United States v. Terri Sawyer ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2236
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T ERRI S AWYER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-06-126-CR-04-M/F—Larry J. McKinney, Judge.
A RGUED F EBRUARY 12, 2009—D ECIDED M ARCH 12, 2009
Before E ASTERBROOK, Chief Judge, and F LAUM and
M ANION, Circuit Judges.
F LAUM , Circuit Judge. Terri Sawyer was convicted for
participating in a conspiracy to distribute methamphet-
amine. Her appeal primarily rests on the district court’s
refusal to instruct the jury on the elements of a duress
defense, although she also raises questions about her
sentence and certain evidentiary rulings as well.
For the following reasons, we affirm the judgment and
sentence of the district court.
2 No. 08-2236
I. Background
In February 2008, at the conclusion of a two-day trial,
a federal jury convicted Terri Sawyer of conspiracy to
deliver 500 or more grams of a mixture or substance
containing methamphetamine. Sawyer presented a very
different account of the events leading to that conviction
than the government. She claims she was relentlessly
threatened by Seferino Rodriguez, one of the govern-
ment’s witnesses at trial, because of a previous drug
debt owed by her ex-boyfriend. To pay off this debt, she
claims that Rodriguez forced her to find meth buyers.
The government’s evidence at trial indicated that Sawyer
was a willing participant in a meth-dealing operation,
and that she purchased meth from Rodriguez and was
responsible for introducing various buyers and suppliers.
Seferino Rodriguez offered testimony in support of the
government’s case. Rodriguez testified that he began
dealing meth in January 2005, when Sawyer asked him to
sell it to her. He had met Sawyer a few months before,
because Rodriguez had sold marijuana to Sawyer’s boy-
friend Ryan Beauchamp. After Sawyer asked him for
meth, Rodriguez met with a man known as Gavacho at
a nightclub, and Gavacho agreed to sell him meth. Rodri-
guez testified that he set up his first sale to Sawyer about
a week after this. Continuing for the next six months,
Rodriguez sold meth to Sawyer, usually once or twice
per week. In late June or early July 2005, Sawyer intro-
duced Rodriguez to a customer of hers, Donald Pruett.
Rodriguez testified that when he met “Donnie” (as Rodri-
guez knew him) they made a deal to buy meth. Shortly
No. 08-2236 3
after this sale, Rodriguez went to Texas for his sister’s
birthday. In his absence, Gavacho sold meth directly to
Sawyer. Rodriguez went back to selling meth to Sawyer
when he returned to Indiana in September 2005.
Some time after Rodriguez returned to Indiana, Sawyer
introduced him to Gregory Vanes. According to his trial
testimony, Sawyer introduced Vanes as her partner in
meth dealing. For the next few months, until police
officers arrested him in February 2006, Rodriguez sold
meth to both Sawyer and Vanes. Rodriguez delivered
the drugs once or twice per week, in pound quantities.
During this time, Sawyer introduced Rodriguez to two
other customers, Jason Swearingen and Heather
Crowder; as a result of these introductions, Rodriguez
sold meth to both of them.
In January 2006, Sawyer and Vanes told Rodriguez that
their partnership had ended over a financial dispute.
Rodriguez continued selling meth to Sawyer for the
next month or so. He was arrested on February 13, 2006,
by Indianapolis police officers while in possession of
nine ounces of meth. At the time of his arrest, he was on
his way to complete a deal with Sawyer.
The government’s case included several additional
witnesses. Vanes testified that Sawyer introduced him
to Rodriguez as a supplier of methamphetamine and
that he and Sawyer bought meth from Rodriguez
regularly after that meeting; Vanes admitted to
personally receiving five or six one-pound shipments. At
the same time, Vanes was also buying meth from an-
other source in five or ten pound shipments; he
4 No. 08-2236
testified that he would deliver two to five pounds to
Sawyer after each delivery from this other source.
