United States v. John Roberts ( 2019 )


Menu:
  •                            RECOMMENDED FOR FULL-TEXT PUBLICATION
    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 19a0054p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                                ┐
    Plaintiff-Appellee,   │
    │
    >      No. 17-6512
    v.                                                │
    │
    │
    JOHN ROBERTS,                                            │
    Defendant-Appellant.     │
    ┘
    Appeal from the United States District Court
    for the Middle District of Tennessee at Nashville.
    No. 3:16-cr-00199-1—Roger H. Lawson, Jr., District Judge.
    Argued: December 6, 2018
    Decided and Filed: March 28, 2019
    Before: MOORE, GIBBONS, and COOK, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, PC, Nashville,
    Tennessee, for Appellant. Thomas J. Jaworski, UNITED STATES ATTORNEY’S OFFICE,
    Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF
    DAVID L. COOPER, PC, Nashville, Tennessee, for Appellant. Thomas J. Jaworski, UNITED
    STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
    _________________
    OPINION
    _________________
    COOK, Circuit Judge. John Roberts challenges several of the district court’s decisions at
    trial and sentencing: an evidentiary ruling, the district court’s refusal to authorize Criminal
    Justice Act (CJA) funds for a forensic accountant, its reliance on judge-found facts to calculate
    No. 17-6512                           United States v. Roberts                             Page 2
    the appropriate Guidelines range, the application of six sentencing enhancements, and the
    substantive reasonableness of his sentence. We affirm in part and remand some issues for further
    proceedings.
    I.
    The facts of this case are not complicated. John Roberts and seven coconspirators
    worked together to steal millions of dollars’ worth of sensitive military equipment from a local
    army base and sell it on eBay. Although Roberts took the stand and denied that he knowingly
    trafficked stolen goods, the jury convicted him on all thirteen counts in the indictment: one count
    of conspiracy to steal government property valued at over $1,000 (
    18 U.S.C. § 371
    ); ten counts
    of wire fraud (
    18 U.S.C. § 1343
    ); and two counts of unauthorized export of prohibited military
    equipment (
    22 U.S.C. § 2778
    (b)(2)). The district court applied six enhancements to Roberts’s
    sentence: eighteen offense levels for stealing more than $3.5 million of military equipment under
    USSG § 2B1.1(b)(1)(J), two levels for mass-marketing under USSG § 2B1.1(b)(2)(A)(ii), two
    levels as a “person in the business of receiving and selling stolen property” under USSG
    § 2B1.1(b)(4), two levels for committing a crime involving sophisticated means under USSG
    § 2B1.1(b)(10)(C), four levels for organizing or otherwise leading the criminal conspiracy under
    USSG § 3B1.1(a), and two levels for willfully obstructing justice under USSG § 3C1.1.
    Ultimately, the court sentenced Roberts to 180 months’ imprisonment, varying downward from
    the 210- to 262-month range suggested by the Guidelines.
    Roberts appeals, contesting several of the district court’s decisions at trial and sentencing.
    II.
    A. Evidentiary ruling
    Before trial, Roberts notified the government that he intended to introduce into evidence
    other, current eBay listings by different sellers to prove that he accidentally—rather than
    knowingly—committed a crime.         These listings offered similar types of sensitive military
    equipment as those in the indictment: combat helmets, night vision goggles, body armor vests,
    and communication headsets. Roberts expected to tell the jury that he saw posts on eBay before
    No. 17-6512                           United States v. Roberts                           Page 3
    he began selling on the internet, presumed that these military products freely circulated in the
    market, and concluded that he could have lawfully bought and sold them. He ended up selling
    stolen goods, he would have argued, but that doesn’t mean that he did so knowingly. After
    reviewing the parties’ motions in limine and discussing the issue during two bench conferences,
    the district court excluded the evidence.
    Roberts argues that the district court abused its discretion in excluding evidence that
    would have critically undercut the government’s case. The government, on the other hand,
    contends that it did not ask the jury to infer mens rea from the nature of the equipment Roberts
    sold on eBay. Instead, the government called three of Roberts’s coconspirators to testify that he
    knew that he sold stolen goods.        And it introduced several text messages between the
    coconspirators further substantiating that testimony. Thus, the government argues, the eBay
    listings had limited probative value, if any, and could have confused the jury into reasoning that
    Roberts ought not be convicted for a crime that others freely continue to commit.             The
    government has the better of the argument.
