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 Sta tes Attorney with him on the brief), Assistant United States Att orney, Salt Lake City, Utah, for appellee. Herschel Bullen, Salt Lake City, Utah, for appellan t.

______ Before ANDERSON, BARRETT and MURPHY , Circuit Judges.

______ BARRETT , Senior Circuit Judge.

______-2-

Mario Medina-Estrada (Medina-Estrada) appeals his s entence entered following a jury trial wherein he was foundguilty of possession of methamphetamine with intent to distri bute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
Facts On September 7, 1994, Medina-Estrada was charged wi th distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). Medina-Estrada waived pro secution by indictment and entered a plea of not guilty on Sept ember 12, 1994. Pursuant to plea negotiations, Medina-Estrada chang ed his plea to guilty on December 8, 1994. At his change of plea hearing, Medina-Estrada, unde r oath and with counsel present, pled guilty to knowingly and intentionally distributing in excess of 100 grams of methamphetam ine. (ROA, Vol. II at 8-9). As part of his guilty plea, Medina-Est rada signed a Statement in Advance of Plea of Guilty. In paragra ph 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 fact s 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. Defe ndant said he could. The CI and defendant agreed that th e 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 and1 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% pu re for sentencing purposes. (ROA, Vol. VI at 3-4). -3- said that he could get the methamphetamine that dayand invited the CI to come to his residence. DEA monit ored the meeting and observed the CI go to defendant’s residence. Prior to entry, DEA put a listening dev ice on [CI] and searched him and his vehicle. DEA agents overheard defendant make a phone call wherein defen dant asked someone to bring the stuff over. (d) Two men arrived and gave defendant a package containing what appeared to be methamphetamine to t he 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 ha lf 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 laborator y analysis, 138.9 grams (approximately 5 ounces) of 8 1% pure methamphetamine. [1] DEA agents chased defendant on foot and apprehended him. The other two men who ar rived were not apprehended and their identities are not k nown. (ROA, Supp. Vol. I, Tab 26 at 4-5) (footnote added)

. On March 2, 1995, Medina-Estrada appeared for sente ncing on his guilty plea after having been interviewed by th e probation department. Based upon a dispute regarding the ant icipated sentence and the recommendations of the presentence report, the district court allowed Medina-Estrada to withdraw h is guilty plea and permitted his counsel to withdraw. Trial was t hen set for April 20, 1995, and new counsel was appointed. At trial on April 21, 1995, Medina-Estrada testifie d that: he met Luis Sanchez (Sanchez) through a friend, Miguel , who lived in2 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 hi s arrest; he had never been involved with or sold drugs; Sanchez hadtold him he made false I.D.’s and false driver’s licenses; Sanc hez had told him that he would get a free false I.D. if he found oth ers interested in buying false I.D.’s; he had found two people whowanted false I.D.’s and made arrangement for them to come to his apartment on August 24, 1994; he had waited in another room whil e Sanchez talked to the other two men; he went outside to find Sanch ez when Sanchez signaled him to come over and get in his car with h im; he got in the car to talk to Sanchez; and he got out of the c ar when Sanchez got out and opened the trunk. (ROA, Vol. V at 116- 124). He testified that he ran from the DEA agents because h e had outstanding traffic tickets, including one for driv ing under the influence in Salt Lake City, Utah, and he was scare d. 2Id . at 124. Medina-Estrada testified that after he was apprehen ded 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 Russe ll after he was arrested regarding the drug transaction. Id . at 126-27. In rebuttal, the government presented the testimonyof Officer Sharp and Detective Russell. Officer Sharp testifi ed that he did not place any controlled substances in Medina-Estra da’s pocket.-5-

