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UNTIED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
==========
No. 92-1207
==========
UNITED STATES OF AMERICA,
Plaintiff-Appellee
Cross-Appellant,
versus
VINCENT EDWARD HUMPHREY,
Defendant-Appellant
Cross-Appellee.
==========
Appeals from the United States District Court
for the Northern District of Texas
==========
(November 12, 1993)
Before WIENER and EMILIO M. GARZA, Circuit Judges, and CLEMENT,*
District Judge.
CLEMENT, District Judge:
I. FACTS AND PROCEDURAL HISTORY
Defendant-Appellant Vincent Edward Humphrey was arrested on
August 30, 1991, and charged with selling cocaine base and
possession of cocaine base with the intent to distribute. Humphrey
pleaded not guilty to both counts.
On September 17, 1991, a grand jury returned a one-count
indictment against Humphrey. The indictment alleged Humphrey
*
District Judge of the Eastern District of Louisiana,
sitting by designation.

possessed with intent to distribute 24.57 grams of cocaine base.
On October 29, 1991, the original indictment was superseded by a
new indictment adding a second count alleging that Humphrey
distributed 0.99 grams of cocaine base.
The superseding indictment alleged that Humphrey took part in
two separate drug transactions.
The first transaction was the sale of 0.99 grams of cocaine
base to a cooperating individual in an apartment located in
Lubbock, Texas on August 6, 1991. Electronic monitoring devices
attached to the cooperating individual recorded the conversation,
which took place while the cooperating individual purchased the
cocaine base. Although the cooperating individual referred to
Humphrey by name during the conversation, the tape did not record
a clear response from the seller. At trial, Humphrey testified
that he did not sell the cocaine base to the cooperating
individual, and that he was in another room of the apartment at the
time of the transaction. Two other witnesses corroborated
Humphrey's testimony, testifying that Humphrey did not participate
in the transaction. The cooperating individual testified that he
purchased the cocaine base from Humphrey.
The second transaction was the alleged possession of, with the
intent to distribute, 24.57 grams of cocaine base on August 30,
1991. On that date, police officers executed a search warrant for
a second residence, also in Lubbock, Texas. As the police officers
exited their vehicles to conduct the search, four black males
standing in a driveway adjacent to the residence, including
2

Humphrey, ran from the scene. As the suspects fled, one of them
threw a package to the ground. The package contained 24.57 grams
of cocaine base. Officer William Bates testified that he saw
Humphrey throw the package. Humphrey testified that a friend of
his threw the package.
During the trial, the district court admitted into evidence,
over Humphrey's objection, photographs of Humphrey's automobile,
and a photograph of Humphrey taken shortly after the August 30,
1991 incident.
On December 12, 1991, Humphrey was convicted on both counts of
the superseding indictment. Prior to sentencing, the government
filed an objection to the Presentence Report prepared by the United
States Probation Officer. The government objected to the probation
officer's failure to recommend an upward adjustment of the
defendant's Guideline Level in accordance with U.S.S.G. � 3C1.1,
which mandates an upward adjustment for the willful obstruction of
justice. The government contended that Humphrey perjured himself
by testifying that he did not participate in the drug transactions.
Comment 3(c) to � 3C1.1 provides that "committing, suborning, or
attempting to suborn perjury" is one of the "types of conduct to
which this enhancement applies." In the presentence report, the
probation officer indicated that he was unable to recommend an
upward adjustment because he was not sufficiently familiar with
Humphrey's trial testimony to determine whether he committed
perjury.
The sentencing hearing was held on March 6, 1992. At the
3

beginning of the hearing, the district court acknowledged the
government's objection, and permitted the government to introduce
into evidence the Presentence Report, Humphrey's response to that
report, and a transcript of Humphrey's testimony. The hearing then
proceeded as follows:
Mr. Mateja (for the government): And finally,
I didn't know how the Court wanted to approach
the matter, but we can ask the Court to take
judicial notice of the testimony of the
witness at the trial of this proceeding. In
the alternative we have Officer Gregg who can
recap the pertinent parts of the testimony.
The Court: That is not necessary. I recall
the testimony in this case.
Mr. Mateja: All right. Your Honor, that is
all the evidence that we have at this time.
Would you like for us to move into argument?
The Court: No, sir. I have read your
objections. I understand fully what your
position is. I don't need any response to
those objections. Those objections are
overruled. Mr. Anderson, you filed some
objections to the Presentence Report. Do you
have any evidence to submit in support of your
objections?
Mr. Anderson: We have no objections.
The Court: All right, sir. Your objections
are overruled. The Court will adopt as the
Court's findings those matters set forth in
the Presentence Report1 -- not only the
background data and information, but also the
analysis made under the Sentencing Guidelines.
. . .
After rejecting the government's objection, the district court
sentenced Humphrey to 78 months imprisonment, a sentence within his
1 As noted above, the presentence report did not contain a
finding of whether Humphrey committed perjury.
4