    An appellate court must be mindful of its limitations when reviewing evidentiary
    determinations.   Unlike a district court, we rely on a record devoid of a trial’s “nuances,
    dynamics, and atmosphere.” United States v. Chambers, 
    441 F.3d 438
    , 456 (6th Cir. 2006).
    Thus, we review a district court’s evidentiary rulings for abuse of discretion, deferring to the
    court’s decision to admit or exclude evidence “unless we are left with the definite and firm
    conviction” that it clearly erred in weighing the relevant factors. United States v. Wagner,
    
    382 F.3d 598
    , 616 (6th Cir. 2004); see also United States v. Weaver, 610 F. App’x 539, 543 (6th
    Cir. 2015).
    Although the Federal Rules of Evidence favor admission, a trial court may exclude
    relevant evidence if the danger of unfair prejudice resulting from admitting it substantially
    outweighs its probative value. Fed. R. Evid. 403. We reject the trial court’s balancing only
    when we are firmly convinced that the district court erred, and, even then, only if that error
    resulted in substantial injustice. United States v. Dixon, 
    413 F.3d 540
    , 544 (6th Cir. 2005);
    Kovacevich v. Kent State Univ., 
    224 F.3d 806
    , 832 (6th Cir. 2000).
    No. 17-6512                           United States v. Roberts                            Page 4
    Viewing the evidence in the light most favorable to Roberts by maximizing its probative
    value and minimizing its prejudicial effect, as we must, United States v. Brady, 
    595 F.2d 359
    ,
    361 (6th Cir. 1979), we are not convinced that the district court abused its discretion. Even taken
    generously, the eBay evidence does little more than demonstrate that many users illicitly sell
    stolen goods over the internet. These listings not only postdate the indictment, but they also do
    not rebut the bevy of other evidence the government offered to prove that Roberts knew the
    goods were stolen—such as text messages discussing the conspiracy and other witness
    testimony. The evidence more likely would have confused the issues and convinced the jury to
    acquit “on [the] improper basis” that other users illicitly sell stolen goods with impunity. See
    United States v. Rey, 
    923 F.2d 1217
    , 1222 (6th Cir. 1991).
    Moreover, even if we did conclude that the district court erred, any such error is
    harmless. The government offered abundant evidence that Roberts knew he trafficked stolen
    goods. Thus, excluding the eBay listings would not have had a “substantial and injurious effect
    or influence” on the jury’s verdict. Brecht v. Abrahamson, 
    507 U.S. 619
    , 623 (1993).
    B. Violating CJA by denying funding for a forensic accountant
    Under the CJA, attorneys for indigent defendants can petition a court for federal funds to
    retain an investigator, expert witness, or professional whose services the attorney needs to
    provide adequate representation. 18 U.S.C. § 3006A(e)(1). To obtain these funds, an indigent
    defendant must show that “(1) such services are necessary to mount a plausible defense, and
    (2) without such authorization, the defendant’s case would be prejudiced.” United States v.
    Gilmore, 
    282 F.3d 398
    , 406 (6th Cir. 2002).
    Roberts argues that he did both. Before sentencing, he asked the court for $2,500 in CJA
    funds to cover the costs of a forensic accountant. He justified the expenditure by explaining that
    the presentence report did not explain the government’s valuation method in calculating loss, and
    that “many of the items and pieces of equipment were ‘used’ so that full retail value may not be
    appropriate. Depreciation of the value of the property may or may not have been taken into
    account by the government when considering the amount of loss.” R. 230, PageID 873–74. And
    the value of the stolen items directly enhanced his sentence. In a text-only order, the visiting
    No. 17-6512                                  United States v. Roberts                                      Page 5
    judge from the Middle District of Georgia denied the motion. R. 232. Roberts appeals this
    decision, arguing that the district court abused its discretion.
