36 F.

3d 1095

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Samuel Thomas LAWSON, Defendant-Appellant.
No. 93-5708.

United States Court of Appeals, Fourth Circuit.

Submitted: August 23, 1994.
Decided: September 26, 1994.

Appeal from the United States District Court for the Middle District of
North Carolina, at Winston-Salem. Frank W. Bullock, Jr., Chief District
Judge. (CR-91-50-1-WS)
William E. Martin, Federal Public Defender, Gregory Davis, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Benjamin H. White, Jr., United States Attorney, Paul A. Weinman,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
M.D.N.C.
AFFIRMED.
Before MURNAGHAN, HAMILTON, and WILLIAMS, Circuit Judges.
OPINION
PER CURIAM:

Samuel Thomas Lawson was originally sentenced to a term of seventy months

after he was convicted of possession of more than 100 kilograms of marijuana

with intent to distribute, 21 U.S.C.A. Sec. 841 (West 1981 & Supp.1994), and
assaulting or resisting a federal officer in the performance of his duties, 18
U.S.C.A.Sec. 111 (West Supp.1994). He was sentenced to a consecutive term
of sixty months for his conviction of carrying and using a firearm in a drug
trafficking crime, 18 U.S.C.A. Sec. 924(c) (West Supp.1994). In his first
appeal, we affirmed his convictions but vacated his sentence and remanded for
resentencing in light of the Supreme Court's decision in United States v.
Dunnigan, 61 U.S.L.W. 4180 (U.S.1993). United States v. Lawson, No. 915367 (4th Cir. May 4, 1993).

On remand, the district court found that a portion of Lawson's trial testimony
was perjured, and reimposed the same sentence. Lawson again appeals,
contending that the district court erred in refusing to consider new objections to
the sentence calculation, that the court failed to make the findings necessary
under Dunnigan to establish perjury, and that it erred in not making tentative
findings prior to the resentencing. We affirm.

Lawson was employed by Adam Blalock and his daughter to build secret
compartments into trucks they owned for a produce business. Lawson saw
marijuana residue in the secret compartments after the trucks were unloaded
and was asked on occasion to put packages he thought contained money into
the compartments.

On the night of his arrest, Blalock was away and Lawson had been left in
charge on the rural property. He was sleeping in the office area of a large
garage where he was in the process of modifying a truck when federal agents
executed a search warrant. One of the agents entered the office and saw
Lawson pointing a shotgun at him. The agent shot Lawson several times. The
shotgun later proved to be unloaded. While he was in the hospital, Lawson was
interviewed by a federal agent and gave a statement in which he admitted that
he knew Blalock was involved in marijuana trafficking.

At trial, Lawson testified that he did not point the shotgun at the agent who
found him in the office. He said the agent entered the room and saw him, left,
and then returned and shot him. He also testified that he "didn't have any idea"
what the secret compartments were for, and that he did not remember what he
said to the agent who interviewed him in the hospital.

Lawson's sentence calculation included an adjustment for obstruction of justice,

United States Sentencing Commission, Guidelines Manual, Sec. 3C1.1

(Nov.1990), based on Lawson's trial testimony. However, the district court did
not make a specific finding that Lawson had committed perjury.
7

On remand, the district court gave Lawson the benefit of the doubt as to
whether he could not recall what he said when interviewed in the hospital. It
found the rest of his testimony described above to be statements made by
Lawson under oath which "were untrue, were known by him to be untrue, were
deliberately untrue, and ... were not due to confusion, mistake or faulty
memory." The court declined to consider objections to the sentence calculation
which had not been raised at the first sentencing hearing.

We find first that the district court did not err in refusing to entertain challenges
to the sentence calculation which could have been raised at the first sentencing
hearing. The mandate rule forecloses relitigation of issues previously decided
by the district court or otherwise forfeited because the defendant did not raise
them in the district court or on appeal. The rule applies on remand for
resentencing. United States v. Bell, 5 F.3d 64, 66 (4th Cir.1993). The rule
makes exception for extraordinary circumstances, specifically: (1) a dramatic
change in legal authority; (2) the appearance of significant new evidence not
obtainable earlier; or (3) a blatant error in a prior decision which will result in
serious injustice if uncorrected. Id. at 67.

Before the resentencing hearing, Lawson filed a Statement of Position on

Sentencing Factors in which he challenged for the first time the amount of
drugs attributed to him under guideline section 2D1.1. He argued that the 100
kilograms alleged in the indictment was not an element of the offense and was
"mere surplusage." Therefore, he claimed that no amount of drugs attributable
to him had been shown by a preponderance of the evidence, and he should
receive the lowest possible offense level--six instead of twenty-six.

