In the
United States Court of Appeals
For the Seventh Circuit
No. 13‐1329
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
NICHOLAS D. STENSON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:11‐cr‐50066‐1 — Frederick J. Kapala, Judge.
ARGUED OCTOBER 29, 2013 — DECIDED January 24, 2014
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
KANNE, Circuit Judge. A jury found Nicholas Stenson guilty
of possessing a firearm after having been convicted of a felony.
At sentencing, the district court imposed a two‐level obstruc‐
tion of justice enhancement, finding that Stenson willfully
committed perjury when he testified on his own behalf.
Stenson challenges both the constitutionality and applicability
of the enhancement. For the following reasons, we affirm.
2 No. 13‐1329
I. BACKGROUND
On the morning of July 10, 2011, Rockford Police conducted
a “suppression detail” in the Rockford area, which involves
patrolling high crime areas where criminal activity has been
reported. During the detail, five squad cars pulled up to a
group of individuals drinking alcohol in the street next to a
green Pontiac. The officers surrounded the car and activated
their emergency lights, which resulted in numerous individu‐
als, including Stenson, running towards the back of the vehicle.
A number of officers saw Stenson reach into his waistband
and throw something to the ground. Once the object hit the
concrete it sounded like metal. The officers found two firearms
under the vehicle, one of which was attributed to Stenson. He
was subsequently charged with being a felon in possession of
a firearm.
At trial, the sole issue was whether Stenson possessed a
firearm on the morning of July 10. The government contended
that, upon the arrival of the police officers, Stenson ran to the
back of the Pontiac, reached into his waistband, and discarded
the firearm beneath the Pontiac. The testimony of the arresting
officers was the most substantial evidence against Stenson.
Officer Juan Tapia testified that he saw three individuals run
towards the back of the Pontiac, whereupon he heard a metal
scratching sound from the back of the vehicle. Officer Andrew
Seale testified that he saw Stenson reach into his waistband
and throw something on the ground that sounded like a heavy
metal object. He then saw the same object slide towards the tire
of the vehicle, at which point he shined his flashlight on the
object and identified it as a handgun. Officer Gregory Yalden
No. 13‐1329 3
also testified that he observed Stenson run to the back of the
vehicle and discard an item underneath the vehicle that
sounded like metal once it hit the pavement. Officer Donald
Dulgar, who patted down Stenson, did not find a gun on his
person but identified a black Samsung cell phone by his feet.
Stenson argued that the item he threw was his cell phone
and not the handgun the officers found under the vehicle. To
support this contention, Stenson testified on his own behalf. He
stated on direct examination that he never touched or even saw
a gun on the evening he was arrested. Rather, at the time the
police arrived, he had his phone in his hands and was checking
through it because he was anticipating a phone call. Once the
police arrived, Stenson stated that he dropped his phone in the
grass. He repeatedly denied dropping anything under the
vehicle or on the street.
The jury found Stenson guilty. According to the Presenten‐
ce Investigation Report (PSR), Stenson’s base offense level was
24. The government objected to the failure to include a two‐
point enhancement for obstruction of justice in the PSR,
arguing that Stenson committed perjury when he testified at
trial. Stenson disputed giving false testimony and claimed that
his position about what transpired on July 10, 2011 had been
consistent since his arrest.
The district court identified numerous instances of perjury
by Stenson during his testimony. First, on direct examination,
Stenson repeatedly denied possessing a gun. Then, on cross‐
examination, Stenson denied having a firearm the night he was
arrested and insisted that it was his cellular phone that was in
his hands when the police arrived. The court found the offi‐
4 No. 13‐1329
cers’ testimony more credible than Stenson’s. It based this
finding in part on Stenson’s demeanor at trial. The court also
found that the false testimony was material, as it would
exonerate Stenson had the jury believed his version of what
transpired. Finally, the court found the testimony to be
deliberate and not the result of confusion, mistake, or faulty
memory. The district court sustained the government’s
objection to the PSR and applied the two‐level obstruction of
justice enhancement to Stenson’s sentence, raising his offense
level to 26. The court sentenced Stenson to 120 months’
imprisonment.
II. ANALYSIS
A. Constitutionality of U.S.S.G. § 3C1.1
Stenson first challenges the constitutionality of United
States Sentencing Guidelines (U.S.S.G.) § 3C1.1. We review
constitutional challenges to a sentence de novo. United States v.
Brucker, 646 F.3d 1012, 1016 (7th Cir. 2011).