    When a district court gives no explanation of its reasoning in denying such a motion, we
    find ourselves at a loss. Reviewing for abuse of discretion does not mean that we substitute our
    judgment for the trial court’s, affirming if we come to the same conclusions after reviewing the
    record. United States v. Mathis-Gardner, 
    783 F.3d 1286
    , 1288–89 (D.C. Cir. 2015). On the
    other hand, we don’t require a district court to labor over detailed explanations for every ruling;
    sometimes, clear and compelling reasons warrant promptly denying relief. 
    Id. at 1289
    . “[W]hen
    the reasons for denying a colorable motion are apparent on the record, or when granting relief
    was clearly appropriate from the face of the record, we can properly review whether the district
    court appropriately exercised its discretion, even without an explanation.”                           
    Id.
     (internal
    quotations and citations omitted).
    At the time the district judge denied Roberts CJA funds, no clear and compelling reason
    supported that conclusion. But we need not remand for the district court to explain why it denied
    the motion because sentencing made clear that a forensic accountant could not have helped
    Roberts’s sentencing position.
    During oral argument, counsel clarified that two sources of inventory drove the
    sentencing enhancement: the $4.1 million of items Roberts sold on eBay, and the $1.4 million of
    items seized in his warehouse. The value of the eBay items had been determined by the market
    prices they sold for—the only question for the judge was how many items had been stolen and
    illegally sold outside military channels. In contrast to the eBay inventory, the items seized at the
    warehouse had not yet been sold. The military valued those items at $1.4 million, but Roberts
    theorized that with a forensic accountant he could properly challenge that figure.
    But challenging it would not have affected Roberts’s sentence.                        The government’s
    witness testified that between ninety and ninety-five percent (over the threshold $3.5 million1) of
    1
    This may not be readily apparent from the sentencing transcript because the district court erroneously
    twice reduced the value of the eBay items to account for stolen goods. The government’s witness testified that
    Roberts earned $4.1 million in eBay sales and testified that ninety to ninety-five percent of those items were stolen.
    The district court acknowledged that the eBay portion of the loss would amount to around $3.6 million (using the
    No. 17-6512                                  United States v. Roberts                                     Page 6
    the items sold on eBay had been stolen. And that number alone drove the loss-value sentencing
    enhancement. Thus, even if we decided that the district court erred here, its error was harmless.
    See United States v. Clark, 
    385 F.3d 609
    , 618 (6th Cir. 2004) (employing the harmless error rule
    where district judge denied a defendant CJA funds).
    C. Violating Sixth Amendment by denying funding for a forensic accountant
    Roberts also claims that by denying him funding for a forensic accountant, the district
    court denied him effective assistance of counsel, violating his Sixth Amendment rights. But
    Roberts contends only that the district court denied his counsel the opportunity to challenge the
    loss valuation at sentencing, not that his counsel ineffectively represented him. See United States
    v. Thurmon, 
    413 F.3d 752
    , 755 (8th Cir. 2005); see also United States v. Osoba, 
    213 F.3d 913
    ,
    917 (6th Cir. 2000). This allegation is therefore more appropriately construed as an argument
    that the district court violated the CJA, see Thurmon, 
    413 F.3d at 755
    , and we have already
    found that contention meritless.
    D. Relying on judge-found loss valuation to calculate the sentencing range
    The district court questioned government witness Agent Perry at sentencing on the value
    of Roberts’s theft to calculate the appropriate guideline range. Roberts did not object to the
    district court taking on this role. We thus review the judge’s fact-finding at sentencing for plain
    error, reversing only if we find “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected
    defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of
    the judicial proceedings.’” United States v. Vonner, 
    516 F.3d 382
    , 386 (6th Cir. 2008) (en banc)
    (quoting United States v. Gardiner, 
    463 F.3d 445
    , 459 (6th Cir. 2006)).
    The Sixth Amendment includes no prohibition on district courts making factual findings
    or relying on those findings to impose a sentence below the statutory maximum. United States v.
    Bonick, 711 F. App’x 292, 299 (6th Cir. 2017). Although we concluded in Bonick that these
    practices will not “always result in a constitutional sentence,” neither a majority of the Supreme
    lower end of the witness’s estimate, ninety percent). It later mistakenly commented that the eBay portion of the loss
    amounted to “90 percent of the $3.5 million.” R. 327, PageID 2145. The true portion of the loss amount, at least as
    determined initially by the district court, was ninety percent of $4.1 million and therefore exceeded $3.5 million.