guideline range. The district court found that there were "no
aggravating or mitigating factors which would warrant a departure
from the guideline range."
The government has appealed, seeking review of Humphrey's
sentence under 28 U.S.C. � 3742(b)(2), which provides that the
government may file a notice of appeal for review of an otherwise
final sentence if the sentence "was imposed as a result of an
incorrect application of the sentencing guidelines." The
government contends that the district court erred in failing to
make a specific finding of whether Humphrey committed perjury.
Humphrey contends that the district court need not make an explicit
finding on the question of perjury when presented with an objection
by the government to a failure to award an upward adjustment under
� 3C1.1 of the Sentencing Guidelines.
On April 9, 1992, Max R. Tarbox was appointed by the district
court to represent Humphrey on appeal, and Tarbox filed a timely
notice of appeal. In lieu of presenting arguments in support of
that appeal, however, Tarbox has requested from this Court leave to
withdraw as counsel for Humphrey. Tarbox states that, after
diligently investigating possible grounds for reversing Humphrey's
conviction, he has determined that Humphrey's appeal is frivolous.
He also states that Humphrey has not cooperated with him in
preparing Humphrey's appeal or opposing the government's appeal.
Tarbox has submitted an August 10, 1992 letter to Humphrey, in
which he expressed his view that there appeared to be no basis for
an appeal, but informed Humphrey that he was still investigating
5

the matter. Tarbox states that he has made repeated efforts to
contact Humphrey since that date, but that Humphrey has not
responded.
II. HUMPHREY'S SENTENCE
In the appellate review of sentences, we examine factual
findings subject to the "clearly erroneous" standard mandated by 28
U.S.C. � 3742(e), and we accord great deference to the trial
judge's application of the sentencing guidelines. United States v.
Martin, 893 F.2d 73, 74 (5th Cir. 1990); United States v. Mejia-
Orosco, 867 F.2d 216, 218 (5th Cir.), clarified, 868 F.2d 807,
cert. denied, 492 U.S. 924 (1989). However, a sentence "'imposed
as a result of an incorrect application of the sentencing
guidelines' must be reversed even if reasonable." Mejia-Orosco,
867 F.2d at 218; 28 U.S.C. � 3742(e)(1).
If a district court determines that an "accused has committed
perjury at trial, an enhancement is required" under � 3C1.1.
United States v. Dunnigan, U.S. , 113 S. Ct. 1111, 1119
(1993). Thus, the district court may not "simply [choose] not to
apply the enhancement." United States v. Friedman, F.2d ,
1993 U.S. App. LEXIS 13623 at *14 (2d Cir. June 10, 1993). If the
district court made an arbitrary decision not to enhance Humphrey's
sentence, without considering whether Humphrey committed perjury,
it has committed reversible error. The application of � 3C1.1 is
not discretionary.
The difficulty facing this Court is that it is not clear
whether the district court rejected the government's objection
6

based on (1) an unstated finding that Humphrey did not commit
perjury, or (2) an arbitrary decision not to apply � 3C1.1 of the
sentencing guidelines. Humphrey contends that the district court
need not make a finding on the perjury issue on the record, as such
a finding may be presumed from the district court's rejection of
the government's objection. We disagree.
In Dunnington, supra, the Supreme Court held that where a
defendant objects to the district court's imposition of an upward
adjustment under � 3C1.1, the
district court must review the evidence and
make
independent
findings necessary to
establish
a
willful
impediment
to
or
obstruction of justice, or an attempt to do
the same, under the perjury definition we have
set out. See U.S.S.G. � 6A1.3 (Nov. 1989);
Fed. Rule Crim. Proc. 32(c)(3)(D). See also
Burns v. United States, 501 U.S. , , 111
S. Ct. 2182, , 115 L. Ed. 2d 123 (1991).
When doing so, it is preferable for a district
court to address each element of the alleged
perjury in a separate and clear finding. 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 or
impediment of justice that encompasses all of
the factual predicates for a finding of
perjury. See App. 29 ("The court finds that
the defendant was untruthful at trial with
respect to material matters in this case. By
virtue of her failure to give truthful
testimony on material matters that were
designed to substantially affect the outcome
of the case, the court concludes that the
false testimony at trial warrants an upward
adjustment by two levels") (emphasis added).
113 S. Ct. at 1117. As the Court noted, this requirement is
mandated by Fed. R. Crim. P. 32(c)(3)(D), which provides that where
a defendant alleges any factual inaccuracy in the presentence
7

