United States v. Eugene Onojaife Ogbeifun, A/K/A Charles Patrick Clemon, A/K/A Charles Patrick Clemons

949 F.2d 1013, 1991 U.S. App. LEXIS 27946, 1991 WL 245171

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 25, 1991
• Docket: 91-1775
• Status: Published

Opinions

BOWMAN, Circuit Judge.

Eugene Onojaife Ogbeifun appeals from his convictions and his resulting sentence on two counts of making false statements on an application for a United States passport, 18 U.S.C. § 1542, and two counts of making a false claim of citizenship on an employment application, 18 U.S.C. § 911. He argues that the District Court erred in (1) rejecting his challenge to the government’s use of one of its peremptory strikes against a black venireperson; and (2) enhancing his offense level by two points for obstruction of justice. United States Sentencing Commission, Guidelines Manual, § 3C1.1 (Nov.1990).

Having considered the briefs and the record on appeal, we are satisfied the District Court’s finding that the government had nonracial grounds for striking the black venireperson in question is not clearly erroneous.

Similarly, we are persuaded that the two-point enhancement for obstruction of justice was based on the District Court’s explicit finding that Ogbeifun committed perjury in his trial testimony and that that finding is not clearly erroneous. Specifically, the District Court, at Ogbeifun’s sentencing, commented that “I sat through this trial as the Judge, and I have seldom, if ever, heard more perjury coming from the witness stand from a defendant than I heard from this defendant. And consequently, I believe that clearly he perjured himself.” (Tr. p. 4.) Thus the two-level enhancement for obstruction of justice was not based merely on Ogbeifun’s failure to convince the jury of his innocence, but instead was based on the experienced trial judge’s express finding, based on the judge’s personal observations, that Ogbei-fun had lied to the jury. In light of this clear-cut finding of perjury, we believe the concerns expressed in the concurring opinion are without compelling force in this case. For the same reason, we believe this case does not merit en banc consideration. To the extent that United States v. Dunnigan, 944 F.2d 178 (4th Cir.1991), would disallow the two-level enhancement for obstruction of justice even where, as here, there is a strong finding of perjury based on the trial judge’s independent evaluation of the defendant’s testimony, we disagree with that decision of our sister circuit. Moreover, we believe the established law of our circuit as set forth in United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.1991), reflects the better view. In Willis, as here, we upheld an upward adjustment for obstruction of justice where the trial court determined the defendant had lied during trial.

Finally, we are convinced that any view other than the view taken in Willis and in the present case is foreclosed by the decision of the Supreme Court in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (holding that a sentencing judge, in setting an appropriate sentence within statutory limits, may consider the defendant’s false testimony observed by the judge during trial). We reject the notion, expressed in the concurring opinion in this case and in Dunnigan, that the Grayson analysis does not apply to guidelines sentencing.

The convictions and sentence are AFFIRMED.