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