USA v. McCoy, JoAnn, No. 01-3052 (D.C. Cir. 2003)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on February 22, 2002.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------
No. 01-3052 September Term, 2002
Filed January 24, 2003
United States of America,
Appellee
v.
JoAnn McCoy,
Appellant
---------
Appeal from the United States District Court
for the District of Columbia
(98cr00082-01)
---------
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
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------
No. 01-3052 September Term, 2002
Filed January 24, 2003
United States of America,
Appellee
v.
JoAnn McCoy,
Appellant
---------
Appeal from the United States District Court
for the District of Columbia
(98cr00082-01)
---------
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
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