United States v. Ofcky, Robert ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1420
United States of America,
Plaintiff-Appellee,
v.
Robert Ofcky,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 98 CR 101--Rudy Lozano, Judge.
Argued November 1, 2000--Decided January 23, 2001
Before Cudahy, Coffey, and Easterbrook, Circuit
Judges.
Cudahy, Circuit Judge. Robert Ofcky was
convicted of unlawful possession of a firearm by
a convicted felon in violation of 18 U.S.C. sec.
922(g)(1). On February 4, 2000, following a
sentencing hearing, Ofcky was sentenced to 78
months in prison, three years of supervised
release and a special assessment of $100. He
appeals his sentence, and we affirm.
During the week of March 16, 1998, Nancy Ofcky,
the defendant’s wife, left the family home in
fear and sought the counsel of Stanley Jablonski,
a divorce attorney. Nancy informed her attorney
that her husband was a convicted felon and that
there were numerous firearms and ammunition
hidden throughout their home. She also told
Jablonski that she had been "straw" purchasing
firearms for Ofcky, meaning that Ofcky gave her
money and directed her to purchase particular
firearms and turn them over to him. Jablonski
forwarded this information to the United States
Attorney’s Office. A federal search warrant for
Ofcky’s residence was obtained and executed on
March 17, 1998. Recovered from Ofcky’s home was
a tidy arsenal--13 rifles, more than 1,000 rounds
of ammunition, 23 ammunition magazines,
miscellaneous gun parts, The Anarchist Cookbook
and gun literature.
The district court found that in addition to
the items found at Ofcky’s home that day, there
had previously been two M-11 firearms in a hidden
compartment in the bathroom. The court based this
finding on the testimony of Ofcky’s wife, Nancy,
and his son, Christopher, who both testified that
they were familiar with the characteristics of a
fully automatic machine gun.
The district court determined that the total
offense level under the U.S. Sentencing
Guidelines was 26. It started with an offense
level of 20 because the offense involved a
machine gun and the defendant was a "prohibited
person."/1 The judge added four levels for the
number of weapons and two levels for obstruction
of justice. See U.S. Sentencing Guidelines Manual
sec.sec. 2K2.1(b) (number of weapons), 3C1.1
(obstruction of justice).
Ofcky appeals on three grounds. First, he
argues that the district court erred in finding,
as relevant conduct, by a preponderance of the
evidence, possession of an automatic weapon. This
enhanced his base offense level from 14 to 20,
thereby nearly doubling his maximum base sentence
from 24 to 46 months. Second, Ofcky contends that
the district court was clearly erroneous in
finding him guilty of obstruction of justice.
Third, he argues that the district court failed
to give proper consideration to the mitigating
factors that he believes mandated a downward
departure in the sentencing calculations.
I.
Ofcky’s first claim is that the district court
erred in enhancing his sentence based on his
possession of an automatic weapon. When reviewing
the decision of a district court to enhance a
sentence based on relevant conduct under U.S.
Sentencing Guideline sec. 1B1.3(a)(2), we accord
deference to the district court:
Our review of a district court’s sentencing
decision is deferential. We will uphold a
Guidelines sentence "so long as the district
court correctly applied the Guidelines to
findings of fact that were not clearly
erroneous." United States v. Duarte, 950 F.2d
1255, 1262 (7th Cir. 1991), cert. denied, 506
U.S. 859, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992);
see also United States v. Rivera, 6 F.3d 431, 444
(7th Cir. 1993). The determination that uncharged
activity constitutes "relevant conduct" . . . is
a finding of fact, which we will not disturb
unless it is clearly erroneous.
United States v. Sykes, 7 F.3d 1331, 1335 (7th
Cir. 1993). We will reverse for clear error only
if we have "a definite and firm conviction that
a mistake has been committed." United States v.
Kroledge, 201 F.3d 900, 905 (7th Cir. 2000).
Ofcky challenges the district court’s
application of a "preponderance of the evidence"
standard in determining his relevant conduct.
Because Ofcky failed to object to the use of the
preponderance standard at the time the district
court determined his relevant conduct, he waived
this issue on appeal. See United States v.
Rivero, 993 F.2d 620, 623 (7th Cir. 1993). Thus,
we must reverse only if we find plain error. See
United States v. Robinson, 20 F.3d 270, 273 (7th
Cir. 1994); Rivero, 993 F.2d at 623.