Donald Pruett testified that he began buying meth from
Sawyer in February 2005, and bought meth from her
about once a month for the next six months. Eventually,
Pruett learned of Sawyer’s suppliers, including
“Seferino” (presumably Rodriguez), “Gordo,” “Joker,” and
“Gavacho.” Pruett stopped buying from Sawyer when
she arranged a drug transaction with her suppliers that
she did not show up for; after that, Pruett bought
directly from Sawyer’s suppliers. Jason Swearingen
testified that he met Sawyer in August 2004, and began
buying meth from her about a month later. He and his
girlfriend, Heather Crowder, bought about one pound of
meth per week from Sawyer. Crowder testified that she
met Sawyer around the same time as Swearingen, and that
Sawyer and Swearingen arranged a meth deal at that
first meeting. After that, she and Swearingen regularly
bought one-pound quantities of meth; many of these
deals took place in Indianapolis, where Crowder was
introduced to some of Sawyer’s suppliers. The govern-
ment’s case also included a recorded phone call between
Sawyer and Crowder that took place after Swearingen
had been arrested on drug charges; in that call, Crowder
asked “when do we go back to work,” meaning, she
testified, when they could go back to selling meth.
The government also presented the testimony of Special
Agent Michael Davis of the Drug Enforcement Administra-
tion. Davis testified that he executed the search warrant on
Sawyer’s home in Richmond, Indiana in November 2006.
No. 08-2236 5
In that search, law enforcement officers recovered a small
amount of meth, approximately $11,746 in currency, and
weights for a scale.
Sawyer presented a very different version of events.
She testified that she began dating Ryan Beauchamp in
2004; eventually, both of them began to use metham-
phetamine. Sawyer testified that Beauchamp was friends
with Rodriguez, and that the two of them dealt mari-
juana and cocaine together. This business relationship
soured when Beauchamp ripped Rodriguez off in a
drug deal, however. (Rodriguez, when asked about this
deal during his testimony at trial, said that Beauchamp
had been assaulted and robbed after Rodriguez fronted
him fifteen pounds of marijuana; he testified that he did
not try to collect on this debt.) Sawyer testified, however,
that Rodriguez began threatening Beauchamp after that
deal. First, Rodriguez showed up at Sawyer and Beau-
champ’s house with several other men and threatened
Beauchamp. After that night, Sawyer threw Beauchamp
out of their shared house.
After that confrontation, Rodriguez evidently lost con-
tact with Beauchamp and instead began harassing
Sawyer about the debt. At one point he and several
other men showed up at Sawyer’s house and demanded
that she go with them to Hoosier Marine to get
Beauchamp’s boat released as payment. Rodriguez ac-
knowledged that he made this trip, and the manager of
Hoosier Marine testified that he remembered Sawyer
looking scared during their conversation.
Looking for other ways to pay off the debt, Sawyer
testified that she then began introducing Rodriguez
6 No. 08-2236
to potential customers. She claims to have acted as a
middleman in transactions between Rodriguez and the
government’s other witnesses at trial. She testified that
she was present when others bought meth from
Rodriguez, but never participated in re-selling.
Sawyer never contacted the police because, she
claimed, Rodriguez was a member of the Mexican
Mafia and she was afraid he would find out if she did.
She testified that the debt that Beauchamp owed
Rodriguez (and that as a result she owed Rodriguez) was
between $25,000 and $30,000. Rodriguez would call
her, she claimed at trial, “daily,” by “coming down con-
stantly, saying they would be—he would tell me they
would circle the house the night before and just—I was an
emotional wreck.” With respect to the nature of the
contact, Sawyer testified that, “he would be on to me,
like, tell them to move the dope faster and get people
up there; and, you know, ‘These guys are, you know,
getting mad,’ just same stuff every day.”
On cross-examination she admitted that she did not
have any conversations about the running balance of that
debt or how much it diminished based on the number of
introductions that she made, until October 2005 when
Rodriguez had reduced the debt by $10,000. She also
testified that she moved from Cloverdale, Indiana, to
Richmond, Indiana in December 2005, in order to get
away from Rodriguez. The threatening encounters with
Rodriguez ended after she moved, although Sawyer
testified that he would still contact her by phone.
During an instruction conference at the trial, Sawyer
tendered an instruction on the affirmative defense of
No. 08-2236 7
duress. The government objected on the grounds that
Sawyer had not met the burden of production for that
defense because she had not established that she faced
an immediate threat of death or bodily injury and did not
have a reasonable opportunity to escape the threatened
harm. The district court agreed with the government
and declined to issue the instruction.
The jury convicted Sawyer of conspiracy to distrib-
ute methamphetamine at the close of the trial. On May 9,
2008, Sawyer was sentenced to 260 months in prison. This
appeal followed.
