United States v. Holman, Freeman ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1535
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FREEMAN HOLMAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 99 CR 62—William C. Lee, Chief Judge.
____________
ARGUED FEBRUARY 13, 2002—DECIDED DECEMBER 16, 2002
____________
Before COFFEY, MANION, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Freeman Holman, the defen-
dant in this direct appeal, claims that he received ineffec-
tive assistance of counsel because during trial his attorney
conceded guilt to one of the four counts he faced. He also
alleges that the district judge erred when calculating his
sentence. We find that he was not deprived of his Sixth
Amendment right to the effective assistance of counsel and
that no reversible errors were made during his sentencing.
I. BACKGROUND
On July 31, 1999, Holman was arrested on his way to
meet Joyce Lawson, a police informant who arranged to
2 No. 01-1535
meet Holman and purchase a small quantity of crack co-
caine from him. As a result, he was indicted on one count
of knowing and intentional possession of cocaine base
with intent to distribute in violation of 21 U.S.C. § 841(a)(1)
(Count I). A few months later, Holman was arrested when
officers found a revolver and crack cocaine in his car. A
superceding indictment added three charges based on his
second arrest—possession of cocaine base with intent to
distribute, possession of a firearm and ammunition by a
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and carrying a firearm during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)
(Counts II-IV). Holman was found guilty on all counts by
a jury after a two-day trial, sentenced to 248 months’
imprisonment, and now appeals.
II. ANALYSIS
A. Ineffective Assistance of Counsel
Holman claims he was denied effective assistance of
counsel because his attorney conceded at trial that Holman
was guilty of Count I. His challenge is based on the famil-
iar standard of Strickland v. Washington, 466 U.S. 668
(1984), which requires that defendants show that their
attorney’s performance was deficient and that they suffered
prejudice as a result of this deficient performance. Id. at
688, 692.1 Such claims are mixed questions of law and fact
1
It is possible to argue that by conceding his client’s guilt, Hol-
man’s attorney “fail[ed] to subject the prosecution’s case to ad-
versarial testing,” something found per se prejudicial in United
States v. Cronic, 466 U.S. 648, 659 (1982). However, as the Su-
preme Court recently re-emphasized in Bell v. Cone, 535 U.S. 686,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), Cronic only applies
if counsel fails to contest any portion of the prosecution’s case; if
(continued...)
No. 01-1535 3
that we review de novo. United States v. Shurki, 207 F.3d
412, 418 (7th Cir. 2000). Strickland claims are usually
discussed in writs of habeas corpus, but we review them
on direct appeal when the defendant’s claim can be fully
evaluated based only on the record below, id. at 418, and
not extrinsic evidence. United States v. Goodwin, 202 F.3d
969, 973 (7th Cir. 2000); United States v. Taglia, 922 F.2d
413, 417 (7th Cir. 1991).
1. Deficient Performance Under Strickland
Holman must describe “errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the de-
fendant by the Sixth Amendment” to show that his coun-
sel was performing deficiently. Strickland, 466 U.S. at 687.
The evaluative standard we hold attorneys to in this re-
gard is “simply reasonableness under prevailing profes-
sional norms.” Id. at 688. When evaluating an attorney’s
conduct, our review is “highly deferential,” with the under-
lying assumption that “counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at
689. Whether something is reasonable or not is based on
the facts of the particular case, viewed at the time of coun-
sel’s conduct. Id. at 690.
1
(...continued)
counsel mounts a partial defense, Strickland is the more appro-
priate test. See id., 122 S. Ct. at 1851; Haynes v. Cain, 298 F.3d
375 (5th Cir. 2002) (en banc), petition for certiorari filed, 71
U.S.L.W. 3319 (U.S. Oct. 10, 2002) (No. 02-602); see also Earl
Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981) (conceding guilt
to first-degree burglary and being a persistent felony offender);
United States v. Swanson, 943 F.2d 1070 (9th Cir. 1991) (conced-
ing guilt to one count of bank robbery); cf. Scarpa v. DuBois, 38
F.3d 1, 12-14 (1st Cir. 1994) (collecting cases).
4 No. 01-1535
a) Trial strategy
Holman’s attorney began his opening statement by ac-
knowledging that “on July 31st, 1999, Freeman Holman
readily admits that he had cocaine in his pocket.” He then
explained:
We’re not going to sit here and say, oh, no, he didn’t
have it, because he did. He had the point six eight
or nearly point seven grams of the cocaine, point
seven gram [sic] of cocaine crack base in his pocket.