U.S.S.G. § 3C1.1 provides for a two‐level enhancement if
the district court finds that the defendant “willfully obstructed
or impeded, or attempted to obstruct or impede, the adminis‐
tration of justice[.]” Perjury is a well‐settled example of
conduct that may warrant an enhancement under § 3C1.1.
United States v. Taylor, 637 F.3d 812, 817 (7th Cir. 2011). An
individual commits perjury if, while under oath, he provides
“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. Bermea‐
Boone, 563 F.3d 621, 627 (7th Cir. 2009). Thus, to apply an
enhancement for perjury under § 3C1.1, a district court should
No. 13‐1329 5
make findings as to false testimony, materiality, and willful
intent. United States v. Johnson, 612 F.3d 889, 893 (7th Cir. 2010).
Stenson alleges that the enhancement as applied to his case
denies him the right to a fair trial, as the district court’s finding
that Stenson perjured himself was based solely on testimony
that was “inconsistent” with that provided by government
witnesses. He contends that applying the enhancement in this
manner forces a defendant to choose between his right to
testify on his own behalf or remain silent so as not to receive an
obstruction enhancement under § 3C1.1. Yet in United States v.
Dunnigan, the Supreme Court explicitly held that § 3C1.1 is
constitutional, despite its potential to dissuade a defendant
from testifying on his own behalf. 507 U.S. 87, 96 (1993) (“Nor
can respondent contend § 3C1.1 is unconstitutional on the
simple basis that it distorts her decision whether to testify or
remain silent. Our authorities do not impose a categorical ban
on every governmental action affecting the strategic decisions
of an accused, including decisions whether or not to exercise
constitutional rights.”). And while a defendant is allowed to
testify on his own behalf, he does not have the right to commit
perjury. United States v. Jackson, 300 F.3d 740, 749 (7th Cir. 2002)
(citing Dunnigan, 507 U.S. at 96).
Consistent with the Supreme Court’s decision in Dunnigan,
we have repeatedly rejected constitutional challenges to
obstruction enhancements based on material and willful
testimony that was found to be incredible. See, e.g., United
States v. Williams, 553 F.3d 1073, 1081‐82 (7th Cir. 2009)
(upholding obstruction of justice enhancement despite the
“chilling effect” on a defendant’s right to testify.); Jackson, 300
F.3d at 749 (“the Supreme Court has explicitly held that a
6 No. 13‐1329
defendant cannot contend that section 3C1.1 is unconstitutional
on the simple basis that it distorts a defendant’s decision to
testify or remain silent.”); United States v. Emerson, 128 F.3d 557,
563 (7th Cir. 1997) (Ҥ 3C1.1 is not intended to punish a
defendant for exercising his right to testify, but the guideline
does punish those who commit perjury when denying their
guilt.”). Accordingly, we find no constitutional error.
B. Application of § 3C1.1
Stenson further alleges that the obstruction enhancement
was not warranted, as his testimony was a general denial of
guilt. We review the sufficiency of the district court’s obstruc‐
tion of justice findings de novo and the underlying factual
findings for clear error. United States v. Parker, 716 F.3d 999,
1012 (7th Cir. 2013). We will reverse for clear error only when
we are “firmly convinced” that a mistake has been made.
United States v. Dinga, 609 F.3d 904, 909 (7th Cir. 2010).
We have recognized that a “simple denial of culpability
cannot serve as the basis of an obstruction of justice enhancem‐
ent pursuant to § 3C1.1.” United States v. White, 240 F.3d 656,
662 (7th Cir. 2001). But when a defendant “decides to take the
stand and tell the jury a story, he does so at his own risk, for if
he commits perjury, the court may, at the time of sentencing,
enhance his sentence for obstructing justice.” United States v.
Hickok, 77 F.3d 992, 1007 (7th Cir. 1996) (internal quotation
marks omitted). Accordingly, when a defendant falsely testifies
regarding a material matter with the intent to provide such
false testimony rather than as a result of confusion, mistake, or
faulty memory, the court may apply the obstruction enhance‐
ment. United States v. Williams, 272 F.3d 845, 864 (7th Cir. 2001).
No. 13‐1329 7
The sole material issue in this case is whether Stenson
possessed the firearm found under the vehicle. Stenson did not
merely deny that he possessed the firearm; rather, Stenson
repeatedly denied even seeing a firearm and testified that it
was his cell phone, not a firearm, that the police officers saw in
his possession when they arrived. The court found Stenson’s
testimony incredible in light of the other evidence presented at
trial. It also found that this testimony was material and not the
result of confusion, mistake, or faulty memory and therefore
applied the obstruction of justice enhancement. We find no
clear error in this determination.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the sentence
imposed by the district court.