Id . at 145. Detective Russell testified that Medina- Estrada admitted the drugs were his and that he was going t o sell them to
Sanchez. Id . at 150. Following the jury trial, Medina-Estrada was found guilty of possession of methamphetamine with intent to distri bute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). On May 1, 1995, the government requested that Medina-Estrada receiv e a two level enhancement of his offense level for obstruction ofjustice pursuant to U.S.S.G. § 3C1.1 because he committed p erjury at trial. At sentencing on August 17, 1995, the district cour t 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 h e pled guilty, . . . it was under oath and convinced the C ourt that there was a factual predicate for the offense he was going to plead to. That was under oath. Then he a t trial said something 180 degrees different. And, in addition, he talked to the probation office r during the preparation of the first presentence rep ort before the withdrawal of the plea in which he again admitted having been involved in the drug deal. Soyou had one admission under oath in front of me and youhad a second one admitting to it in the context of the preparation of the pretrial sentence report and tha t was in front of a probation officer. You had a third t ime, as I recall, when he admitted it to a police office r at the scene which was put in in rebuttal testimony at the trial. And then you have his trial testimony whichwas again under oath. So I don’t have any legal questi on factually in my mind that he committed perjury.-6- Mr Bullen brought up an interesting point on whethe r it [Medina-Estrada’s statement in his plea of guilt y, later withdrawn] is excluded and I think that all t he Tenth Circuit case [United States v. Acosta-Ballard o , 8 F.3d 1532 (10th Cir. 1993)] says is that it may not be used as admissible evidence for impeachment at tria l. That is the limit of the holding of that case. It is an argument whether it extends to a finding of perjuryat sentencing like this, and if I felt bound by that c ase or by the rule of criminal procedure or the rule of ev idence . . . 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 draftingthis were trying to say. And this is in my view a crimi nal proceeding for perjury. It happens to be in the co ntext of a sentencing, but even under the guidelines, per jury is a form of obstruction of justice, and I am entit led to find it or not based on the facts which I need to f ind are by a preponderance of the evidence. And if und er these circumstances I can’t rely on the very thing that was done in front of me under oath, then I don’t se e 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 to87 months imprisonment, the bottom of the guideline range foran offense level of 28 and criminal history category II. In s entencing 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 onl y do I find perjury in my own assessment by a prepondera nce of the evidence, but I find it beyond any reasonable d oubt. And I feel very strongly that that finding needs tobe made even if it gives you an issue you feel you nee d to take up on appeal. In fact it would be probably he lpful to have some appellate guidance on that point. Tha t being as it may, if we had stayed at a level 26 andgiven my general feeling about what Mr. Medina-Estrada di d 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. An d 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 a t a level 28 and I am sentencing him to 87 months, th e bottom of the guideline range. Because under the circumstances it still is the same person still dea ling with the same drug offense and that is how I get th ere. 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 t hing and that would be to find no perjury and have no is sue on appeal, so you can feel free to take the issue up o n appeal. I don’t know if that will mean a resentenc ing because it would get us to 87 months again.
Id . at 21-23.
Issue On appeal, Medina-Estrada contends that the distric t court erred in applying a two level enhancement to his of fense 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 pre dicate for its finding of perjury and that the district court fail ed to make sufficient factual findings to substantiate its fin ding of perjury. Discussion A. Admissibility of Statements Made During Plea Negotiations Medina-Estrada contends that the district court err ed in3 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 defenda nt 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 state ment if the statement was made by the defendant under oa th, 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 guilt y, which was later withdrawn, as the factual predicate for its f inding that he committed perjury. Medina-Estrada asserts that Fed . R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) prohibit the use of adefendant’s statements made in a plea of guilty which was laterwithdrawn. He acknowledges the exception that these statements ar e admissible in a criminal proceeding for perjury but argues that s entencing is not a criminal proceeding for perjury. 3 “[W]hile we review the factual findings of the dist rict court under the clearly erroneous standard, and while we give due deference to the district court’s application of th e guidelines to the facts, when that application involves contestedissues of law, we review de novo .” United States v. Florentino , 922 F.2d 1443, 1445 (10th Cir. 1990). The interpretation of the F ederal Rules of Evidence and the Federal Rules of Criminal Procedur e 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 relie d on by the district court in support of its finding that Medin a-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) whi ch prohibit the admission of evidence relating to pleas of guilty w hich are later withdrawn in any civil or criminal proceeding. Although not cited by either party, we conclusivelydecided this issue in United States v. Ruminer , 786 F.2d 381 (10th Cir. 1986), wherein we held that Fed. R. Evid. 410 and F ed. 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 c ertain 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 t he application-10-

