United States v. Stenson

741 F.3d 827, 2014 WL 265759, 2014 U.S. App. LEXIS 1424
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 24, 2014
DocketNo. 13-1329
StatusPublished
Cited by9 cases

This text of 741 F.3d 827 (United States v. Stenson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Stenson, 741 F.3d 827, 2014 WL 265759, 2014 U.S. App. LEXIS 1424 (7th Cir. 2014).

Opinion

KANNE, Circuit Judge.

A jury found Nicholas Stenson guilty of possessing a firearm after having been convicted of a felony. At sentencing, the district court imposed a two-level obstruction of justice enhancement, finding that Stenson willfully committed perjury when he testified on his own behalf. Stenson challenges both the constitutionality and applicability of the enhancement. For the following reasons, we affirm.

I. Background

On the morning of July 10, 2011, Rockford Police conducted a “suppression detail” in the Rockford area, which involves patrolling high crime areas where criminal activity has been reported. During the detail, five squad cars pulled up to a group of individuals drinking alcohol in the street next to a green Pontiac. The officers surrounded the car and activated their emergency lights, which resulted in numerous individuals, including Stenson, running towards the back of the vehicle.

A number of officers saw Stenson reach into his waistband and throw something to the ground. Once the object hit the concrete it sounded like metal. The officers found two firearms under the vehicle, one of which was attributed to Stenson. He was subsequently charged with being a felon in possession of a firearm.

At trial, the sole issue was whether Stenson possessed a firearm on the morning of July 10. The government contended that, upon the arrival of the police officers, Stenson ran to the back of the Pontiac, reached into his waistband, and discarded the firearm beneath the Pontiac. The testimony of the arresting officers was the most substantial evidence against Stenson. Officer Juan Tapia testified that he saw three individuals run towards the back of the Pontiac, whereupon he heard a metal scratching sound from the back of the vehicle. Officer Andrew Seale testified that he saw Stenson reach into his waistband and throw something on the ground that sounded like a heavy metal object. He then saw the same object slide towards the tire of the vehicle, at which point he shined his flashlight on the object and identified it as a handgun. Officer Gregory Yalden also testified that he observed Stenson run to the back of the vehicle and discard an item underneath the vehicle that sounded like metal once it hit the pavement. Officer Donald Dulgar, who patted down Stenson, did not find a gun on his person but identified a black Samsung cell phone by his feet.

Stenson argued that the item he threw was his cell phone and not the handgun the officers found under the vehicle. To support this contention, Stenson testified on his own behalf. He stated on direct examination that he never touched or even saw a gun on the evening he was arrested. Rather, at the time the police arrived, he had his phone in his hands and was checking through it because he was anticipating a phone call. Once the police arrived, Stenson stated that he dropped his phone in the grass. He repeatedly denied dropping anything under the vehicle or on the street.

The jury found Stenson guilty. According to the Presentence Investigation Report (PSR), Stenson’s base offense level [830]*830was 24. The government objected to the failure to include a two-point enhancement for obstruction of justice in the PSR, arguing that Stenson committed perjury when he testified at trial. Stenson disputed giving false testimony and claimed that his position about what transpired on July 10, 2011 had been consistent since his arrest.

The district court identified numerous instances of perjury by Stenson during his testimony. First, on direct examination, Stenson repeatedly denied possessing a gun. Then, on cross-examination, Stenson denied having a firearm the night he was arrested and insisted that it was his cellular phone that was in his hands when the police arrived. The court found the officers’ testimony more credible than Sten-son’s. It based this finding in part on Stenson’s demeanor at trial. The court also found that the false testimony was material, as it would exonerate Stenson had the jury believed his version of what transpired. Finally, the court found the testimony to be deliberate and not the result of confusion, mistake, or faulty memory. The district court sustained the government’s objection to the PSR and applied the two-level obstruction of justice enhancement to Stenson’s sentence, raising his offense level to 26. The court sentenced Stenson to 120 months’ imprisonment.

II. ANALYSIS

A. Constitutionality of U.S.S.G. § SC1.1

Stenson first challenges the constitutionality of United States Sentencing Guidelines (U.S.S.G.) § 3C1.1. We review constitutional challenges to a sentence de novo. United States v. Brucker, 646 F.3d 1012, 1016 (7th Cir.2011).

U.S.S.G. § 3C1.1 provides for a two-level enhancement if the district court finds that the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice[.]” Perjury is a well-settled example of conduct that may warrant an enhancement under § 3C1.1. United States v. Taylor, 637 F.3d 812, 817 (7th Cir.2011). An individual commits perjury if, while under oath, he provides “false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” United States v. Bermea-Boone, 563 F.3d 621, 627 (7th Cir.2009). Thus, to apply an enhancement for perjury under § 3C1.1, a district court should make findings as to false testimony, materiality, and willful intent. United States v. Johnson, 612 F.3d 889, 893 (7th Cir.2010).

Stenson alleges that the enhancement as applied to his case denies him the right to a fair trial, as the district court’s finding that Stenson perjured himself was based solely on testimony that was “inconsistent” with that provided by government witnesses. He contends that applying the enhancement in this manner forces a defendant to choose between his right to testify on his own behalf or remain silent so as not to receive an obstruction enhancement under § 3C1.1. Yet in United States v. Dunnigan, the Supreme Court explicitly held that § 3C1.1 is constitutional, despite its potential to dissuade a defendant from testifying on his own behalf. 507 U.S. 87, 96, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) (“Nor can respondent contend § 3C1.1 is unconstitutional on the simple basis that it distorts her decision whether to testify or remain silent. Our authorities do not impose a categorical ban on every governmental action affecting the strategic decisions of an accused, including decisions whether or not to exercise constitutional rights.”). And while a defendant is allowed to testify on his own behalf, he [831]*831does not have the right to commit perjury. United States v. Jackson, 300 F.3d 740, 749 (7th Cir.2002) (citing Dunnigan, 507 U.S. at 96, 113 S.Ct. 1111).

Consistent with the Supreme Court’s decision in Dunnigan,

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Bluebook (online)
741 F.3d 827, 2014 WL 265759, 2014 U.S. App. LEXIS 1424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-stenson-ca7-2014.