Before: Becker, Chief Judge, and Stapleton and Weis, Circuit Judges
The opinion of the court was delivered by: Becker, Chief Circuit Judge.
On Appeal From the United States District Court For the Western District of Pennsylvania
(D.C. Crim. No. 97-00077)
Submitted Under Third Circuit Rule 34.1(a)
This sentencing appeal presents the narrow issue whether the two-level upward adjustment for obstruction of justice under United States Sentencing Guideline § 3C1.1 is mandatory once the sentencing court has determined that the factual predicates for the enhancement have been met. The appellant, Stephen A. Williamson, contends that it is not. We hold, however, consistent with all the other circuits that have previously interpreted this Guideline, that it is. Accordingly the district court's judgment imposing sentence on Williamson will be affirmed.
The narrow scope of Williamson's appeal renders the facts underlying his conviction and sentencing largely tangential to our decision, hence we need only outline them. Williamson was convicted of bank robbery following a jury trial and was thereafter sentenced to sixty-three months imprisonment to be followed by a three-year term of supervised release. In calculating the applicable Sentencing Guideline range, the district court determined that Williamson had perjured himself at trial -- afinding which the district court believed rendered the imposition of a two-point offense level enhancement for obstruction of justice mandatory. On appeal, Williamson challenges this aspect of his sentence. Notably, however, he does not argue that the district court erred in determining that he committed perjury at his trial or that his perjurious testimony did not amount to an attempt to obstruct Justice within the applicable guideline provision. Rather, Williamson appeals solely upon the narrow ground that the district court erroneously believed that it was required to apply the obstruction of Justice enhancement once it determined on the facts that Williamson had committed perjury.*fn1
Section 3C1.1 of the Sentencing Guidelines provides:
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. Williamson argues that the failure of this Guideline to include words such as "must" or "shall" renders it ambiguous as to whether the increase in offense level must automatically follow a determination that the defendant has engaged in qualifying conduct. This ambiguity, he contends, requires application of the rule of lenity and thus the resolution of all doubts regarding the Guideline's construction in his favor. We disagree, finding nothing ambiguous about U.S.S.G. § 3C1.1. Rather, the logical structure of the Guideline ("if A, then B") clearly commands that a definite result -- a two level increase in offense level -- must follow the occurrence of a stated conditional event -- a finding that the defendant willfully, obstructed . . . the administration of Justice. This reading is supported by the language of a recent Supreme Court opinion and is shared by every circuit court of appeals that has addressed the issue.
In United States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111 (1993), the Supreme Court held that a defendant's due process rights are not violated when a district court enhances a defendant's sentence under U.S.S.G. § 3C1.1 based on a finding that the defendant committed perjury (as opposed to other forms of obstruction of Justice) at trial. While the question whether such an enhancement, if permissible, was mandatory or discretionary was not directly before the Court, its opinion concluded by noting that "[u]pon a proper determination that the accused has committed perjury at trial, an enhancement of sentence is required by the Sentencing Guidelines." 507 U.S. at 98, 113 S. Ct. at 1119 (emphasis added). In accord with this language, the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth circuits have all held that the obstruction of Justice enhancement is mandatory once the sentencing court has determined that the factual predicates for the enhancement have been met. See United States v. Tracy, 36 F.3d 199, 201 (1st Cir. 1994) ("the obstruction of Justice enhancement is mandatory under U.S.S.G. § 3C1.1 where the defendant willfully obstructed or attempted to obstruct the administration of Justice during the prosecution of the case"); United States v. Hernandez, 83 F.3d 582, 585 (2d Cir. 1996) ("Once a court finds that obstruction of Justice took place, however, the two-level enhancement is mandatory"); United States v. Ashers, 968 F.2d 411, 414 (4th Cir. 1992) (noting, in the context of obstruction of justice enhancement, that "application of an enhancement to the offense level is mandatory, as opposed to discretionary, in the event the defendant engaged in conduct that is encompassed by a guideline providing for an enhancement"); United States v. Velgar-Vivero, 8 F.3d 236, 242 (5th Cir. 1993) ("The increase is not discretionary. If the court finds the defendant obstructed Justice, it must impose the two point increase"); United States v. Medina, 992 F.2d 573, 591 (6th Cir. 1993) (discussing obstruction of Justice enhancement and noting that "as we have explained previously, once a sentencing court makes a factual finding as to the applicability of a particular adjustment provision, the court has no discretion, but must increase the offense level by the amount called for in the applicable provision") (internal ...