PUBLISH

______

UNITED STATES COURT OF APPEALS

Filed 4/16/96 FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) No. 95-4150

)

MARIO MEDINA-ESTRADA, )

aka Mario Estrada-Medina, )

)

Defendant-Appellant. )

______

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. No. 94-CR-140)

______

Bruce C. Lubeck (Scott M. Matheson, Jr., United States Attorney

with him on the brief), Assistant United States Attorney, Salt

Lake City, Utah, for appellee.

Herschel Bullen, Salt Lake City, Utah, for appellant.

______

Before ANDERSON, BARRETT and MURPHY, Circuit Judges.

______

BARRETT, Senior Circuit Judge.

______
-2-

Mario Medina-Estrada (Medina-Estrada) appeals his sentence

entered following a jury trial wherein he was found guilty of

possession of methamphetamine with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

Facts

On September 7, 1994, Medina-Estrada was charged with

distribution of methamphetamine in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(B). Medina-Estrada waived prosecution by

indictment and entered a plea of not guilty on September 12, 1994.

Pursuant to plea negotiations, Medina-Estrada changed his plea to

guilty on December 8, 1994. 

At his change of plea hearing, Medina-Estrada, under oath and

with counsel present, pled guilty to knowingly and intentionally

distributing in excess of 100 grams of methamphetamine. (ROA, Vol.

II at 8-9). As part of his guilty plea, Medina-Estrada signed a

Statement in Advance of Plea of Guilty. In paragraph 14 of the

statement, Medina-Estrada averred that:

14. I understand the facts below will be included

in the Presentence Report, and state that said facts are

true and correct and that such facts may be used in

determining the factual basis for the plea and in

calculating the appropriate sentence in this case:

(a) The Drug Enforcement Administration was using

the services of a confidential informant [CI] [Luis

Sanchez] who told the DEA agents he knew defendant.

(b) At the request of the DEA, the CI asked

defendant if he could obtain methamphetamine. Defendant

said he could. The CI and defendant agreed that the

price would be $9,200.00 for a pound and $4,700.00 for a

half pound of methamphetamine.

(c) On August 24, 1994, defendant called the CI and
1 After trial, Medina-Estrada had the methamphetamine

independently tested and the result was 11% pure. To avoid

unnecessary argument, the government stipulated on August 17,

1995, that the methamphetamine was less than 80% pure for

sentencing purposes. (ROA, Vol. VI at 3-4).

-3-

said that he could get the methamphetamine that day and

invited the CI to come to his residence. DEA monitored

the meeting and observed the CI go to defendant’s

residence. Prior to entry, DEA put a listening device on

[CI] and searched him and his vehicle. DEA agents

overheard defendant make a phone call wherein defendant

asked someone to bring the stuff over.

(d) Two men arrived and gave defendant a package

containing what appeared to be methamphetamine to the CI.

The CI and defendant went to the CI’s automobile

ostensibly to obtain the money to pay for he

methamphetamine, which defendant said was only a half

pound.

(e) The CI gave a signal and DEA agents arrived.

Defendant fled as the DEA agents arrived. The

methamphetamine was left in the vehicle where DEA

recovered it. It has proven to be, after laboratory

analysis, 138.9 grams (approximately 5 ounces) of 81%

pure methamphetamine.[1] DEA agents chased defendant on

foot and apprehended him. The other two men who arrived

were not apprehended and their identities are not known.

(ROA, Supp. Vol. I, Tab 26 at 4-5) (footnote added).

On March 2, 1995, Medina-Estrada appeared for sentencing on

his guilty plea after having been interviewed by the probation

department. Based upon a dispute regarding the anticipated

sentence and the recommendations of the presentence report, the

district court allowed Medina-Estrada to withdraw his guilty plea

and permitted his counsel to withdraw. Trial was then set for

April 20, 1995, and new counsel was appointed.

At trial on April 21, 1995, Medina-Estrada testified that: he

met Luis Sanchez (Sanchez) through a friend, Miguel, who lived in
2 Medina-Estrada admitted that he was in the United

States illegally at the time of his arrest. (ROA, Vol. V at

121).

-4-

the same apartment building, a week or so before his arrest; he had

never been involved with or sold drugs; Sanchez had told him he

made false I.D.’s and false driver’s licenses; Sanchez had told him

that he would get a free false I.D. if he found others interested

in buying false I.D.’s; he had found two people who wanted false

I.D.’s and made arrangement for them to come to his apartment on

August 24, 1994; he had waited in another room while Sanchez talked

to the other two men; he went outside to find Sanchez when Sanchez

signaled him to come over and get in his car with him; he got in

the car to talk to Sanchez; and he got out of the car when Sanchez

got out and opened the trunk. (ROA, Vol. V at 116-124). He

testified that he ran from the DEA agents because he had

outstanding traffic tickets, including one for driving under the

influence in Salt Lake City, Utah, and he was scared.2 Id. at 124.

