MO Child Care Assoc. v. Denise Cross

*
The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3689
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of South Dakota.
*
Elliot Lynn Yellow Hair, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 14, 2002
Filed: June 20, 2002
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Before MORRIS SHEPPARD ARNOLD, FAGG, and MURPHY, Circuit Judges.
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PER CURIAM.
Elliot Yellow Hair was convicted of assault resulting in serious bodily injury
in violation of 18 U.S.C. §§ 113(a)(6), 1153 (2000). The district court * found Yellow
Hair perjured himself at trial and applied a two-level sentencing enhancement for
obstruction of justice. See United States Sentencing Guidelines § 3C1.1 (2000).
Yellow Hair appeals his sentence, contending the district court committed clear error

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when it made the factual findings which support the sentencing enhancement. See
United States v. O’Dell, 204 F.3d 829, 836 (8 th Cir. 2000) (standard of review).
At Yellow Hair’s trial, several witnesses gave descriptions of Yellow Hair’s
assault on the victim. While testifying, Yellow Hair conceded he kicked and stomped
on the victim. When the government’s attorney asked Yellow Hair if he caused the
physical damage to the victim shown in a photograph taken soon after the assault,
however, Yellow Hair replied “No.” (Tr. 418.) The district court highlighted this part
of Yellow Hair’s testimony when making its factual findings in support of the
obstruction of justice enhancement. (Sent. Tr. 15-16.) The district court stated: “I
find that [response] is an outright fabrication on the part of the defendant.” Id. The
district court noted the jury came to the same conclusion when it convicted Yellow
Hair and that a reasonable trier of fact could not have reached a different conclusion.
Based on our review of the parties’ briefs and the relevant parts of the record,
we conclude the district court did not commit clear error in finding Yellow Hair
perjured himself at trial. Further, we conclude the district court properly assessed the
two-level sentencing enhancement for obstruction of justice in this situation. Thus,
we affirm the sentence imposed by the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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