    No. 17-6512                              United States v. Roberts                         Page 7
    Court nor a majority of this court has recognized an as-applied Sixth Amendment challenge to
    this fact-finding. 
    Id.
     Thus, even if we credited Roberts’s argument and found error, it would be
    neither obvious nor clear. Id.; Vonner, 
    516 F.3d at 386
    .
    E. Procedural reasonableness
    Roberts also challenges the procedural reasonableness of his sentence, attacking the
    district court’s application of six sentencing enhancements, and the adequacy of its explanations
    in choosing to apply them. Because Roberts again failed to object, we review for plain error.
    United States v. Penson, 
    526 F.3d 331
    , 337 (6th Cir. 2008).
    Loss value. Roberts challenges the adequacy of the district court’s ruling on the amount
    of loss attributable to his theft, see Fed. R. Crim. P. 32(i)(3)(B), specifically alleging that the
    court relied on an incorrect valuation of the loss amount, failed to distinguish between stolen
    army equipment and legally trafficked items, and mistakenly attributed some of the items to
    Roberts rather than his coconspirators.
    When a defendant actively disputes a factual portion of the presentence report that might
    affect his sentence, the district court must affirmatively rule on the matter and “may not merely
    summarily adopt the factual findings in the presentence report or simply declare that the facts are
    supported by a preponderance of the evidence.” United States v. White, 
    492 F.3d 380
    , 415 (6th
    Cir. 2007); Fed. R. Crim. P. 32(i)(3)(B). Our cases require “literal compliance” with Rule 32
    and mandate that sentencing courts explain their calculation methods, 
    id.,
     ensuring that
    “defendants are sentenced on the basis of accurate information and provid[ing] a clear record for
    appellate courts,” United States v. Tackett, 
    113 F.3d 603
    , 613–14 (6th Cir. 1997).             This
    calculation need only reasonably estimate the loss, but it must reflect the district court’s work in
    arriving at it. USSG § 2B1.1 cmt. n.3(C); United States v. Poulsen, 
    655 F.3d 492
    , 513 (6th Cir.
    2011).
    Roberts challenged the presentence report’s calculation of the loss amount.            The
    government contends that the district court adequately explained its findings, but we disagree.
    At sentencing, the district judge repeatedly asked Perry to explain how she could assume that
    ninety percent of the items sold on eBay had been stolen, expressing discomposure when Perry
    No. 17-6512                           United States v. Roberts                            Page 8
    replied that she had not itemized the stolen equipment and could not provide the court with any
    documentation supporting her testimony. R. 237, PageID 2142–44. “I’m just trying to find out
    how you arrived at these numbers,” the judge repeated, “[a]nd you testify with great enthusiasm
    as to [these numbers], but if you go into much deeper than that, you hit a stump.” Id. at 2144.
    But the judge moved on almost immediately, accepting Perry’s best guess at estimating
    the loss value: “The Court finds that 80 percent of Exhibit 1 was illegal; 80 percent of
    $1.4 million and 90 percent of the $3.5 million. Okay. Thank you.” R. 327, PageID 2145.
    Quite plainly, “a district court implicitly adopt[ing] the United States’ reasoning as part of its
    findings does not suffice” for the purpose of Rule 32. United States v. Griffin, 656 F. App’x 138,
    142 (6th Cir. 2016); see also White, 
    492 F.3d at 418
    . In United States v. Nelson, for instance, we
    found that a district court’s bare recitation that he “had an opportunity to review the submissions
    by both the defendant and the government and . . . concluded that the government is correct and
    that it is no longer necessary to go through the exercise of doing further research,” did not reveal
    how the district court determined the government accurately calculated the loss, nor did it
    respond to Nelson’s specific objections. 
    356 F.3d 719
    , 723 (6th Cir. 2004).
