United States v. James Selvie , 684 F.3d 679 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1140
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES S ELVIE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CR 698—Ronald A. Guzman, Judge.
A RGUED JUNE 1, 2012—D ECIDED JUNE 29, 2012
Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. Chicago police arrested
James Selvie for weapons crimes stemming from his
possession of a loaded handgun. While in custody, he
contacted his girlfriend, Juvona Robinson, and asked her
to file a complaint with the Chicago Police Department
(“CPD”), alleging that his arresting officers planted the
gun on him and arrested him falsely. Robinson did so,
and CPD initiated an investigation into Selvie’s allega-
2 No. 12-1140
tions. As part of its investigation, CPD contacted
Robinson, who immediately recanted her complaint and
confessed that she had no actual knowledge of what
transpired during Selvie’s arrest. CPD terminated its
investigation.
Federal authorities ultimately assumed jurisdiction
over Selvie’s case and charged him with being a felon
in possession of a firearm, 18 U.S.C. § 922(g). He pled
guilty pursuant to a plea agreement. He appeals his
sentence, arguing that the district court improperly en-
hanced his base offense level for obstruction of justice,
predicated on the false complaint he lodged with CPD.
We affirm the district court’s sentence.
I. Background
On May 3, 2010, Chicago police officers on patrol ob-
served James Selvie, a known gang member, with a bulge
in his waistband that they deemed suspicious. They
exited their squad car to investigate further, at which
time Selvie fled on foot and tossed a loaded handgun
onto a nearby porch. The officers arrested Selvie and
recovered the gun.
The State’s Attorney’s Office charged Selvie with
various weapons offenses. The charges constituted a
parole violation, and he remained in custody at the
Statesville Correctional Facility.
On May 8, 2010, Selvie’s girlfriend called CPD to file
a complaint. She alleged that Selvie’s arresting officers
No. 12-1140 3
planted the gun on him and arrested him falsely. Sergeant
William Gentile was assigned to investigate her allega-
tions. When he contacted her, she immediately volun-
teered that she made the complaint at Selvie’s request,
that she was not present when he was arrested, and
that she lacked any first-hand knowledge about the
arrest. She also informed Gentile that she could not sub-
stantiate her complaint, refused to provide a sworn
statement, and requested that he terminate the inves-
tigation. Gentile closed the investigation.
In August 2010, the United States Attorney’s Office for
the Northern District of Illinois indicted Selvie for being
a felon in possession of a firearm, 18 U.S.C. § 922(g). The
state charges against him were dismissed. Selvie pled
guilty to the federal charge pursuant to a plea agree-
ment. The agreement did not contain an enhancement
for obstruction of justice.
Before sentencing, Selvie’s probation officer provided
a Presentencing Report to the court. The officer
contended that Selvie caused his girlfriend to file a
false report in order to obstruct CPD’s investigation. He
recommended a two-level increase to the base offense
level. Selvie objected to the proposed enhancement,
arguing that his girlfriend never suggested that she
witnessed his arrest and that his conduct did not
obstruct justice under Section 3C1.1 of the Sentencing
Guidelines.
At sentencing, the government agreed that Selvie’s
conduct did not amount to obstruction. Yet, the district
court, signaling that it found significant Selvie’s attempt
4 No. 12-1140
to induce a third party to file a complaint, instructed
the government to brief the issue and continued the
hearing. The government filed the requested brief,
in which it reversed its position and endorsed an ob-
struction enhancement. Selvie, it concluded, attempted
to intimidate or influence the arresting officers into with-
holding their testimony by inducing his girlfriend to
file a complaint against them. Subsequently, the proba-
tion department amended the Presentencing Report,
withdrawing its request for an obstruction enhance-
ment. It explained that the enhancement was inappro-
priate because, in light of the fact that Selvie’s girlfriend
did not witness his arrest, Selvie’s putative attempt
to obstruct the investigation was ill-conceived, had little
chance of success, and was quickly abandoned.
Nevertheless, when sentencing resumed, the district
court found that Selvie obstructed justice and enhanced
his base offense level by two levels. His guideline range
increased from 37-46 months to 46-57 months. The
court sentenced Selvie to 51 months’ imprisonment.
II. Discussion
We review for clear error a district court’s factual
findings that underlie a sentencing enhancement. See
United States v. Pellmann, 668 F.3d 918, 926 (7th Cir. 2012).
We review a district court’s decision to enhance a
sentence based on those facts de novo. See id.No. 12-1140 5
A. The District Court Did Not Clearly Err in Its
Findings of Fact
At sentencing, the district court found that Selvie
planned and attempted to induce false testimony from
a fabricated witness in order subvert the government’s
ability to prove the charges against him. It stated:
This is an actual determination to set about a plan
and to execute a plan to, in essence, conjure up a
witness, make up a witness to allege that things
were done to this man by the police that weren’t
done, things which would affect whether or not he
was, in fact, guilty of the offense he was charged
with. And that’s more than a mere denial. It carries
the potential for significantly obstructing an inves-
tigation. And it takes a certain amount of planning
and forethought and audacity, frankly, to call up a
person who has nothing to do with the case and
impose upon her to lie about the police officers
who caused your arrest.
This behavior, it concluded, constituted obstruction of
justice.
We will disturb the district court’s findings as clearly
erroneous only if our review of the record leaves us with
“the definite and firm conviction that a mistake has been
committed.” United States v. Littrice, 666 F.3d 1053, 1060
(7th Cir. 2012) (quoting United States v. Severson, 569
F.3d 683, 689 (7th Cir. 2009)). The record does not
support that assessment.
