from the United States District Court for the District of
Colorado (D.C. No. 1:15-CR-00360-RM-5)
Gee, Haddon, Morgan and Foreman, P.C., Denver, Colorado, for
L. Schock, Assistant United States Attorney (Jason R. Dunn,
United States Attorney, with him on the brief), Denver,
Colorado, for Plaintiff-Appellee.
BACHARACH, KELLY, and CARSON, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
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.
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.
references to the Impala stemmed from testimony by another
participant in the drug ring, Ms. Martha Mota. Ms. Mota
. she had driven cocaine to two men in
Kansas City and
. the two men had arrived in a car that
looked like an Impala.
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.
Fernandez-Barron was ultimately convicted on charges of
conspiracy, distribution, and possession with intent to
distribute cocaine. 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.
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.
Fernandez-Barron appeals, challenging the enhancement for
obstruction of justice. We conclude that the district court
did not err in applying the enhancement.
The Finding of Perjury
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)).
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 and materiality, and we reject these
The Standard of Review
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
Perjury Regarding the BMW
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.
threshold issue is the materiality of Mr.
Fernandez-Barron's testimony about when he sold his BMW.
The Standard for Reviewing the District Court's
Conclusion on Materiality
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).
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.
The Effect of the Testimony on the Government's Theory
Involving the Text Message
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)).
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.
Keneth MOLINA-VILLALOBOS's cell phone
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?")
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.