United States v. Owens, Richard A.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1262
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD OWENS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:00-CR-34—William C. Lee, Chief Judge.
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ARGUED SEPTEMBER 10, 2002—DECIDED OCTOBER 22, 2002
____________
Before COFFEY, ROVNER, and WILLIAMS, Circuit Judges.
COFFEY, Circuit Judge. Defendant-Appellant Richard
Owens (“Owens”) appeals his sentence imposed after a
jury found him guilty of armed robbery of a credit union
in Fort Wayne, Indiana on April 11, 2001. Owens argues
that the sentencing judge erred in imposing two upward
adjustments: one for Owens’ “aggravating role” in the crime
as an “organizer, leader, manager, or supervisor” of the
robbery, and the other for “obstruction of justice” by giv-
ing false information to an investigation officer in an at-
tempt to send the police on a wild goose chase. Owens
also claims the judge erred in sentencing him at the high
end of the sentencing range because of the district judge’s
own (alleged) beliefs about the inadequacy of the Sen-
2 No. 02-1262
tencing Guidelines. We affirm. Owens does not dispute, and
hence we need not address, the issue of whether he was
armed during the commission of the offense.
I. FACTUAL BACKGROUND
At approximately 4:00 p.m. on June 22, 2001, an African-
American man wearing a fake beard, sunglasses, work
boots, a reflector vest (similar to those worn by highway
workers) and an orange hardhat walked into the Three
Rivers Credit Union in Fort Wayne, Indiana with a gun
in his right hand. The oddly costumed individual, observed
by witnesses carrying two duffel bags along with the
dangerous weapon, approached the tellers and demanded
that they fill the bags with money. After obtaining his loot,
he fled the scene in a white Plymouth Sundance, with
an alert off-duty police officer in hot pursuit. After a brief
chase, the suspect abandoned the vehicle and ran into a
nearby wooded area, leaving behind two duffel bags full of
money in the car with the fake beard and the orange
hardhat. The suspect also left behind clear footprints of
work boots in the muddy ground. The sunglasses and
construction vest he wore at the time of the robbery were
later discovered nearby.
Owens testified that on the day of the robbery, he had
been a passenger in a car driven by Ronald Fowlkes
(“Fowlkes”) and James David Thompson (“Thompson”).
Owens claimed at trial that while a passenger in the car
that day, Fowlkes had invited him to participate in a bank
robbery, but that he refused and demanded to be let out
of the car. According to Owens, after Fowlkes stopped the
car, Owens exited the vehicle and made his way to a near-
by gas station and asked to use the telephone. Pursuing
police officers came upon Owens in the gas station, and
after observing that he matched the description of the
bank robbery suspect and that his work boots were cov-
No. 02-1262 3
ered with fresh mud, they arrested him. The defendant
(who is black) protested to the officers, claiming that his
car had just been stolen by a black man wearing a con-
struction vest and an orange hardhat and that he had only
come to the station to call police. A detective who inter-
viewed Owens shortly after his arrest filled out a stolen
vehicle report on the basis of this story, complete with
a description of the alleged car thief, which was subse-
quently signed by Owens himself. After he was taken into
custody, Owens was brought back to the credit union
(crime scene), whereupon he was identified by several eye-
witnesses.
On April 11, 2001, a jury found Owens guilty of the
bank robbery. He was sentenced on November 15, 2001 to
a term of 151 months in prison. The sentencing judge,
while using the 2001 edition of the United States Sentenc-
ing Guidelines, found his total offense level to be 31 and
determined his criminal history category to be two. The
judge in sentencing included a two-level upward adjust-
ment under § 3B1.1(c) (for defendants with an “aggravat-
ing role” who “organize, lead, manage, or supervise” the
criminal activity) and another two-level upward adjust-
ment under § 3C1.1 (for defendants who obstruct justice).