    “[I]t is not [a reviewing] court’s duty to supply reasons for the district court’s sentencing
    decision.” United States v. Fowler, 
    819 F.3d 298
    , 306 (6th Cir. 2016). Because this error drove
    the court’s enhancement of Roberts’s sentence, it affected his substantial rights. See United
    States v. Cotton, 
    535 U.S. 625
    , 633 (2002) (“affecting substantial rights” means that the error
    “affected the outcome of the district court proceedings” (internal citation omitted)). Thus, we
    vacate the loss value enhancement, and remand for resentencing consistent with this opinion.
    Finally, should the district court find that the eBay portion of the loss amount is less than
    $3.5 million, it should reconsider any requests by Roberts for a forensic accountant to aid in
    determining the loss amount attributable to the other recovered goods.
    Mass-marketing.      Roberts also contends that the district court failed to make the
    necessary factual findings as to the applicability of a mass-marketing enhancement. But Roberts
    never challenged the factual foundation of the mass-marketing enhancement, and therefore never
    triggered Rule 32’s affirmative ruling requirement. United States v. Lang, 
    333 F.3d 678
    , 681
    No. 17-6512                             United States v. Roberts                          Page 9
    (6th Cir. 2003).     He did not specifically allege, for example, that the presentence report
    incorrectly identified the victim of his fraud. Instead he referenced the Second Circuit’s reading
    of the mass-marketing enhancement as “properly appl[ying] only when the targets of the mass-
    marketing . . . are also in some way victims of the scheme.” United States v. Lacey, 
    699 F.3d 710
    , 714 (2d Cir. 2012). Though a novel question, it did not put any facts in dispute, and the
    district court therefore did not procedurally err by failing to address it.
    A person in the business of selling and receiving stolen property. Here too, Roberts
    argues that the district court procedurally erred when it failed to resolve the factual dispute over
    whether Roberts derived income solely from selling stolen goods. But the presentence report left
    open the possibility that Roberts sometimes sold legitimately-purchased items. It explained that
    Roberts qualified for the USSG § 2B1.1(b)(4) enhancement because he trafficked volumes of
    stolen goods, maintained a large inventory in a storage unit, involved a number of
    coconspirators, and facilitated and encouraged other thefts from the military. USSG § 2B1.1
    cmt. n.5. Thus, with no factual disagreement to resolve, nothing triggered the district court’s
    responsibility under Rule 32 to adequately explain its findings. United States v. Treadway,
    
    328 F.3d 878
    , 886 (6th Cir. 2003).
    Leadership. Roberts contends that the district court again failed to make the required
    findings under Rule 32 that he organized or led “a criminal activity that involved five or more
    participants” sufficient to enhance his sentence under USSG § 3B1.1(a). As before, Roberts
    failed to raise a factual dispute below, and did not trigger Rule 32’s requirements. To put a fact
    in dispute, a defendant must “produce more than a bare denial” or suggest a different
    enhancement. Lang, 
    333 F.3d at 681
    .
    Sophisticated means. Next, Roberts asserts that the district court procedurally erred and
    violated Rule 32(h) when it imposed a two-level enhancement under USSG § 3B1.1(b)(10)(C)
    rather than (10)(B) without notifying counsel beforehand. Rule 32(h) requires that before a court
    departs from the applicable sentencing range on a ground that neither the presentence report nor
    the party’s prehearing submissions raise, “the court must give the parties reasonable notice that it
    is contemplating such a departure.” Our cases teach, however, that a district court’s sua sponte
    decision to apply a Guidelines provision under one subsection rather than another does not
    No. 17-6512                             United States v. Roberts                           Page 10
    qualify as a “departure” requiring notice. United States v. Bathily, 392 F. App’x 371, 375 (6th
    Cir. 2010) (collecting cases); see also United States v. Hayes, 
    171 F.3d 389
    , 393 (6th Cir. 1999)
    (the district court need not supply notice when it “plans to apply the Guidelines in a manner
    different from what is recommended in the presentence report”). We therefore find no error
    here.
    Obstruction. Finally, Roberts challenges the district court’s imposition of an obstruction
    of justice enhancement under USSG § 3C1.1. The district court, he claims, both failed to make
    necessary factual findings after Roberts challenged the enhancement, and incorrectly relied on
    the jury’s verdict to determine that Roberts lied at trial.
