USA v. McCoy, JoAnn, No. 01-3052 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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No. 01-3052 September Term, 2002

Filed January 24, 2003



United States of America,

Appellee

v.

JoAnn McCoy,

Appellant

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Appeal from the United States District Court

for the District of Columbia

(98cr00082-01)

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Before: Ginsburg, Chief Judge, Henderson, Circuit Judge,

and Williams, Senior Circuit Judge.

J U D G M E N T



The appellant, JoAnn McCoy, was convicted on two charges

of making false statements in a loan application and on one

count of perjury. Before this panel, she sought remand and

reconsideration of the district court's May 9, 2001 judgment

resentencing her to 33 months in prison and five years of

supervised release for her convictions. See generally United

States v. McCoy, 280 F.3d 1058 (D.C. Cir. 2002). She con-

tended that the district court erred in refusing to consider

her objection--made pursuant to Application Note 7 of Unit-

ed States Sentencing Guidelines (Guidelines or U.S.S.G.)

s 3C1.1--to the obstruction-of-justice enhancement that had

been added to her perjury offense level. On February 22,

2002 the panel rejected McCoy's contention, holding that she

waived her Note 7 argument by failing to raise it at her

original sentencing. See McCoy, 280 F.3d at 1062-64. On

June 12 the full court granted McCoy's petition for rehearing

en banc and vacated the panel's judgment. On December 20

the en banc court held that Rule 32 of the Federal Rules of

Criminal Procedure required the district court at resentenc-

ing to determine whether McCoy's omitting to raise her Note

7 argument was "for good cause shown." See United States

v. McCoy, 313 F.3d 561 (D.C. Cir. 2002). Concluding that the

district court would not have abused its discretion in finding

good cause--and that a remand to the district court for

further proceedings would unnecessarily consume judicial

resources--the en banc court remanded the case to this panel

for a determination on the merits of McCoy's Note 7 argu-

ment, which we herein reject.

McCoy cites Application Note 7 for the proposition that she

did not obstruct justice by repeating the same perjured

testimony at her criminal trial that she made during an

earlier bankruptcy proceeding. See Br. of Appellant at 19-

21. Note 7 provides that an obstruction enhancement

is not to be applied to the offense level for [an

underlying obstruction offense such as perjury] ex-

cept if a significant further obstruction occurred

during the investigation, prosecution, or sentencing

of the obstruction offense itself....

U.S.S.G. Manual s 3C1.1, cmt. n.7 (emphasis added). Ac-

knowledging that she "has found no published cases precisely

on point," Br. of Appellant at 20, McCoy proposes that

"[s]imply repeating precisely the same statements that were

the subject of perjury charges is not the sort of 'significant

further obstruction' that can justify an exception to Applica-

tion Note 7's general rule against applying obstruction en-

hancements to perjury convictions," id. at 19-20. We are

reluctant to hold that Note 7 gives a defendant license to

perjure herself in a criminal proceeding in order to avoid

enhanced punishment for, of all things, perjury. Lying under

oath to protect oneself from punishment for lying under oath

seems to us--and to the Supreme Court--to be precisely the

sort of "significant further obstruction" to which Note 7

refers. See United States v. Dunnigan, 507 U.S. 87, 97

(1993) ("It is rational for a sentencing authority to conclude

that [under section 3C1.1] a defendant who commits a crime

and then perjures herself in an unlawful attempt to avoid

responsibility is more threatening to society and less deserv-

ing of leniency than a defendant who does not so defy the

trial process."). Because McCoy's Note 7 argument is with-

out merit, the district court did not err--plainly or other-

wise--in resentencing McCoy to 33 months in prison and five

years of supervised release pursuant to a combined Guide-

lines offense level of 20. Accordingly, it is hereby

ORDERED that the district court's May 9, 2001 resentenc-

ing judgment is affirmed.

The Clerk is directed to withhold issuance of the mandate

herein until seven days after resolution of any timely petition

for rehearing or rehearing en banc. See Fed. R. App. P. 41(b);

D.C. Cir. R. 41.

Per Curiam

For the Court:

Mark J. Langer, Clerk