FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 20, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-4011 (No. 1:16-CR-00609-DB-1) (D. Utah) ALAN EDUARDO CHAVARIN,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before MORITZ, KELLY, and EID, Circuit Judges. _________________________________
Appellant Alan Eduardo Chavarin challenges the imposition of a United States
Sentencing Guidelines (“U.S.S.G.”) § 3C1.1 enhancement for obstructing the
administration of justice. The district court applied the enhancement against Chavarin for
knowingly presenting false testimony at his trial. Exercising our jurisdiction under 28
U.S.C. § 1291, we affirm the district court’s imposition of the enhancement.
I.
What began as a routine traffic stop for Chavarin in November 2016 quickly
escalated. He did not have a driver’s license—it had been recently suspended. Nor did
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. he possess the vehicle’s registration—the vehicle was rented by his girlfriend who was
out of state. Further, the officer noticed a straw lying next to a razor blade on the center
console. This immediately raised the suspicions of the officer, because razor blades and
straws are often associated with drug use.
Chavarin consented to a search of his vehicle. During the search, law enforcement
found five packages in the vehicle’s spare tire. Testing revealed that the packages
contained 8.4 pounds of heroin.
In a post-Miranda interview at the field office, Chavarin first said he was driving
to Cheyenne to visit a girl. He admitted that he swallowed heroin after the officer
stopped him. But he denied knowing about the existence of any other drugs in the
vehicle. After learning he would be booked into jail, Chavarin’s demeanor conveyed to
law enforcement that “he wanted a deal to try and get himself out of the situation he was
in.” ROA Vol. I at 417.
Chavarin and officers began to discuss “different options.” Id. at 381. It was at
this point that Chavarin recanted his previous story. No longer was he headed to
Cheyenne to see a girl; rather, Chavarin confessed he was traveling to Kansas City to
deliver drugs. He told officers “he was working for an organization” that he had
purchased heroin from in the past. Id. at 380. Chavarin stated that he was only
delivering these drugs to “square up his debt with them.” Id. at 387.
During these discussions, Chavarin expressed concern about what would happen
to him if he cooperated with police and then became incarcerated. Id. at 417–18. But at
2 no time did Chavarin ever tell law enforcement that he ever felt threatened or coerced
into transporting these drugs. See id. at 383, 387, 422.
A deal never materialized for Chavarin. The government charged him with one
count of possessing heroin with the intent to distribute, a violation of 21 U.S.C.
§ 841(a)(1) and punishable under 21 U.S.C. § 841(b)(1)(A). Id. at 15–16.
At trial, there was no question about whether or not Chavarin committed the
offense. The focus was on what motivated him to transport the drugs. Chavarin’s sole
defense was duress. See Aplt. Br. at 2–4. He explained that he had been addicted to
heroin from a young age. See ROA Vol. III at 9. This addiction led to him becoming
indebted to various drug dealers. Before long, Chavarin testified he became involved
with the violent Sinaloa cartel.
After spending approximately nine months incarcerated for drug trafficking,
Chavarin stated that he became clean and was released. But within less than a year,
Chavarin began using heroin once again. He quickly ran up a debt with the cartel, and he
testified that he began to receive threats related to the debt. Id. at 16. Chavarin told the
jury that he received menacing phone calls from the cartel and saw mysterious cars
parked in front of his house. Id. The threats were not limited to Chavarin: a man named
Chewy, a member of the cartel, allegedly threatened Chavarin’s family. ROA Vol. I at
344. And then someone ransacked his home. ROA Vol. III at 20. Ultimately, the cartel
directly threatened Chavarin by telling him that they would kill him and his family unless
he transported drugs for the organization. Id. at 17–18. Only as a last resort—and
3 because he was under threat—Chavarin testified that he agreed to perform the drug run
that led to his arrest. Id. at 21–23, 27.
On cross-examination, Chavarin admitted that he never told the arresting officers
that he had ever been threatened by the cartel. Id. at 27–32. Chavarin was unable to give
specifics about any of the alleged threats against him or his family. For example, he
stated that his cartel contact’s real name was Jesus Gonzales (which the government
argued was a suspiciously “generic name”). Id. at 35, 85. He could not remember where
he was when the cartel threatened him other than that he was “in the street.” Id. at 38–39.
