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D ock e t 97-3692

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. e du/thir dc ir c uit_1998/206Filed August 26, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3692

UNITED STATES OF AMERICA

v.

STEPHEN A. WILLIAMSON, Appellant

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 97-00077)

Submitted Under Third Circuit Rule 34.1(a) July 16, 1998

Before: BECKER, Chief Judge, and STAPLETON and WEIS, Circuit Judges

(Opinion Filed: August 26, 1998)

LINDA L. KELLY, ESQUIRE United States Attorney BONNIE R. SCHLUETER, ESQUIRE Assistant U.S. Attorney MARY BETH BUCHANAN, ESQUIRE Assistant U.S. Attorney Office of United States Attorney
633 United States Post Office
& Courthouse Pittsburgh, PA 15219

Attorneys for AppelleeSHELLEY STARK, ESQUIRE

Federal Public Defender KAREN S. GERLACH, ESQUIRE
Office of Federal Public Defender
960 Penn Avenue
415 Convention Tower Pittsburgh, PA 15222

Attorney for Appellant

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

This sentencing appeal presents the narrow issue whether the two-level upward adjustment for obstruc tion of justice under United States Sentencing Guideline S 3C1.1 is mandatory once the sentencing court has determined that the factual predicates for the enhancement have bee n met. The appellant, Stephen A. Williamson, contends that it is not. We hold, however, consistent with all the othe r circuits that have previously interpreted this Guideline, th at it is. Accordingly the district court's judgment imposing sentence on Williamson will be affirmed.

I. BACKGROUND

The narrow scope of Williamson's appeal renders the facts underlying his conviction and sentencing larg ely tangential to our decision, hence we need only outl ine them. Williamson was convicted of bank robbery foll owing a jury trial and was thereafter sentenced to sixty- three months imprisonment to be followed by a three-year term of supervised release. In calculating the applicabl e Sentencing Guideline range, the district court dete rmined that Williamson had perjured himself at trial -- af inding which the district court believed rendered the impo sition of a two-point offense level enhancement for obstructi on of justice mandatory. On appeal, Williamson challenges this aspect of his sentence. Notably, however, he does n ot argue that the district court erred in determining that h e committed perjury at his trial or that his perjurio us

2testimony did not amount to an attempt to obstruct justice

within the applicable guideline provision. Rather, Williamson appeals solely upon the narrow ground th at the district court erroneously believed that it was req uired to apply the obstruction of justice enhancement once i t determined on the facts that Williamson had committ ed perjury.1

II. DISCUSSION

Section 3C1.1 of the Sentencing Guidelines provides :

If the defendant willfully obstructed or imp eded, or attempted to obstruct or impede, the adminis tration of justice during the investigation, prosecutio n, or sentencing of the instant offense, increase the offense level by 2 levels.

U.S.S.G. S 3C1.1. Williamson argues that the failur e of this
Guideline to include words such as "must" or "shall " renders it ambiguous as to whether the increase in offense level must automatically follow a determination tha t the defendant has engaged in qualifying conduct. This ambiguity, he contends, requires application of the rule of lenity and thus the resolution of all doubts regard ing the Guideline's construction in his favor. We disagree, finding nothing ambiguous about U.S.S.G. S 3C1.1. Rather, t he logical structure of the Guideline ("if A, then B") clearly
commands that a definite result -- a two level incr ease in
offense level -- must follow the occurrence of a st ated conditional event -- a finding that the defendant w illfully, obstructed . . . the administration of justice. Thi s reading is supported by the language of a recent Supreme Court opinion and is shared by every circuit court of app eals that
has addressed the issue.

___________________________________________________ ______________

1. The district court had jurisdiction over this cr iminal matter under 18 U.S.C. S 3231. We exercise jurisdiction over the ap peal under 28 U.S.C.
S 1291 and 18 U.S.C. S 3742. Our review of the dist rict court's construction and interpretation of U.S.S.G. S 3C1.1 , or any sentencing guideline, is plenary. See United States v. Powell, 113 F.3d 464, 467 (3d Cir.), cert. denied, ___ U.S. #6D6D 6D#, 118 S. Ct. 454 (1997).

3In United States v. Dunnigan, 507 U.S. 87, 113 S. C t.

1111 (1993), the Supreme Court held that a defendan t's due process rights are not violated when a district court
enhances a defendant's sentence under U.S.S.G. S 3C 1.1 based on a finding that the defendant committed per jury (as opposed to other forms of obstruction of justic e) at trial. While the question whether such an enhancement, if permissible, was mandatory or discretionary was not directly before the Court, its opinion concluded by noting that "[u]pon a proper determination that the accuse d has committed perjury at trial, an enhancement of sente nce is required by the Sentencing Guidelines." 507 U.S. at 98, 113 S. Ct. at 1119 (emphasis added). In accord with thi s language, the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth circuits have all held that the ob struction of justice enhancement is mandatory once the senten cing court has determined that the factual predicates fo r the
enhancement have been met. See United States v. Tra cy, 36 F.3d 199, 201 (1st Cir. 1994) ("the obstruction of justice enhancement is mandatory under U.S.S.G. S 3C1.1 whe re the defendant willfully obstructed or attempted to obstruct the administration of justice during the prosecutio n of the case"); United States v. Hernandez, 83 F.3d 582, 58 5 (2d Cir. 1996) ("Once a court finds that obstruction of justice took place, however, the two-level enhancement is mandatory"); United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992) (noting, in the context of obstruct ion of justice enhancement, that "application of an enhanc ement to the offense level is mandatory, as opposed to discretionary, in the event the defendant engaged i n conduct that is encompassed by a guideline providin g for an enhancement"); United States v. Velgar-Vivero, 8 F.3d 236, 242 (5th Cir. 1993) ("The increase is not disc retionary. If the court finds the defendant obstructed justice , it must impose the two point increase"); United States v. M edina, 992 F.2d 573, 591 (6th Cir. 1993) (discussing obstr uction of justice enhancement and noting that "as we have explained previously, once a sentencing court makes a factual finding as to the applicability of a partic ular adjustment provision, the court has no discretion, but must increase the offense level by the amount called for in the applicable provision") (internal quotation marks an d citations omitted); United States v. Zaragoza, 123 F.3d 472, 485 (7th Cir. 1997) ("as the plain language of the Guideline reflects, the obstruction enhancement is mandated w here

4the defendant has engaged in qualifying conduct"); Hall v.

United States, 46 F.3d 855, 859 (8th Cir. 1995) ("I f Hall threatened the witness, the district court had no c hoice but to impose the sentence enhancement that the Guideli nes mandate"); United States v. Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994) (quoting language of S 3C1.1 and co ncluding "[t]his language is mandatory, not discretionary").

We join in this broad consensus interpreting the pl ain language of section 3C1.1, and accordingly hold tha t the two-level enhancement is mandatory once a district court determines that a defendant has obstructed justice.

The judgment of the district court will be affirmed

.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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