NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 10, 2011
Decided September 19, 2011
Before
JOEL M. FLAUM, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID R. HERNDON, District Judge*
No. 10‐2620
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 00139
EDWARD EASON,
Defendant‐Appellant. Ronald A. Guzman,
Judge.
O R D E R
Shortly after his release from jail, Edward Eason went on a bank robbery spree and
confessed after he was caught. He filed a motion to suppress his confession, lost the motion,
and pled guilty. On appeal, Eason challenges his 160‐month sentence. Although he maintains
he should not have received an obstruction of justice enhancement, the district court did not
err in concluding that his suppression hearing testimony was false, on a material matter, and
willfully made. In addition, because he had many convictions unaccounted for in his criminal
history category under the sentencing guidelines, the judge did not err in finding that criminal
*
Of the United States District Court for the Southern District of Illinois, sitting by designation.
No. 10-2620 Page 2
history category III under‐represented Eason’s criminal history. Finally, we do not find the 160‐
month sentence unreasonable. Therefore, we affirm the judgment of the district court.
I. BACKGROUND
Edward Eason pled guilty to committing five different bank robberies in 2007 and early
2008. During each robbery, he handed over a note threatening to shoot the teller if the teller did
not give Eason the money he demanded. It turns out that Eason did not have a gun with him
during any of the five robberies, but none of the tellers knew it. Eason left the banks with
approximately $700 on one occasion, $12,200 on another, and around $3,000 in each of the three
other robberies.
Eason filed a motion to suppress the confession he gave after his arrest. He contended
that he agreed to give a statement only after law enforcement agents threatened to arrest his
girlfriend and sister if he did not cooperate. Two government agents testified at the suppression
hearing that Eason spoke after receiving Miranda warnings and signing a written Miranda
waiver. They also testified that the questioning stopped after he invoked his right to counsel
and only resumed after Eason signed a second Miranda waiver stating he had previously
invoked his right to counsel, changed his mind, and wished to speak with investigators without
an attorney present. The waiver also stated that Eason had made the decision freely and
without threats or promises. The agents also testified that they never threatened to arrest
Eason’s girlfriend or sister if he did not sign the form or speak with them.
Eason submitted a sworn affidavit in support of his motion to suppress. The affidavit
states, among other things, that law enforcement agents interviewed him at FBI headquarters
and that the interview stopped after he invoked his right to counsel. However, at the
suppression hearing, Eason testified that the agents interviewed him at his workplace right
after his arrest. He also testified at the hearing that the agents temporarily stopped his
interrogation after he invoked his right to counsel but that they resumed again after about
fifteen to twenty minutes. The prosecutor confronted Eason with his sworn affidavit on cross
examination. While the prosecutor was attempting to impeach him, Eason affirmatively stated,
though not in response to a particular question, that he had never seen the affidavit before.
The district court denied Eason’s motion to suppress, stating Eason’s testimony was
difficult to believe and that the sequence of events he detailed in certain instances did not make
sense. Eason pled guilty, and the Presentence Investigation Report recommended a sentence
of 87‐108 months’ imprisonment based on an offense level of 27 and a criminal history category
of III.
The government requested a two‐point obstruction of justice enhancement based on
Eason’s testimony at the suppression hearing, and the district court agreed. It also awarded
Eason an acceptance of responsibility reduction. The government also argued that criminal
history category VI, the highest category, more accurately reflected Eason’s criminal history
No. 10-2620 Page 3
than did the guidelines recommendation of category III. The district court concluded that
criminal history category V was appropriate, and the advisory guidelines range for the final
offense level of 29 combined with a criminal history category of V was 140 to 175 months’
imprisonment. The district court sentenced Eason to 160 months, and he appeals his sentence.
II. ANALYSIS
A. Obstruction of Justice Enhancement
Eason first challenges the obstruction of justice enhancement he received. U.S.S.G. §
3C1.1 provides for a two‐level enhancement for a defendant who “willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction.” The Supreme
Court has held that the enhancement is warranted when a defendant willfully provides
untruthful testimony, under oath, on a material matter. United States v. Dunnigan, 507 U.S. 87,
98 (1993). A district also must review the evidence and make independent findings supporting
the enhancement. Id. at 95.