Chavarin testified that the threat to his family was made “a month” before his arrest but
did not give a more specific date. Id. at 38. In closing, the government pointed out the
utter lack of details in Chavarin’s testimony and argued that his duress defense was not
credible. Id. at 85. The jury rejected his duress defense and convicted him on the one
count. ROA Vol. I at 210.
At sentencing, the district court applied a two-level obstruction of justice
enhancement under U.S.S.G. § 3C1.1. The district court stated that the “obstruction of
justice is appropriately added based on the defendant’s defense, which I find was
unfounded in fact and law.” ROA Vol. III at 121. The district court opined at length that
Chavarin’s defense was false—stating among other things, that the defense was “bogus,”
a “false defense,” and a “charade.” Id. at 123–25. The district court concluded that “Mr.
Chavarin took that witness stand and actually committed perjury.” Id. at 123. Based on
those findings, the court applied the obstruction of justice enhancement. Chavarin was
4 sentenced to 188 months’ imprisonment—the bottom of the advisory Guidelines range.
Id. at 125.
II.
A district court’s legal interpretation of the Sentencing Guidelines is typically
reviewed de novo, and its factual findings are reviewed for clear error. United States v.
Sarracino, 340 F.3d 1148, 1172 (10th Cir. 2003) (citations omitted). On appeal,
Chavarin argues the district court failed to make the findings underlying the obstruction
enhancement with sufficient specificity. But at sentencing, he never objected to the
court’s allegedly inadequate explanation; rather, Chavarin only argued that “there was no
evidence . . . that clearly rebuts the testimony of Mr. Chavarin about his duress and
coercion.” ROA Vol. III at 113. To that end, Chavarin simply requested that the district
court “not [] impose the two-level increase” for obstruction of justice. Id.
Thus, we review his procedural challenge to the adequacy of the district court’s
findings only for plain error. See United States v. Gantt, 679 F.3d 1240, 1246–47 (10th
Cir. 2012) (conducting plain error review concerning a claim of inadequate explanation
because defendant failed to notify the district court that its explanation was deficient—
thereby depriving the district court of the ability to cure any error); see also United States
v. Flonnory, 630 F.3d 1280, 1288 (10th Cir. 2011) (reviewing for plain error the
defendant’s argument as to the adequacy of district court’s perjury findings when the
defendant did not object on that ground at the trial level).
To prevail under the plain error standard, Chavarin must demonstrate: (1) error (2)
that is plain, which (3) affects substantial rights, and which (4) seriously affects the
5 fairness, integrity, or public reputation of judicial proceedings. See Gantt, 679 F.3d at
1246 (quoting another source).
III.
The sole issue before us is the propriety of the enhancement for obstruction of
justice. U.S.S.G. § 3C1.1 sets forth in broad language the enhancement’s scope:
“If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.”
U.S.S.G. § 3C1.1. The commentary to § 3C1.1 lists many examples of covered
conduct—one of which is when a defendant commits perjury. Id. cmt. 4(b).
In United States v. Dunnigan, the Supreme Court outlined the requirements for
imposing a § 3C1.1 perjury enhancement. 507 U.S. 87 (1993). It said that district courts
“must review the evidence and make independent findings necessary to establish a willful
impediment to or obstruction of justice, or an attempt to do the same, under the perjury
definition.” Id. at 95. “[I]t is preferable,” the Court added, “for a district court to address
each element of the alleged perjury in a separate and clear finding.” Id. But it is also
sufficient if the finding simply “encompasses all of the factual predicates for a finding of
perjury.” Id.
Aside from this guidance, our circuit “further requires that the district court be
explicit about which representations by the defendant constitute[] perjury.” Flonnory,
630 F.3d at 1287 (citing United States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir.
2003)). But consistent with Dunnigan, a district court need not “recite the false
6 statements verbatim.” Id. (quoting another source). And yet this examination must still
“generally identify the testimony at issue so that when we review the transcript we can
evaluate the Dunnigan findings of the elements of perjury . . . without having simply to
speculate on what the district court might have believed was the perjurious testimony.”