We are not going to attempt to deny that in any
way, because that is the truth.
During the presentation of evidence, Holman’s attorney
limited his cross-examination of the prosecution’s witnesses
to issues raised in Counts II-IV and did not ask any ques-
tions regarding Count I. Similarly, when presenting de-
fense witnesses (including Holman), he avoided any dis-
cussion of the events surrounding Count I and only asked
questions relating to Counts II-IV. During closing argu-
ment, Holman’s attorney not only conceded that his client
possessed drugs as alleged in Count I, but told the jury
how to fill out the verdict form, saying:
[W]hen you go back to the Jury room we want you
to look for Count I and Verdict Form 1 and where
it says less than five grams, put an “X” there, date
it, and sign it, because that’s what the evidence
showed. He possessed point six eight grams of
cocaine. And as the evidence went in, it certainly
appeared that he was going to deliver it to Joyce
Lawson. No problem with that, because that’s the
truth.
Though an unusual defense strategy, we have held that
conceding guilt to one count of a multi-count indictment
to bolster the case for innocence on the remaining counts
is a valid trial strategy which, by itself, does not rise to
the level of deficient performance. See United States v.
No. 01-1535 5
Wilks, 46 F.3d 640, 644 (7th Cir. 1995); Underwood v.
Clark, 939 F.2d 473, 474 (7th Cir. 1991); United States v.
Simone, 931 F.2d 1186, 1195 (7th Cir. 1991); see also
Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000); United
States v. Williamson, 53 F.3d 1500 (10th Cir. 1995). Conced-
ing an indefensible charge is thought to build credibility
with a jury by acknowledging the overwhelming evidence
of guilt for that particular charge, creating goodwill and
trust that can be applied towards arguments attacking the
remaining charges. See Simone, 931 F.2d at 1196 (“[W]hen
the admissions concern only some of the charges to be
proven, or when they do not actually concede guilt, counsel’s
concessions have been treated as tactical retreats and
deemed to be effective assistance.”); Wilks, 46 F.3d at 644
(“In conceding Wilks’s guilt with respect to the one ounce
transaction [but not a different transaction involving larg-
er drug quantities], counsel lent credibility to his argu-
ment that Wilks was only a small fish in the drug world.”);
see also Calderon, 232 F.3d at 1089.
Here, while conceding Count I and its underlying facts,
i.e., that on July 31, 1999, his client possessed less than
a gram of cocaine base and intended to sell it to Law-
son, Holman’s attorney vigorously cross-examined the pros-
ecution’s witnesses regarding Counts II-IV, focusing on
gaps in the prosecution’s evidence.2 Right after he con-
ceded his client’s guilt on Count I, Holman’s attorney told
the jury “[w]hat we don’t want are convictions on the
other three charges.” He then described the weaknesses
in the prosecution’s case, including the possibility that
evidence was planted in Holman’s car or fabricated, and
reiterated his client’s defense to Counts II-IV. This deci-
2
Count I carried no statutory mandatory minimum sentence
under 28 U.S.C. § 841 since the amount in question was less
than a gram. Counts II-IV, on the other hand, carried statutorily
required minimum sentences.
6 No. 01-1535
sion to emphasize the defense against Counts II-IV while
conceding guilt on Count I was a coherent trial strategy
that, by itself, was not deficient. See Wilks, 46 F.3d at 644;
Simone, 931 F.2d at 1197; see also Williamson, 53 F.3d
at 1511-12.
b) Client’s consent
While we have concluded that conceding guilt to one
count of a multi-count indictment is a valid defense strat-
egy, the manner of its execution in this case greatly con-
cerns us. Strickland imposes few requirements on attor-
neys, but one it specifically enumerates is “to consult
with the defendant on important decisions and to keep
the defendant informed of important developments in
the course of the prosecution.” Strickland, 466 U.S. at
688. Such consultation is an ethical cornerstone of the
legal profession. See MODEL RULE OF PROF ’L CONDUCT R.
1.4(b) (“A lawyer shall explain a matter to the extent
reasonably necessary to permit the client to make informed
decisions regarding the representation.”); IND. PROF ’L
CONDUCT R. 1.2(a) (“A lawyer shall abide by a client’s de-
cisions concerning the objectives of representation, . . .
and shall consult with the client as to the means by which
they are to be pursued.”).