The district court imposed the enhancement after concluding that Eason testified
untruthfully about whether he had read the affidavit he signed. The court stated at the
sentencing hearing that it believed Eason’s testimony that he had not seen the affidavit was
“just a total disrespect for the entire process that we were undergoing . . . . I think he committed
perjury when he said that. In fact, I’m sure of it.”
The obstruction of justice enhancement “is not intended to punish a defendant for the
exercise of a constitutional right.” U.S.S.G. § 3C1.1 cmt. 2. Therefore, when considering whether
to apply § 3C1.1, “the court should be cognizant that inaccurate testimony or statements
sometimes may result from confusion, mistake, or faulty memory and, thus, not all inaccurate
testimony or statements necessarily reflect a willful attempt to obstruct justice.” Id. That Eason
testified at a suppression hearing where the judge ultimately denied the motion is therefore not
sufficient in itself to support the enhancement, and the district court recognized this. Cf.
Dunnigan, 507 U.S. at 95 (explaining that even if a defendant’s testimony is truthful, a jury
might still find it insufficient to excuse criminal liability).
Eason maintains that his statement was neither material nor willful. The guidelines
define “material” to mean “evidence, fact, statement, or information that, if believed, would
tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6. Eason’s
statement that he had not read the affidavit was material. When the government attempted to
impeach him by pointing out that he had testified to facts during the hearing that were not in
the affidavit, he denied having seen the affidavit. The resolution of the suppression motion
depended largely on whether the court believed Eason’s testimony, as Eason maintained the
agents had threatened to arrest his girlfriend and sister if he did not cooperate, while the agents
denied making such threats. If Eason’s testimony about not seeing the affidavit had been
No. 10-2620 Page 4
believed, it would have bolstered his credibility as a witness and deflected the prosecution’s
impeachment. Ultimately, if the court believed Eason’s testimony at the suppression hearing,
it might have suppressed his confession. See United States v. Vallar, 635 F.3d 271, 289 (7th Cir.
2011). Eason’s statement was likely to influence the outcome as it affected his credibility, and
it was material. See United States v. Galbraith, 200 F.3d 1006, 1014 (7th Cir. 2000) (“[A] falsehood
told at a pretrial hearing is material if it is calculated to substantially affect the issue under
determination at that hearing.”).
It was also not clear error to conclude that Eason willfully and falsely testified. A district
court’s determination that a defendant was willfully untruthful in making a statement is a
finding of fact that we review only for clear error, giving deference to a district court’s
credibility determinations. United States v. DeLeon, 603 F.3d 397, 403 (7th Cir. 2010). Although
Eason maintains that his testimony was simply a mistake and resulted from a
misunderstanding, the district court listened to Eason’s testimony and concluded it lacked
credibility. Specifically, the district court stated, “I don’t for a minute believe that his lawyer
didn’t give [the affidavit] to him and make him read it. I believe that’s just a total disrespect for
the entire process . . . I think he committed perjury when he said that.”
We find no clear error in that determination. See Vallar, 635 F.3d at 289 (finding no clear
error in conclusion that defendant willfully testified falsely where district court weighed
defendant’s testimony against that of the government agents and concluded defendant lacked
credibility). Eason had signed the affidavit before it was submitted to the court. Also, he only
stated he had not seen the affidavit after the prosecutor confronted him with details about his
testimony that were not in his affidavit. Prior to that, he had been asked, “And in your
affidavit, you state that after your arrest, the law enforcement officials interrogated you at the
FBI office?” and to that question he answered, “Correct,” with no suggestion that he had not
seen the affidavit. The district court’s explanation for why it imposed the obstruction
enhancement was sufficient to satisfy Dunnigan, and it was justified.
B. Criminal History
Eason also challenges the district court’s decision to increase his criminal history
category from category III to category V after it concluded that Eason’s criminal history was
underrepresented. U.S.S.G. § 4A1.3(a)(1) provides that an upward departure based on
inadequacy of criminal history may be warranted “[i]f reliable information indicates that the
defendant’s criminal history category substantially under‐represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other crimes.”