Hawthorne, 316 F.3d at 1146 (ellipses and internal quotation marks omitted).
On review, we are aware district courts must be afforded adequate discretion in
their fact-finding capacity. After all, district courts hold an advantage in fact-finding
where, as here, the sentencing enhancement is based upon trial proceedings they have
personally observed. See Gall v. United States, 552 U.S. 38, 51–52 (2007). But these
advantages do not relieve district courts of their obligation to find the facts necessary for
meaningful appellate review. When the obstruction of justice enhancement is based on a
defendant’s alleged perjury, the district court’s findings should encompass the factual
predicates of perjury—namely that the defendant: (1) gave false testimony under oath; (2)
concerning a material matter; (3) with the willful intent to provide false testimony. See
Hawthorne, 316 F.3d at 1146 (citing Dunnigan, 507 U.S. at 94).
IV.
Chavarin raises two concerns with his enhancement for obstruction of justice.
First, he contends the district court failed to specifically identify his allegedly perjurious
statements. And Chavarin argues the court erred “because it never discussed the
elements of perjury.” Aplt. Br. at 5.
7 A. Identification of the Perjurious Testimony
Chavarin is correct that we require the district court to identify the part of the
testimony that is perjurious. But here, there was no error because there is no need for us
“to speculate on what the district court might have believed was the perjurious
testimony.” Hawthorne, 316 F.3d at 1146 (quoting another source) (internal quotation
marks omitted).
Contrary to Chavarin’s claim, the district court repeatedly identified what it
believed to be perjurious during his sentencing. Among other statements, the district
court made the following findings as to Chavarin’s perjury:
“I find that obstruction of justice is appropriately added based on the defendant’s defense, which I find was unfounded in fact and in law . . . the defendant’s coercion and duress defense [is] wholly unsupported by facts . . . [Chavarin] chose to go to trial and present an absolutely uncorroborated defense . . . [t]he entire defense was bogus and it was a false defense . . . . The facts [Chavarin] gave in support of his feeling coerced were as weak as they could be.”
ROA Vol. III at 121–24 (emphases added).
Compare these statements to a case in which we found the district court was
specific enough. In Hawthorne, the district court “observed only that Defendant lied in
[his] testimony at the suppression hearing about the voluntariness of the statements that
[he] made to the officers.” 316 F.3d at 1147 (alterations in original) (internal quotation
marks omitted). What complicated our review was that “the central issue for resolution
at the suppression hearing was whether Defendant’s confession was voluntary” and so the
district court’s statement “could have been referring to almost any part of Defendant’s
testimony.” Id. Even so, we looked to the context of the district court’s statements and
8 concluded that it was clearly referencing only one part of the defendant’s testimony: the
“voluntariness” about requesting an attorney. Id. The district court’s statements in our
case are more specific than that of the district court in Hawthorne.
Now compare these statements to a case in which we found the district court
lacked sufficient specificity in identifying the perjurious testimony. In United States v.
Massey, 48 F.3d 1560 (10th Cir. 1995), the district court’s finding was:
“The testimony wasn’t reconcilable with the jury verdict; that is, necessarily the jury had to find that the testimony was false in order to convict Mrs. Wilkins. I accept that finding. It’s my personal finding in the case that the testimony was false, and consequently the objection is overruled.”
Id. at 1574. To describe the court’s commentary in Massey is to distinguish it from
Chavarin’s case.
We find the district court was unequivocal in identifying that its perjury finding
encompassed the entirety of Chavarin’s duress defense. As such, there was no need for
the court to dissect apart Chavarin’s testimony and then delineate which statements
constituted perjury—the whole defense was perjurious. This was not a case where
Chavarin offered multiple defenses. Nor was this a case where there were complicated
layers to his duress defense. Rather, Chavarin argues that because of debts he owed to a
violent drug cartel, members of the organization threatened his life and those of his loved
ones unless he transported drugs for the cartel. See Aplt. Br. at 3–4; see also ROA Vol.
III at 125. Thus duress—and nothing else—forced his actions.
