USA v. Guy Riney. No. 13-1491.

(Editor’s Note: Mr. Riney was represented at Motion, trial and Sentencing by Chicago Criminal Defense Attorney Michael J. Petro)

Defendant Guy Riney was convicted in a jury trial of possession of a firearm after previously having been convicted of a felony, in violation of 18 U.S.C. §922(g)(1). Riney had many felony convictions and enough violent crimes, though from many years earlier, to qualify as an armed career criminal under both 18 U.S.C. §924(e) and U.S. Sentencing Guideline §4B1.4. Riney appeals both his conviction and sentence. He argues that the district court erred in applying a two-level enhancement for obstruction of justice to the offense level in its sentencing guideline calculation. We affirm.

OBSTRUCTION OF JUSTICE ENHANCEMENT. In sentencing Riney, the district court imposed a two-level enhancement for obstruction of justice based on the affidavit Riney submitted to the court in support of his motion to suppress. Sentencing Guideline §3C1.1 permits such an enhancement if:

(1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense[.]

“A defendant commits perjury if, while testifying under oath, he `gives 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.'” United States v. Johnson, 680 F.3d 966, 981 (7th Cir. 2012). To apply the enhancement based on perjury, “the district court should make a finding as to all the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent.”
United States v. Johnson, 612 F.3d 889, 893 (7th Cir. 2010).

We review a district court’s interpretation and application of the federal Sentencing Guidelines to the facts de novo and its findings of fact for clear error. United States v. White, 737 F.3d 1121, 1139 (7th Cir. 2013). Here, the sentencing judge failed to make a finding concerning Riney’s willfulness. Though that omission was an error, it was harmless.

Judge Kennelly presided over Riney’s trial and imposed the sentence. He reviewed Riney’s affidavit and found that his sworn description of his arrest and search was very different from the version of those events presented by Officer Lara’s and Officer McKenna’s testimony before Judge Pallmeyer, and that Judge Pallmeyer had credited the officers’ testimony.

Judge Kennelly then decided that the affidavit had been material to Judge Pallmeyer’s decision to grant an evidentiary hearing on Riney’s motion to suppress. However, he did not make an explicit finding as to whether the false statements in Riney’s affidavit were willful before applying the two-level enhancement for obstruction of justice. On appeal, Riney argues that the district court erred by finding that the affidavit was material and by failing to find willfulness.

For these purposes a matter is “material” if it concerns information “that, if believed, would tend to influence or affect the issue under determination.” U.S.S.G. §3C1.1, App. Note 6. Riney’s affidavit concerned a material matter.

The affidavit caused the district court to hold an evidentiary hearing to determine whether the critical evidence supporting Riney’s prosecution—the gun—was obtained by Officers McKenna and Lara in violation of Riney’s Fourth Amendment rights. Riney’s arguments to the contrary simply miss the point that the affidavit caused the court to hold the evidentiary hearing. That made it material. And of course, if Riney’s affidavit had been believed, it would have required suppression of the evidence, making it doubly material.

The lack of an explicit finding of willfulness is more problematic.

Separate findings on each element of perjury, though preferable, are not necessary if the court makes a finding that “encompasses all of the factual predicates for a finding of perjury.” Dunnigan, 507 U.S. at 95. A finding that the defendant “lied” about a material matter can be sufficient in some cases. See Johnson, 680 F.3d at 982.

But, like perjury, lying involves willfully making a false statement. This record is sufficiently clear that the sentencing judge believed statements in Riney’s affidavit were false, and the record would easily have supported a finding of willfulness. The differences between Riney’s affidavit and the officers’ testimony were stark and would have been difficult to attribute to faulty memory, confusion, haste, or other honest mistake. The fact remains, though, that there was no finding of willful falsity.

The error was harmless here, however, because the armed career criminal guideline trumped the effect of the obstruction enhancement, and there is no indication that the enhancement had any effect on the ultimate sentence.

The judgment of the district court is AFFIRMED.

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