In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-3400, 98-4218, 99-3797

United States of America, 

Plaintiff-Appellee,

v.

Dennis M. McGiffen/* and Wallace S.

Weicherding,

Defendants-Appellants.

Appeals from the United States District Court 

for the Southern District of Illinois.

Nos. 98 CR 30035 & 98 CR 30053--Paul E. Riley, Judge. 

Argued October 30, 2000--Decided September 21, 2001 

 Before Ripple, Evans, and Diane P. Wood,

Circuit Judges.

 Diane P. Wood, Circuit Judge. Dennis

McGiffen and Wallace Weicherding were

members of a group of white supremacists

in southern Illinois. After a lengthy

undercover investigation by the FBI into

the group’s activities, McGiffen,

Weicherding, and two co-conspirators,

Ralph Bock and Glenn Lowtharp, were

charged in a one-count indictment with

conspiracy to receive and possess

unregistered firearms and destructive

devices in violation of 18 U.S.C. sec.

371. McGiffen was also charged in a

separate one-count information with

possession of a machine gun in violation

of 18 U.S.C. sec. 922(o). He pleaded

guilty to both charges and received

concurrent sentences of 60 and 87 months;

his appeal is limited to sentencing

issues. Weicherding ultimately faced both

the conspiracy charge and the machine gun

charge under a two-count superseding

indictment. He went to trial, where the

jury convicted him on both counts; the

court sentenced him to concurrent 60- and

70-month sentences. Weicherding’s appeal

attacks both his conviction and his

sentence. We affirm in McGiffen’s case,

and we affirm Weicherding’s conviction,

but we remand for further proceedings

directed to Weicherding’s sentence.
I

 The following account is drawn from the

record in both cases, including

Weicherding’s jury trial; we view the

facts in the light most favorable to the

government. United States v. Wingate, 128

F.3d 1157, 1158 (7th Cir. 1997). In May

of 1997, Vincent Reed contacted the FBI

to report that some of his acquaintances,

including McGiffen and Weicherding, were

forming a new, potentially dangerous,

white supremacist group in southern

Illinois. According to Reed, the group

hoped to pick up where "The Order" (a

notoriously violent white supremacist

organization active in the early 1980s)

had left off, uniting white supremacist

groups in a violent struggle against

those who would resist the creation of a

"pure white Christian country." This new

group called itself, appropriately

enough, the "New Order."

 The FBI enlisted Reed as a paid

informant charged with infiltrating the

emerging New Order. Through Reed’s

surveillance, the FBI learned that

McGiffen, already a Grand Dragon in the

Illinois Ku Klux Klan (KKK), was the

group’s leader. McGiffen worked hard to

build the new organization. He recruited

and "naturalized" new members (a ritual

that included swearing an oath and

acquiring a distinctive tattoo) and

regularly used both persuasion and force

to maintain members’ allegiance to the

group. He organized and ran the meetings

at which members made plans to acquire

the money and weaponry they would need to

pursue the New Order’s militant racist

agenda. Last, McGiffen parceled out tasks

to the group’s various members.

 The New Order intended to raise money by

robbing banks and armored cars. With

those funds, it would then acquire a

stockpile of firearms and explosives. The

group was particularly interested in

building a supply of fully-automatic

weapons, which were valuable both for

their destructive capabilities and as a

source of revenue. McGiffen instructed

Weicherding, a member of both the Aryan

Nations and the KKK, to conduct

surveillance on armored trucks and banks.

Reed was assigned to get false

identification for New Order members, and

McGiffen gave himself and Bock the task

of coordinating the acquisition of
weapons and explosives.

 Weicherding did as he was told. He cased

banks and discussed with Reed the

specifics of carrying out the first

robbery. He also joined McGiffen in the

weapons acquisition effort. By June 20,

1997, they had purchased a TEC-9 pistol

and gunpowder for use in homemade

grenades. On August 28, 1997,

Weicherding, Reed, and McGiffen drove

together to the home of Ralph Bock to

acquire additional firearms. While in the

car, they discussed the fact that they

were now in possession of a LAWS Rocket

(supplied by Reed after it was disabled

by the FBI) and dynamite. During

thatconversation they also discussed

their plans to convert semi-automatic

weapons into fully-automatic weapons with

the help of Glen Lowtharp, a white

supremacist ally with expertise in such

things.

