United States v. McPhearson

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 99-10576
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO MCPHEARSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
June 21, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro McPhearson appeals his sentence and conviction for conspiracy with intent to distribute
over fifty grams of crack cocaine in violation of 21 U.S.C. § 846. We now affirm.
In September 1998, a box was left at a Mailboxes Etc. in Encino, California to be shipped to

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“Chris” or “Chrish” Henderson in Abilene, Texas. An envelope with a return address of “Peedee,”
8865 Independence No. 4, Canoga Park, California, was left at the same business. The handwriting
on the envelope was similar to that on the box. Pedro McPhearson, whose nickname is Peedee, lived
at the Canoga Park address at the time. A security videotape depicted a person carrying both a box
and envelope similar in size to those described above.
After a drug detection dog alerted to the box, law enforcement officials obtained a search
warrant. Inspection of the box revealed 979 grams of crack cocaine hidden inside a toy truck. The
crack was repackaged, and the box was delivered to 391 Northway Drive in Abilene. Malcom
McClotten lives at 391 Northway Drive. His nephew, who has a son named Christopher Henderson,
lives across the street. Pursuant to a search warrant, officials searched McClotten’s house and found
the unopened box.
Also acting pursuant to a search warrant, police searched McPhearson’s residence. They
discovered, inter alia, pictures of the Henderson house, two large plastic bags containing smaller
plastic baggies commonly used for packaging street-level amounts of crack, a receipt from the same
Mailboxes Etc. with a date different from the date of the offense, an air bill with handwriting similar
to the writing on the box; receipts for postal money orders with the name “Peedee McPhearson,”
small plastic bags containing cocaine, and $7,060 in currency.
Upon his arrest, McPhearson stated that he would take the blame for the cocaine found in his
home. Fingerprints taken at the time of McPhearson’s arrest matched prints found in an inside flap
of the box that contained the crack.
Prior to trial, McPhearson filed a motion for a continuance, alleging an inability to locate
defense witnesses Anthony Shelby and Wayne Tavarez. The court denied the motion but ordered the

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1 McPhearson contends that while he had subpoenaed Shelby and Tavarez, due to
confusion, the court erroneously ordered marshals to bring Shelby and Elam to court.
2 Because we find that McPhearson’s perjured statement regarding his identity on the
security tape is sufficient to warrant the sentencing enhancement, we do not address his statements
regarding employment with the sheriff’s department and the probation department.
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United States Marshal to bring witnesses Shelby and Martin Elam to court.1 Neither Shelby nor
Tavarez was secured for trial.
McPhearson was convicted of conspiracy with intent to distribute crack cocaine. A pre-
sentence report (“PSR”) assessed McPhearson a two-level increase for obstruction of justice because
he had perjured himself by testifying that he was not the person depicted on the security tape.
McPhearson objected to the enhancement, arguing that the tape was “hazy” and “did not allow for
reliable identification.” The district court overruled McPhearson’s objections, finding that he had
perjured himself not only by testifying that he was not on the tape, but also by stating under oath that
he had been hired by both the sheriff’s department and the probation office.2
On appeal, McPhearson first argues that the district court erred in denying his motion for a
continuance to locate Shelby and Tavarez. “We review the denial of a defendant’s motion for a
continuance for abuse of discretion resulting in serious prejudice.” United States v. Pollani, 146 F.3d
269, 272 (5th Cir. 1998). When a continuance is requested because a witness is unavailable, the party
seeking the continuance must demonstrate that (1) due diligence was exercised to obtain the
attendance of the witness, (2) the witness would pro vide “substantial favorable evidence,” (3) the
witness will be available and willing to testify, and (4) denial of the continuance would materially
prejudice the movant. See United States v. Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999).
McPhearson fails to satisfy this burden, and, accordingly, the district court did not abuse its discretion

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in denying his motion for a continuance.
McPhearson argues that Shelby would have testified that he was the owner of the crack found
at McPhearson’s residence. Given the weight of the other evidence against McPhearson, this
testimony cannot properly be characterized as “substantially favorable evidence.” Nor did the
absence of this evidence result in “serious prejudice.” United States v. Scott, 48 F.3d 1389, 1393 (5th
Cir. 1995).
McPhearson contends that Tavarez would have pro vided employment records that would
have shown the McPhearson was working at the time the packages were dropped off at the
Mailboxes Etc. However, at trial, McPhearson’s investigator testified that Tavarez had gone out of
business and no longer had McPhearson’s employment records. Accordingly, Tavarez would not
have provided the favorable testimony that McPhearson alleges he would have provided. His absence
from the trial therefore cannot properly be characterized as prejudicial.
McPhearson next contends that the district court erred in imposing a two-level increase in his
offense level for obstruction of justice based on its finding of perjury. See U.S.S.G. § 3C1.1 (“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.”). A sentencing enhancement under U.S.S.G. § 3C1.1 is required upon a finding
that the defendant committed perjury. See United States v. Storm, 36 F.3d 1289, 1295 (5th Cir.
1994). We review a district court’s factual finding that a defendant has obstructed justice for clear
error. See id.
“[I]f a defendant objects to a sentence enhancement resulting from her trial testimony, a
district court must review the evidence and make independent findings necessary to establish a willful

