USCA1 Opinion

June 29, 1995

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1119

UNITED STATES,

Appellee,

v.

ROBYN L. ANDERSON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

___________________

____________________

Before

Cyr, Boudin and Lynch,

Circuit Judges.
______________

____________________

Robert M. Napolitano, on brief for appellant.

____________________
Jay P.

McCloskey, United States

Attorney, and Michael M. DuBo

_________________
Assistant United

_______________

States Attorney,

on Motion For

for appellee.

____________________

____________________

Summary Disposit

-2-

Per Curiam.
___________

convicted

She appeals

level

of wire fraud,

challenge

pursuant

of justice.

the

committed perjury in

argues that the

In

district

Robyn

bank fraud and

only from one aspect

enhancement,

obstruction

Defendant

to

U.S.S.G.

for

defendant does

not

trial.

that

she

Rather,

she

district court made insufficiently

factual findings as to

a two-

3C1.1,

determination

testifying at the

was

credit card fraud.

of her sentence --

so doing,

court's

Anderson

each element of a perjury

specific

violation.

Thus,

she

concludes, the

matter

must be

remanded

so the

district court may make the requisite findings.

Once a district court determines that a defendant's

testimony constitutes

enhancement in

States v.
______

witness

who testifies

F.2d

under

of

783, 788

level.

oath commits

United
______

1991).

perjury "if

false testimony, rather than as

confusion, mistake

or faulty

she

matter with the

memory."

States v. Dunnigan, 113 S.Ct. 1111, 1116 (1993).

______
________

whether

a two-level

(1st Cir.

testimony concerning a material

willful intent to provide

result

3C1.1 mandates

that defendant's base offense

Austin, 948
______

gives false

perjury,

United
______

In deciding

a defendant's BOL should be enhanced on the basis of

perjury, the district court must

make "independent findings"

that "encompass[] all of the factual predicates for a finding

of perjury."

Id. at 1117.
__

"A sentencing court, however, is

not required to address each element of perjury in a separate

-2-

and

clear finding."

United States
_____________

v. Matiz, 14 F.3d 79, 84

_____

(1st Cir. 1994).

Here,

the district

court

judge stated

that

the

"testimony the defendant gave was clearly false, was false in

material ways to the issue

was

willful."

He

of guilt or innocence, and .

stated also

predicates for a finding

that

"all of

of perjury have

the

been met."

. .

factual

It

is

difficult to distinguish this

language from the language the

Court approved

In determining

had committed

only

in Dunnigan.
________

perjury, the Dunnigan

________

that the defendant

respect

to material

"designed to

Dunnigan,

sentencing court stated

had been "untruthful

matters" and

that the

substantially affect the outcome

113 S.Ct.

at

1114-15

that defendant

at trial with

statements were

of the case."

(internal quotation

marks

________

omitted).

Defendant

argues

that

the

Court

in

Dunnigan
________

intended to limit its endorsement of such conclusory language

to

the facts

requires

of

that case.

sentencing

"separate

Dunnigan or
________

and

courts,

Thus, she

in

clear" findings.

elsewhere for

future

There

posits,

cases,

is

Dunnigan
________

to

no support

this interpretation.

make

in

Indeed, in
______

Matiz, we relied on Dunnigan to reject a challenge to equally

_____
________

terse phrasing.

stated that

Matiz,
_____

14 F.3d at 84 (the

it "did not credit"

sentencing court

defendant's testimony, that

-3-

defendant "knowingly

told a false story"

and that defendant

"did commit perjury").

The

affirmed.
________

judgment

of

the

district

See Local Rule 27.1.

___

court

is

summarily

-4-