Filed: Oct. 20, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 20, 2004 Charles R. Fulbruge III Clerk No. 04-50042 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRANCE OPEL POWELL, also known as Bobo, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. MO-03-CR-98-2 - Before JOLLY, JONES, and WIENER, Circuit Judges. PER CURIAM:* Terrance Opel Powell
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 20, 2004 Charles R. Fulbruge III Clerk No. 04-50042 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TERRANCE OPEL POWELL, also known as Bobo, Defendant-Appellant. - Appeal from the United States District Court for the Western District of Texas USDC No. MO-03-CR-98-2 - Before JOLLY, JONES, and WIENER, Circuit Judges. PER CURIAM:* Terrance Opel Powell a..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 04-50042
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE OPEL POWELL, also known as Bobo,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-03-CR-98-2
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Terrance Opel Powell appeals the sentence imposed following
his guilty plea to conspiracy to possess with intent to
distribute crack cocaine and aiding and abetting. He argues that
his offense level was erroneously enhanced pursuant to U.S.S.G.
§ 3C1.1 for obstruction of justice because the district court’s
perjury finding failed to identify the material matter on which
he purportedly perjured himself. As this was not the basis for
Powell’s objection to the enhancement in the district court, our
*
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this opinion should not be published and is not precedent except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.
No. 04-50042
-2-
review is for plain error only. See United States v. Vasquez,
216 F.3d 456, 459 (5th Cir. 2000).
If the defendant objects to a sentence adjustment for
perjury, the district court must make independent findings that
the defendant committed perjury. See United States v. Como,
53 F.3d 87, 89 (5th Cir. 1995). “The finding is sufficient . . .
if the court makes a finding of an obstruction or impediment of
justice that encompasses all of the factual predicates for a
finding of perjury.” United States v. Storm,
36 F.3d 1289, 1297
(5th Cir. 1994). The district court identified the material
issue as Powell’s testimony absolving his co-defendant April
Green of any responsibility for the charged conduct. Powell’s
trial testimony that Green played no role in the charged
conspiracy was “material” because if believed by the jury, it
would have influenced the issue under determination, i.e.,
Green’s guilt. See
id.
To the extent that Powell sought to raise the issue whether
the record supported a determination that he willfully intended
to provide false testimony, that issue is inadequately briefed
by counsel and therefore waived. See United States v. Thames,
214 F.3d 608, 611 n.3 (5th Cir. 2000).
AFFIRMED.