report, the district court must "(i) make a finding as to the
allegation, or (ii) a determination that no such finding is
necessary because the matter controverted will not be taken into
account in sentencing."
This Court has often ordered district courts to make
supplemental factual findings necessary to support the courts'
rejections of defendants' objections to guideline determinations.
See United States v. Buss, 928 F. 2d 150 (5th Cir. 1991) (remanded
for finding of whether defendant used firearm solely for sport or
recreation, which would entitle defendant to reduction under �
2K2.1(b)(2) of the Guidelines); United States v. Melton, 930 F. 2d
1096 (5th Cir. 1991) (remanded for finding of whether defendant was
minor participant, which would entitle defendant to reduction under
� 3B1.2); United States v. Hooten, 942 F.2d 878 (5th Cir. 1991)
(remanded for finding of whether defendant possessed firearm during
the commission of drug offense, necessary to justify the court's
enhancement of defendant's sentence under � 2D1.1(b)(1)).
Humphrey points out that Dunnigan and the aforementioned
decisions of this Court involved challenges by defendants to
guideline level determinations, and that Fed. R. Crim. P.
32(c)(3)(D) only applies to objections made by defendants.
Humphrey contends that the government, unlike criminal defendants,
is not entitled to have the district court make specific factual
findings necessary to the resolution of its objections to
sentencing decisions.
Although this result is not explicitly compelled by Dunnigan,
8

Rule 32(c)(3)(D), or our prior decisions, we find that the district
court did have an obligation to make a finding of whether Humphrey
committed perjury in its consideration of the government's
objection. We see little merit in Humphrey's contention that the
district court is only required to make specific findings when
addressing objections made by a defendant. Implicit in the
government's right to object to guideline determinations, and our
obligation to review those determinations, is the district court's
obligation to make all factual findings necessary to establish the
basis for its decisions.
We find persuasive the First Circuit's decision in United
States v. Tracy, 989 F.2d 1279 (1st Cir. 1993). In Tracy, as in
this case, the district court rejected the government's objection
to the court's failure to impose an enhanced sentence for
obstruction of justice, under � 3C1.1, based on the defendant's
perjury. Id. at 1289. The district court reasoned as follows:
[It] is a very close call. It is apparent to
the Court that the jury rejected the
credibility of this defendant and of his
testimony at trial. This Court was present at
that time and heard the testimony. This
Court, too, disbelieved the accuracy of his
testimony.
Nevertheless, there are many policy
considerations that surround the question of
enhancing a base offense level which increases
potential punishment on the basis of the
Court's conclusion that perjury has been
committed. And the Court simply is not
comfortable in its own mind in concluding that
the conduct amounts to perjury of sufficient
significance to justify such an enhancement.
Id. The First Circuit found itself unable to determine the basis
of the district court's decision:
9

[I]t is not clear from the district court's
discussion of obstruction of justice whether
the court found that all of the elements of
perjury were satisfied. While the district
court expressly stated that it "disbelieved
the accuracy of [Tracy's] testimony," we are
unable to determine whether the court also
found that the testimony concerned a material
matter, or that Tracy intentionally provided
the false testimony. It is also possible to
interpret the district court's statements as
finding perjury, but requiring something more
than basic perjury to justify an enhancement
for obstruction of justice.
Id. at 1289-90. The appeals court determined that the "proper
resolution" was to "vacate the sentence and remand to the district
court 'to make findings to support all the elements of a perjury
violation,' or to articulate clearly the elements it believes have
not been satisfied." Id. at 1290 (quoting Dunnigan, 113 S. Ct. at
1118).
Also persuasive is United States v. Ferrin, F.2d , 1993
U.S. App. LEXIS 11579 (9th Cir. May 20, 1993). In Ferrin, the
defendant pleaded guilty to aiding and abetting the illegal
disposal of hazardous waste. The district court denied the
government's request for an upward adjustment based on �
2Q1.2(b)(1), which requires an upward adjustment if the offense
resulted in an "ongoing, continuous or repetitive discharge,
release, or emission of a hazardous or toxic substance or pesticide
into the environment." However, the district court failed to make
a finding of whether the gas released into the air as a result of
the defendant's conduct was hazardous. Id. at *17. The Ninth
Circuit vacated the sentence, and remanded the case to the district
court for a finding on that issue. Id. at *24.
10