 On November 8, 1997, Weicherding and

McGiffen went to visit Lowtharp, bringing

with them two weapons they wanted to

convert from semi- to fully-automatic.

The three men then proceeded to

Lowtharp’s sister’s house to pick up the

parts they needed to complete the

conversions and then to his nephew’s

place to get an AR-15 assault rifle. The

next morning, McGiffen and Lowtharp

converted the AR-15 rifle to a fullyautomatic weapon, using a machine gun

hammer, a machine gun trigger, a machine

gun disconnector, and a machine gun

selector. Weicherding, who had received

weapons training during a stint as a

prison guard for the Illinois Department

of Corrections, watched as the others

worked. In tests later conducted by a

government expert, the AR-15 fired

multiple rounds from its clip with a

single pull of the trigger. 

 With the converted AR-15 in hand,

McGiffen and Weicherding left Lowtharp’s

house with the other two guns they had

brought along; they told Lowtharp they

planned to use the AR-15 as a model for

converting other firearms to "full auto."

They also left with "how to" literature

about weapons conversion, which

specifically warned that "the mere

possession of a part or parts which

convert a weapon to full auto is illegal

without prior [Federal Bureau of Alcohol,

Tobacco, and Firearms, or BATF]
approval." Later, Weicherding again

approached Lowtharp to see if he had

acquired any additional machine gun parts

the group could use for further

conversions. 

 As the New Order’s weapons acquisition

activities progressed, its ambitions

grew. Members discussed possible assaults

on Morris Dees and the Southern Poverty

Law Center, Federal Reserve Chairman Alan

Greenspan, and a host of other targets.

They discussed expanding their

organization nationwide and disabling the

country’s communications infrastructure.

At the same time, the growing stockpile

of weapons increased McGiffen’s concern

that law enforcement authorities might

get wind of the group’s activities. At a

meeting at his house, group members,

including Weicherding and Reed, were

strip-searched for wires, and McGiffen

proposed that future telephone

conversations be conducted in code--the

word "bibles," for example, became code

for automatic weapons. Anxiety grew to

the point that when McGiffen learned that

New Order member Jeff Schmitz told his

mother about the group’s plans, he stuck

a gun to Schmitz’s stomach and threatened

to kill him and his children if he opened

his mouth again.

 During January and February of 1998,

McGiffen, Weicherding, and other members

of the New Order began in earnest to plan

their first violent act: the destruction

of Morris Dees and the Southern Poverty

Law Center. Weicherding took a trip to

Atlanta to assess the vulnerability of

the center itself and, more ominously,

five days after discussing the

possibility of assassinating Dees, he

took a revolver and drove an hour to

attend a speech by Dees at Southern

Illinois University in Evansville.

According to government agents on the

scene, Weicherding entered the hall, got

in line, but then left after noticing

that all guests were required to pass

through a metal detector. Weicherding

claimed at trial that he left the weapon

in his car.

 On February 23, 1998, the FBI obtained

search warrants for five sites, including

Weicherding’s residence. That search

produced substantial evidence of

Weicherding’s association with both the

Aryan Nations and the KKK, as well as a
TEC-9 and a MAC-11 semi-automatic

revolver. The FBI also found and seized

$12,238 in cash.

 A search of Bock’s house yielded a gas

grenade launcher, a semi-automatic rifle,

literature on converting the rifle to

fully-automatic, and all the necessary

components for a pipe bomb. The search of

McGiffen’s house yielded similar

evidence. He had literature illustrating

the weapons conversion process and a

brochure advertising various parts needed

to convert AR-15s to fully-automatic

rifles. That brochure specifically warned

"to get the ATF’s approval before

concluding your conversion." The agents

also caughtMcGiffen himself with the gun

that Weicherding took to the Dees lecture

and an illegal Street Sweeper 12-gauge

shotgun. The FBI’s search of McGiffen’s

mother’s home turned up another TEC-9, a

pipe bomb, five steel hand grenade hulls,

a tear gas grenade, the original

converted AR-15 rifle, the LAWS Rocket,

and a sawed-off bolt action shotgun.

