In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2489

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BABETTE DAVIS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 CR 24—Charles N. Clevert, Jr., Judge.

____________

ARGUED DECEMBER 5, 2005—DECIDED MARCH 30, 2006

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Before POSNER, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge. Babette Davis pled guilty to one

count of tax fraud and appeals the district court’s order

requiring her to be taken into custody after the first day of

her two-day sentencing hearing. Davis also appeals the

district court’s enhancement of her sentence for obstruction

of justice, its denial of a downward adjustment for acceptance of responsibility, and claims that her sentence is

otherwise unreasonable. For the following reasons, we

affirm.
2 No. 05-2489

I. BACKGROUND

Babette Davis devised a scheme to obtain tax refunds by

filing falsified federal tax returns. The mechanics of the

fraud were simple: Use W-2 Forms to overstate wages,

taxes withheld, and the number of dependants, in order for

the participants to claim larger refunds from the IRS than

they otherwise would be entitled. In addition, the scheme

caused many of the participants to become eligible for the

Earned Income Credit which increased the amount of the

returns by around $3,000 apiece.

Between 1997 and 2001, 32 false returns were filed by 25

participants, most of whom were close relatives and friends

of Davis residing in the Milwaukee area. The scheme

claimed refunds totaling $136,635, of which the IRS paid

$61,745 before detecting the fraud.

At first, the participants provided Davis with their W-2

Forms, which Davis then altered. As the fraud progressed

over time, Davis began to use blank W-2 Forms. She

supplied the participants with wage and withholding

amounts as well as personal information for made-up

dependants. Davis suggested to participants that they file

their tax returns at particular H&R Block locations. The

participants usually filed their returns electronically and

then applied for refund anticipation loans from H&R Block.

While awaiting the loan disbursements, Davis maintained

a watchful eye, sometimes calling H&R Block to learn the

loans’ status, and also accompanying participants to pick up

the loan checks and cash them.

As the mastermind, Davis took a portion of the funds as

a fee for her “services,” ranging from $500 up to half the

value of the refund. Davis was also a participant in the

fraud, having filed false claims on her own tax returns for

1997 and 1998. Several patterns emerged in the scheme’s

execution, causing the IRS to open an investigation. IRS
No. 05-2489 3

agents met with Davis in July 2002. Davis denied responsibility for the scheme and told the agents that Bo McAfee (by

that time deceased) and Lisa Leonard prepared her false W2 Forms for 1997 and 1998. In fact, Davis had prepared

them.

Through re-investigation, IRS agents learned that one of

the ringleaders was known as “Miss T,” but they did not

know Miss T’s true identity. Suspecting Davis was more

heavily involved than she previously let on, IRS agents,

including IRS Special Agent Brandon Bielke, interviewed

her three times in August 2002. During these meetings

Davis identified Michael Wimpy as the scheme’s orchestrator and also stated that Wimpy was Miss T. Davis said that

Wimpy falsified the W-2 Forms and that her only involvement was to provide transportation for Wimpy as he

delivered the forms to the participants. Davis also claimed

she was looking for Wimpy—to assist in the investigation.

Davis’s revelations of Wimpy led Bielke to interview other

participants and conduct his own research. Beginning his

inquiry without having the correct spelling of Wimpy’s

name, Bielke identified several subjects with the same

name. Bielke searched Social Security and IRS records to

determine which among them was the person Davis had

referenced. 

Bielke learned that Wimpy had suffered from AIDS since

at least 1998 and was very ill while the scheme took place.

Wimpy resided in Minnesota from 1999 to 2000 and then

moved to Milwaukee in 2000 to live with his sister, Theresa

Shumpert. According to Shumpert, Wimpy did not know

how to prepare income tax returns, and she had never

heard him mention income taxes nor had she seen him with

any tax returns or W-2 Forms. Based upon Wimpy’s illness,

his whereabouts, and the lack of any corroborating evidence, Bielke concluded that Wimpy had nothing to do with
4 No. 05-2489

the scheme. Bielke also learned that Wimpy died in July

2002, and that Davis had attended his funeral.

In addition to lying to investigators, Davis sought assistance from participants to conceal her role. In the summer

of 2000, after becoming aware of the investigation, Davis

told participant Shamela Clark that she was under investigation by the IRS and instructed Clark not to mention her.

However Clark admitted to authorities that Davis prepared

her fraudulent W-2 Form. As the investigation was gaining

momentum, during the summer of 2002, Davis urged

participants Damen Olds and Dorothy Glenn to tell agents

that Wimpy was the ringleader. Both refused and cooperated with the investigation. In all, 13 participants named

Davis as the person responsible for the scheme, and several

implicated Davis in her attempts to deflect the IRS’s

scrutiny.