Under the Sentencing Guidelines, possession of
a firearm by a prohibited person has a base
offense level of 14 points and a sentence range
of 18 to 24 months. U.S. Sentencing Guidelines
Manual sec. 2K2.1(a)(6); ch. 5, pt. A./2 After
a finding of relevant conduct, the district court
increased Ofcky’s base offense level from 14 to
20, giving him a sentence range of 37 to 46
months. See id. ch. 5, pt. A. This, Ofcky
contends, was such a dramatic increase that it
warranted a finding of relevant conduct only by
clear and convincing evidence. Ofcky argues that
our decision in United States v. Hardin, 209 F.3d
652 (7th Cir. 2000), requires that, in extreme
cases, a sentencing factor must be proven by
clear and convincing evidence./3 What we did say
in Hardin was that "perhaps in extreme
circumstances . . . clear and convincing
evidence" would be the standard of proof for
sentencing factors. 209 F.3d at 654. Ofcky
concludes that his case is such a case because
the enhancement under the Sentencing Guidelines
almost doubled the maximum sentence Ofcky could
have otherwise received. For this assertion,
Ofcky relies on the Supreme Court’s decision in
McMillan v. Pennsylvania, 477 U.S. 79 (1986); his
reliance is misplaced. In McMillan, Ofcky argues
that the Supreme Court concluded that due process
requires a clear and convincing standard where
the magnitude of a contemplated departure is
sufficiently great that it can be characterized
as "a tail which wags the dog of the substantive
offense." See 477 U.S. at 88. The Court in
McMillan was dealing with a penalty statute that
provided for a mandatory minimum sentence of five
years’ imprisonment if the sentencing judge
found, by a preponderance of the evidence, that
a person "visibly possessed a firearm" during the
commission of one of certain enumerated offenses.
477 U.S. at 81 (quoting Pennsylvania’s Mandatory
Minimum Sentencing Act, 42 Pa. Const. Stat. sec.
9712 (1982)). The petitioners argued that--even
if visible possession was not an element of the
offense for which one is convicted--due process
required proof by more than a preponderance of
the evidence. The Court disagreed, and concluded
that the preponderance standard was sufficient.
McMillan, 477 U.S. at 90-91. It reasoned that the
statute at issue did not alter the maximum
penalty for the crime or create a separate
offense with a separate penalty; instead, the
statute "operates solely to limit the sentencing
court’s discretion within the range already
available to it without the special finding of
visible possession of a firearm. Section 9712
’ups the ante’ for the defendant only by raising
to five years the minimum sentence which may be
imposed within the statutory plan." Id. at 87-88.
There is nothing in this ruling that says what
Ofcky wants it to say--that a significant
increase in a sentence must be supported by facts
proven by clear and convincing evidence.
The government correctly notes that "simply a
preponderance of the evidence is all that is
required for a factual finding under the
Sentencing Guidelines." United States v. Porter,
23 F.3d 1274, 1277 (7th Cir. 1994). This court
has not yet determined when the increase in a
defendant’s sentence is so great as to require a
more demanding standard of proof. See United
States v. Rodriguez, 67 F.3d 1312, 1322 (7th Cir.
1995). But it has decided cases in which a large
sentence increase was not so great as to require
a higher standard of proof. See, e.g., id. at
1323 (upholding sentence enhancement from 51-63
months to life imprisonment); Porter, 23 F.3d at
1276 (7th Cir. 1994) (enhancement from 92-115
months to 137 months); United States v. Masters,
978 F.2d 281, 283-85 (7th Cir. 1992) (enhancement
from 33-41 months to 40 years). Ofcky’s
enhancement, standing alone, is not an extreme
case, particularly in light of the increases this
court has already approved.
Ofcky’s second challenge to the enhancement is
premised on an argument that--even under a
preponderance of the evidence standard--the
evidence lacked sufficient foundation,
credibility and corroboration to warrant a
finding of possession of an automatic weapon.
Ofcky was not in possession of an automatic
weapon at the time of his arrest. The only
evidence presented at trial on this issue was the
testimony of Ofcky’s wife, Nancy, and son,
Christopher.