While we and our sister courts have approved of the
strategy that Holman complains of, there has usually been
evidence in the record of a client’s consent to the strategy,
see, e.g., Wilks, 46 F.3d at 643 (defendant indicated to
judge that he was satisfied with his attorney’s perfor-
mance at the conclusion of evidence), or later ratification
of the strategy. See, e.g., Simone, 931 F.2d at 1196 n.13
(defendant’s letter sent to trial judge post-trial suggested
that he would have conceded more than what his attor-
ney actually admitted).
No. 01-1535 7
Here, unlike other cases, we have no indication from the
trial or sentencing transcripts whether Holman’s attor-
ney had his client’s consent to pursue such a strategy.
Nor do we have post-trial evidence of consultation or con-
sent. The only evidence of Holman’s opinions regarding
his attorney’s conduct is a reference during the sentenc-
ing hearing to a letter that Holman sent to the Indiana
Supreme Court Disciplinary Commission after his trial.
While the contents of the letter are not known, we sur-
mise that Holman considered his attorney’s behavior
egregious enough to warrant disciplinary action. During
the hearing, Holman’s attorney told the court that he
received a response letter from the Indiana Disciplinary
Commission stating that he had done nothing wrong. While
it is possible that Holman’s letter professed a valid com-
plaint, these letters can also be expressions of “sour grapes”
that result from high-risk trial strategies that fail. With-
out the letter itself in the record, and left with only a
reference to it, we cannot consider the letter an expression
of Holman’s disapproval of his attorney’s conduct for pur-
poses of establishing lack of consent, given the possibility
that the letter could have presented a frivolous claim, and
taking into account Holman’s own failure to attach any
probative weight to the letter.
Without any indication as to whether Holman agreed
to, dissented from, or even was aware of his attorney’s
plan to concede guilt, the question is whether it must be
shown that Holman consented to such a strategy. As we
said in Simone, “[w]e do not approve of a defense coun-
sel’s deliberate, explicit admission that a jury should find
his client guilty of a charge in the absence of any sugges-
tion that the defendant concurred in the decision to pro-
ceed in such a manner.” 931 F.2d at 1197; see also Felker
v. Thomas, 52 F.3d 907, 911 (11th Cir. 1995) (“[T]rial
counsel may not concede the guilt of a defendant who
has pleaded not guilty, at least not without the defen-
8 No. 01-1535
dant’s consent. That is true enough as to the guilt stage.”)
(emphasis added).3
We draw guidance from a pair of Sixth Circuit cases
involving Earl and Elmer Wiley. The Wileys were on trial
for burglary and during closing argument, Earl Wiley’s
attorney (speaking on behalf of both brothers), told the jury
[U]nfortunately for these two men that you see here
today, they are guilty. They’re guilty as charged by
the Commonwealth’s Attorneys’s office . . . . Ladies
and gentlemen of the jury, [the prosecutor] has
proved to you beyond a reasonable doubt that
these gentlemen are guilty of this crime. We don’t
have stars in our eyes, and we never have. They’re
guilty.
Earl Wiley v. Sowders, 647 F.2d 642, 645 (6th Cir. 1981).
Both brothers were convicted on all counts and brought
separate habeas corpus petitions alleging ineffective as-
sistance of counsel.
Reviewing the habeas petitions separately, the Sixth
Circuit found no indication as to whether or not Earl
3
The Fifth Circuit found differently in Haynes, where a defen-
dant on trial for first-degree murder in Louisiana objected on the
record to the judge (but outside the presence of the jury) to his
attorney’s concession to guilt of second-degree murder. In his
federal habeas petition, Haynes argued that this amounted to an
impermissible concession under Cronic. The Fifth Circuit held
that Strickland was the proper standard, then bypassed the issue
of consent, finding that this was a suitable tactic for such a
serious crime, since it hopefully prevented the jury from finding
Haynes eligible for the death penalty. See 298 F.3d at 382. The
court also found that Haynes was not prejudiced by the defense
counsel’s concession, given that it spared him from death, and
reversed the panel’s grant of Haynes’s habeas corpus petition.
See id. at 383.
No. 01-1535 9
Wiley’s lawyer conferred with his client about conceding
guilt (as in Holman’s case), and held that Earl Wiley “was
deprived of effective assistance of counsel when his own
lawyer admitted his client’s guilt, without first obtain-
ing his client’s consent to this strategy.” Id. It went on
to find (though the case pre-dates Strickland) that the
evidence against the Wileys was very circumstantial (i.e., in
Strickland parlance, that Earl Wiley was prejudiced by
his attorney’s concession), and granted Earl Wiley’s peti-
tion. On the other hand, Elmer Wiley’s attorney submitted
an affidavit as part of the habeas corpus proceedings
stating that Elmer discussed the concession strategy with
his attorneys and that he consented to it. Elmer Wiley
v. Sowders, 669 F.2d 386, 389 (6th Cir. 1982). Since El-
mer’s consent was in dispute, the Sixth Circuit remanded
the petition to the district court to determine whether
Elmer Wiley in fact consented to the trial strategy. See id.
