NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 15, 2008
Decided December 18, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 08‐1599
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 3:07‐CR‐00084(01)RM
EDWIN E. LEWIS III,
Defendant‐Appellant. Robert L. Miller, Jr.,
Chief Judge.
ORDER
Edwin Lewis III was charged with possessing a firearm as a felon, see 18 U.S.C
§ 922(g), possessing “crack” with intent to distribute, see 21 U.S.C. § 841(a)(1), and
possessing a gun in furtherance of the drug crime, see 18 U.S.C. § 924(c). After a jury trial,
Lewis was convicted of the first two charges, but was acquitted of the third, and the court
sentenced him to 120 months’ imprisonment for being a felon in possession of a gun and
210 months’ imprisonment for possessing “crack” with intent to distribute, the sentences to
run concurrently. On appeal Lewis challenges only the district court’s assessment of a two‐
level upward adjustment for obstruction of justice based on the court’s finding that Lewis
No. 08‐1599 Page 2
perjured himself at trial, and because we are convinced that the district court did not
commit clear error in applying the adjustment, we affirm.
Background
Police executing a search warrant at a house in South Bend, Indiana, found
defendant Lewis sleeping on a couch, a gun under that couch, and over 50 grams of “crack”
in the kitchen. The drugs were divided into two stashes. A smaller amount, 3.1 grams, was
found in a kitchen cupboard inside a lightbulb box, near a box of sandwich bags. A greater
amount, 48.4 grams, was above eye level on top of the kitchen cabinets as well as a digital
scale in the dining room in the same area with Lewis.
Lewis was interviewed at the scene and told the police he had been living at the
house for about two weeks and that no one else lived there except his sister who stayed
there off and on. He admitted that he bought the gun earlier that week but denied any
knowledge of the drugs. Lewis initially said the scale was his but later on denied knowing
anything about it. Near the end of this taped interview, Lewis first made mention of Steve
Jackson, his sister’s boyfriend, and suggested he might be the one selling “crack.” The
interviewer did not ask Lewis anything else about Jackson because he concluded that Lewis
was lying and ended the interview.
The tape of the interview was played for the jury at trial at Lewis’s request, and
when Lewis testified he repudiated most of his interview statements. He continued to deny
knowing about the “crack,” though at trial he also insisted that he was not the owner of the
gun. He readily admitted that he bought and used “crack” daily with his sister. But Lewis
said the “crack” found in the kitchen must have belonged to Steve Jackson, who, Lewis
now asserted, had always been the primary resident of the house. Lewis testified that he
and Jackson never stayed at the house at the same time: Jackson lived there during the week
and Lewis on the weekends. Lewis maintained that he lied to the police about owning the
gun and living at the house to protect Jackson and that he changed his story after deciding
that Jackson was not worth protecting.
Prosecution witnesses testified about signs of drug dealing found in the house. One
police officer testified that drug dealers often divide their inventory and sell from a small
stash, replenishing this small stash as necessary. In this way, dealers protect themselves
from theft because the buyers do not know the full amount or the location of the drugs. The
officer also noted that sandwich bags like those found next to the smaller stash are used to
package smaller amounts of drugs for sale. Another officer testified that dealers commonly
use a scale similar to the one found at the house to weigh the drugs.
No. 08‐1599 Page 3
Lewis’s main defense was that he did not know the drugs were in the house, and a
minor theme was that he used but did not deal “crack.” The jury found Lewis guilty of
possessing a gun as a felon and possessing drugs with intent to distribute but acquitted him
of possessing the gun in furtherance of the drug crime. At sentencing the government
requested a two‐level increase for obstruction of justice, see U.S.S.G. § 3C1.1, based in part
on Lewis’s testimony that he was a user of crack but not a dealer. The district court found
that Lewis had committed perjury when he “testified at trial that he was not a dealer, and
that the crack cocaine found in the house . . . was for personal use by his sister and him.”
The court reasoned that the amount of “crack” found was more than a user would normally
possess and that the scale and packaging material evidenced that Lewis was a dealer.
Analysis
Lewis argues that the district court committed clear error in applying the increase for
obstruction. Lewis insists that the record of his testimony “does not contain any statement .
. . that the cocaine found . . . in the kitchen of his apartment was held by him for his
personal use.” Thus, he argues, the district court had no basis for finding obstruction.
Although the sentencing guidelines are no longer mandatory, they are the starting
point for determining a reasonable sentence. United States v. Bush, 523 F.3d 727, 729 (7th Cir.
2008). If the district court calculated the guidelines range incorrectly, then the case must be
remanded for resentencing, United States v. Katalinic, 510 F.3d 744, 748 (7th Cir. 2007), unless
the sentence did not “result” from the error, Williams v. United States, 503 U.S. 193, 202‐03
(1992); see United States v. Anderson, 517 F.3d 953, 965 (7th Cir. 2008).