After the searches, both Weicherding and

McGiffen were arrested, along with Bock

and Lowtharp.

 After initially pleading not guilty,

McGiffen entered into a written plea

agreement with the government and changed

his plea to guilty. The court concluded

that his offense level was a 26, which

included a four-level enhancement for use

or possession of a weapon in connection

with another felony, U.S.S.G. sec.

2K2.1(b)(5), and another four-level

enhancement under sec. 3B1.1(a) for being

a leader or organizer of the weapons

conspiracy. McGiffen appeals these two

enhancements.

 Weicherding chose to go to trial. Before

trial, the government persuaded the

district court to require that the

$12,238 seized from Weicherding’s home be

put toward his defense. Once at trial,

Weicherding sought to paint the

government’s evidence as proving only

that a small group of white supremacists

spent the better part of 1997 and early

1998 drunk and bragging about all the

things they were going to do on behalf of

the white race. Weicherding denied

knowing that the AR-15 machine gun was

converted, attributing his ignorance to

having been drunk or absent on all

relevant occasions. The jury rejected the
inebriation and uninvolvement stories and

convicted him on both counts. On appeal,

he argues that there was not enough

evidence to convict him of knowingly

possessing an illegal machine gun. He

also argues that the district court had

no basis for requiring the $12,238 to be

devoted to his defense, and that the

court erred when it enhanced his

sentencing offense level for obstruction

of justice, under U.S.S.G. sec. 3C1.1. 

 We will take the defendants and their

claims in turn.

II

A. McGiffen

 1. The sec. 2K2.1(b)(5) Enhancement

 Over McGiffen’s objection, the district

court increased his sentence by four

levels after concluding that he "used or

possessed a[ ] firearm . . . in

connection with another felony offense;

or possessed . . . a[ ] firearm . . .

with knowledge, intent, or reason to

believe that it would be used or

possessed in connection with another

felony offense." U.S.S.G. sec.

2K2.1(b)(5). The court adopted the

presentence report’s factual finding that

members of the conspiracy intended to use

the converted AR-15 rifle as a prototype

to convert other weapons and to sell

converted weapons to other groups and

that the AR-15 was part of a stockpile

intended for use in "planned acts of

violence which included felony offenses."

 McGiffen does not dispute the district

court’s interpretation of the sentencing

guidelines. Instead, he objects to the

court’s factual conclusions. He has

chosen a difficult path. We will not

disturb the district court’s factual

determinations at sentencing unless they

are clearly erroneous. United States v.

Craig, 178 F.3d 891, 900 (7th Cir. 1999).

As evidence of clear error, McGiffen

points to the district court’s conclusion

that the government did not prove that

the New Order was an "iron clad"

organization "bent upon destruction of

black citizens" or that "steps were taken

to implement [ ] hits" against targets

like the Southern Poverty Law Center.

McGiffen believes that this conclusion is

inconsistent with the factual findings in
the presentence report and that adopting

the presentence report’s recommendation

was thus clearly erroneous.

 Before we could even consider McGiffen’s

argument, however, we would have to

conclude that the presentence report

contains the kind of flat contradiction

he describes. If it did, then we would

have to decide how much more of the

report the alleged contradiction tainted.

But the latter inquiry is not necessary

here because we find that the two

findings McGiffen identifies are not

mutually exclusive. The presentence

report concluded only that McGiffen

possessed the converted AR-15 and other

weapons with the intent to use them in

connection with other "planned . . .

felony offenses." It did not go on to

identify an exclusive list of what the

district court called "specific hits

against enemy targets," and thus the

district court’s conclusion that the New

Order did not attempt to carry out such

hits does not create any tension with the

rest of the report. Furthermore, there is

a difference between having an intent to

use weapons to commit other planned

felonies and carrying out the specific

planning and implementation process. (We

note that the government concedes that it

would have been error to enhance

McGiffen’s sentence under sec.

2K2.1(b)(5) if the only other felonies

relied on by the district court were the

weapons possession and trafficking

offenses mentioned in the presentence

report, see sec. 2K2.1 comment 18, but as

we now explain, the court had different

felonies in mind.)