On February 3, 2004, a grand jury returned an 11-count

indictment, the first count charging Davis with conspiracy

and the remaining counts charging her with filing false

income tax returns. Pursuant to a written plea agreement,

on April 27, 2004, Davis pled guilty to Count 2, which

charged her with fraudulently filing her own tax return for

the 1998 tax year in violation of 18 U.S.C. § 287 and § 2. In

exchange, the Government agreed to dismiss the remaining

counts at Davis’s sentencing. Both sides agreed to dispute

the amount of loss and any potential sentencing enhancements.

In the presentence report (“PSR”), the probation officer

applied the 1998 version of the United States Sentencing

Guidelines (the “Guidelines”) and recommended Davis’s

sentence be enhanced under the Guidelines for loss, role,

more than minimal planning, and obstruction of justice.

The PSR also recommended that Davis not be given a

downward adjustment for acceptance of responsibility.

Davis objected to all of them. Davis’s sentencing was
No. 05-2489 5

delayed for a year (apparently because of Blakely/Booker

uncertainty) during which time she was free on bail and

complied with the conditions of her bond.

On April 29, 2005, the sentencing hearing began. Scheme

participants Dorothy Glenn and Angela Evans testified that

Davis prepared fraudulent income tax returns for them and

for other participants. Agent Bielke testified and summarized the scheme. Bielke also explained how Davis had

blamed Wimpy and Bielke’s subsequent inquiry. At the

conclusion of Bielke’s testimony, counsel for Davis requested the hearing be continued to another date for his

cross-examination. The court agreed to do so but ordered

Davis to be remanded into custody immediately, explaining:

[G]iven what I’ve heard thus far and the objections

which have been raised by the defense it is clear that

the Court will be imposing a sentence of incarceration.

Also, as I noted earlier, the defendant’s demeanor

during the course of this hearing leads me to conclude

that it would be prudent for me to remand her to the

custody of the U.S. Marshal pending the completion of

the sentencing hearing . . . . 

I certainly understand that [Davis complied with the

terms of her bail] and I am not aware of any significant

violations at this time unless there is something that

has occurred recently that has not been brought to my

attention. But regardless, the Court is satisfied that if

all of the objections of the defense are sustained it will

still be necessary and appropriate that the defendant be

remanded to the custody of the U.S. Marshal today.

Whether or not the defendant will show up at other

proceedings is of secondary concern. Of primary concern, however, is how the defendant will handle herself

between now and those proceedings. And so it is my

conclusion that this matter be concluded one way or the
6 No. 05-2489

other today by the defendant going into the custody of

the U.S. Marshal.

On May 10, 2005, Davis’s sentencing continued, and

Bielke was cross-examined. The district court found that

the obstruction enhancement was appropriate because

Davis lied to investigators before her arrest, leading them

on a “wild goose chase,” and because Davis attempted to get

other people to lie on her behalf. The court did not grant

Davis a downward adjustment for acceptance of responsibility. With a total offense level of 21, and criminal history

category of II, the court determined the applicable advisory

guideline range to be 21 to 41 months’ imprisonment. Then

the court heard statements from Davis and her counsel. The

court concluded:

[T]he Court is mindful of its responsibility under Title

18 Section 3553 to take into account multiple factors in

imposing a sentence. And, indeed, the Court has given

thought to not only the impact of this offense on the

U.S. Treasury and the community but also the need to

deter others from engaging in similar conduct and the

need to protect [Davis’s foster children]. . . . It is also

important in this Court’s mind to exact an appropriate

measure of punishment for Miss Davis’s conduct. And

I am especially mindful of the need to make clear that

the obstruction which took place here has to result in a

somewhat harsh penalty. Therefore, on the basis of the

plea . . . it is the judgment of the Court after taking into

consideration all of the factors as set forth in Title 18

Section 3553(a)(2) and also with due regard for the

advisory guidelines that a sentence of 41 months be

imposed . . . .

The court also ordered Davis’s prison term to be followed by

3 years supervised release, the mandatory $100 special

assessment, and $61,745 in restitution.

Davis raises four issues on appeal. First, Davis asserts

that the district court’s remand effectively constituted the
No. 05-2489 7

impermissible imposition of a sentence without calculating

the Guideline range and violated her right of allocution.

Second, Davis challenges her sentence enhancement for

obstruction of justice. Third, Davis claims she was entitled

to a downward adjustment for acceptance of responsibility.

Finally, Davis claims her sentence was unreasonable

because the district court failed to meaningfully address the

factors set forth under 18 U.S.C. § 3553.

