United States v. Colette Joe Bernaugh

969 F.2d 858, 1992 U.S. App. LEXIS 14439, 1992 WL 140567
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 24, 1992
Docket91-6127
StatusPublished
Cited by73 cases

This text of 969 F.2d 858 (United States v. Colette Joe Bernaugh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Colette Joe Bernaugh, 969 F.2d 858, 1992 U.S. App. LEXIS 14439, 1992 WL 140567 (10th Cir. 1992).

Opinion

*860 STEPHEN H. ANDERSON, Circuit Judge.

Colette Joe Bernaugh (“Bernaugh”) appeals from the sentence entered by the district court pursuant to the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) after he pled guilty to possession of approximately 300 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), to conspiring to do the same, in violation of 21 U.S.C. § 846, and to violating 18 U.S.C. § 1952(a)(3). He contends that the district court erred by: (1) adding two points to his offense level under U.S.S.G. § 3C1.1, for obstructing the administration of justice; (2) adding four points to his offense level under U.S.S.G. § 3Bl.l(a), for his aggravating role in the offense; and (3) miscalculating his base offense level under U.S.S.G. §§ 2Dl.l(a)(3) and 1B1.3. Bernaugh also complains that there was not a sufficient factual basis to support his guilty plea to a violation of 18 U.S.C. § 1952. We affirm.

The facts of this case are set out in full in our companion case of United States v. Richard, 969 F.2d 849. In brief, Bernaugh and six eodefendants were arrested for their participation in a “reverse buy” of approximately 300 pounds of marijuana. This sting operation was conducted by the Oklahoma City Police Department. Four of Bernaugh’s codefendants, Richard, Henley, Boyd, and Russell, proceeded to trial while Bernaugh chose to plead guilty on the eve of trial.

A. OBSTRUCTION OF JUSTICE

The district court enhanced Bernaugh’s offense level by two points for obstructing justice, see U.S.S.G. § 3C1.1, after it found that Bernaugh had provided materially false information at his guilty plea hearing with respect to the roles of his codefendants Richard, Henley, Boyd, and Russell.

The hearing on Bernaugh’s guilty plea was conducted in open court, in the presence of Bernaugh’s codefendants who were proceeding to trial. Bernaugh was placed under oath, and the following exchange occurred:

THE COURT: You understand this is a serious proceeding, that the proceeding here today could affect your sentencing, the type of sentence you receive in this matter and as a result any statement you make here today if you were to make false statements could also subject you to additional prosecution for perjury or false statements. Do you understand all of those things?
DEFENDANT BERNAUGH: Yes, Your Honor, I do understand.
THE COURT: You understand if you try to protect anyone or hide information from the Court or conceal anything, that might affect the sentence that I ultimately decide to give you?
DEFENDANT BERNAUGH: Yes, I do, Your Honor.
THE COURT: Well, let me just tell you, I’m going to ask him all the questions that I think are pertinent under the factual basis. You can explain whatever you want but eventually I’m going to have to hear it from Mr. Bernaugh because it’s his factual basis that in my view governs.
MR. COX: Certainly. I understand that, Your Honor. I want the Court to understand that as stated in the Petition to Enter a Plea, Mr. Bernaugh is prepared and willing to enter a plea of guilty to conspiring with Mr. Wells, Mr. Guyton and Mr. Lewis to possess marijuana with intent to distribute.
THE COURT: Well, I understand that. Are you suggesting that I should not ask him questions about any of these remaining defendants?
MR. COX: Certainly the Court can. I want to let the Court know what we’re doing.
THE COURT: It may be that I’ll ultimately find that with respect to this charge that there is a factual basis only for a conspiracy with respect to Wells, Guyton and Lewis but I’ll tell you I intend to ask him about the charge in the indictment which accuses him of engaging in a conspiracy with all these folks *861 and we need to have that understanding up front.
MR. COX: I understand.
THE COURT: It may be that he doesn’t know about some of these other people but I’m going to listen to all the evidence in the case and it will be something I can take into consideration at the time of sentencing and something I need to consider in connection with making any findings.

R.Vol. VIII at 2-5.

Thereafter, the court quizzed Bernaugh in detail about his codefendants, and Ber-naugh — as the court later found — extensively perjured himself regarding their participation. Essentially, Bernaugh testified that he invited the codefendants to accompany him under the guise of a party and that he never mentioned that a marijuana transaction would take place.

At Bernaugh’s sentencing hearing two months later, and after his codefendants had been convicted at trial, the district court stated:

The Court further notes that the guideline in question provides a nonexhaustive list for obstruction factors. That nonex-haustive list includes but again is not limited to providing materially false information to a judge. Here I recall in great detail the explanation that Mr. Ber-naugh gave at the guilty plea proceeding concerning his role in the offense, how the other individuals who proceeded to trial came to join him on this trip, what they knew, what they did not know, and the Court also recalls, the admonition that it gave to Mr. Bernaugh at the time of the guilty plea proceeding, namely that we needed the truth, the whole truth and nothing but the truth concerning his participation in the offense and, further, I recall in detail observing carefully his demeanor at the time he gave answers to my questions. His testimony simply did not ring true. Not only was it flatly contradicted by the evidence that I heard at trial as presented by the government but also I noted that the defendant Ber-naugh in my judgment was doing exactly what I cautioned him not to do and that is attempting to protect others who may be proceeding to trial and not wanting to get on the perhaps bad side of those folks. It was clear to me that he was doing everything he could to cover or protect friends and colleagues in the face of really overwhelming evidence of knowledge with respect to several of those individuals.

R.Vol. IX at 70-71.

The only objection lodged by Bernaugh to the imposition of the obstruction of justice enhancement was factual. His counsel argued that Bernaugh’s testimony was truthful. Id. at 68-69.

In reviewing an application of the Guidelines, we will reverse the district court’s factual findings only if clearly erroneous. 18 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
969 F.2d 858, 1992 U.S. App. LEXIS 14439, 1992 WL 140567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-colette-joe-bernaugh-ca10-1992.