### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 2243

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

A NTHONY B ROWN

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 CR 405

‐ 4

— Ronald A. Guzmán

, Judge

.

____________________

A RGUED A PRIL 4, 2016

— D ECIDED D ECEMBER 14, 2016

____________________

Before E ASTERBROOK and H AMILTON

, Circuit Judges

, and

P EPPER

, District Judge

. *

H AMILTON

, Circuit Judge

. Appellant Anthony Brown pled

guilty to conspiring to distribute drugs. He appeals his sen

‐

tence, challenging the application of a two

‐ level Sentencing

* Hon. Pamela Pepper of the Eastern District of Wisconsin, sitting by

designation.2 No. 15

‐ 2243

Guideline enhancement for obstruction of justice. The unu

‐

sual process that led to this enhancement persuades us that

we should remand. The judge who sentenced Brown imposed

the enhancement based on Brown’s responses to three ques

‐

tions in testimony in a hearing on a motion to suppress in an

‐

other case against another defendant and before another

judge. The other defendant ultimately pled guilty and with

‐

drew his motion to suppress. As a result, the judge who actu

‐ ally heard Brown’s testimony never made findings about the

honesty of his testimony or the merits of the other defendant’s

motion to suppress. The judge who sentenced Brown im

‐ posed the enhancement for obstruction of justice based on the

other judge’s interim impressions about earlier testimony

from police officers. That was not a sufficient factual founda

‐

tion to support the obstruction of justice enhancement. We va

‐

cate Brown’s sentence and remand for resentencing.

I. Facts and Procedural Background

Anthony Brown was arrested for selling heroin in a hand

‐

to

‐ hand drug transaction on Chicago’s west side. He offered

to assist the police, telling the officers that he knew where a

man named “Jimmie” stored large amounts of drugs and that

he was supposed to meet Jimmie later that day. Brown gave a

description of Jimmie but did not provide his last name.

Brown rode with police officers in an unmarked police car to

Jimmie’s stash house. Brown then placed a monitored but un

‐

recorded call from the police car using his personal cell

phone. When a person matching the description given by

Brown emerged from the house, police stopped him. They

found eight baggies with approximately 1000 capsules con

‐ taining 135 grams of heroin. The police later identified him as

Jimmie Sessom.No. 15

‐ 2243 3

Sessom was charged with possessing 100 grams or more

of heroin with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1). His case was assigned to Chief Judge Castillo. Ses

‐

som moved to suppress the search and seizure of heroin. At

an evidentiary hearing on the motion to suppress before

Judge Castillo, Chicago police officers and an FBI agent testi

‐

fied about the information Brown had given them and Ses

‐

som’s stop and arrest. After hearing the testimony, Judge Cas

‐

tillo told the attorneys he was inclined to deny Sessom’s mo

‐

tion to suppress, and he shared with the attorneys his “pre

‐ liminary conclusions” to the effect that he found credible the

police testimony about the information that Brown provided.

Judge Castillo made no definitive ruling, however, and left

open the possibility of hearing further evidence.

Sessom later moved to reopen the suppression hearing to

call Brown to testify. Since Brown’s own criminal case was still

pending, the parties in Sessom’s case expected Brown to assert

his Fifth Amendment privilege not to incriminate himself.

Sessom proposed to the court that Brown be asked just four

questions that he argued would not invade Brown’s Fifth

Amendment privilege. The questions were provided in briefs

to the court and to all parties. Judge Castillo granted the mo

‐

tion, reopened the suppression hearing, and ordered Brown

to answer over his Fifth Amendment objection.

The questioning was conducted by Sessom’s counsel:

Q: Mr. Brown, on the evening of July 11, 2012 at ap

‐ proximately 7:45, were you in a car with a Chi

‐

cago Police Department officer around Taylor

and North Avenue in Chicago?

A: You said Taylor and North Avenue?4 No. 15

‐ 2243

Q: Yes.

A: No.

Q: On the evening of July 11th, 2012 at approxi

‐ mately 7:45, did you identify an individual

walking out of an apartment building at 1239

North Taylor Avenue

–

A: No.