 There is ample evidence, for example,

that McGiffen and his co-conspirators

planned to use their weapons to rob

banks. Whether their ultimate goal was to

fund a race war with the proceeds (and in

the course of doing so to commit yet

other felonies) is beside the point: bank

robbery is obviously a felony offense.

The district court recognized this when

it rejected McGiffen’s objection at

sentencing that Weicherding "never

planned any bank robberies and at most

drove by a bank . . . and mentioned it

would be easy to rob." The district court

was not prepared to find that the New

Order was planning a race war, but it did

conclude that there was sufficient

evidence that the group of co-
conspirators planned to rob banks, and

that conclusion was not clearly

erroneous. Similarly, the district court

concluded that the government proved by a

preponderance of the evidence that

McGiffen threatened an unindicted coconspirator, Jeffrey Schmitz, by placing

a weapon to his stomach and threatening

to kill him. Like the plan to rob banks,

this assault was sufficient to provide a

factual basis for a sec. 2K2.1(b)(5)

enhancement. 

 We are therefore satisfied that the

district court did not clearly err when

it concluded that the factual basis

existed for the enhancement for

McGiffen’s possessing a firearm in

connection with another actual or

intended felony.

 

 2. Organizer or Leader Enhancement

 The sentencing guidelines call for a

four-level enhancement if the defendant

was an "organizer or leader of a criminal

activity that involved five or more

participants or was otherwise extensive."

U.S.S.G. sec. 3B1.1. The district court

applied this enhancement to McGiffen’s

sentence after explaining that while

there did not appear to be an "iron clad

New Order . . . there was a group of

people" (fifteen of whom the judge named)

involved in the conspiracy to acquire

illegal weapons, some of whom he

acknowledged were more involved than

others. With respect to McGiffen’s level

of involvement, the court adopted the

presentence report’s finding that

McGiffen "recruited members and

associates, assigned tasks to the group

members, planned and organized the

acquisition and storage of weapons, . . .

scheduled all meetings and exercised

control and authority over other members

of the group." 

 McGiffen again challenges the district

court’s factual conclusions as clearly

erroneous. He believes the court applied

the enhancement on the basis of

McGiffen’s role in the alleged New Order

plot to start a race war, in spite of the

fact that it found that the government

had failed to prove the existence of an

"iron clad New Order." He contends that

when the factors to be considered in

applying the leader/ organizer

enhancement, including exercise of

decisionmaking authority, recruitment of
accomplices, and degree of planning or

organizing the offense, are considered in

relation to the crimes proven--the

conspiracy to acquire and possess illegal

weapons--it is evident that "McGiffen was

a member and nothing more." 

 The record belies McGiffen’s effort to

downplay his role. First, it is quite

clear that the district court applied the

sec. 3B1.1 enhancement on the basis of

McGiffen’s role in the conspiracy to

acquire illegal weapons and to use the

group’s arsenal to raise money and to

facilitate other criminal activity. As

before, the district court’s finding that

the group did not also attempt to carry

out actual attacks on "enemy targets" is

of no particular relevance. There is

ample evidence in the record to support

the conclusion that McGiffen was the

central figure in this conspiracy. He

recruited and inducted members into the

group that conspired to acquire the

weapons; he organized and ran the

meetings at which the plans for acquiring

the weapons were hatched; and he directed

the members’ activities with respect to

acquiring and disposing of the weapons.

McGiffen also took responsibility for

enforcing allegiance to the conspiracy,

going so far as to threaten to kill

persons who leaked information about the

group’s criminal activity. The district

court’s finding that McGiffen was a

leader of the conspiracy, and its

consequent decision to apply the sec.

3B1.1 enhancement, were not clearly

erroneous.

B. Weicherding

 1. Monetary Contribution Toward Defense

 Following his arrest, Weicherding

completed a financial affidavit in which

he listed his assets as $30,500,

including $22,000 in cash and two cars

valued together at $8,500. He reported a

monthly social security check of $738,

the bulk of which ($700 per month) went

toward credit card debts totaling

$20,000. Relying on this report, a

magistrate judge found Weicherding unable

to pay for his own defense and appointed

counsel from the Federal Public Defender

(FPD). 