of the Federal Rules of Evidence (other than with r espect to privileges) at ‘sentencing.’” Id . Since Fed. R. Evid. 410 does not apply at sentencing, it cannot prohibit the sen tencing court’s consideration of evidence relating to pleas of guil ty which are later withdrawn. In considering the application of Fed. R. Crim. P. 11(e)(6), we recognized that unlike the Federal Rules of Evid ence, the Federal Rules of Criminal Procedure contain no coun terpart to Fed. R. Evid. 1101(d)(3). Id . at 386. Therefore, there appeared to be an inconsistency between the two rules. However, w e resolved this apparent inconsistency on “the specific principles governing criminal sentencing in the United States District C ourt 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 inadmissibl e for the purpose of determining guilt,” id , and that “[w]e are convinced that the prohibition of Rule 11(e)(6)(D) of the Rul es of Criminal Procedure was not intended to apply to the sentenci ng 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 meritles s. Neither rule applies to the district court at sentencing; theref ore, neither rule limits that which the district court may consi der in-11-

sentencing a defendant. “Congress has directed tha t [N]o limitation shall be placed on the information conce rning the background, character, and conduct of a person conv icted of an offense which a court of the United States may rece ive and consider for the purpose of imposing an appropriate sentence . 18 U.S.C. § 3661.” Id . at 386. Finally, we need not address Medina-Estr ada’s argument that sentencing is not a “criminal proceed ing” 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 fai led to make sufficient factual findings to substantiate its fin dings of perjury in support of its two level enhancement for obstruc tion of justice under U.S.S.G. § 3C1.1. “The district court’s appl ication 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. Urbane k , 930 F.2d 1512, 1514 (10th Cir. 1991). “In order to apply the § 3C1.1 enhancement, it is w ell-settled that a sentencing court must make a specific findin g--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 ob struction of-12-

justice must contain two components.” United State s v. Smith , 1996 WL 50181, at *2 (10th Cir. 1996). First, the finding must encompass all of the factua l predicates of perjury as required by United States v. Dunnigan , 507 U.S. 87, 94 (1993). The factual predicates of perj ury 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 aresult of confusion, mistake or faulty memory. Smith , 1996 WL 50181, at *2; Massey , 48 F.3d at 1573. Second, the finding must specif ically 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 tes timony 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 Dunniganfindings of the elements of perjury against an identified line of questions and answers without having simply to speculate on what the dist rict court might have believed was the perjurious testimony. Massey , 48 F.3d at 1574. See alsoUnited States v. Owens , 70 F.3d 1118, 1132 (10th Cir. 1995) (citing Massey ). Here the district court’s findings adequately ident ify MedinaEstrada’s perjurious trial testimony. However, the findings fail to set forth all of the requisite factual predicate s of perjury. Specifically, the district court did not find, evengenerally, 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 missingfindings of materiality and willfulness); Massey , 48 F.3d at 1573 (“[m]issing from the district court’s findings are the necessar y findings on materiality and willfulness”). Here, the district court’s finding of perjury did n ot encompasses all of the requisite factual predicates . Accordingly, the district court’s finding of perjury was clear e rror. However, the error was harmless and no remand for further fi ndings is necessary because the district court made it clear at sentencing that Medina-Estrada’s sentence would be the same re gardless of the enhancement for obstruction of justice. While sent encing MedinaEstrada to 87 months imprisonment, the bottom end o f the guideline range for an offense level of 28, the district cour t stated that if we had stayed at a level 26 and given my general feeling about what Medina-Estrada did in setting upthis drug deal and his engaging in this very unlawful exercise, I would have sentenced him to 87 months i n prison, the top end of the guidelines. And that wo uld 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 sentencingproceeding that the sentence would be the same under either of the applicable Guideline ranges, we are compelled to remand for re sentencing when we find, as we do here, that an improper offense le vel wasapplied.”). Any other result in this situation wou ld be waste of

judicial resources. Conclusion For the foregoing reasons, the sentence of the dist rict court is AFFIRMED.
AFFIRMED.