The judge noted that the guidelines’ sentencing range
was from 121 to 151 months, and that he was “going to
sentence [Owens] at the high end of the guidelines. I
think that bank robbery sentences are the only sentences
under the Guidelines that are not adequate . . . .”
II. DISCUSSION
A. The Aggravating Role
Whether a defendant had an “aggravating role” under
U.S.S.G. § 3B1.1 is a “fact question for the sentencing
court to resolve, and we will not disturb it absent a show-
ing of clear error.” United States v. McKenzie, 922 F.2d
4 No. 02-1262
1323, 1329 (7th Cir. 1991). This standard of review makes
clear that we may not hold that the trial judge erred un-
less we are of “the definite and firm conviction that a
mistake has been committed.” United States v. Brown, 900
F.2d 1098, 1102 (7th Cir. 1990) (quotations omitted).
At trial, the prosecution offered the testimony of Owens’
two co-defendants, Fowlkes and Thompson, as proof that
Owens was the leader of the group. Contrary to Owens’
statements, Fowlkes and Thompson stated that Owens
had recruited them (Fowlkes and Thompson), and there-
after met with them to plan the robbery, chose the finan-
cial institution to be robbed, gave each of them directions
as to what part they were to play in the robbery scheme,
and devised a plan to distribute the money they secured.
Given these facts, which the jury must have found to be
persuasive, we are convinced that it was not clearly er-
roneous for the judge thereafter to enhance Owens’ sen-
tence two points for his “aggravating role” in “organiz[ing],
lead[ing], manag[ing], or supervis[ing]” the operation.
B. Obstruction of Justice
We review de novo the question of whether the district
court made the appropriate findings to support an ob-
struction of justice enhancement under U.S.S.G. § 3C1.1.
We review the district court’s underlying factual findings
for clear error. See United States v. Carrera, 259 F.3d 818,
831 (7th Cir. 2001).
The sentencing judge, in support of his imposition of the
two-level adjustment for obstruction, stated the following:
[T]here was a long, in my judgment, fabricated story
that Mr. Owens told. And the record is clear on all the
details of that. And I remember at the time thinking
that if this story was believable, you would have to
believe that a person robbed the bank wearing bright
No. 02-1262 5
orange construction clothing, managed to find and
steal Owens’ car after the robbery, park it on Rabus
Road, run through a field, and wind up near the Gillum
residence. I found that a bit far-fetched. And apparent-
ly the jury did, too. So that’s the basis upon which the
obstruction of justice was assessed and so I adopt the
probation officer’s conclusion on that issue also.
The “fabricated story” to which the judge is referring is
the statement that Owens supplied to the police shortly
after his arrest, in which he alleged that a black man
wearing a construction vest and an orange hardhat had
stolen his vehicle. False statements made to law enforce-
ment officers, even though they are not made under oath,
may warrant application of the two-level enhancement
under U.S.S.G. § 3C1.1 if the trial judge considers them
to be “material” and that they “significantly obstructed
or impeded the official investigation or prosecution of the
instant offense.” See U.S.S.G. § 3C1.1, App. Note 4(g).
Owens argues that his fabricated story did not “sig-
nificantly” obstruct or impede the investigation, thus he
should not be penalized for actually obstructing justice.
The law in this circuit is clear, however, that actual prej-
udice to the government resulting from the defendant’s
conduct is not required. See United States v. Nobles, 69
F.3d 172, 192 (7th Cir. 1995) (holding that the defendant’s
“ultimate lack of success for obstructing justice will not
relieve his responsibility for his attempt to do so”). Owens’
tale to the police that his car had been stolen by a man
dressed in clothing and a disguise identical to those of
the bank robber was clearly an attempt, early on in the
police investigation, to lead them on a “wild goose chase.”
The fact that the government’s investigative efforts were
not ultimately frustrated by Owens’ perversion of the truth
should not become a boon for the defendant. See United
States v. Kroledge, 201 F.3d 900, 906-07 (7th Cir. 2000);
United States v. Wells, 154 F.3d 412, 414-15 (7th Cir. 1998).