Because the guidelines are now advisory, the sentencing judge is not required to follow section
4A1.3 when imposing an above‐guideline sentence. United States v. Johnson, 612 F.3d 889, 896
(7th Cir. 2010). But “[a]lthough not bound by the Guidelines, district courts may apply the
departure guidelines ‘by way of analogy in analyzing the section 3553(a) factors.’” Id. (quoting
No. 10-2620 Page 5
United States v. Miranda, 505 F.3d 785, 792 (7th Cir. 2007)); see also United States v. LaFaive, 618
F.3d 613, 619 (7th Cir. 2010).
Both parties agree that the PSR accurately calculated Eason’s criminal history category
under the guidelines as category III. The PSR also noted that an upward variance might be
warranted if the court found that category III substantially under‐represented the seriousness
of Eason’s criminal history or the likelihood he would commit future crimes, and, indeed that
is what the government argued. Eason had ten criminal convictions before the five burglaries
in this case, spanning a twenty‐year period. He had been convicted of theft, robbery, burglary
(twice), attempting to receive stolen property, larceny, armed robbery (twice), escape, and bank
robbery. He received three criminal history points for a 1989 bank robbery conviction for which
he received an eighteen‐year sentence, but, because of their ages, the guidelines did not assess
criminal history points for the nine other convictions. Had those older convictions counted,
they would have resulted in twenty‐five additional criminal history points. The government
asked that the court treat Eason as though he were in category VI, which applies to defendants
with thirteen or more criminal history points.
The district court concluded that criminal history category III under‐represented Eason’s
criminal history and likelihood of committing future crimes and sentenced him in accordance
with criminal history category V. Although Eason argues otherwise, the sentencing judge gave
more than sufficient reasons for doing so. At the hearing, the district court stated:
This record, I find, is clearly under represented by a criminal history category III.
It includes long periods of incarceration, substantial periods of incarceration,
sentences of incarceration for which no criminal history points were awarded,
namely the robbery in 1968, the burglary in 1975, the burglary – second burglary
in 1975, the receiving stolen property in 1979, larceny in 1981, the armed robbery
in 1982 . . . the second armed robbery, as well as the escape from prison in 1986.
But even more than simply a failure to reflect the seriousness of his past conduct,
what this record reflects clearly is that the defendant will continue to commit
violent crimes whenever he is free and amongst the rest of us. He has done so at
every single opportunity since the time that he was 16 years of age, and
numerous periods of incarceration have failed to deter him from doing so.
The public is entitled to be protected from that kind of determined insistence on
committing crimes, each of which has one or more victims. So I am going to
depart. I’m going to sentence the defendant at a total offense level of 29 and as if
his criminal history category was V.
The district court elaborated even more in its Statement of Reasons, explaining that it
concluded Eason to be a recidivist likely to engage again in serious criminal conduct and that
No. 10-2620 Page 6
public safety required a longer period of incarceration than that called for by a category III
criminal history guideline calculation.
The reasons the district court gave were justified. As the prosecutor pointed out, Eason
was let out of jail in April of 2007 after serving an eighteen‐year sentence for bank robbery. By
that November, he had already embarked on the bank robbery spree that led to the convictions
in this case. If Eason’s older convictions had counted in the criminal history computation, he
would have twenty‐five additional criminal history points, nearly double the number necessary
to place him in category VI, the highest category in the guidelines. In light of the number and
kind of Eason’s convictions, and the lack of deterrent effect incarceration had on him,
calculating Eason’s criminal history based on a criminal history category of V was justified in
this case.
Finally, the 160‐month sentence Eason received was substantively reasonable. The
sentencing judge applied the 18 U.S.C. § 3553(a) factors, explained its reasons, and an above‐
guidelines sentence was reasonable in this case in light of Eason’s prior convictions. See United
States v. Ellis, 622 F.3d 784, 800 (7th Cir. 2010).
III. CONCLUSION
The judgment of the district court is AFFIRMED.
