 U.S. at 459, 114

S.Ct. at 2355. As the Supreme Court has stated, a “suspect must unambiguously

request counsel.” Id. Here, Tran did not make an unambiguous request. 

Therefore, the district court did not err when it refused to grant Tran’s motion to

suppress. 

II. U.S.S.G. § 3C1.1

“Although Booker established a ‘reasonableness’ standard for the sentence 2

finally imposed on a defendant, the Supreme Court concluded in Booker that

district courts must still consider the Guidelines in determining a defendant’s

sentence.” United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005)
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(citations omitted). Moreover, “[n]othing in Booker suggests that a reasonableness

standard should govern review of the interpretation and application as advisory of

the Guidelines by a district court.” Id. (reaffirming that the pre-Booker standard as

to the Guidelines still applies). “Although under Booker, the Sentencing

Guidelines are an advisory rather than a mandatory regime, the district court

remains obliged to consult and take into account the Guidelines in sentencing.” Id. 

(quotations omitted)(emphasis in original). “This consultation requirement, at a

minimum, obliges the district court to calculate correctly the sentencing range

prescribed by the Guidelines.” Id. (emphasis in original). 

Where the district court has to make a particularized assessment of the

defendant’s credibility or demeanor in determining whether U.S.S.G. § 3C1.1

applies, such as when applying the obstruction-of-justice enhancement for perjury,

we accord special deference to the district court’s credibility determinations and

review for clear error. United States v. Banks, 347 F.3d 1266, 1269 (11th Cir.

2003). 

Section 3C1.1 of the Sentencing Guidelines provides as follows:

If (A) 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 of the instant offense of

the conviction, and (B) the obstructive conduct related to (i) the

defendant’s offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2 levels. 
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The commentary to this section notes that “committing, suborning, or attempting to

suborn perjury” is an example of conduct to which this enhancement applies. 

U.S.S.G. § 3C.1.1 cmt. n.4(b). The commentary also notes that “providing

materially false information to a judge or magistrate” is an example of conduct to

which this enhancement applies. Id., cmt. n.4(f). In addition, the commentary

states that “‘[m]aterial’ evidence, fact, statement, or information, as used in this

section, means evidence, fact, statement, or information that, if believed, would

tend to influence or affect the issue under determination.” Id., cmt. n.6. We have

held “that the threshold for materiality under the commentary to § 3C1.1 is

conspicuously low.” United States v. Odenina, 980 F.2d 705, 707 (11th Cir. 1993)

(quotation omitted). For this enhancement to apply on a finding of perjury, the

four elements of perjury must be present. See United States v. Singh, 291 F.3d

756, 763 (11th Cir. 2002). The four elements are “(1) the testimony must be under

oath or affirmation; (2) the testimony must be false; (3) the testimony must be

material; and (4) the testimony must be given with the willful intent to provide

false testimony and not as a result of a mistake, confusion, or faulty memory.” Id.

at 763 n.4. 

Furthermore, we have stated that “[w]hen applying this enhancement, the

district court should make specific findings as to each alleged instance of
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obstruction by identifying the materially false statements individually. However, a

general finding that an enhancement is warranted suffices if it encompasses all of

the factual predicates necessary for a perjury finding.” Singh, 291 F.3d at 763

(quotations, citations, and alterations omitted).

Also, we have established standards for whether a defendant has waived the

argument that he is entitled to particularized findings that perjury justifies an

obstruction enhancement. See United States v. Hubert, 138 F.3d 912 (11th Cir.

1998). In Hubert, the appellant’s sentence was enhanced for obstruction of justice

based upon his trial testimony and his prior testimony at two hearings. 138 F.3d at

914-15 (11th Cir. 1998). Hubert argued that the district court failed to make a

sufficiently detailed finding that he committed perjury and obstructed justice. Id.

at 915. While noting the detailed findings were not necessary given the sufficiency

of the record, we concluded that, in any event, because Hubert failed to request

particularized findings regarding the perjurious statements at the sentencing

hearing, he waived this argument. Id.

By failing to request that the court make particularized findings as to the

perjurious testimony, Tran has waived this argument. See Hubert, 138 F.3d at 915. 

Moreover, the court’s general finding that Tran had committed perjury or made

materially false statements is sufficient to support the application of the
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enhancement. See Singh, 291 F.3d at 763. First, Tran testified under oath. 

Second, the court concluded that Tran’s testimony was false. Third, Tran’s

testimony was material because it “would tend to influence or affect the issue

under determination.” U.S.S.G. § 3C1.1, cmt. n.6. Because the standard for

materiality under § 3C1.1 is “conspicuously low,” the fact that Tran’s alleged

request for his bankruptcy lawyer’s card, if believed, was insufficient to invoke his

right to counsel does not negate the materiality of his testimony because it would

tend to influence the court. See Odenina, 980 F.2d at 707. Finally, it is apparent

from the record that Tran’s testimony could not have been the result of mistake,

confusion, or faulty memory. 

Conclusion

Because Tran’s alleged request for his bankruptcy lawyer’s business card

was insufficient to invoke his right to counsel and because the court’s general

finding supports the application of the U.S.S.G. § 3C1.1 obstruction-of-justice

enhancement, we discern no reversible error. Accordingly, based on a review of

the record and the parties’ briefs, we affirm Tran’s convictions and sentence.

AFFIRMED.