Q.

– as someone you knew as Jimmie?

A: No.

Q: On the evening of July 11th, 2012 at approxi

‐ mately 7:45, did you place a phone call from a

CPD officer’s car to someone named Jimmie?

A: No.

Q: Do you recall what your phone number was in

July 2012?

A: I can’t remember.

After that hearing, Sessom pled guilty and withdrew his mo

‐

tion to suppress. As a result, Judge Castillo never ruled on the

motion to suppress and did not make any findings on the

credibility of Brown’s answers.

Brown then pled guilty to the conspiracy charge against

him. Judge Guzmán sentenced Brown. The government ar

‐ gued that Brown had obstructed justice by lying in his an

‐

swers to those questions in Sessom’s suppression hearing.

Judge Guzmán then determined that Brown’s “no” answers

in the suppression hearing reflected Brown’s version of the

events and found that his version of events was not credible.No. 15

‐ 2243 5

Judge Guzmán then “agreed with” Judge Castillo’s prelimi

‐

nary view that the officers who testified at Sessom’s suppres

‐

sion hearing were credible.

Judge Guzmán was “convinced that [Brown’s] failure to

accurately testify constitutes an obstruction of justice.” He

found that the failure to testify accurately was intentional and

imposed the two

‐ level guideline increase for obstruction of

justice under U.S.S.G. § 3C1.1. The enhancement made the to

‐

tal offense level 27. With criminal history Category III, the

guideline range became 87 to 108 months. Judge Guzmán im

‐ posed a sentence of 60 months, below both the actual guide

‐

line range and the range of 70 to 87 months that would have

applied without the obstruction enhancement.

On appeal Brown argues that Judge Guzmán did not make

appropriate findings to support application of the enhance

‐

ment for obstruction of justice. In our view, while Judge Guz

‐

mán made the findings required for the enhancement, he did

not have a sufficient factual basis for doing so since he based

those findings primarily on the interim impressions Judge

Castillo announced before he had even heard Brown’s testi

‐

mony. We wonder whether a remand is likely to benefit

Brown, especially in light of the below

‐ guideline sentence and

the continued credit for acceptance of responsibility (which is

unusual but permissible when an obstruction enhancement

applies). Still, we cannot say on this record that the error was

harmless, so we remand for re

‐ sentencing.

II. Analysis

Judge Guzmán found that Brown committed perjury by

providing the three “no” answers in Sessom’s suppression

hearing. We review the district court’s factual findings for6 No. 15

‐ 2243

clear error. United States v. DeLeon

, 603 F.3d 397, 402 (7th Cir.

2010), citing United States v. Powell

, 576 F.3d 482, 498 (7th Cir.

2009). Those “factual findings will stand as long as they are

plausible in light of the record in its entirety.” Id

. (internal

quotation marks and citation omitted). We review de novo

whether the factual findings of the district court adequately

support the imposition of the enhancement. See id.

, citing

United States v. Anderson

, 580 F.3d 639, 648 (7th Cir. 2009).

When applying a § 3C1.1 enhancement for obstruction of

justice based on perjury, “the district court should indicate

that it has found all of the elements of perjury: falsity, willful

‐

ness and materiality.” United States v. Turner

, 203 F.3d 1010,

1020 (7th Cir. 2000), quoting United States v. Brimley

, 148 F.3d

819, 823 (7th Cir. 1998). In such cases, “a district court must

review the evidence and make independent findings neces

‐

sary to establish a willful impediment to or obstruction of jus

‐

tice, or an attempt to do the same....” United States v. Dunni

‐

gan

, 507 U.S. 87, 95 (1993). The district court “must also find

that a defendant testified untruthfully with the specific intent

to obstruct justice rather than as a result of confusion, mistake

or faulty memory.” United States v. Gage

, 183 F.3d 711, 715 (7th

Cir. 1999), citing Dunnigan

, 507 U.S. at 94, and United States v.