 Several weeks later, the government

filed a motion with the district court

under 18 U.S.C. sec. 3006A(f), requesting
that the $12,238 seized during the search

of Weicherding’s home (apparently part of

the $22,000 in cash he listed in his

affidavit) be given to the FPD to help

fund his defense. The government reasoned

that this case would be unusually costly

for the FPD and asserted, without

explanation, that Weicherding was

financially able to make the

contribution. Weicherding (through his

FPD counsel) responded that requiring him

to contribute the funds would impose a

substantial hardship given his debts and

the fact that if incarcerated he would no

longer receive social security benefits.

 Without holding an evidentiary hearing,

the district court issued a brief order

granting the government’s motion. The

order offered no explanation for the

decision other than that it was

"reasonable" to require the contribution

under sec. 3006A(f). Weicherding contends

that this decision was an abuse of

discretion. See United States v. Hoover,

175 F.3d 564, 569 (7th Cir. 1999)

(requiring contribution is within the

discretion of the district court). We

agree.

 Section 3006A(f) provides in relevant

part:

Whenever the United States magistrate or

the court finds that funds are available

for payment from or on behalf of a person

furnished representation, it may

authorize or direct that such funds be

paid to the appointed attorney . . . or

community defender organization which

provided the appointed attorney. . . .

 We construed this statutory provision in

United States v. Gurtunca, 836 F.2d 283,

288 (7th Cir. 1987). Gurtunca rejected

the government’s argument that a district

court could require the defendant to

contribute funds under sec. 3006A(f)

without a hearing, or without making

appropriate findings that the funds were

"available" within the meaning of the

statute. More recently, United States v.

Embry, 128 F.3d 584 (7th Cir. 1997),

clarified that a formal evidentiary

hearing may not always be necessary, but

Embry did not disturb Gurtunca’s

requirement that a district court make

appropriate findings of availability. To

the contrary, it indicated the kind of

findings that are necessary, such as
whether requiring the contribution would

impose an extreme hardship on the

defendant, whether it would interfere

with his obligations to his family, and

whether there were third parties with

valid claims to the funds. In Embry

itself, the district court’s order

revealed that it had considered each of

these factors and found, within its

discretion, that Embry’s funds were

"available." This, we found, was enough.

Id. at 586. Our sister circuits similarly

require that there be evidence that the

district court made specific inquiries

into the defendant’s financial

circumstances and obligations. See

Museitef v. United States, 131 F.3d 714,

716 (8th Cir. 1997) (court must inquire

into personal family needs and liquidity

of finances); United States v. Fraza, 106

F.3d 1050, 1056 (1st Cir. 1997)

(remanding for hearing or findings as to

defendant’s financial ability).

 The district court in this case neither

held an evidentiary hearing nor made

findings along the lines suggested by

Embry. There is nothing in the record to

confirm that the court understood the

factors it needed to consider, or applied

those factors to the evidence before it.

Under the circumstances, we are unable to

determine how, if at all, the district

court exercised its discretion in

choosing to require Weicherding to

contribute the $12,238 to his defense.

This issue must therefore be remanded to

the district court for further

consideration.

 2. Possession of a Machine Gun

 Count 2 of the superseding indictment

against Weicherding charged him with

illegal possession of a machine gun in

violation of 18 U.S.C. sec. 922(o)(1).

Weicherding contends the government

presented insufficient evidence at trial

to support the conviction. When

considering a challenge on direct appeal

to the sufficiency of the evidence to

sustain a conviction, we must determine

"whether, after viewing the evidence in

the light most favorable to the

prosecution, any rational trier of fact

could have found the essential elements

of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319

(1979). 
 We begin with the language of sec.

922(o)(1), which provides as follows:

(1) Except as provided in paragraph (2),

it shall be unlawful for any person to

transfer or possess a machine gun. 

(2) This subsection does not apply with

respect to-- 

(A) a transfer to or by, or possession by

or under the authority of, the United

States or any department or agency

thereof or a State, or a department,

agency, or political subdivision thereof;

or 

(B) any lawful transfer or lawful

possession of a machine gun that was

lawfully possessed before the date this

subsection takes effect.