It also noted “that an on-the-record inquiry by the trial
court to determine whether a criminal defendant has
consented to an admission of guilt during closing argument
represents the preferred practice. But we did not hold in
[Earl] Wiley, and we do not hold now, that due process
requires such a practice.” Id.
We agree with the Sixth Circuit that obtaining a defen-
dant’s consent on the record in open court is the preferred
method of forestalling any issues of consent that could
come up later on appeal, see Elmer Wiley, 669 F.2d at 389;
Earl Wiley, 647 F.2d at 650. We also agree that other
methods, such as an affidavit from the defendant describ-
ing his discussions with his attorney and consent to the
strategy, could work just as well. See, e.g., United States v.
Agee, 83 F.3d 882, 886 (7th Cir. 1996) (“[S]pecific dialogue
with the judge is not a necessary prerequisite to a valid
waiver of appeal [when pleading guilty] if there is other
evidence in the record demonstrating a knowing and vol-
untary waiver.”). Given the importance of the constitu-
10 No. 01-1535
tional rights implicated when guilt is conceded and the
ethical obligations of attorneys to consult with their clients,
we also agree with the Sixth Circuit’s conclusion in Earl
Wiley that an attorney’s concession of a client’s guilt
without any indication of the client’s consent to the strat-
egy is deficient conduct for Strickland purposes.4
Although Holman does not specifically articulate his
appeal based on Rule 11, we think that his counsel’s de-
ficient performance was based on a violation of Rule 11’s
procedures. Though the concession of guilt was made dur-
ing trial and not before, Holman’s counsel essentially
gave up the same constitutional rights that Holman would
have relinquished had he plead guilty to Count I before
trial.
As outlined in Boykin v. Alabama, 395 U.S. 238 (1969),
pleading guilty before trial implicates the privilege
against self-incrimination, the right to trial by jury, and
the right to be able to confront one’s accusers. See id. at
243. By conceding guilt to Count I at the beginning of
trial, Holman’s attorney bypassed all these rights on be-
half of his client: he admitted to those facts that were the
elements of Count I; the jury was never given a chance to
render a verdict on Count I based on an adversarial pro-
ceeding; and during cross-examination of the prosecution’s
witnesses, Holman’s attorney did not ask any questions
regarding Count I.
This was not a situation where the concession was
made at the very end of trial, where the attorney realized
after the close of evidence that there was no hope of a
4
Because this is a direct appeal and not a review of a habeas
corpus petition, we do not have the option of remanding to the
district court to determine whether or not Holman in fact con-
sented or not to his attorney’s strategy. See Elmer Wiley, 669 F.2d
at 389.
No. 01-1535 11
favorable verdict and that conceding guilt to one charge
would hopefully preserve some credibility for the defense’s
arguments opposing the other counts. Rather, Holman’s
attorney decided from the very beginning that Count I
was not worth fighting over and relinquished those consti-
tutional rights of his client which Rule 11 was designed
to protect. See Boykin, 395 U.S. at 243 n.5; Johnson v.
Zerbst, 304 U.S. 458, 464 (1938).
Here, Holman’s rights are protected by Rule 11’s exten-
sive procedures, which distinguishes his situation from
United States v. Cooper, 243 F.3d 411 (7th Cir. 2001), where
we held that defendants must show that they disap-
proved of their attorney’s waiver of their client’s right to
cross-examine a witness in order to pursue a Rule 52(b)
appeal based on the alleged waiver without consent. See
id. at 418.5
Most recently, in Taylor v. United States, we decided that
it was not necessary for a defendant who chooses not
to testify to make such a waiver on the record. 287 F.3d
658, 661 (7th Cir. 2002). However, in Taylor, actual con-
sent was not in doubt—the attorney and defendant dis-
cussed the decision and the defendant decided to not testify.
See id. at 662. Taylor’s concern was with the “undue for-
mality that might undermine confidence” between an
attorney and his client. We noted that “[p]erhaps a stat-
ute or rule could require warnings and waivers despite
these costs, but no such statute or rule is on the books.” Id.
