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United States v. Fernandez-Barron

United States Court of Appeals, Tenth Circuit

December 17, 2019


          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00360-RM-5)

          Ty Gee, Haddon, Morgan and Foreman, P.C., Denver, Colorado, for Defendant-Appellant.

          Karl L. Schock, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

          Before BACHARACH, KELLY, and CARSON, Circuit Judges.


         This case involves a drug ring that repeatedly transported large quantities of cocaine from El Paso to Denver. The government alleged that Mr. Carlos Fernandez-Barron had participated, supporting this allegation with evidence referring to two cars: a BMW and Chevrolet Impala.

         The government relied in part on a text message asking Mr. Fernandez-Barron about the timetable for delivery of a "BMW." An expert witness for the government testified that "BMW" was code for a load delivery of cocaine (rather than an actual BMW). Mr. Fernandez-Barron denied that the message referred to cocaine, testifying that he had been in the process of selling his BMW and arranging to deliver the car.

         The references to the Impala stemmed from testimony by another participant in the drug ring, Ms. Martha Mota. Ms. Mota testified that

. she had driven cocaine to two men in Kansas City and
. the two men had arrived in a car that looked like an Impala.

         She stated that one of the men was the same person depicted in a photograph of Mr. Fernandez-Barron. But Ms. Mota couldn't recognize this man in the courtroom during the trial.

         Mr. Fernandez-Barron was ultimately convicted on charges of conspiracy, distribution, and possession with intent to distribute cocaine.[1] At sentencing, the district court found that Mr. Fernandez-Barron had committed perjury when testifying that he

• had sold a BMW in May 2014 and
• did not own an Impala.

         For this finding, the district court determined that Mr. Fernandez-Barron (1) had not sold a BMW until September 2014 and (2) had owned an Impala. Based on the perjury, the court imposed a two-level enhancement for obstruction of justice.

         Mr. Fernandez-Barron appeals, challenging the enhancement for obstruction of justice. We conclude that the district court did not err in applying the enhancement.

         I. The Finding of Perjury

         The sentencing guidelines call for a two-level enhancement if the court finds obstruction of justice. U.S.S.G. § 3C1.1. This finding can be based on perjury. Id. at cmt. n.4(B); see United States v. Dunnigan, 507 U.S. 87, 94 (1993) (applying the definition of perjury in 18 U.S.C. § 1621 to review an enhancement for obstruction of justice under U.S.S.G. § 3C1.1). "To establish perjury, a district court must conclude the defendant (1) gave false testimony under oath, (2) about a material matter, and (3) the false testimony was willful and not the result of confusion, mistake or faulty memory." United States v. Rodebaugh, 798 F.3d 1281, 1300 (10th Cir. 2015) (quoting United States v. Poe, 556 F.3d 1113, 1130 (10th Cir. 2009)).

         The district court found all of these elements and imposed a two-level enhancement for obstruction of justice. Mr. Fernandez-Barron challenges the findings on willful falsity[2] and materiality, and we reject these challenges.

         II. The Standard of Review

         In assessing "the district court's interpretation and application of the Sentencing Guidelines, we review legal questions de novo and factual findings for clear error." United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011).

         III. Perjury Regarding the BMW

         The district court concluded that (1) Mr. Fernandez-Barron had willfully given false testimony about when he sold his BMW and (2) this false testimony was material. On appeal, Mr. Fernandez-Barron argues that the testimony was immaterial and apparently challenges the element of willful falsity.

         A. Materiality

         The threshold issue is the materiality of Mr. Fernandez-Barron's testimony about when he sold his BMW.

         1. The Standard for Reviewing the District Court's Conclusion on Materiality

         The element of materiality involves "a mixed question of law and fact." United States v. Gaudin, 515 U.S. 506, 512 (1995) (citation omitted). When a mixed question of law and fact primarily involves legal principles, we engage in de novo review. Littlejohn v. Royal, 875 F.3d 548, 558 n.3 (10th Cir. 2017), cert. denied, 139 S.Ct. 102 (2018).

         Mr. Fernandez-Barron argues that materiality primarily involves a legal issue, which precludes deference to the district court's decision. For the sake of argument, we assume that Mr. Fernandez-Barron is right.

         2. The Effect of the Testimony on the Government's Theory Involving the Text Message

         The standard for materiality is whether the false testimony bears "a natural tendency to influence or was capable of influencing the decision required to be made." United States v. Allen, 892 F.2d 66, 67 (10th Cir. 1989). This standard is "conspicuously low." United States v. Bedford, 446 F.3d 1320, 1326 (10th Cir. 2006) (quoting United States v. Dedeker, 961 F.2d 164, 167 (11th Cir. 1992)).

         The government's evidence against Mr. Fernandez-Barron included text messages and records of telephone calls between Mr. Fernandez- Barron and other members of the conspiracy. Many of the messages and calls corresponded with the arrival dates of cocaine deliveries. For example, shortly before one delivery of cocaine, Mr. Molina-Villalobos texted Mr. Fernandez-Barron (in Spanish): "Where do we pick up the BMW, Buddy?" R. vol. I, at 165.

29 Declarant Date Time Source
Keneth MOLINA-VILLALOBOS 5/30/2014 4:31 PM Keneth MOLINA-VILLALOBOS's cell phone (720-425-2445) (SW_00006402)
Statement; Text message from Keneth MOLINA-VILLALOBOS to Carlos FERNANDEZ-BARRON (303-720-1679): "Donde recojamos el BMW Compa" (English translation: "Where do we pick up the BMW, Buddy?")

         The government's expert witness explained that the text message constituted code to pick up a car full of cocaine-not to pick up an actual BMW. But the expert witness conceded that his explanation would be undermined if Mr. Fernandez-Barron had been conducting a transaction involving an actual BMW.[3]

         Mr. Fernandez-Barron ...

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