Ewing

, 129 F.3d 430, 434 (7th Cir. 1997) (“Section 3C1.1 re

‐ quires specific intent to obstruct justice.”). The prosecution

bears the burden “to prove by a preponderance of the evi

‐

dence that the enhancement is warranted.” Ewing

, 129 F.3d at

434, citing United States v. Hamm

, 13 F.3d 1126, 1129–30 (7th

Cir. 1994).

We first address a legal issue about whether § 3C1.1 could

apply to Brown’s testimony in Sessom’s suppression hearing.

Section 3C1.1 provides:No. 15

‐ 2243 7

If (1) defendant willfully obstructed or im

‐ peded, or attempted to obstruct or impede, the

administration of justice with respect to the in

‐ vestigation, prosecution, or sentencing of the in

‐

stant offense of conviction, and (2) the obstruc

‐

tive conduct related to (A) the defendant’s of

‐

fense of conviction and any relevant conduct; or

(B) a closely related offense, increase by 2 levels.

Could perjury by Brown in the Sessom suppression hearing

meet the requirements of § 3C1.1? We agree with the district

court that it could, at least with sufficient factual findings. The

second clause allows the enhancement to be applied for per

‐ jury or other obstruction regarding a “closely related offense.”

We find no error in the district court’s decision to treat

Brown’s testimony in the Sessom suppression hearing as “re

‐

lated to

... a closely related offense,” even though the two men

were not charged jointly. See United States v. Messino

, 382 F.3d

704, 708 (7th Cir. 2004) (affirming enhancement where de

‐

fendant testified falsely during trial of co

‐ defendants); accord,

United States v. Mollner

, 643 F.3d 713, 718 (10th Cir. 2011);

United States v. Savoca

, 596 F.3d 154, 158 (2d Cir. 2010).

The first clause in § 3C1.1 requires that the perjury or other

obstruction have been “with respect to the investigation, pros

‐

ecution, or sentencing of the instant offense of conviction.”

The “instant offense of conviction” for Brown was conspiracy

to possess heroin with intent to distribute it. A conspiracy re

‐ quires a co

‐ conspirator, of course, and when Brown wanted

to cooperate, Sessom was the distributor he gave up to the po

‐

lice. It is not unreasonable to treat perjury in a prosecution of

such a potential co

‐ conspirator as obstruction “with respect to

the investigation, prosecution, or sentencing” of Brown’s own8 No. 15

‐ 2243

offense of conviction. The close parsing of the precise word

‐ ing of the Guideline provides another reminder, however,

about why a sentencing judge may not want to tie a final sen

‐

tence too closely to such narrow guideline issues as the pre

‐

cise scope of § 3C1.1 that may have only a tenuous relation

‐ ship to the goals of sentencing under 18 U.S.C. § 3553(a). Per

‐ haps the district judge here took that approach (keep in mind

that the sentence was below the guideline ranges both with

and without the obstruction enhancement), but he did not sig

‐

nal clearly that he was doing so. In any event, there was no

legal obstacle to the obstruction enhancement here.

There was a factual obstacle, though. The district court

made the required findings, but did so without an adequate

basis in the evidence for finding willfulness and falsity. The

combination of relying on testimony before another judge and

the “no” answers to quite specific and multi

‐ part questions

undermined the usual grounds that would support those

findings. Recall the three key questions:

Q: Mr. Brown, on the evening of July 11, 2012 at ap

‐ proximately 7:45, were you in a car with a Chicago

Police Department officer around Taylor and North

Avenue in Chicago?

Q: On the evening of July 11th, 2012 at approximately

7:45, did you identify an individual walking out of

an apartment building at 1239 North Taylor Avenue

... as someone you knew as Jimmie?

Q: On the evening of July 11th, 2012 at approximately

7:45, did you place a phone call from a CPD officer’s

car to someone named Jimmie?No. 15

‐ 2243 9

Brown answered each one “no.” Each question included mul

‐ tiple factual elements. Because of concerns about his Fifth

Amendment privilege, there was no follow

‐ up. We recognize

that Brown may have had a strong incentive to lie about the

help he had given the police that led to Sessom’s arrest and

prosecution. But if Brown was mistaken or confused about

just one element of the multi

‐ part questions, his answers of

“no” could have been honest or at least not deliberately per

‐ jurious. For example, there is evidence that Brown had not

known the address to which he was directing the officers, but

knew only how to get to the house. If he was mistaken about

the date or time or the cross

‐ streets, a “no” answer could have

been honest or at least not willfully false. These questions and

answers, without clarification, were too ambiguous to war

‐

rant a determination that Brown gave willfully false answers.