For purposes of this statute, a machine

gun is defined broadly as "any weapon

which shoots, is designed to shoot, or

can be readily restored to shoot,

automatically more than one shot, without

manual reloading, by a single function of

the trigger." 26 U.S.C. sec. 5845(b). The

term also includes "any part designed and

intended solely and exclusively, or

combination of parts designed and

intended, for use in converting a weapon

into a machine gun, and any combination

of parts from which a machine gun can be

assembled." Id. 

 One element that the government must

prove in order to obtain a conviction

under sec. 922(o)(1) is the defendant’s

knowledge: specifically, the government

must show that the defendant knew that

the weapon had the characteristics that

bring it within the statutory definition

of a machine gun. See United States v.

Ross, 40 F.3d 144, 146 (7th Cir. 1994)

(defining the mens rea for earlier

statutory version of sec. 922(o)); 18

U.S.C. sec. 924(a)(2) (requiring

"knowing" violation of section 922(o)).

This is the point at which Weicherding

asserts the government’s proof failed. 

 Weicherding argues that no reasonable

jury could have concluded that he

knowingly possessed a machine gun when he

and McGiffen took possession of the

converted AR-15 assault rifle from

Lowtharp. He points to testimony at trial
that a layperson looking at the modified

AR-15 would not necessarily know it was a

fully-automatic weapon, and he claims

that Lowtharp testified at trial that,

following the conversion, he thought the

gun would fire only in semi-automatic

mode.

 But the jury did not need to find that

a random layperson knew that the AR-15

was a machine gun; it was asked whether

Weicherding knew. As to that question,

the record easily supports the jury’s

affirmative conclusion. The government

presented evidence at trial that

Weicherding and McGiffen repeatedly

discussed converting weapons to fullyautomatic; that Weicherding accompanied

Lowtharp and McGiffen to pick up the AR15; that Weicherding watched as Lowtharp

and McGiffen added machine gun parts to

the weapon; and that Weicherding and

McGiffen left Lowtharp’s residence with

the converted AR-15 and literature on

converting other weapons to fullyautomatic. This was more than enough to

permit the jury to conclude that

Weicherding knew the AR-15 had been

redesigned to function as a machine gun. 

 With respect to Lowtharp’s testimony, it

is true that he said that at the time he

gave Weicherding and McGiffen the

converted AR-15 he believed that an

additional spring was necessary to make

the machine gun operable. (He later

realized that he was wrong; consistent

with the government’s expert testimony at

trial that the weapon was fullyautomatic, the absence of the spring

merely meant that once the trigger was

pulled, the magazine would empty even if

the shooter released the trigger.) Even

assuming that the jury believed Lowtharp

on this point and that it further

believed that Lowtharp shared this

erroneous view with Weicherding, the fact

that Weicherding may have thought that an

additional spring was necessary to make

the AR-15 operational as a machine gun

does not preclude conviction under sec.

922(o). There was sufficient evidence

that Weicherding knew that the modified

AR-15 contained "a combination of parts

designed and intended, for use in

converting a weapon into a machine gun"

and that the modified AR-15, even if not

fully operational, was now "designed to

shoot" in fully-automatic mode and could

readily be adjusted to do so. Given the
broad statutory definition of machine

gun, there was sufficient evidence to

convict Weicherding under sec. 922(o).

See United States v. Pena-Lora, 225 F.3d

17, 33 (1st Cir. 2000) (inoperable

machine gun sufficient to support

conviction); United States v. Buggs, 904

F.2d 1070, 1075 (7th Cir. 1990)

(conviction upheld because inoperable

weapon was "designed to shoot" as

required by 18 U.S.C. sec. 921(a)(3));

United States v. Syverson, 90 F.3d 227,

230-31 (7th Cir. 1996) (upholding

conviction for possession of parts

designed to modify semi-automatic weapon

to machine gun); United States v. York,

830 F.2d 885 (8th Cir. 1987) (gun that

was inoperable because it lacked firing

pin was still "designed to expel a

projectile" and thus satisfied definition

of firearm). 