Medina-Estrada testified that after he was apprehended Officer

Sharp asked another officer for drugs and forcibly put a fistful of

drugs into Medina-Estrada’s pocket. Id. at 125-26. Finally,

Medina-Estrada denied speaking with Detective Russell after he was

arrested regarding the drug transaction. Id. at 126-27.

In rebuttal, the government presented the testimony of Officer

Sharp and Detective Russell. Officer Sharp testified that he did

not place any controlled substances in Medina-Estrada’s pocket.
-5-

Id. at 145. Detective Russell testified that Medina-Estrada

admitted the drugs were his and that he was going to sell them to

Sanchez. Id. at 150.

Following the jury trial, Medina-Estrada was found guilty of

possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On May 1, 1995,

the government requested that Medina-Estrada receive a two level

enhancement of his offense level for obstruction of justice

pursuant to U.S.S.G. § 3C1.1 because he committed perjury at trial.

At sentencing on August 17, 1995, the district court found

conclusively that Medina-Estrada committed perjury and enhanced his

offense level two points from 26 to 28. In making its decision,

the district court stated:

[T]he Court finds specifically that the defendant

committed perjury and should receive two points for

having committed perjury. It is inescapable. The

defendant either committed perjury before me when he pled

guilty, . . . it was under oath and convinced the Court

that there was a factual predicate for the offense he was

going to plead to. That was under oath. Then he at

trial said something 180 degrees different.

And, in addition, he talked to the probation officer

during the preparation of the first presentence report

before the withdrawal of the plea in which he again

admitted having been involved in the drug deal. So you

had one admission under oath in front of me and you had

a second one admitting to it in the context of the

preparation of the pretrial sentence report and that was

in front of a probation officer. You had a third time,

as I recall, when he admitted it to a police officer at

the scene which was put in in rebuttal testimony at the

trial. And then you have his trial testimony which was

again under oath. So I don’t have any legal question

factually in my mind that he committed perjury.
-6-

Mr Bullen brought up an interesting point on whether

it [Medina-Estrada’s statement in his plea of guilty,

later withdrawn] is excluded and I think that all the

Tenth Circuit case [United States v. Acosta-Ballardo, 8

F.3d 1532 (10th Cir. 1993)] says is that it may not be

used as admissible evidence for impeachment at trial.

That is the limit of the holding of that case. It is an

argument whether it extends to a finding of perjury at

sentencing like this, and if I felt bound by that case or

by the rule of criminal procedure or the rule of evidence

. . . 410. Then I would clearly go with the rule, but I

am convinced that the language at the end of Rule

11(e)(6) is informative on what the people drafting this

were trying to say. And this is in my view a criminal

proceeding for perjury. It happens to be in the context

of a sentencing, but even under the guidelines, perjury

is a form of obstruction of justice, and I am entitled to

find it or not based on the facts which I need to find

are by a preponderance of the evidence. And if under

these circumstances I can’t rely on the very thing that

was done in front of me under oath, then I don’t see much

sense in the rules. So I am going to construe the rule

in a way that make sense in that way and I think it is

compatible with the language of the rule itself.

(ROA, Vol. VI at 18-19).

The district court then sentenced Medina-Estrada to 87 months

imprisonment, the bottom of the guideline range for an offense

level of 28 and criminal history category II. In sentencing

Medina-Estrada, the district court stated:

The issue we just discussed on perjury I felt duty

bound by the system to find perjury because not only do

I find perjury in my own assessment by a preponderance of

the evidence, but I find it beyond any reasonable doubt.

And I feel very strongly that that finding needs to be

made even if it gives you an issue you feel you need to

take up on appeal. In fact it would be probably helpful

to have some appellate guidance on that point. That

being as it may, if we had stayed at a level 26 and given

my general feeling about what Mr. Medina-Estrada did in

setting up this drug deal and his engaging in this very

unlawful exercise, I would have sentenced him to 87

months in prison, the top end of the guideline. And that
-7-

would be based on my assessment of his culpability and

what I feel is an appropriate amount of time.

* * *

I have found that he committed perjury and we are at

a level 28 and I am sentencing him to 87 months, the

bottom of the guideline range. Because under the

circumstances it still is the same person still dealing

with the same drug offense and that is how I get there.