Neither Brown’s attorney nor any other counsel was per

‐

mitted to inquire further as to what parts of the questions

prompted the “no” answers. “The burden is on the questioner

to pin the witness down to the specific object of the ques

‐

tioner’s inquiry.” Bronston v. United States

, 409 U.S. 352, 360

(1973) (discussing federal perjury statute, 18 U.S.C. § 1621).

That did not occur in this case, for understandable reasons.

The Second Circuit has said that when a line of questioning

“is so vague as to be ‘fundamentally ambiguous,’ the answers

associated with the questions posed may be insufficient as a

matter of law to support the perjury conviction.” United States

v. Lighte

, 782 F.2d 367, 375 (2d Cir. 1986); see also United States

v. Landau

, 737 F. Supp. 778, 784–85 (S.D.N.Y. 1990) (granting

motion to dismiss perjury indictment because questions were

ambiguous). Here the ambiguity stemmed from the combina

‐

tion of multiple factual elements in each question and the lack

of follow

‐ up. Accordingly, Judge Guzmán could not rely on10 No. 15

‐ 2243

Brown’s “no” answers in the Sessom suppression hearing to

determine Brown’s “version of events.”

At Brown’s sentencing hearing, Judge Guzmán said:

On this record I find his version now of what oc

‐

curred to be just not credible. It’s not credible.

The testimony by the officer, I agree with Judge

Castillo, was credible, was believable. That’s the

way things happen. That’s the way it’s done.

When Brown’s counsel noted the limited nature of the exami

‐

nation in the Sessom suppression hearing and suggested that

the responses to the four government questions were not suf

‐

ficient to find obstruction, the court responded:

You don’t think it’s clear from this record that

the officers’ testimony was that your client was

with him in the car, pointed out the apartment,

and pointed out the defendant when he came

out, and that he denied that when he testified?

After Brown’s counsel expressed further concern that the tes

‐ timony was very limited in scope and that counsel was not

able to cross

‐ examine to clarify his testimony to bolster his

credibility, the court said that Brown’s motive was:

not a great mystery. I have many defendants

who come here, plead guilty, but still have one

foot in their other life. These are his relation

‐ ships. These are the people he did business

with. These are the people who he fears. All of

these reasons would be cause for him to back off

and lie. It would be cause for him not to

... want

to admit in open court in front of his peers, the

people he was doing business with, the peopleNo. 15

‐ 2243 11

he depended upon, and the people he feared,

what he actually did against them. That hap

‐

pens all the time. I don’t find that unusual.

The court later said:

I am convinced that his failure to accurately tes

‐ tify constitutes an obstruction of justice. I think

it was intentional. I think it directly contradicted

the version of events as they actually occurred.

It was under oath. And I find that the two

‐ level

increase for obstruction of justice is appropriate

in this case. As a result of that I find that the ap

‐ propriate adjusted total offense level in this case

is 27....

On this record, we cannot agree. We assume that Judge

Guzmán could have relied on more definitive findings by

Judge Castillo that Brown had lied deliberately. We also as

‐

sume that Judge Guzmán could have made his own findings

if Brown’s answers had been less ambiguous. But the fact that

Judge Castillo never made findings in the Sessom hearing and

never made findings about Brown’s credibility means that

Judge Castillo’s initial impressions about the hearing could

not be relied on in Brown’s case to support an enhancement

for perjury. We recognize that Brown may well have been ly

‐ ing before Judge Castillo, but the very specific questions and

terse “no” answers in the transcript did not provide a “Brown

version” of events that Judge Guzmán could rely upon to find

perjury.

Brown’s sentence is VACATED and the case is

REMANDED for re

‐ sentencing.