    Supreme Court strictures protect a defendant’s right to testify by tightly circumscribing
    the circumstances under which a district court may enhance a sentence for willfully presenting
    false testimony at trial: “if a defendant objects to a sentence enhancement resulting from her trial
    testimony, a 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.” United States v. Dunnigan, 
    507 U.S. 87
    , 95 (1993). Best
    practices would have a sentencing judge “address each element of the alleged perjury in a
    separate and clear finding.”      
    Id.
       Yet the Supreme Court confirmed that it would uphold
    applications of an obstruction enhancement if a court fulfills Dunnigan’s broad mandate and
    “makes a finding of an obstruction of, or impediment to, justice that encompasses all of the
    factual predicates for a finding of perjury.” 
    Id.
    To fulfill Dunnigan’s directive, this circuit instituted two requirements for a district court
    imposing an obstruction enhancement for perjury: “first, it must identify those particular portions
    of the defendant’s testimony that it considers to be perjurious, and second, it must either make
    specific findings for each element of perjury or at least make a finding that encompasses all of
    the factual predicates for a finding of perjury.” United States v. Sassanelli, 
    118 F.3d 495
    , 501
    (6th Cir. 1997) (internal quotations omitted).
    Our cases recite firm rules, instructing that we will not “review [a] record independently
    to make our own findings and infer that the district court had the same statements in mind.”
    No. 17-6512                            United States v. Roberts                           Page 11
    United States v. Chance, 
    306 F.3d 356
    , 389–90 (6th Cir. 2002). Nor will we neglect Dunnigan’s
    independent-finding mandate, affirming “on an inference that [an enhancement] was based upon
    the government’s arguments.” United States v. McRae, 
    156 F.3d 708
    , 713 (6th Cir. 1998); see
    also United States v. Warner, 646 F. App’x 478, 480 (6th Cir. 2016). But while we sometimes
    insist on rigid adherence to these rules, see United States v. Macias-Farias, 
    706 F.3d 775
    , 783
    (6th Cir. 2013), other times we’ve affirmed on less work, “so long as the record below is
    sufficiently clear to indicate those statements that the district court considered to be perjurious
    and that the district court found that those statements satisfied each element of perjury,”
    Sassanelli, 
    118 F.3d at 501
    . We have even concluded that a colloquy or other contextual clues
    can satisfy the Dunnigan test. See United States v. Roman-Oliver, 564 F. App’x 156, 165 & n.2
    (6th Cir. 2014).
    In United States v. Clark, we held that “the better practice, and the requirement that
    should be followed hereafter, is that, when assigning points for obstruction of justice, the district
    court should identify specifically which statements or actions by a defendant constitute an
    obstruction of justice.” 
    982 F.2d 965
    , 970 (6th Cir. 1993) (emphasis added). Regardless of
    interim cases that may lean a different way, we follow Clark’s binding precedent here. See
    Darrah v. City of Oak Park, 
    255 F.3d 301
    , 310 (6th Cir. 2001); see also Macias-Farias, 706 F.3d
    at 783.
    The district court made no findings whatsoever. Roberts challenged the obstruction
    enhancement both before and during sentencing, triggering the judge’s obligation to “make
    independent findings necessary to establish” that the defendant willfully and materially perjured
    himself. Dunnigan, 
    507 U.S. at 95
    . But after hearing brief argument from both parties at
    sentencing—and in direct response to the government’s admonishment that the Sixth Circuit
    requires a specific finding for an obstruction enhancement—the district judge uttered just eleven
    words: “The Court makes a specific finding that the defendant testified falsely.” R. 327, PageID
    2154.
    This fails to satisfy the most forgiving reading of Dunnigan. Even in cases where we
    parse colloquies between the government and the court to find that the district court made
    independent findings of perjury, district judges have done more to prove that they independently
    No. 17-6512                                   United States v. Roberts                                    Page 12
    arrived at a conclusion, adhering to Dunnigan’s law if not Clark’s gloss. See, e.g., United States
    v. Ledezma, 
    26 F.3d 636
    , 644 (6th Cir. 1994) (court explicitly referenced the government’s
    argument and concluded that the defendant perjured herself)2; United States v. Rhodes, 314 F.