I have always felt he committed perjury. And the

guidelines box us into this bureaucratic reasoning and I

am just openly admitting that seven years is about right

for this criminal activity with the perjury. That is

where I come out. So that discussion was largely

academic in terms of the practical effect on his

sentence. But I am sure not going to do the easy thing

and that would be to find no perjury and have no issue on

appeal, so you can feel free to take the issue up on

appeal. I don’t know if that will mean a resentencing

because it would get us to 87 months again.

Id. at 21-23.

Issue

On appeal, Medina-Estrada contends that the district court

erred in applying a two level enhancement to his offense level for

obstruction of justice pursuant to U.S.S.G. § 3C1.1 based on its

finding that he committed perjury. Medina-Estrada asserts that the

district court erroneously relied on his statements made in his

plea of guilty, later withdrawn, as the factual predicate for its

finding of perjury and that the district court failed to make

sufficient factual findings to substantiate its finding of perjury.

Discussion

A. Admissibility of Statements Made

During Plea Negotiations

Medina-Estrada contends that the district court erred in
3 Fed. R. Evid. 410 provides:

Rule 410. Inadmissibility of Pleas, Plea

 Discussions, and Related Statements

Except as otherwise provided in this rule,

evidence of the following is not, in any civil or

criminal proceeding, admissible against the defendant

who made the plea or was a participant in the plea

discussions:

(1) a plea of guilty which was later withdrawn;

* * *

However, such a statement is admissible . . . (ii)

in a criminal proceeding for perjury or false statement

if the statement was made by the defendant under oath, on

the record and in the presence of counsel.

Fed. R. Crim. P. 11(e)(6) is materially the same.

-8-

relying on his statements made in his plea of guilty, which was

later withdrawn, as the factual predicate for its finding that he

committed perjury. Medina-Estrada asserts that Fed. R. Evid. 410

and Fed. R. Crim. P. 11(e)(6) prohibit the use of a defendant’s

statements made in a plea of guilty which was later withdrawn. He

acknowledges the exception that these statements are admissible in

a criminal proceeding for perjury but argues that sentencing is not

a criminal proceeding for perjury.3

“[W]hile we review the factual findings of the district court

under the clearly erroneous standard, and while we give due

deference to the district court’s application of the guidelines to

the facts, when that application involves contested issues of law,

we review de novo.” United States v. Florentino, 922 F.2d 1443,

1445 (10th Cir. 1990). The interpretation of the Federal Rules of

Evidence and the Federal Rules of Criminal Procedure are issues of
-9-

law which we review de novo. United States v. Maher, 919 F.2d

1482, 1485 (10th Cir. 1990).

Here, there is no dispute that the statements relied on by the

district court in support of its finding that Medina-Estrada

committed perjury at trial were made during Medina-Estrada’s plea

of guilty which was later withdrawn. The issue is whether the

district court was permitted to rely on such statements in view of

Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) which prohibit the

admission of evidence relating to pleas of guilty which are later

withdrawn in any civil or criminal proceeding.

Although not cited by either party, we conclusively decided

this issue in United States v. Ruminer, 786 F.2d 381 (10th Cir.

1986), wherein we held that Fed. R. Evid. 410 and Fed. R. Crim. P.

11(e)(6) do not apply at sentencing. In Ruminer, the defendants

contended that, based on Fed. R. Evid. 410 and Fed. R. Crim. P.

11(e)(6), the district court erred in considering certain

statements made by them during plea discussions in setting their

sentences. Id. at 384. The government conceded that the

statements relied upon by the district court were made during plea

negotiations. Id. at 385. Therefore, the only issue, as in this

case, was whether Fed. R. Evid. 410 or Fed. R. Crim. P. 11(e)(6)

prohibited the use of those statements. 

In considering the application of Fed. R. Evid. 410, we noted

that Fed. R. Evid. 1101(d)(3) “expressly excludes the application
-10-

of the Federal Rules of Evidence (other than with respect to

privileges) at ‘sentencing.’” Id. Since Fed. R. Evid. 410 does

not apply at sentencing, it cannot prohibit the sentencing court’s

consideration of evidence relating to pleas of guilty which are

later withdrawn.

In considering the application of Fed. R. Crim. P. 11(e)(6),

we recognized that unlike the Federal Rules of Evidence, the

Federal Rules of Criminal Procedure contain no counterpart to Fed.

R. Evid. 1101(d)(3). Id. at 386. Therefore, there appeared to be

an inconsistency between the two rules. However, we resolved this

apparent inconsistency on “the specific principles governing

criminal sentencing in the United States District Court as clearly

articulated by Congress and the Supreme Court.” Id. We concluded

that “[i]t is thus permissible for a district judge to consider

information in sentencing that would be inadmissible for the

purpose of determining guilt,” id, and that “[w]e are convinced

that the prohibition of Rule 11(e)(6)(D) of the Rules of Criminal

Procedure was not intended to apply to the sentencing stage of a

trial.” Id. at 387.