Ofcky claims that the testimony of both these
family witnesses lacks credibility. Nancy he
deems incredible because she is estranged from
him and because she was granted immunity from
prosecution in exchange for testifying against
Ofcky. Christopher’s testimony is supposedly
incredible because he loves his mother, comes
from a broken family and fears the loss of both
his parents, Ofcky argues. App. Br. at 14-15.
This is not enough to ascribe error to the
district court in crediting Nancy’s and
Christopher’s testimony. We give credibility
determinations a lot of deference. See 18 U.S.C.
sec. 3742(e)(4); United States v. Moutry, 46 F.3d
598, 603 (7th Cir. 1995). As a general matter,
testimony will only be found incredible as a
matter of law if it is impossible for the witness
to have possessed the information to which he or
she testified or when the testimony defies the
laws of nature. See United States v. Wallace, 32
F.3d 1171, 1173 (7th Cir. 1994) (quoting United
States v. Dunnigan, 884 F.2d 1010, 1013 (7th Cir.
1989)). Hence, the district court’s conclusion
regarding the credibility of Nancy and
Christopher must stand.
Ofcky next challenges the testimony of Nancy
and Christopher on the grounds that it lacked
sufficient indicia of reliability. See United
States v. Morrison, 207 F.3d 962, 967 (7th Cir.
2000) (sentencing court may consider a wide range
of information in making sentencing
determinations, but only if it has sufficient
indicia of reliability to support its probable
accuracy). Ofcky contends that neither witness
established that he or she knew what an automatic
weapon is, and when or where Ofcky possessed one.
They both testified that they knew Ofcky
possessed a weapon that could shoot multiple
bullets with one pull of the trigger. Nancy
testified that she had shot such a weapon before.
Christopher testified that Ofcky had told him the
difference between a semi-automatic weapon and a
fully automatic weapon. This testimony, together
with the fact that the judge and jury found these
witnesses credible, is sufficient to indicate the
reliability of their testimony about the nature
of the automatic weapons and Ofcky’s possession
of them.
Ofcky also claims that his possession of the
fully automatic weapons was in doubt because
there was no evidence to corroborate Nancy’s and
Christopher’s testimony. This argument, too,
fails to register. It is well established that a
conviction may be based solely upon the
uncorroborated testimony of an accomplice. See
United States v. Henderson, 58 F.3d 1145, 1148-49
(7th Cir. 1995). We will not re-evaluate the
credibility of testimony even if it is wholly
uncorroborated. See United States v. Wilson, 31
F.3d 510, 514 (7th Cir. 1994).
Ofcky’s strongest argument about whether the
enhancement was appropriate is that the
government failed to establish that the relevant
conduct had sufficient similarity, regularity and
temporal proximity to the offense of conviction,
as required under United States v. Sykes, 7 F.3d
1331, 1336 (7th Cir. 1993). In Sykes, we noted
that we could not prescribe the relative
importance of these elements, but if one element
is not present at all, we would demand a stronger
presence of at least one of the other components.
See id. The government notes that sufficient
evidence was presented at the sentencing hearing
to demonstrate that possession of the fully
automatic weapons satisfied this test. The
sentencing exhibits presented by the government
on this point were interviews conducted by Bureau
of Alcohol, Tobacco and Firearms Agent Eric Ellis
of the defendant’s sons, Andrew and Christopher
Ofcky. Both believed the M-11 firearms were
hidden in the bathroom just prior to the search.
Also admitted was an interview of Nancy Ofcky,
who said she had straw purchased the two firearms
for Ofcky and gave them to him, and that he later
demonstrated to her how they were fired. Paul
Wright, a gun salesman, was also interviewed by
Agent Ellis, and he said he had observed Ofcky in
possession of an M-11 firearm. Ofcky offered
nothing to contradict this evidence. This
evidence is sufficient to establish, by a
preponderance of the evidence, that the
possession of the fully automatic weapons was
relevant conduct for the purpose of sentencing.
Witnesses testified to the existence of the gun,
as part of Ofcky’s extensive and regular
collection, just prior to the search-- how this
could fail the Sykes test has not been
demonstrated. It was therefore not clearly
erroneous for the district court to conclude,
based on the testimony of the two government
witnesses, and by a preponderance of the
evidence, that Ofcky possessed an automatic
weapon.
II.
Ofcky next argues that the court’s enhancement
of his sentence for obstruction of justice was
not supported by the evidence, as provided by
sec. 3C1.1. of the U.S. Sentencing Guidelines.