In his reply brief, Chavarin contends that characterizing all of his duress defense
as perjurious must fail—otherwise, none of the statements he made at trial would escape
9 this allegedly overbroad categorization. See Reply Br. at 4. But this simply misses the
mark. For example, at trial, Chavarin provided background information about his name,
his age, and where he grew up. He testified he became addicted to heroin at a young age.
Aplt. Br. at 2. Chavarin noted that after his first incarceration, he lived with his fiancée’s
family, including her parents and two siblings. Id. at 3. None of these statements falls
within the category of Chavarin’s duress defense. And there is no reason to believe any
of these biographical facts are false.
Even if there was any doubt as to what the district court was referring to when it
discussed Chavarin’s defense, the district court cited to specifics that it found perjurious.
The district court noted that Chavarin failed to specify any “dates and places,” referring
to his inability to discuss when or where any of the supposed threats occurred. ROA Vol.
III at 123. And when Chavarin attempted to offer specifics concerning his defense, the
district court found them lacking in detail and uncorroborated. See, e.g., id. at 124 (“The
facts he gave in support of his feeling coerced were as weak as they could be, some
mysterious car . . . in front of his house.”). Then towards the end of its soliloquy, the
district court summed up its finding:
“Here we had a person who in trial was attempting to get the jury to believe that he was coerced because his family’s life was in danger and his girlfriend’s life was in danger . . . . Yet in trial he is willing to tell about them and it made no sense to me then . . . . To me the whole thing was a charade.”
10 Id. at 125 (emphasis added). These comments—which all refer to aspects of Chavarin’s
duress defense—make abundantly clear that the district court’s obstruction enhancement
was based on Chavarin’s testimony that the cartel forced him to transport drugs. 1
“[H]ighly specific findings may not be possible in every case.” United States v.
Denetclaw, 96 F.3d 454, 459 (10th Cir. 1996) (quoting United States v. Owens, 70 F.3d
1118, 1132 (10th Cir. 1995)). Here, the district court pointed to particulars of the
testimony it found perjurious—but it would have sufficed had the court merely identified
the “substance” of Chavarin’s testimony that was perjurious. See Massey, 48 F.3d at
1574 (“The district court may generally identify the testimony at issue . . . and it is
sufficient if such testimony is merely described in substance.”). The district court met
this minimum requirement.
The requirement for particularity exists so that we can fulfill our appellate
responsibility of reviewing whether the record supports findings of falsity, materiality
and willful intent. See id. There was no confusion about what the district court
considered perjurious. As a result, our review was devoid of speculation. We find no
error—let alone plain error.
1 It also noted that Chavarin provided only “one first name” of the cartel member who allegedly threatened him. ROA Vol. III at 123. The district court seems to have misremembered Chavarin’s testimony, as Chavarin provided both a first and last name. See id. at 35. On appeal, Chavarin does not challenge this mistake. Regardless, in light of the specifics the district court identified as perjurious, this error is harmless. 11 B. Elements of Perjury
Chavarin’s second argument is the district court erred by failing to find that his
trial testimony satisfied the elements of perjury. See Aplt. Br. at 5–6. But “[o]nce the
perjurious testimony is identified, Dunnigan then permits fairly conclusory findings that
such testimony was false, material, and given with intent to commit perjury.” Massey, 48
F.3d at 1574. Under the facts and circumstances here, we find no error in the district
court’s imposition of the enhancement.
As previously recounted, the court repeatedly stated it believed Chavarin provided
false testimony under oath—the first element of perjury. In fact, the district court noted
Chavarin “was not even a good liar.” ROA Vol. III at 124 (emphasis added). And the
court characterized his whole duress defense “a charade,” id. at 125, one “inconsistent
and lacking in detail,” id. at 122.
In response, Chavarin contends the district court’s statements labeling his defense
as “uncorroborated,” “weak,” and “unsupported by facts,” do not amount to a finding of
perjury. See Reply Br. at 10. But it is clear from the sentencing transcript that the district
judge cited the lack of corroboration as evidence supporting its conclusion that
Chavarin’s testimony was false. For example, the district court observed that “[n]othing
[about the defense] was corroborated.” ROA Vol. III at 123. To that end, the court
fixated on Chavarin’s inability to give details about names, dates, or places relating to the
cartel’s alleged threats on his life. See id. Aggregated together, the lack of specifics
helped the district court reach its conclusion that Chavarin’s “entire defense was bogus
and it was a false defense.” Id.