Based on Ruminer, we hold that Medina-Estrada’s contentions

that Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) prohibit the

district court’s use of his statements are meritless. Neither rule

applies to the district court at sentencing; therefore, neither

rule limits that which the district court may consider in
-11-

sentencing a defendant. “Congress has directed that [N]o

limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider

for the purpose of imposing an appropriate sentence. 18 U.S.C. §

3661.” Id. at 386. Finally, we need not address Medina-Estrada’s

argument that sentencing is not a “criminal proceeding” under the

exceptions to the rules because, when the rules do not apply

neither do the exceptions.

B. Sufficiency of the Evidence

Medina-Estrada contends that the district court failed to make

sufficient factual findings to substantiate its findings of perjury

in support of its two level enhancement for obstruction of justice

under U.S.S.G. § 3C1.1. “The district court’s application of the

Sentencing Guidelines to the facts of a particular case is entitled

to due deference and its factual findings will not be reversed

unless clearly erroneous.” United States v. Urbanek, 930 F.2d

1512, 1514 (10th Cir. 1991).

“In order to apply the § 3C1.1 enhancement, it is well-settled

that a sentencing court must make a specific finding--that is, one

which is independent of the jury verdict--that the defendant has

perjured [himself].” United States v. Massey, 48 F.3d 1560, 1573

(10th Cir.), cert. denied, ___ U.S. ___ (1995). “A finding of

perjury in support of a sentence enhancement for obstruction of
-12-

justice must contain two components.” United States v. Smith, 1996

WL 50181, at *2 (10th Cir. 1996). 

First, the finding must encompass all of the factual

predicates of perjury as required by United States v. Dunnigan, 507

U.S. 87, 94 (1993). The factual predicates of perjury are that a

defendant (1) while testifying under oath or affirmation, gave

false testimony, (2) concerning a material matter, (3) with willful

intent to provide false testimony, rather than as a result of

confusion, mistake or faulty memory. Smith, 1996 WL 50181, at *2;

Massey, 48 F.3d at 1573. Second, the finding must specifically

identify the perjured testimony. Smith, 1996 WL 50181, at *2;

United States v. Arias-Santos, 39 F.3d 1070, 1077 (10th Cir. 1994),

cert. denied, ___ U.S. ___ (1995). The district court need not

recite the perjured testimony verbatim. Rather, 

[t]he district court may generally identify the testimony

at issue from his or her trial notes or memory and it is

sufficient if such testimony is merely described in

substance so that when we review the transcript we can

evaluate the Dunnigan findings of the elements of perjury

against an identified line of questions and answers

without having simply to speculate on what the district

court might have believed was the perjurious testimony.

Massey, 48 F.3d at 1574. See also United States v. Owens, 70 F.3d

1118, 1132 (10th Cir. 1995) (citing Massey).

Here the district court’s findings adequately identify MedinaEstrada’s perjurious trial testimony. However, the findings fail

to set forth all of the requisite factual predicates of perjury.

Specifically, the district court did not find, even generally, that
-13-

Medina-Estrada was untruthful about a material matter nor that he

willfully intended to provide false testimony. See Smith, 1996 WL

50181, at *3 (findings insufficient because missing findings of

materiality and willfulness); Massey, 48 F.3d at 1573 (“[m]issing

from the district court’s findings are the necessary findings on

materiality and willfulness”). 

Here, the district court’s finding of perjury did not

encompasses all of the requisite factual predicates. Accordingly,

the district court’s finding of perjury was clear error. However,

the error was harmless and no remand for further findings is

necessary because the district court made it clear at sentencing

that Medina-Estrada’s sentence would be the same regardless of the

enhancement for obstruction of justice. While sentencing MedinaEstrada to 87 months imprisonment, the bottom end of the guideline

range for an offense level of 28, the district court stated that 

if we had stayed at a level 26 and given my general

feeling about what Medina-Estrada did in setting up this

drug deal and his engaging in this very unlawful

exercise, I would have sentenced him to 87 months in

prison, the top end of the guidelines. And that would be

based on my assessment of his culpability and what I feel

is an appropriate amount of time.

(ROA, Vol. VI at 22). Cf. Urbanek, 930 F.2d at 1516 (“Unless the

district court makes it clear during the sentencing proceeding that

the sentence would be the same under either of the applicable

Guideline ranges, we are compelled to remand for resentencing when

we find, as we do here, that an improper offense level was
applied.”). Any other result in this situation would be waste of

judicial resources. 

Conclusion

For the foregoing reasons, the sentence of the district court

is AFFIRMED.

AFFIRMED.