6 No. 02-1262
The enhancement of Owens’ sentence under U.S.S.G.
§ 3C1.1 for obstruction of justice may be upheld on another
basis; namely, that during his trial testimony, Owens
denied (under oath) that he told the police someone
dressed like the bank robber had stolen his car the day of
the heist. We have previously held that where a defen-
dant “gives false testimony concerning a material matter
with the intent to provide false testimony, rather than as
a result of confusion, mistake, or faulty memory” an en-
hancement under U.S.S.G. § 3C1.1 may be upheld. Nobles,
69 F.3d at 192.
The sentencing judge clearly found that Owens’ denials
certainly were false, stating that “the record was clear on
all the details” of Owens’ “fabricated” and “far-fetched”
story to the police, noting that the jury found it—and his
denials at trial—incredible as well. Owens’ statements
were also obviously “material,” as that term is defined
under Application Note 6 of U.S.S.G. § 3C1.1 (explaining
“material information” as information which, “if believed,
would tend to influence or affect the issue under deter-
mination”). There was also no doubt as to Owens’ intent to
provide his false testimony, and Owens does not argue
that his denials of his statements to police were the re-
sult of “confusion, mistake, or faulty memory.” Thus, as
Owens’ denials while under oath at trial clearly amounted
to “false testimony concerning a material matter with the
intent to provide false testimony,” we conclude that the
trial judge did not err in adopting the “probation offi-
cer’s conclusion” that a § 3C1.1 enhancement was war-
ranted and assessing a two-level enhancement for ob-
struction of justice. See Nobles, 69 F.3d at 192. While we
note that the sentencing judge could have been more
articulate and specific in his findings justifying the en-
hancement, we refuse to conclude that his findings touch-
ing on the essential elements of the perjury charge were
insufficient. See, e.g., Carrera, 259 F.3d at 831 (holding that
No. 02-1262 7
while the district judge did not make specific findings as
to a perjury charge, it was sufficient for the judge to have
made findings which “did encompass falsity, willfulness,
and materiality”).
We thus agree with the sentencing judge’s two-level
enhancement under § 3C1.1 because (1) Owens’ pre-trial
statements to the police were an attempt to waste valu-
able police resources by setting the police on a wild goose
chase for a helmet-clad car thief who did not exist; and
(2) his denials while testifying under oath at trial amounted
to “false testimony concerning a material matter with
the intent to provide false testimony, rather than as a re-
sult of confusion, mistake, or faulty memory.”
C. High-End Sentencing
Under 18 U.S.C. § 3742(a), a defendant may seek ap-
pellate review of his sentence in any of four circum-
stances: (1) when it was imposed in violation of law;
(2) when it was imposed as a result of an incorrect ap-
plication of the sentencing guidelines; (3) when it exceeded
the sentence specified in the applicable guideline range; or
(4) when it was imposed for an offense for which there is
no sentencing guideline and is plainly unreasonable. “Ab-
sent an error of law or misapplication of the guidelines,
this court lacks jurisdiction to review sentences within
the applicable guideline range.” United States v. Jefferson,
252 F.3d 937, 943 (7th Cir. 2001). With the observation
that the Sentencing Guidelines were “inadequate” with re-
spect to bank robbery, the court was arguably simply
“attempting to impress the defendant with the gravity of
the criminal law and the seriousness of the offense.” United
States v. Lopez, 974 F.2d 50, 52 (7th Cir. 1992). In any
event, the sentencing judge clearly did not run afoul of
18 U.S.C. § 3742(a), and thus we refuse to entertain Owens’
argument about the propriety of his sentence in this re-
spect, as the court lacks jurisdiction.
8 No. 02-1262
III. CONCLUSION
The sentence imposed by the district court is hereby
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-22-02