II. Discussion
Sawyer raises three issues in this appeal. First, she
argues that the district court erred by not tendering her
proffered instruction on duress to the jury; second, she
argues that the district court erred by excluding certain
evidence from her trial; third, she argues that the
district court imposed an unreasonable sentence. We
take each claim in turn.
A. Duress instruction
This court reviews de novo a district court’s decision
not to give a defense instruction. United States v. Brack,
188 F.3d 748 (7th Cir. 1999); see also United States v. Prude,
489 F.3d 873, 882 (7th Cir. 2007) (“We review a district
court’s refusal to give a theory of defense instruction
de novo.”). A defendant is entitled to offer an
8 No. 08-2236
instruction on an affirmative defense or a theory of
defense if: (1) the defendant’s proffered instruction is a
correct statement of the law; (2) the theory of defense
is supported by the evidence; (3) the theory of defense
is not part of the charge; and (4) the failure to include
the instruction would deny the defendant a fair trial.
United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005). A
defendant is entitled to have a jury consider a proffered
defense so long as that defense has a foundation in the
evidence, “however tenuous” that foundation may be.
United States v. Given, 164 F.3d 389, 394 (7th Cir. 1999).
Sawyer’s claim centers around the affirmative defense
of duress. The duress defense has its roots in common
law, and excuses criminal conduct, even though the
defendant engages in it with the requisite mens rea,
because the defendant nevertheless acted under a threat
of a greater immediate harm that could only be avoided
by committing the crime charged. Under the law of this
circuit, a defendant attempting to present a defense of
duress or coercion must show: (1) she reasonably feared
immediate death or serious bodily harm unless she com-
mitted the offense; and (2) there was no reasonable op-
portunity to refuse to commit the offense and avoid the
threatened injury. United States v. Jocic, 207 F.3d 889, 892
(7th Cir. 2000). If the defendant had a reasonable alterna-
tive to violating the law, then the defense of duress will
not lie. Id. A defendant’s fear of death or serious bodily
injury is generally insufficient. Rather, “[t]here must be
evidence that the threatened harm was present, immediate,
or impending.” United States v. Tanner, 941 F.2d 574, 587
(7th Cir. 1991). Further, Supreme Court precedent also
No. 08-2236 9
suggests that when a defendant presenting a duress
defense committed an ongoing crime (such as, in this
case, conspiracy) that defendant must have ceased com-
mitting the crime as soon as the claimed duress lost its
coercive force. See United States v. Bailey, 444 U.S. 394, 412-
13 (1980) (holding that an escapee from custody must
present evidence that he surrendered to authorities as
soon as the coercive force ceased when he claimed his
escape occurred under duress).
The district court declined to issue the jury instruction
in this case because it did not find a sufficient
evidentiary basis for it. The court first noted that, “I don’t
think there’s evidence that the threat was immediate. . . .
The cases that give these instructions are cases in
which there’s someone right there on the spot enforcing
the person’s activities. This isn’t—we don’t have that.”
With respect to the second portion of the defense, the
district court found that she had a reasonable oppor-
tunity to refuse to commit the offense, noting that
“there was so much time available for her to have
reached out to law enforcement and she chose not to.”
One sentence of the district court’s opinion complicates
our review, however. The district court, when discussing
the evidence presented, found that “[t]here’s just not
enough evidence here to meet the burden—preponderance
on her burden to show that she engaged in conduct
because she reasonably feared that immediate serious
bodily harm or death would be inflicted upon her and
that she had no reasonable opportunity to avoid in-
jury.” Sawyer argues on appeal that the district court’s
10 No. 08-2236
reference to “preponderance” was erroneous and ap-
plied the wrong evidentiary standard to the instruction.
Sawyer suggests that the district court was improperly
applying the Supreme Court’s decision in Dixon v.
United States, 548 U.S. 1 (2006). That case held that the
defendant bears the burden of demonstrating the ele-
ments of a duress defense by a preponderance of the
evidence. The holding of Dixon pertains to the ultimate
burden of proof on the issue at trial and not the initial
showing that a defendant must make before the court
will instruct the jury on the defense, however. On an
initial showing, a defendant need show only a founda-
tion for the elements of the defense in the evidence, not
a preponderance of the evidence supporting the defense.