When a court makes a finding that a defendant
obstructed justice, we review for clear error.
See United States v. Webster, 125 F.3d 1024, 1037
(7th Cir. 1997).
The court found at the sentencing hearing that
Ofcky committed perjury and willfully obstructed
justice. Citing United States v. Buchannan, Ofcky
argues that the district court must make specific
separate findings sufficient to establish an
obstruction of justice claim. See 115 F.3d 445,
450 (7th Cir. 1997). For a court to conclude that
an enhancement is required, he argues, "it is
preferable for a District Court to address each
element of the alleged perjury in a separate and
clear finding." Id. at 451 (quoting United States
v. Dunnigan, 507 U.S. 87, 95 (1992)). It
certainly is preferable, but in its decision in
Dunnigan, on which we relied in Buchannan, the
Supreme Court noted that application of the
enhancement is acceptable where "the court makes
a finding of an obstruction of, or impediment to,
justice that encompasses all of the factual
predicates for a finding of perjury." Dunnigan,
507 U.S. at 95; see also Buchannan, 115 F.3d at
451. The factual predicates consist of a witness’
testifying under oath or by affirmation, giving
"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." Id. at 94.
Here, the court found that Ofcky committed
perjury in testifying that he was an expert in
firearms, that he did not own or have access to
the firearms nor possess the keys to the gun
cabinet and that he did not purchase guns from
Paul Wright. This testimony was directly
contradicted by the government’s witnesses. The
government correctly notes that an obstruction of
justice enhancement is appropriate where the
trial judge weighed the testimony of the
defendant against that of others and determined
that the defendant’s testimony lacked
credibility. See United States v. Pedigo, 12 F.3d
618, 629 (7th Cir. 1993). The determination of
the district court met all the standards required
for the enhancement. See United States v.
Mustread, 42 F.3d 1097, 1105-06 (7th Cir. 1994)
(separate findings on each element are not
strictly necessary). Thus, this sentencing
enhancement will stand.
III.
Ofcky’s final argument is that the district
court erred in not decreasing Ofcky’s sentence
because the Indiana code at the time of Ofcky’s
arrest permitted a convicted felon to possess a
firearm in his home. See Ind. Code sec. 35-47-4-4
(repealed 1999). A district court may depart
downward from the Guidelines if the judge finds
a "mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration
by the Sentencing Commission in formulating the
guidelines." 18 U.S.C. sec. 3553(b). But the
government correctly notes that this court lacks
jurisdiction to review a sentencing court’s
refusal to exercise its discretion to depart
downward from the sentence prescribed by the
Guidelines. See United States v. Sinclair, 74
F.3d 753, 763 (7th Cir. 1996). The only time such
a refusal is reviewable is when the court
erroneously concludes that it did not have
authority for such a departure. See id.; United
States v. Poff, 926 F.2d 588, 590-91 (7th Cir.
1991). Ofcky has not argued that this was the
case, and nothing in the record indicates that
the district court labored under such an
erroneous impression. Thus, the district court
did not err in failing to take this ostensibly
mitigating factor into account.
For the foregoing reasons, the judgment of the
district court is
Affirmed.
/1 U.S. Sentencing Guidelines Manual sec.
2K2.1(a)(4)(B). For the purpose of this
Guideline, one may satisfy the definition of
"prohibited person" by meeting one of several
standards. Here, Ofcky qualified as a prohibited
person because he had "been convicted of[ ] a
’crime punishable by imprisonment for more than
one year,’ as defined by 18 U.S.C. sec.
921(a)(20) . . . ." U.S. Sentencing Guidelines
Manual sec. 2K2.1, cmt. n.6 (1998).
/2 This is based on Ofcky’s criminal history
category of II, pursuant to sec. 4A1.1 of the
U.S. Sentencing Guidelines.
/3 A sentencing factor, as we know from Apprendi v.
New Jersey, 120 S.Ct. 2348 (2000), may require
proof beyond a reasonable doubt--if it increases
the potential sentence beyond the statutory
maximum. That is not Ofcky’s contention here; the
sentencing range considered by the district court
was below the statutory maximum of 10 years. See
18 U.S.C. sec. 942(a)(2) (penalty provision for
violations of sec. 922(g)).