In this case, we have Rule 11(d), which directs courts to
“not accept a plea of guilty or nolo contendre without first,
by addressing the defendant personally in open court,
determining that the plea is voluntary and not the result
5
A similar showing of consent is also required when defendants
waive their right to appeal. See United States v. Robinson, 8 F.3d
418, 423-25 (7th Cir. 1993).
12 No. 01-1535
of force or threats or of promises apart from a plea agree-
ment.” See United States v. Krilich, 159 F.3d 1020, 1026
(7th Cir. 1998) (“A waiver is voluntary in the absence of
coercion, and is knowing if made with a full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon it.”) (citations
omitted). Our concern is not over a ritualistic incantation
in open court, but rather that the decision to concede
guilt is made voluntarily by the defendant and that the
defendant ultimately decides which strategy to pursue.
See United States v. Wooley, 123 F.3d 627, 632 (7th Cir.
1997).
We consider counsel’s conduct deficient in this case
because there is no evidence of a defendant’s consent to a
concession of guilt; to think otherwise would leave open
a side door that would allow attorneys to abandon their
clients. Rule 11 ensures that a guilty plea is made freely
and knowingly, but if a defendant pleads not guilty, he
enjoys no protection against an appeal to the jury to find
him guilty. A similar side door—stipulating without a de-
fendant’s prior consent to facts which prove the defendant’s
guilt despite a not guilty plea—has long been closed. See
United States v. Franzen, 668 F.2d 933, 941 (7th Cir. 1982)
(“[I]t has long been the law of this circuit that counsel may
not stipulate to facts establishing the guilt of the accused
without the defendant’s consent.”) (citing Achtien v. Dowd,
117 F.2d 989, 993-94 (7th Cir. 1941)). Closing off this
loophole in our jurisprudence safeguards against a very
uncommon, but nevertheless worrisome, course of events.6
6
As we have noted, we are constrained by the procedural pos-
ture of this case to only look at the trial record, in contrast to
habeas corpus cases where we have a larger record to draw from
and the opportunity to remand for more evidentiary hearings. See
United States v. Asubonteng, 895 F.2d 424, 428 (7th Cir. 1990).
(continued...)
No. 01-1535 13
Notwithstanding our finding that Holman’s attorney
performed deficiently, we affirm Holman’s conviction, be-
cause he suffered no prejudice as a result of his attorney’s
conduct.
2. Prejudice Under Strickland
While we find that Holman’s attorney’s conduct was
deficient, we have determined that Holman suffered no
prejudice as a result. Holman would have been prejudiced
if there was “a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been dif-
ferent. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466
U.S. at 694.
Though Holman’s attorney conducted only cursory cross-
examination of the prosecution’s witnesses and did not
call any witnesses to rebut the prosecution’s case regard-
ing Count I, it is difficult to imagine how he could have
mounted an effective defense that would have challenged
either Holman’s possession of the cocaine or his intent
to sell it to Lawson. According to Lawson’s testimony and
that of Tracy Broxon of the Fort Wayne Police Department,
Lawson called Holman and told him she wanted to buy
some crack from him. Holman told her to go to a certain
gas station and call him for further instructions. Accompa-
nied by Broxon and two other officers, Lawson went to
the gas station as directed and called Holman again.
6
(...continued)
Having indications of consent to a concession strategy appear
on the record also helps prevent defendants from hiding their
consultations with their attorneys behind the shield of direct ap-
peal instead of having them come to light in the fuller investiga-
tive process of habeas corpus proceedings. See Agee, 83 F.3d 886
n.5; Robinson, 8 F.3d at 425.
14 No. 01-1535
Holman answered the phone and told her he was coming
outside to meet her. When Holman was seen leaving a hotel
across the street approaching Lawson, police officers ar-
rested him and found the cocaine.
While his attorney relentlessly pursued the idea that
the police planted cocaine on Holman and in his car when
they arrested him the second time, there is no indication
that this strategy was feasible for Count I. In addition,
Holman’s intent to sell the cocaine to Lawson would be
very difficult to refute, since he did not leave the hotel
until Lawson called and asked that the cocaine be de-
livered. We have no evidence of improper investigative
techniques on the part of the police, nor do we have testi-
mony from Holman that would undermine the government’s
case. It is possible that Holman could argue that the con-
cession of guilt to the first cocaine possession count tainted
him, making the jury predisposed to thinking of him as
a drug dealer when they considered the other counts,
but the weight of the evidence suggests that this is a du-
bious argument at best.