Sawyer argues that this legal error merits reversal, as
the district court used the wrong legal standard when
rejecting the jury instruction. The government argues that
Sawyer’s claim is insufficient as a matter of law. Her
presentation did not include any evidence of an “im-
mediate” threat. Instead, her duress case relies on unspe-
cific threats of violence at a future time. The government
also argues that this extended time frame prohibits
Sawyer from producing evidence that she had no rea-
sonable opportunity to refuse to commit the offense.
Over the course of a year, the government argues, Sawyer
would have had ample opportunity to report Rodriguez
to the police, and could have done so anonymously if
she feared for her safety.
With respect to Sawyer’s argument on appeal, the
district court’s use of the word “preponderance” in its
No. 08-2236 11
ruling on the jury instruction does raise some question
about what evidentiary standard the court applied. The
remainder of the ruling, however, indicates that the
court simply found no evidentiary basis for the proposed
instruction under the correct standard. The scenario
that Sawyer presented at trial was a far cry from the
kind to which the duress defense applies. The court
noted that she had not alleged that she ever acted under
an immediate threat (such as someone monitoring or
enforcing her behavior) nor that, during the course of a
year, she did not have a reasonable opportunity to
escape the threatening conduct.
As the remainder of our discussion indicates, the
district court committed harmless error even if it ap-
plied the wrong evidentiary standard, as Sawyer
simply did not establish a foundation for the defense.
This circuit has long held that the threat giving rise to a
duress defense must have been “present, immediate, or
impending.” Tanner, 941 F.2d at 587. Sawyer does not
allege an immediate threat; her brief alleges that
Rodriguez was affiliated with the Mexican Mafia and
was capable of harming Sawyer and her son, but in her
testimony she did not claim that Seferino Rodriguez or
anyone else was present at all times when Sawyer was
involved with the meth ring, forcing her to act under
constant compulsion. Even taking her testimony at face
value, it recounts Rodriguez’s allusions to future vio-
lence if Sawyer refused to pay off Beauchamp’s drug
debt. We have previously noted in this context that,
“ ‘future’ or ‘later’ and ‘imminent’ are opposites.” United
States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002). Whether
12 No. 08-2236
or not it was reasonable, Sawyer’s fear of future violence
if she did not cooperate with Rodriguez does not entitle
her to a duress defense. See United States v. Sahakian,
453 F.3d 905, 910 (7th Cir. 2006) (finding that “Sahakian’s
fear that he might be assaulted at some future point by
some unidentified inmate” was insufficient for a duress
defense).
Additionally, Sawyer did not present evidence that
she could have avoided this threat only by agreeing to
help sell drugs, with no reasonable opportunity to seek
protection from law enforcement. Her case is actually
very similar to the circumstances in Tanner. In that case, a
prison inmate was charged with possession of cocaine
with intent to distribute after a package he attempted
to smuggle into the prison was intercepted. Tanner,
941 F.2d at 576. A witness at trial testified that the defen-
dant only smuggled the package in because another
inmate had threatened his life if he did not help. Id. at 587.
We held that the defendant had not demonstrated that
no other reasonable alternative was available, since the
defendant could have sought protective custody or
notified prison guards. Id. In this case, Sawyer did not
present evidence that she never had the chance to con-
tact the police in order to report Rodriguez’s threats.
Since she is alleging ongoing threats over the course of a
year, it would be virtually impossible for her to present
such evidence. She does allege that she was afraid of
Rodriguez’s Mexican Mafia connections and believed he
would find out if she reported him to the police. Outside
of this assertion, however, she presented no evidence
that Rodriguez is actually a member of the Mexican
No. 08-2236 13
Mafia, or that the group has moles inside the various
police forces in Indiana such that it would have been
unreasonable for her to seek their protection. Finally,
Sawyer failed to meet Bailey’s requirement that she
cease committing the crime as soon as the threats against
her lost their coercive force. Sawyer testified that her
threatening run-ins with Rodriguez ended when she
moved to Richmond, but she continued to sell drugs
after the threat had passed, and continued to sell during
the months that Rodriguez was in Texas in the summer
of 2005.
We also note that the threat of future violence, often
implied and sometimes express, is frequently the cur-
rency of drug trafficking operations, and allowing a
duress defense in circumstances such as this where the
defendant has not shown the requisite elements would
flood drug prosecutions with jury instructions in cases
where they are unwarranted. We thus affirm the
district court’s decision not to offer the instruction in
this case.
