Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

MEMORANDUM^** 

This case grew out of an undercover drug investigation that focused on Smith's codefendants. After the undercover agent had repeatedly purchased crack cocaine from Smith's codefendants, codefendant Penn offered to teach the agent how to convert cocaine into crack. Penn arranged for the agent to come to Penn's apartment at a particular time for the lesson. Smith arrived at Penn's apartment before the lesson began, and assisted in the manufacturing process. Smith was convicted of manufacturing and distributing crack cocaine. He was acquitted of conspiracy to manufacture and distribute crack.

We review a district court's denial of a request for continuance for an abuse of discretion. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir. 1989). To demonstrate reversible error, a defendant must show that the denial of the continuance resulted in actual prejudice to his defense. Id.

On the first day of trial, Smith's counsel moved for a continuance. Counsel requested the continuance for three reasons: he stated that because of confusion in setting the trial date, he only learned of the trial date nine days before trial; that because of his short notice about the trial date, he had not been able to interview witnesses he considered critical to the defense; and that Smith had suffered an injury in prison and had a doctor's appointment for the day after the first day of trial.

The only witnesses Smith claims he wanted to call and was unable to obtain as witnesses were certain codefendants in the case. Smith's counsel stated that he had had "difficulties" interviewing these witnesses and had difficulties with their attorneys. In Shirley, the court found that the district court did not abuse its discretion in denying a continuance where the defendant listed witnesses she wished to interview but made no showing that the witnesses would have been willing to testify. Id. at 1135; see also United States v. Sterling, 742 F.2d 521, 527 (9th Cir. 1984), cert. denied, 471 U.S. 1099 (1985) (when defendant requests continuance to obtain witnesses, he must show that the witnesses can probably be obtained if the continuance is granted). Here, the witnesses at issue were codefendants who had a fifth amendment right to refuse to testify. There is no indication that Smith's inability to call these witnesses was due to lack of time, since Smith's counsel was able to contact the attorneys of these potential witnesses. While Smith mentions that this contact was made and that "difficulties" had arisen, he does not specify what these difficulties were, and he has made no showing that additional time would have enabled him to persuade these codefendants to testify.

Aside from his claim of difficulties persuading his codefendants to testify, Smith has shown no other way in which the confusion about the trial date created actual prejudice to his defense. Finally, Smith was able to take the stand and testify, and he has made no showing that his injury inhibited in any way his ability to participate in his defense. The denial of the motion for continuance is affirmed.

II. Failure to Find Smith a "Minimal" Participant

Sentencing Guideline 3B.1.2 permits a two-level decrease in the offense level if the defendant was a minor participant in the criminal activity, and a four-level decrease if the defendant was a minimal participant. The district court found Smith to be a minor participant and decreased his offense level by two. Smith asserts that the court erred in not granting him the four-level decrease for being a minimal participant.

Whether a defendant was a minor or a minimal participant in the criminal activity is a factual determination that we review under the clearly erroneous standard. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989). Smith maintains that he did nothing more than boil some water and was not at the nexus of the offense; he insists that the district court therefore erred in finding that he was more than a minimal participant. However, the government presented evidence at trial that Smith did more than merely boil water. Smith took over the cooking of the second of three batches of crack, and assisted in the cooking of the other two batches. Since the jury found Smith guilty of manufacturing and distributing crack, the district court was justified in accepting the government's, rather than Smith's, version of the facts. The district court's finding that Smith was more than a minimal participant was supported by the facts at trial and we find no error.

III. Upward Adjustment for Obstruction of Justice

Sentencing Guideline 3C1.1 provides for a two-level increase if the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice...." Application Note 1(c), in effect at the time Smith was sentenced, states that this increase may be imposed if the defendant testified untruthfully at trial about a material fact.

Smith's case essentially involved a credibility contest between Smith and his wife, who claimed no involvement in the crack manufacturing, and the undercover agent, who testified to the contrary. Since the jury found Smith guilty, they apparently believed the agent's story and disbelieved Smith. On the basis of the jury's verdict, the judge stated that the jury had found Smith to be untruthful, and the judge stated that he agreed with the jury's assessment of Smith's truthfulness. He therefore imposed the two-level increase for obstruction of justice.

Smith challenges this increase on six different grounds. However, his claim is disposed of in this circuit by United States v. Barbosa, 906 F.2d 1366 (9th Cir.), cert. denied, 111 S. Ct. 394 (1990). In Barbosa, the defendant testified at trial that he had no knowledge that some chessboards he was trying to import contained cocaine. The government introduced circumstantial evidence tending to show that the defendant did know of the cocaine, and the jury convicted. This court reject Barbosa's claim that the sentence enhancement essentially permitted punishment for testifying falsely without the government having to prove that offense beyond a reasonable doubt. This court found this argument to be foreclosed by United States v. Grayson, 438 U.S. 41 (1977), in which the Court held that a defendant was not punished for perjury without due process when a trial judge chose to consider, in sentencing for another crime, his belief that the defendant had testified falsely at trial.

Barbosa also relied on Grayson to find that the enhancement for testifying falsely did not chill a defendant's constitutional right to testify. Citing Grayson, the Barbosa court noted that there is no constitutionally protected right to commit perjury, and that a sentence enhancement does not chill the only right a defendant actually possesses when testifying under oath--the right to testify truthfully.

Finally, Barbosa found that there was no unfairness where, as here, the district court did not enumerate which of the defendant's false statements provided the basis for the obstruction finding. Under Barbosa, a district court is not required to make specific findings as to which portions of a defendant's testimony it believed were false.

Smith makes other challenges to the district court's obstruction finding, none of which have merit.

Smith claims that he was unconstitutionally denied effective assistance of counsel because his counsel was unprepared for trial. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), counsel is constitutionally deficient only if counsel's performance was deficient, and if that deficiency prejudiced the defense.

Smith asks this court to remand for a supplemental hearing on his counsel's preparation for trial. However, in United States v. Johnson, 820 F.2d 1065 (9th Cir. 1987), this court rejected a defendant's request to remand so that he could supplement the record to support an ineffective assistance of counsel claim. The Johnson court noted that " [t]he customary procedure for claims of ineffective assistance of counsel in federal criminal trials is by collateral attack on the conviction under 28 U.S.C. § 2255 (1982)." Id. at 1074. This is the appropriate procedure in this case, and we reject Smith's request for remand.

AFFIRMED.