Selvie does not dispute that he called Juvona Robinson
and asked her to file a complaint against his arresting
6 No. 12-1140
officers. Nor does he dispute that he fabricated the
content of that complaint, in which he alleged that the
arresting officers planted the recovered gun, framed him
for, inter alia, possession of a firearm, and arrested
him falsely. Indeed, he ultimately pled guilty to being a
felon in possession of a firearm and, thus, admitted that
the weapon was not planted. Since he does not contest
that he called Robinson, that she filed a report per his
instructions, and that the report was false, the district
court did not err in accepting these facts as true and
considering them as it fashioned its decision regarding
an obstruction enhancement.
B. The District Court Appropriately Enhanced Selvie’s
Guideline Range
Selvie argues that his actions do not satisfy the criteria
for obstruction of justice. He challenges, first, that he did
not induce knowingly false testimony because he never
asked Robinson to tell the police that she witnessed
his arrest first-hand: he merely asked her to relay to
the police his complaint against his arresting officers.
Second, he argues, his actions did not—and could not
have—impeded the prosecution against him.
Section 3C1.1 permits a two-level increase in a defen-
dant’s offense level if:
(1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administra-
tion of justice with respect to the investigation, prose-
cution, or sentencing of the instant offense of con-
viction, and (2) the obstructive conduct related to
No. 12-1140 7
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense . . . .
U.S. S ENTENCING G UIDELINES M ANUAL § 3C1.1. One
means by which a defendant may earn an obstruction
enhancement is by “providing a materially false state-
ment to a law enforcement officer that significantly ob-
structed or impeded the official investigation or pros-
ecution of the instant offense.” Id. at cmt. n.4(G). A state-
ment is materially false if, were it believed, it “would
tend to influence or affect the issue under determina-
tion.” Id. at cmt. n.6.
In this case, Selvie provided a materially false state-
ment to the police. Although he recruited an intermediary
to relay his message, he informed CPD that his arresting
officers planted a gun on him when they did not do so.
Were his complaint believed, it would tend to influence
or affect the issue under determination—whether Selvie
illegally possessed a firearm. The presence of a gun on
his person or in his possession was the crux of the
charge against him. Selvie, thus, misapprehends the
criteria for obstruction when he argues that Robinson
did not know the information she relayed to the police
was false. Her intent to obstruct or impede the inves-
tigation is irrelevant. What matters is whether he
intended to obstruct or impede the investigation by
providing materially false information to law enforce-
ment. Clearly he did so: he lied about the police
illegally planting evidence, and he requested Robinson
to serve as the mouthpiece by which he communicated
the false information; his conduct underscores that he
acted wilfully.
8 No. 12-1140
We must consider, however, whether the false infor-
mation he provided “significantly obstructed or impeded
the official investigation or prosecution of the instant
offense.” Id. at cmt. n.4(G). Selvie argues that his false
complaint was ill-conceived and quickly abandoned.
Law enforcement authorities, therefore, were not and
could not have been deceived by his disinformation.
We hold that actual deception is irrelevant to the
inquiry; the government must show only that it ex-
pended time or resources on the false information.
Materially false information provided to law enforce-
ment must actually obstruct or impede the official investi-
gation to merit an obstruction enhancement. See id. at
cmt. n.4(G). Without more, false statements to law en-
forcement authorities, if not made under oath, do not
actually impact the investigation or prosecution. See id.
at cmt. n.5(B); see also United States v. Raupp, 677 F.3d
756, 758-59 (7th Cir. 2012) (noting that the Sentencing
Commission’s application notes are authoritative and
controlling unless “plainly erroneous or inconsistent
with the regulation” (quoting Stinson v. United States,
508 U.S. 36, 44-45 (1993))). The government must prove
“a detrimental effect upon [its] efforts to investigate or
prosecute the instant offense.” United States v. Griffin,
310 F.3d 1017, 1023 (7th Cir. 2002); see also United States
v. Hanhardt, 361 F.3d 382, 389-90 (7th Cir. 2004) (inter-
preting Section 3C1.1’s application notes to require the
government to demonstrate “[s]ignificant and actual
obstruction or impediment” to apply an obstruction
enhancement), vacated and remanded for re-sentencing in
light of United States v. Booker, 543 U.S. 220 (2005), sub nom.
Altobello v. United States, 543 U.S. 1097 (2005). This detri-
No. 12-1140 9
mental effect, however, need not amount to a total frus-
tration of the government’s efforts. See United States v.
Owens, 308 F.3d 791, 794 (7th Cir. 2002) (citing United
States v. Kroledge, 201 F.3d 900, 906-07 (7th Cir. 2000))
(“The fact that the government’s investigative efforts
were not ultimately frustrated by [the defendant’s] per-
version of the truth should not become a boon for
the defendant.”). False statements prejudice an inves-
tigation when they burden law enforcement and pre-
cipitate “expended resources to track down . . . false
leads.” Griffin, 310 F.3d at 1023; see also United States v.
Wells, 154 F.3d 412, 414-15 (7th Cir. 1998). Material misin-
formation that exerts any impact on the government’s
resources may elicit an obstruction enhancement.
Selvie’s false complaint forced CPD to launch an in-
vestigation and send its personnel to interview Robin-
son. That Robinson quickly recanted does not alter the
fact that CPD spent time and manpower to vet Selvie’s
allegations. Her candor simply saved CPD additional
time and resources otherwise wasted on Selvie’s lies.
Accordingly, he committed obstruction, and the district
court justifiedly enhanced his base offense level.
III. Conclusion
For the foregoing reasons, we A FFIRM the decision of
the district court.
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