B. Exclusion of evidence
Sawyer next argues that the district court erred by
excluding testimony from two witnesses. We review
those evidentiary rulings only for an abuse of discretion.
United States v. Rollins, 544 F.3d 820, 830 (7th Cir. 2008).
Moreover, harmless error analysis also applies to a
district court’s evidentiary rulings. United States v. Zapata,
871 F.2d 616, 622 (7th Cir. 1989).
14 No. 08-2236
Sawyer first challenges the district court’s decision not
to admit the testimony of Shaun Clark, who was in
prison for various drug trafficking offenses. Clark’s
testimony would have been hearsay offered through
Michael Davis, the DEA agent who testified during
the government’s case. Davis would have testified that
Clark purchased methamphetamine from various drug
dealers (including Vanes) but when offering testimony
to government agents about whom he had purchased
from, did not name Sawyer as one of them. The govern-
ment objected to the evidence on relevance grounds
and hearsay. Sawyer contends that the evidence would be
relevant to a line from the government’s opening state-
ment, claiming that Sawyer was a “principal” distributor
of methamphetamine in her part of Indiana. Sawyer
contends that the absence of her name from Clark’s
hearsay statement makes it more likely that she was just
a middleman or a broker rather than a drug distributor,
and is relevant for that reason. Sawyer also contends
that the evidence was not hearsay because it was not
offered for the truth of the matter asserted (to show that
Clark could have bought meth from the various sources
he named) but to show that people investigated the
meth market and discovered that Sawyer was not
named as someone from whom meth could be purchased.
Sawyer attempts to rely on United States v. Blandina, 895
F.2d 293, 299 (7th Cir. 1989), in support of the statement’s
admissibility. In Blandina, a defendant charged with tax
evasion claimed that he was not understating his income
because much of his accumulated wealth resulted from
selling rare coins left to him by his grandfather. The
No. 08-2236 15
government presented rebuttal testimony from an IRS
agent who refuted this defense. He claimed to have
interviewed sixty-one rare coin dealers in two states,
none of whom had ever transacted with the defendant.
When the defendant challenged that testimony as
hearsay on appeal, this court held that the testimony
was not offered for the truth of the matter asserted, but
merely to show that the agent’s testimony was the result
of a thorough investigation. Id. at 300.
Sawyer is attempting to make such an indirect eviden-
tiary point that it is extremely difficult to conclude
whether or not she is really offering the statement for the
truth of the matter asserted. However, it appears that
Clark’s testimony was either hearsay or it was
irrelevant, and it was probably both. As it is presented to
this court, the testimony is that Clark purchased from
the major drug distributors in Indiana, and did not
name Sawyer as one of them. If that is the evidence that
Sawyer wanted to present, then the testimony is hearsay
because it depends on the truth of the matter asserted,
namely Clark’s knowledge of the drug market. If it is not
the testimony of someone who knows all the drug distrib-
utors, but merely the testimony of someone who
bought meth but did not buy it from Sawyer, then it
is irrelevant. It does not contradict any of the trial testi-
mony and makes it no less likely that Sawyer sold or
bought meth from the government’s witnesses. Apparently
Sawyer wanted to use the testimony to rebut the gov-
ernment’s charge in its opening statement that she was
a “principal” distributor. That Clark’s testimony may
have showed that Sawyer was not a “principal” does not
16 No. 08-2236
make the evidence relevant. The indictment in this case
did not charge her with being a “principal” anything, only
being a participant in a conspiracy. The government
bore no burden of proof on her status in the conspiracy
at trial. See Fed. R. Evid. 401 (relevant evidence is evi-
dence “having any tendency to make the existence of any
fact that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.”). At any rate, we are satisfied
that the inference Sawyer was asking the jury to draw
from this hearsay testimony was so indirect and insub-
stantial, especially compared to the testimony of her co-
conspirators at trial, that the district court’s decision
to exclude it passes harmless error review as well.
The second piece of testimony that Sawyer wanted to
offer was testimony from witnesses to an altercation
between Ryan Beauchamp and Seferino Rodriguez and
another group of people at a strip club in Indianapolis. The
witnesses would have testified that when friction devel-
oped between the two groups Rodriguez placed a phone
call and several other friends of Rodriguez arrived at the
bar. Sawyer argued that this evidence was relevant to
establish the credibility of the threat she faced from
Rodriguez, as she heard about the incident and claims
it contributed to her fear.