The guidelines mandate a two‐level upward adjustment if the sentencing court finds
by a preponderance of evidence that the defendant obstructed justice. See U.S.S.G. § 3C1.1;
United States v. Williams, 272 F.3d 845, 864 (7th Cir. 2001). Lying under oath constitutes
obstruction. U.S.S.G. § 3C1.1 cmt. 4(b). A defendant perjures himself if 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. Dunnigan,
507 U.S. 87, 94 (1993); see United States v. Stokes, 211 F.3d 1039, 1045 (7th Cir. 2000). A
district court cannot automatically impose the two‐level increase if the defendant testified
and was found guilty of the charges. Williams, 272 F.3d at 864. Rather, the trial court must
make a finding that the defendant made a willful and material false statement. Id. This
requirement is met “[a]s long as the trial court determined that the defendant lied to the
judge and jury about matters crucial to the question of the defendant’s guilt.” United States
v. Saunders, 359 F.3d 874, 879 (7th Cir. 2004).
No. 08‐1599 Page 4
When a defendant challenges the application of § 3C1.1, our review of the sentencing
court’s underlying factual findings is for clear error. United States v. Price, 516 F.3d 597, 606‐
07 (7th Cir. 2008). Those factual findings will stand as long as they are “plausible in light of
the record in its entirety.” United States v. White, 368 F.3d 911, 916 (7th Cir. 2004).
In this case the district court imposed the two‐level increase because “Mr. Lewis
testified at trial that he was not a dealer, and that the crack cocaine found in the house where
he was staying was for personal use by his sister and him.” Lewis reads this statement too
narrowly; it is beyond doubt that Lewis testified that he was not a dealer. And that false
testimony is alone enough to sustain the obstruction adjustment because it goes directly to
the charge of possession with intent to distribute. See United States v. Griffin, 310 F.3d 1017,
1022‐23 (7th Cir. 2002); United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999); United
States v. Jones, 983 F.2d 1425, 1430‐31 (7th Cir. 1993); United States v. Ashers, 968 F.2d 411, 414
(4th Cir. 1992).
The second part of the district court’s statement—that Lewis had testified that the
crack in the house was for his sister’s and his personal use—is a fair inference from Lewis’s
testimony. This inference is not implausible in light of the record as a whole. See White, 368
F.3d at 916; see also Jones, 983 F.2d at 1431 (finding no error even though the court adopted
PSIs containing some factual errors). Although Lewis consistently denied knowing about the
“crack” in the house, his lawyer went to great lengths to establish that Lewis was a user of
“crack” rather than a dealer. Counsel cross‐examined a prosecution witness to demonstrate
that an ashtray, spoon, and candle found in a bedroom could be used to liquify “crack” for
injection, and later Lewis testified that he and his sister used those items to ingest “crack.”
Lewis admitted that the amount of “crack” in the house was a distribution quantity and that
“people who use crack sometimes sell crack.” But, he added, a user “wouldn’t be considered
a dealer for too long because the usage would overcome the sales,” thus implying that
because he was a user he was not a dealer. Furthermore, during cross‐examination Lewis
agreed that a dealer “wouldn’t want to leave a quantity of crack cocaine somewhere with a
couple of users” because “they’d smoke it right up,” casting doubt on the theory that Jackson
was the dealer and left the drugs in the kitchen. Thus, an underlying theme of the defense
was that if the jury did find that Lewis knew about the “crack,” he was just a user, not a
dealer, and thus he did not have the intent to distribute, a necessary element of the charge. It
is obvious that the court absolutely rejected Lewis’s contention that he knew nothing about
the drugs, and this rejection is supported by the record. See Carnes Co. v. Stone Creek Mech.,
Inc., 412 F.3d 845, 847‐48 (7th Cir. 2005). The court’s sentencing statement included the next
inferential step, that Lewis argued he could not be convicted of a distribution charge because
he was only a user, not a dealer.
No. 08‐1599 Page 5
Alternatively, even if the district court’s reasons for the obstruction adjustment might
be somewhat ambiguous, the outcome is still the same. Two times during his testimony
Lewis said explicitly that he did not know there was “crack” in the house, that he never
observed the “crack” in the house, and that he never sold the drug to anyone. Thus the
record is clear that Lewis flatly denied the drug charges, and neither the judge nor the jury
believed him. And so a finding of perjury is not clearly erroneous. See United States v.
Savage, 505 F.3d 754, 763‐64 (7th Cir. 2007); Saunders, 359 F.3d at 879.
AFFIRMED.