 3. Obstruction of Justice Enhancement

 The district court increased

Weicherding’s offense level two notches

up for obstruction of justice under

U.S.S.G. sec. 3C1.1. In doing so, it

adopted the recommendation of the

presentence report and added, without

further explanation, "I thought your

testimony was riddled with inaccuracies

and lies." Weicherding argues that this

was inconsistent with the Supreme Court’s

decision in United States v. Dunnigan,

507 U.S. 87 (1993), which requires

specific findings to support a perjury

enhancement.

 A sentencing court may enhance a

defendant’s offense level under sec.

3C1.1 "[i]f the defendant willfully

obstructed or impeded, or attempted to

obstruct or impede the administration of

justice during the course of the

investigation, prosecution, or sentencing

of the instant offense." Perjury can be

the basis for a sec. 3C1.1 increase, but

not every instance of false testimony

under oath warrants the enhancement. See

Dunnigan, 507 U.S. at 94-95; U.S.S.G.

sec. 3C1.1 application note 2. In order

to ensure that the obstruction of justice

enhancement does not become a punishment

for any defendant who chooses to exercise

his right to testify, the district court

"must review the evidence and make

independent findings necessary to

establish a willful impediment to, or
obstruction of, justice, or an attempt to

do the same." Dunnigan, 507 U.S. at 95.

Among the findings required are that the

defendant’s misrepresentation was

willful, material to the investigation or

prosecution of the instant offense, and

made with the specific intent to obstruct

justice rather than as a result of

confusion, mistake or faulty memory. Id.

at 94; see also United States v. Ewing,

129 F.3d 430, 434 (7th Cir. 1997); United

States v. Agostino, 132 F.3d 1183, 1198

(7th Cir. 1997). 

 Our review of the adequacy of the

district court’s conclusions under

Dunnigan is de novo, and any factual

findings are reviewed for clear error.

United States v. Gage, 183 F.3d 711, 715

(7th Cir. 1999). Although Dunnigan does

not impose an inflexible requirement that

the sentencing court document its

reasoning on each element of the alleged

perjury, see United States v. Craig, 178

F.3d 891, 901 (7th Cir. 1999), the

district court’s findings must

"encompass[ ] all of the factual

predicates for a finding of perjury."

Id., quoting Dunnigan, 507 U.S. at 95.

The inadequacy of the district court’s

findings in this case are illustrated

well by a comparison to our holding in

Gage. There the court imposed a perjury

enhancement after identifying a specific

statement by the defendant that it

concluded was a lie; the court was

persuaded that Gage deliberately

misrepresented the truth when he claimed

he could not remember the contents of a

note he had written because he was high

on drugs. Despite the court’s very

specific identification of the statement

it considered to be a lie, we reversed on

the ground that the court had not made a

finding that Gage told the lie with the

specific intent to obstruct justice. 183

F.3d at 716-17. 

 This is, if anything, an even clearer

instance than Gage was of a case where

Dunnigan requires a remand. The district

court never identified which of

Weicherding’s statements it considered to

be lies and why. The record also contains

not a hint of the court’s reasoning on

the critical issues of materiality or

specific intent to obstruct justice. This

does not comply with Dunnigan’s command

to conduct "a review of the evidence and

[to make] independent findings," and it
precludes us from "discharg[ing] our

appellate responsibility to determine

whether the court’s findings are clearly

erroneous," United States v. Ledezma, 26

F.3d 636, 645 (6th Cir. 1994). We thus

must vacate Weicherding’s sentence so

that the district court may reconsider

whether the obstruction of justice

enhancement is called for on this record

and so that it can make the necessary

findings to support its conclusion. 

III

 To recap, we AFFIRM McGiffen’s sentence

and Weicherding’s conviction. We VACATE

and REMAND Weicherding’s sentence for

further proceedings consistent with this

opinion, as well as the district court’s

decision to require Weicherding to

contribute $12,238 to his own defense.

FOOTNOTE

/* In No. 99-3797, Dennis McGiffen’s name is spelled

"McGiffin." Because it appears as "McGiffen" in

the other two cases (Nos. 98-3400 and 98-4218)

and throughout his brief and the record, we have

used the latter spelling.