The government argues that the evidence is irrelevant.
Relevance, of course, is determined by whether the evi-
dence makes any fact relevant to a determination of
the action more or less likely. We agree with the district
court that whether or not Rodriguez was able to get on
No. 08-2236 17
the phone and call for help in intimidating other strip
club patrons does not make it any more or less likely
that he threatened Sawyer. At best, this evidence shows
that Rodriguez was capable of summoning people if he
wanted to make a threat; it does not show that he ever
threatened Sawyer nor that he ever threatened her in
the same way that he threatened this anonymous group
of people in the nightclub. It certainly does not show an
immediate threat supporting Sawyer’s duress defense.
C. Reasonableness of Sawyer’s sentence
Sawyer’s final argument is that the district court im-
posed an unreasonable sentence of 260 months. We
review a district court’s application of the sentencing
guidelines de novo and its factual findings for clear error.
United States v. Hollins, 498 F.3d 622, 629 (7th Cir. 2006).
Ultimately, our review is concerned with the reason-
ableness of the defendant’s sentence, based on the cal-
culation of the guidelines and the discretionary factors
enumerated in 18 U.S.C. § 3553(a). A properly calculated
within-guidelines sentence is entitled to a non-binding
presumption of reasonableness on appeal. Rita v.
United States, 127 S. Ct. 2456, 2462 (2007).
Sawyer concedes that her 260-month sentence was
properly calculated and was within the range specified by
the relevant sentencing guideline. She argues, however,
that the sentence was “likely enhanced from a sentence
at or near the bottom of the guidelines of 235 months due
to the court’s finding that Sawyer did not tell the truth
during her testimony.” The supposedly untruthful testi-
18 No. 08-2236
mony related to the source of money found in her home
(Sawyer claimed it was from a deceased relative), her
reasons for joining the conspiracy (she claimed she was
under duress) and her overall role (she claims she
only made introductions). Sawyer argues that this was
improper because the district court did not find at the
jury instructions conference that Sawyer’s testimony on
the duress defense was false, and declined to impose a
two-level enhancement to her offense level based on
obstruction of justice. Her argument is that if the
district court did not bar her proffered jury instruction
because of false testimony or impose an enhancement
for obstruction of justice, it is not entitled to find that
Sawyer was untruthful in her testimony.
The government argues that the district court’s deter-
mination that Sawyer did not tell the truth in her testi-
mony simply represented the district court’s decision to
credit the testimony of Sawyer’s accomplices—who
presented her as a central figure in the conspiracy—rather
than Sawyer’s testimony. Such a decision is within the
district court’s discretion and does not make the sen-
tence unreasonable.
Sawyer’s sentence is harsh, considering that she has
no previous criminal record: 260 months works out to
nearly twenty-two years in prison. That the law imposes
such a severe sentence on a first-time offender whose
circumstances present a case for leniency is a reflection
of the severe penalties that Congress has legislated for
drug crimes, and a sentencing regime that uses the
weight of drugs in the entire conspiracy as a baseline for
the sentencing of each member of that conspiracy. The
No. 08-2236 19
sentence was within the relevant guideline range of 235
to 293 months, however. In deciding not to depart from
the guidelines range, the district court cited, among other
§ 3553(a) factors, the need to deter methamphetamine
dealers and the serious nature of trafficking meth. The
district court also found that a sentence in the middle
of the applicable guideline range was warranted because
of Sawyer’s “failure to accept responsibility, and go[ing]
so far as to tell the jury things that weren’t true . . . .”
While it is true that the district court did not find that
Sawyer obstructed justice through her testimony, the
district court was entitled to find that she had misled
the jury, minimized her own role in the conspiracy, or
otherwise failed to accept responsibility. Our review of
this factual predicate is limited to clear error, and we
find none in this case. The district court’s findings are
consistent with the jury verdict—they found Sawyer
guilty, and their verdict is incompatible with Sawyer’s
testimony that she was a marginal player in the
overall conspiracy. The district court was thus entitled to
find that Sawyer had failed to accept responsibility for
her crimes, and that this in tandem with other factors
required a sentence of 260 months.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment
and sentence of the district court.
3-12-09