We find, in applying the prejudice prong of Strickland,
that the strategy used by Holman’s attorney regard-
ing Count I did not have a reasonable probability of
affecting the trial’s outcome, see Strickland, 466 U.S. at
695; Simone, 931 F.2d at 1196, and affirm his conviction.
B. Sentencing Issues
Holman raises three arguments related to his sentenc-
ing. First, he argues that a conflict of interest existed be-
tween him and his trial counsel during the sentenc-
ing proceeding as a result of his letter to the Indiana
Supreme Court Disciplinary Commission. Such a conflict
would be a violation of the Sixth Amendment, entitling
Holman to a new trial. Strickland, 466 U.S. at 693; Cuyler
v. Sullivan, 446 U.S. 335, 350 (1980). To prevail on this
No. 01-1535 15
claim, Holman must show that his attorney possessed
an actual conflict of interest with his client and that his
performance was adversely affected because of that con-
flict. See Stoia v. United States, 109 F.3d 392, 395 (7th Cir.
1997). This issue, as with the Strickland claim above, is
a mixed question of law and fact that we review de novo.
Spreitzer v. Peters, 114 F.3d 1435 (7th Cir. 1997).
The fact that Holman initiated a disciplinary inquiry
against his attorney is not enough to establish an actual
conflict of interest. An actual conflict exists if an attorney
is torn between two different interests. See Stoia, 109 F.3d
at 395. Once again, Holman must demonstrate that he
was prejudiced by actions stemming from the alleged
conflict. See Cates v. Superintendent, Indiana Youth Cen-
ter, 981 F.2d 949, 955 (7th Cir. 1992). As we explain below,
we do not find that he was prejudiced by any of the alleged
missteps committed by either his attorney or the court
during his sentencing hearing. In addition, we agree with
the Fourth Circuit that allowing conflicts of interest to
be established solely by appealing to disciplinary authori-
ties, without knowing the substance of the complaint,
would encourage filing of frivolous claims by defendants
for purposes of delay. See United States v. Burns, 990 F.2d
1426, 1438 (4th Cir. 1993). Left without an actual conflict,
Holman’s conflict of interest claim fails.
Second, Holman argues that the level used to calcu-
late his sentence under the Sentencing Guidelines was im-
properly based on facts not raised at trial. Since he did
not raise these objections during his sentencing hearing,
we review for plain error. United States v. Davis, 15 F.3d
1393, 1406-07 (7th Cir. 1994). He suggests that we should
expand our reading of Apprendi v. New Jersey, 530 U.S.
466 (2000), so that any fact that enhances a sentence
must be charged in an indictment and proven beyond a
reasonable doubt, whether or not the sentence exceeds
the statutory maximum. We have rejected similar argu-
16 No. 01-1535
ments many times, see, e.g., United States v. Bjorkman, 270
F.3d 482, 492 (7th Cir. 2001), and again decline to expand
Apprendi. Because the statutory maximum sentence for
possession of cocaine base, without regard to quantity, is
240 months and Holman was sentenced to 188 months
for these offenses, Apprendi does not apply and we up-
hold his sentence. See Talbott v. Indiana, 226 F.3d 866, 869
(7th Cir. 2000).
Holman’s final claim is that the trial judge failed to
make proper findings when imposing a two-level enhance-
ment for obstruction of justice under Sentencing Guideline
§ 3C1.1. His attorney objected to the general principle of
the enhancement, but did not make any objection to the
findings of fact the judge made during the sentencing hear-
ing, so our review is for plain error. See United States
v. Danser, 270 F.3d 451, 454 (7th Cir. 2001). Though we
agree that more specific findings as to which of Holman’s
statements the court considered untruthful would have
been preferable, we have held that separate findings of
fact regarding each element of perjury are not strictly
necessary to uphold an obstruction of justice enhancement
under § 3C1.1. As long as the trial court determined
that the defendant lied to the judge and jury about mat-
ters crucial to the question of the defendant’s guilt, that
is sufficient. See United States v. White, 240 F.3d 656, 662
(7th Cir. 2001). Here, the trial court found that Holman
lied when he said that drugs were planted on him and/or
in his car. We consider this sufficient to describe a “failure
to give truthful testimony on material matters that were
designed to substantially affect the outcome of the case,”
United States v. Dunnigan, 507 U.S. 87, 95 (1993), and
therefore affirm Holman’s sentence.
No. 01-1535 17
III. CONCLUSION
For these reasons we AFFIRM Freeman Holman’s convic-
tion and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-16-02