10

Although he did not make the argument in the district court, on appeal Lawson
argues that this issue comes under the "change in the law" exception to the
mandate rule. He asserts that under this Court's decision in United States v.
Gilliam, 987 F.2d 1009 (4th Cir.1993), district courts are now required to
determine the amount of drugs reasonably foreseeable to a defendant acting in
concert with others. Because guideline section 1B1.3 has always required such
a finding, Gilliam did not change the controlling legal authority.1 Therefore, it
was not within the district court's discretion to reopen the issue of the amount
of marijuana attributable to Lawson as relevant conduct.

11

Lawson also challenged the application of guideline section 2A2.2 (Aggravated

Assault) to his conviction of assault on a federal law enforcement officer

(Count Three). Lawson argued that section 2A2.4 (Obstructing or Impeding
Officers) should be applied instead; it would have yielded an offense level of
eleven instead of twenty, and because Counts One and Three were grouped, the
net effect would have been to lower his final offense level from twenty-seven to
twenty-six.
12

On appeal, Lawson contends that the application of section 2A2.2, allegedly

the wrong guideline, was a blatant error which will result in a serious injustice
if uncorrected. However, it is not clear that section 2A2.2 was wrongly applied.
Aggravated assault, as defined in application note 1 to section 2A2.2, is a
felonious assault that involves (1) a dangerous weapon with intent to do bodily
harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to
commit another felony. Because Lawson's shotgun was unloaded, it cannot be
said that the weapon was used with intent to harm the agent; the agent in fact
was not injured.2 However, the assault clearly involved an intent to commit
another felony--the drug trafficking offense. Therefore, no blatant error
occurred, and the district court did not err in refusing to reconsider the issue.

13

Lawson maintains that he received ineffective assistance of counsel in the first

sentencing hearing in that his attorney failed to contest the amount of marijuana
attributed to him and the use of section 2A2.2. He argues that this constitutes an
extraordinary circumstance which gave the district court discretion to reopen
these issues. We find that Lawson has not conclusively shown either
ineffectiveness or any extraordinary circumstance.

14

Next, we hold that the district court's finding of perjury was adequate under
Dunnigan. Before a defendant's sentence may be enhanced for obstruction of
justice based on his perjured trial testimony, the sentencing court must make a
determination that the defendant willfully gave false testimony under oath on a
material matter. Dunnigan, 61 U.S.L.W. at 4183.

15

Lawson contends that the district court failed to find that his false testimony
was material. However, the district court specifically found that Lawson's
testimony that the agent shot him without provocation was material. Lawson's
testimony that he did not know the purpose of the secret compartments was
obviously material to his guilt or innocence of the charge of possession of
marijuana with intent to distribute. Defense counsel did not attempt to argue
otherwise, and we find that the district court's failure to specifically mention the
materiality of this portion of Lawson's testimony does not undermine the
adequacy of its determination of perjury.

16

Lawson further argues that the district court made no finding that encompassed
all the factual predicates of perjury. Dunnigan requires that the sentencing court
address each element of the alleged perjury or make "a finding of an
obstruction or impediment of justice that encompasses all of the factual
predicates of perjury." Dunnigan, 61 U.S.L.W. at 4183. The district court here
sought to address each element of perjury concerning the specific testimony
which it found to be deliberately false. Its findings adequately comply with the
dictates of Dunnigan.

17

Last, we find no error in the district court's failure to provide tentative findings
to the parties prior to the resentencing hearing. Guideline section 6A1.3, p.s.
provides that in resolving disputed factors the district court should comply with
Fed.R.Crim.P. 32(a)(1), notify the parties of its tentative findings, and provide
an opportunity for the submission of objections before sentencing. The
commentary clarifies the guideline by stating that the court should, "where
appropriate," notify the parties of its tentative findings. This Court has found
that tentative findings are not necessary in all cases. United States v. Walker,
901 F.2d 21, 22 (4th Cir.1990).

18

Lawson argues that he was prejudiced by the lack of tentative findings because
the presentence report did not specify what portion of his testimony was
allegedly false, and his new attorney was unable to respond adequately once the
district court identified the testimony it found to be false. Lawson argues that
his attorney could have made better arguments with advance warning of which
parts of his testimony the court would find perjured. However, the issue to be
considered on remand was not complex, and the portions of Lawson's testimony
which were likely to be significant could be identified through a review of the
trial transcript. The record of the sentencing reveals that defense counsel was
familiar with Lawson's testimony and in fact succeeded in persuading the court
that one of the three statements it initially relied on was not necessarily
perjurious. Therefore, the lack of tentative findings was not error in this case.

19

The sentence imposed by the district court is accordingly affirmed. We

dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the Court and argument would not
aid the decisional process.
AFFIRMED

Foreseeability was not an issue in Lawson's case because Lawson was

convicted of constructive possession with intent to distribute the whole amount

of marijuana used to determine his offense level. Under section 1B1.3(a)(1), a
defendant is accountable for his own actions (including drugs personally
possessed) without regard to foreseeability
2

The government suggests that the guideline was correctly applied because
Lawson sustained serious bodily injury, but this interpretation does not seem to
comply with the intent of the guideline, which focuses on harm to the intended
victim