12 The third element, willful intent, is clearly found when the district court stated at
the sentencing hearing that, “[Chavarin] chose to go to trial and present an absolutely
uncorroborated defense.” Id. But if that was not sufficient, the court added Chavarin
“took that witness stand and actually committed perjury.” Id. And the district court
concluded Chavarin made a “bad choice” in relaying this false narrative. Id. at 124
(emphasis added).
These statements are more than sufficient for a finding of willfulness. Even in the
most charitable reading of the record for Chavarin, there is an absence of evidence that he
was confused, mistaken or suffering from a faulty memory at the time of trial. As such,
these statements support a reasonable inference that the district court found Chavarin’s
testimony to be willfully false. See, e.g., United States v. Webster, 373 F. App’x 867,
871 (10th Cir. 2010) (unpublished) (upholding the district court’s obstruction of justice
enhancement although the district court failed to make a particularized finding that
defendant’s false statements were willful because there was no evidence defendant’s
testimony was the result of confusion, mistake or faulty memory); see also United States
v. Dazey, 242 F. App’x 563, 571 (10th Cir. 2007) (unpublished) (holding that willfulness
finding was sufficient when district court stated defendant “tried to deceive the court”).
It is true that, as Chavarin points out, the district court did not explicitly identify
the second element of perjury: materiality. Yet Chavarin fails on the third prong of plain
error review. “For an error to affect substantial rights, Defendant bears the burden of
showing a reasonable probability that, but for the error claimed, the result of the
proceeding would have been different.” United States v. Paup, 933 F.3d 1226, 1235
13 (10th Cir. 2019) (quoting United States v. Cook, 550 F.3d 1292, 1298 (10th Cir. 2008)).
Chavarin fails to establish he was prejudiced by any inadequacy in the district court’s
explanation concerning the materiality of his perjurious statements.
Given the lack of facts corroborating any aspect of Chavarin’s duress defense, a
remand requiring the district court to more explicitly state the obvious would change
nothing. See Flonnory, 630 F.3d at 1288 (concluding that defendant did not demonstrate
that the district court’s failure to make specific findings affected his substantial rights
because “it would be surprising if his sentence would be any different if we reversed and
remanded for resentencing”) (citing another source). Because the alleged defect in the
district court’s fact-finding did not affect Chavarin’s substantial rights, any error was
harmless.
Although we rule on the basis that the materiality argument fails on the third prong
of plain error, we also would find no error. This court urges district courts to make detailed
findings concerning each required element supporting an obstruction of justice
enhancement based on perjury, but the context of the district court’s statements may be
taken into account during our review. See Hawthorne, 316 F.3d at 1146. And the context
of the district court’s statements cures any deficiency here. During his opening statement
at trial, Chavarin admitted “this is not a case of who did it or how it was done.” Aple. Br.
at 6. The issue was “why he did it.” Id. Whether or not Chavarin was actually coerced
into trafficking these drugs bears directly on the reasons behind why Chavarin committed
this offense. See U.S.S.G. § 3C1.1 cmt. n.6 (stating that any information “that, if believed,
14 would tend to influence or affect the issue under determination” is “material.”). The false
statements are plainly material.
V.
We recognize that “[a]n automatic finding of untruthfulness, based on the verdict
alone, would impinge upon the constitutional right to testify on one’s own behalf.”
United States v. Markum, 4 F.3d 891, 897 (10th Cir. 1993) (citing another source). We
are confident that did not occur here. Chavarin claimed he had no choice but to transport
drugs, lest he endanger himself and his family. Independent of the jury verdict, the
district court made findings where it emphasized it strongly believed Chavarin
consciously gave false testimony concerning his duress defense. The district court
properly applied the enhancement to safeguard the integrity of its proceedings.
Accordingly, we AFFIRM the judgment of the district court.
Entered for the Court
Allison H. Eid Circuit Judge