    App’x 790, 795 (6th Cir. 2008) (discussing particular testimony and finding it false); United
    States v. Thomas, 272 F. App’x 479, 488 (6th Cir. 2008) (court detailed three specific instances
    in which the defendant’s testimony contradicted other, more believable testimony); United States
    v. Hover, 
    293 F.3d 930
    , 935 (6th Cir. 2002) (explicitly noting that the district court reviewed the
    transcript and concluded that, “[the defendant] committed perjury” and that “[t]here’s no reason
    to repeat what the government just said and [the prosecutor] just said because that’s exactly what
    the transcript reflects. Clearly greatly at odds with all the evidence in this case.”); United States
    v. Hooper, 
    65 F.3d 169
    , 
    1995 WL 514649
    , at *5 (6th Cir. Aug. 29, 1995) (per curiam) (table) (at
    sentencing, judge discussed why he determined that the defendant lied on the stand, thereby
    meriting the obstruction enhancement).
    The district court plainly, clearly, and obviously erred. It did no independent work—
    certainly not enough to satisfy the Dunnigan requirements. Our controlling precedent provides
    clear direction when a district judge fails to make independent findings: we will not rely on
    inference to deduce what he considered when he imposed the enhancement. Otherwise, we risk
    eroding Dunnigan’s safeguards.              True, “there is a sizeable gap between good sentencing
    practices and reversibly bad sentencing practices,” Vonner, 
    516 F.3d at 389
    , but this is the latter.
    We will not make “factual findings of perjury in the first instance, even if we believe
    there is evidence in the record that supports such findings.” Macias-Farias, 706 F.3d at 782–83.
    We thus vacate the obstruction enhancement and remand for the district court either to find on
    the record that Roberts “(1) made a false statement under oath (2) concerning a material matter
    (3) with the willful intent to provide false testimony, or to resentence him . . . without the
    obstruction-of-justice enhancement.” United States v. Warner, 646 F. App’x 478, 480–81 (6th
    Cir. 2016) (per curiam) (internal citations omitted).
    2
    We distinguish Ledezma on its facts, but also note that though Ledezma purports to follow Clark, it has
    established a disturbing practice where we look only to colloquies between the court and counsel to satisfy
    Dunnigan, essentially abrogating the district court’s responsibility to identify specific statements as perjurious. Id.
    Clark clearly permits no such thing. See Sassanelli, 
    118 F.3d at 501
    .
    No. 17-6512                           United States v. Roberts                           Page 13
    F. Substantive reasonableness
    Roberts also challenges the substantive reasonableness of his sentence, alleging that the
    district court impermissibly accounted for the probability that good-time credit would decrease
    his effective imprisonment.    We consider a sentence “substantively unreasonable when the
    district court selects a sentence arbitrarily, bases the sentence on impermissible factors, or gives
    an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 
    514 F.3d 508
    , 520 (6th Cir. 2008). Our ordinary abuse of discretion standard applies. Vonner, 
    516 F.3d at 397
    .
    No such abuse of discretion occurred here. When it imposed Roberts’s sentence, the
    district court explained that Roberts would probably spend only about twelve years of it in
    prison, “[a]nd 12 years to a man locked up is a long time. I think that’s long enough.” The court
    did not, as Roberts alleges, consider good-time credit as a stand-alone factor in fashioning the
    length of the sentence. See United States v. Al-Din, 631 F. App’x 313, 338 (6th Cir. 2015)
    (affirming where the district court similarly did not consider good-time credit as a stand-alone
    factor). The mention of the availability of good-time credits does not render the sentence
    substantively unreasonable, although we do not comment on the substantive reasonableness of
    the sentence the district court will issue upon remand.
    III.
    We VACATE the loss enhancement under USSG § 2B1.1(b)(1)(J) and the obstruction
    enhancement under USSG § 3C1.1, and REMAND for further proceedings consistent with this
    opinion. As for the other sentencing enhancements, the evidentiary ruling, denial of CJA funds,
    and the substantive reasonableness of Roberts’s sentence, we AFFIRM.