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impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition.”
United States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111, 122 L. Ed.2d 445 (1993); see also United
States v. Storm, 36 F.3d 1289, 1295 (5th Cir. 1994) (same). A defendant commits perjury if, while
testifying under oath, he “gives false testimony concerning a material matter with the willful intent
to provide false testimony.” United States v. Como, 53 F.3d 87, 89 (5th Cir. 1995). Separate and
clear findings of each element of the alleged perjury, “though preferable, [are] not required.” Como,
53 F.3d at 89; see also Dunnigan, 507 U.S. at 95, 113 S. Ct. 1111 (“The district court’s
determination that enhancement is required is sufficient, however, if, as was the case here, the court
makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.”).
Here, McPhearson denied that he was the individual on the security video and objected to the
court’s enhancement of his sentence based upon that statement. The district court overruled
McPhearson’s objections to the PSR, finding that “the defendant did obstruct justice in committing
perjury. As to the matters set forth in the pre-sentence report dealing with whether or not he brought
the package containing the drugs to Mailboxes Etc., and denying that he was the person shown on
the video, the jury heard all of the evidence, they viewed the video, and they found him guilty of the
charge in question. . . . Therefore, the two levels increase for obstruction of justice is justified.” We
have previously held similar findings adequate to support a sentence enhancement under § 3C1.1.
See, e.g., Como, 53 F.3d at 89 (noting implicit materiality finding in district court’s statement that
“I’m familiar with the statements made and the position taken, although or albeit through cross-
examination during the trial. And I do not believe that Mr. Como was totally candid and truthful at
the suppression hearing as established by other testimony and evidence presented.”); see also United

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3 McPhearson also argues that the enhancement is unconstitutional because (1) it fails
to provide adequate notice that a crime has been committed, (2) the two-level increase has a more
severe effect on individuals with higher base offense levels, and (3) it resulted in an increase of five
and one half years of McPhearson’s sentence, whereas, had McPhearson been convicted of perjury
alone, he would have faced a statutory maximum sentence of five years. Because McPhearson raises
these arguments for the first time on appeal, we review them for plain error. See United States v.
Flintco, Inc., 143 F.3d 955, 971 (5th Cir. 1998). None of McPhearson’s claims survives such
scrutiny.
First, a defendant’s testimony at trial affords adequate notice of the district court’s intent to
enhance his sentence for obstruction of justice. See United States v. Marmolejo, 89 F.3d 1185, 1201
(5th Cir. 1996). Second, we have previously acknowledged, in the context of a sentencing
enhancement due to career-offender classification, that “[t]he imposition of greater punishmnet based
on the nature of the crime and on the recidivist nature of the perpetrator is recognized as a legitimate
sentencing principle.” United States v. Hayden, 898 F.2d 966, 967 (5th Cir. 1990). Accordingly,
McPhearson’s argument that the enhancement is unconstitutional because it has a greater effect on
a defendant with a higher base offense level also lacks merit. Finally, McPhearson fails to cite any
cases in which a court recognizes his argument that the enhancement is unconstitutional because it
is longer than the possible sentence for perjury alone. Indeed, he fails to fully articulate the
constitutional violation that he alleges. As a result, it was not clear error for the court to apply the
enhancement. See United States v. Calverley, 37 F.3d 160, 162-63 (5th Cir. 1994) (holding that to
“clear or obvious error” requirement “contemplates an error which was clear under current law at the
time of trial”).
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States v. Haas, 171 F.3d 259, 268 (5th Cir. 1999) (finding materiality as a matter of law where court
did not make a materiality finding).
Furthermore, the record amply supports the district court ’s finding that McPhearson
committed perjury. The jury determined that McPhearson was the individual on the videotape based
on still photographs made from the tape as well as fingerprint evidence. Also, McPhearson’s perjured
statement regarding his identity was material as a matter of law since, if believed by the jury, it would
have influenced or affected the issue to be determined. See Storm, 36 F.3d at 1297. Accordingly,
the district court did not err in enhancing McPhearson’s sentence under § 3C1.1.3
For the foregoing reasons, the conviction and sentence of the district court is AFFIRMED.

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