Likewise, we find that the proper disposition of the
government's appeal in this action is to vacate Humphrey's
sentence, and remand the case to the district court for a specific
finding of whether Humphrey committed perjury. If the district
court finds that Humphrey did commit perjury, it must impose a two-
level enhancement of his sentence. If the district court finds
otherwise, Humphrey's sentence will not be changed. If appealed,
we will review the district court's finding under the "clearly
erroneous" standard of 28 U.S.C. � 3742(e).
III. TARBOX'S MOTION FOR LEAVE TO WITHDRAW
Because further proceedings will be required in connection
with the government's appeal, the Court will not permit Tarbox to
withdraw
entirely from
his representation
of
Humphrey.2
Nonetheless, the Court will consider whether he may be relieved of
any further obligation to pursue Humphrey's appeal, and whether
that appeal should be dismissed as frivolous.
An attorney, "whether appointed or paid," is "under an ethical
obligation to refuse to prosecute a frivolous appeal." McCoy v.
Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988).
An attorney presented with this dilemma is under an obligation to
(1) advise his client that it would be a waste of money to
prosecute the appeal and unethical for the lawyer to go forward
with it, and (2) inform the court of his conclusion in a motion to
withdraw. Id. at 437-39; Anders v. State of California, 386 U.S.
2 Of course, if Tarbox believes that he is unable to
effectively represent Humphrey in the upcoming district court
proceedings, he may seek leave to withdraw from that court.
11

738, 744 (1967). The motion to withdraw must be accompanied by a
so-called "Anders" or "no merit" brief referring to anything in the
record that might arguably support the appeal. McCoy, 486 U.S. at
439.
In his Anders brief, Tarbox points out that the jury's verdict
was supported by substantial evidence. First, the cooperating
individual testified that he purchased cocaine base from Humphrey.
The jury had the discretion to believe this testimony and
disbelieve the testimony of Humphrey and others who testified to
the contrary. Second, Officer Bates testified that Humphrey threw
the package of cocaine base while fleeing from the police -- an
allegation which Humphrey denied. Again, it was within the jury's
discretion to believe the government witness, Officer Bates, and
disbelieve Humphrey and his witnesses.
Tarbox also draws the Court's attention to the two evidentiary
objections timely made by Humphrey's trial counsel.
As noted above, the district court admitted into evidence
photographs of Humphrey's automobile, which Humphrey objected to as
irrelevant and prejudicial. The photographs probably were
irrelevant, as it was not disputed that Humphrey was present at the
apartment complex at the time of the August 6, 1991 transaction,
and Humphrey's automobile played no role in that transaction.
However, it is clear that their admission, if erroneous, was
harmless error. From a review of the record, it is clear that the
photographs could not have "substantially influenced" the result,
nor is there is "grave doubt" that the result was free from the
12

substantial influence of the evidence. Bank of Nova Scotia v.
United States, 487 U.S. 250, 256 (1988); Fed. R. Crim. P. 52(a);
Fed. R. Evid. 103(a).
Tarbox also notes that the district court admitted over
Humphrey's objection a photograph of Humphrey taken shortly after
the August 30, 1991 incident. The photograph was admissible for
identification purposes, as the central issue concerning the August
30, 1991 incident was the identification of the individual who
discarded the package containing cocaine base. Even if
inadmissible, its admission was harmless error under Fed. R. Crim.
P. 52(a) and Fed. R. Evid. 103(a).
In addition to considering the points raised by Tarbox, the
Court has conducted an independent examination of the record. The
record reveals that the district court made several other
evidentiary rulings adverse to Humphrey other than those described
by Tarbox. However, none of them constitute reversible error.
First, the district court admitted into evidence, during the
direct testimony of Officer Brumley (the officer who arranged that
purchase), the (alleged) cocaine base purchased by the cooperating
individual in the August 6, 1991 transaction. Humphrey objected to
the admission of the evidence, arguing that Brumley was unqualified
to identify the substance as cocaine base. The material was later
identified by a qualified chemist as cocaine base, however,
rendering any error made by the court harmless.
Second, the district court sustained the government's
objection to Humphrey's attempt to elicit personal background
13

information from the cooperating individual. Even if this
information was relevant, its exclusion was clearly harmless.
Third, Humphrey objected on relevancy grounds to the admission
of his statement that he was not employed. The district court's
decision to overrule this objection was correct, as the statement
was relevant to the issue of how Humphrey acquired the $639 in cash
found on his person when he was arrested on August 30, 1991.
Fourth, the district court permitted the government to cross-
examine James Clark, a defense witness, about prior cocaine arrest.
The district court ruled correctly, as Clark's prior arrest
contradicted Clark's testimony that he knew nothing about the drug
trade.
Finally, Officer Gregg testified that he recognized Humphrey
from prior drug arrests or other dealings, implying that Humphrey
had been involved in other drug transactions. Because the district
court promptly instructed the jury to disregard that testimony, any
prejudice it may have caused is insufficient to warrant a new
trial.
The Court is unable to identify any possible grounds for
appeal. From a review of the record, and the points raised in
Tarbox's Anders brief, the Court concurs with Tarbox's conclusion
that Humphrey's appeal is frivolous.
14

IV. CONCLUSION
Accordingly,
Humphrey's appeal is DISMISSED, his conviction is AFFIRMED,
his sentence is VACATED, and this action is REMANDED for
resentencing in accordance with this opinion.
15