II. ANALYSIS

A. District Court’s Remand Order

Davis challenges the district court’s order on April 29,

2005, remanding her into custody. The government

contends—without citation—that we have no jurisdiction to

consider the issue because the remand order is not part of

Davis’s judgment of conviction or her sentence. The government alternatively asserts that the issue is moot. The

government would be correct if Davis were seeking outright

release, but she is not. See 18 U.S.C. § 3145(c) (granting

independent avenue of appeal for custody orders). Davis

argues the alleged erroneous remand order had a measurable effect upon issues which are subject to our jurisdiction.

Davis claims that the remand order effectively constituted

the imposition of a sentence without calculating the Guideline range, denying her purported rights of allocution and

surrender, which is sufficient for our jurisdiction. See 18

U.S.C. § 3742(a).

Central to Davis’s claim is her characterization of the

district court’s April 29 remand to custody order as a

“sentence” rather than a mere revocation of bail. The right

of allocution must be afforded prior to imposition of a

sentence, but it does not accrue earlier. See Fed. R. Crim. P.

32(i)(4)(A). The same is true of the court’s duty to calculate

the Guideline range. See United States v. Booker, 543 U.S.

220, 264 (2005) (“The district courts, while not bound to
8 No. 05-2489

1 As for the alleged violation of her purported right to surrender,

Davis first made this assertion at oral argument, having not

addressed it in her briefs. Although voluntary surrender is a

common practice, it is not a right. Without even minimal briefing

on the matter, and with no basis in the record to determine

whether Davis did suffer a deprivation, we need not consider the

issue. See United States v. Turcotte, 405 F.3d 515, 536 (7th Cir.

2005) (“In this circuit, unsupported and undeveloped arguments

are waived.”) (citations omitted); Anderson v. Gutschenritter, 836

F.2d 346, 349 (7th Cir. 1988) (citations omitted).

apply the Guidelines, must consult those Guidelines and

take them into account when sentencing.”) (citations

omitted) (emphasis added). When the court ordered Davis

be taken into custody on April 29, it did so contemplating

Davis’s return for the conclusion of her sentencing. Although the district court did not use the words “revocation

of bail,” that is what the court did by remanding Davis into

custody as it was required to do. See 18 U.S.C. § 3143(a)

(creating a post-conviction presumption of detention

pending sentencing). Hence, Davis’s right of allocution and

the court’s duty to consult the Guidelines were not at stake

on April 29 because the court’s incarceration order did not

amount to a “sentence.”1 Id.

B. Enhancement for Obstruction of Justice

Davis challenges the district court’s enhancement of her

sentence for obstruction of justice under section § 3C1.1 of

the Guidelines. A district court’s determination that a

defendant obstructed justice is a factual finding which we

review for clear error. United States v. Sutton, 337 F.3d 792,

801 (7th Cir. 2003) (citation omitted); United States v.

Jackson, 935 F.2d 832, 849 (7th Cir. 1991) (citations

omitted); United States v. Teta, 918 F.2d 1329, 1332 (7th

Cir. 1990) (citation omitted). We will not overturn such a
No. 05-2489 9

finding unless we are left with a “definite and firm conviction that a mistake has been committed.” United States v.

Lanzotti, 205 F.3d 951, 956 (7th Cir. 2000) (citation and

quotations omitted). Davis argues that the false statements

she made to investigators prior to her arrest did not

substantially obstruct or impede the investigation, and that

her unsuccessful attempts to influence scheme participants

before she was arrested likewise lack the severity necessary

for the enhancement to apply, a weak argument at best.

An enhancement for obstruction of justice should be

applied if the defendant has “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation” and

the conduct relates to the defendant’s offense of conviction.

U.S. Sentencing Guidelines Manual § 3C1.1 (1997). Because

the prohibited conduct of § 3C1.1 includes mere attempts to

obstruct justice, a defendant need not be successful in order

for the enhancement to apply. See id. Therefore it is no

defense for Davis that the investigation eventually revealed

her to be “Miss T” or that several scheme participants

refused Davis’s request to implicate Michael Wimpy. 

A mere denial of guilt does not warrant an enhancement

for obstruction. See United States v. Fiala, 929 F.2d 285,

289-90 (7th Cir. 1991). Rather, obstruction requires the

defendant’s conduct to significantly impede the progress of

the investigation. See United States v. Kroledge, 201 F.3d

900, 908 (7th Cir. 2000) (citations omitted) (finding obstruction of justice enhancement warranted where defendant

concocted a false set of facts to lead investigators to a

witness whom defendant attempted to influence and

defendant’s concealed activity led directly to defendant’s

conviction for underlying crime).

Davis does not dispute that she was aware she was being

investigated for tax fraud, and that she blamed the scheme

on two dead men when agents interviewed her. Agent
10 No. 05-2489

Bielke testified that he had to conduct several interviews

and perform a background check to determine whether

Michael Wimpy was involved in the scheme. Moreover, the

content of Davis’s misinformation was that Wimpy was the

preparer of Davis’s false tax return, the crime for which she

pled guilty.

Additionally Davis does not dispute that she contacted

scheme participants and urged them to tell her made-up

story to investigators. It is “clear that attempting to

influence a witness to make false statements to investigating authorities qualifies as an obstruction of justice under

§ 3C1.1.” United States v. Sutton, 337 F.3d 792, 801 (7th

Cir. 2003) (citations omitted). The only argument Davis

makes here is that her effort was “pathetic” as compared to

other instances where we have found the enhancement was

warranted for concerted conduct. Again, the enhancement

does not apply by matter of degree of success; it is Davis’s

attempt that counts. There is no reason why Davis should

not have received a sentence enhancement for obstruction

of justice.

C. Adjustment for Acceptance of Responsibility

Next, Davis claims she was entitled to a downward

adjustment under § 3E1.1(a) of the Guidelines for acceptance of responsibility. We review a district court’s factual

finding regarding acceptance of responsibility for clear

error. United States v. Taliaferro, 211 F.3d 412, 414 (7th

Cir. 2000) (citation omitted). A defendant whose sentence

was properly enhanced for obstruction of justice is presumed not to have accepted responsibility. United States v.

Partee, 301 F.3d 576, 580-81 (7th Cir. 2002) (citation

omitted). It is only under exceptional circumstances that a

defendant who has received a sentence enhancement for

obstruction of justice will be given a downward adjustment

for acceptance responsibility. United States v. Lallemand,
No. 05-2489 11

989 F.2d 936, 938 (7th Cir. 1993) (citing application note 4

to section 3E1.1 of the Guidelines).

Davis claims hers is the exceptional case because she

submitted to the court a statement entitled “Acceptance of

Responsibility”, in which she acknowledged her crimes, the

harm they caused, and the need to minimize the impact of

her actions. Davis also claimed that she wished to live a

positive life as a responsible member of the community.

Davis did express her contrition, but only after pleading

guilty to the crime. See United States v. Ewing, 129 F.3d

430, 435-36 (7th Cir. 1997) (noting that timeliness of

defendant’s purported acceptance is relevant in the reduction inquiry). Davis has not presented any evidence that she

negated the effect of her obstruction or otherwise facilitated

the progress of the investigation, and her guilty plea,

without more, will not carry the day for her. See United

States v. McIntosh, 198 F.3d 995, 999 (7th Cir. 2000).

D. Reasonableness of Davis’s Sentence

Finally, Davis claims her sentence is unreasonable

because the district court did not adequately consider the

factors set forth in 18 U.S.C. Section 3553(a). After United

States v. Booker, 543 U.S. 220, 259-60 (2005), it became

mandatory for district courts to consider the sentencing

factors in § 3553(a). “Judges need not rehearse on the

record all of the considerations that 18 U.S.C. § 3553(a)

lists; it is enough to calculate the range accurately and

explain why (if the sentence lies outside it) this defendant

deserves more or less.” United States v. George, 403 F.3d

470, 472-73 (7th Cir. 2005). Although a judge must articulate the factors supporting the sentence he will impose, “his

duty ‘to consider’ the statutory factors is not a duty to make

findings” where the material facts are not in dispute.

United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005)

(citation omitted).
12 No. 05-2489

Here Judge Clevert noted he was aware of his duty under

§ 3553(a) “to take into account multiple factors in imposing

a sentence.” Without listing the factors specifically, the

court continued its colloquy with the § 3553(a) factors

clearly in mind, mentioning that Davis’s sentence reflected

the impact of her crime, the deterrence of others, her family

situation, and her obstructive conduct. Before imposing

Davis’s sentence, Judge Clevert concluded, “it is the

judgment of the Court after taking into consideration all of

the factors as set forth in Title 18 Section 3553(a)(2). . . .”

(emphasis added). The district court did not merely pay lip

service to the statutory factors but instead noted how

certain aspects of Davis’s case fit under the statute. The

court was not required to make specific findings of fact.

Finally, a sentence within the Guidelines is presumed to

be reasonable. United States v. Mykytiuk, 415 F.3d 606, 608

(7th Cir. 2005). It is undisputed that Davis’s sentence is

within that range, giving rise to the presumption of reasonableness. Because the district court properly weighed the

factors of § 3553(a) before stating independent reasons for

the sentence it imposed, we find no error in Davis’s sentence.

III. CONCLUSION

The district court acted properly by remanding Davis into

custody on May 29, 2005, and subsequently finding obstruction of justice and no acceptance of responsibility. Davis’s

41-month sentence is reasonable, and for the foregoing

reasons, Davis’s sentence is AFFIRMED.
No. 05-2489 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-30-06