In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1672
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR RASH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin
No. 07 CR 201 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED OCTOBER 5, 2016 — DECIDED OCTOBER 27, 2016
____________________
Before BAUER, FLAUM, and KANNE, Circuit Judges.
BAUER, Circuit Judge. Oscar Rash, who was convicted of
possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), chal-
lenges the district court’s decision to apply a two-level up-
ward adjustment for obstruction of justice. At his trial Rash
had conceded to possessing the gun, but the district court
found at sentencing that he had also deceptively downplayed
his involvement with the gun. Rash argues that, because he
conceded possession, his false testimony about his connection
2 No. 16-1672
to the gun was immaterial to his conviction. But because the
district court reasonably concluded that Rash’s lie could have
misled the jury to acquit him, the lie was material and the ad-
justment for obstruction was proper. Therefore we affirm.
I. BACKGROUND
In 2007, police caught Rash, a felon, with a gun. They
caught him after they responded to a report of a man with a
gun and encountered Rash. They then saw him take some-
thing, which turned out to be a gun, from his waistband and
drop it. Rash was arrested, and during his interview with one
of the officers he said that the gun belonged to his girlfriend,
Monica. He explained that after he saw that she had left her
gun in his house, he went to return it to her since he knew that
he could not have a gun in his house.
Criminal proceedings followed. At trial Rash repeated
what he had told the police officers—that he was merely re-
turning the gun to Monica, the owner. But the government in-
troduced video footage from a gun store showing that Rash
had a deeper connection to the gun—he had twice accompa-
nied Monica to the store to help purchase it. Rash denied any
role in purchasing the gun; he testified that he “was just in the
store with her,” and “just walked around and was looking.”
At closing, Rash’s attorney urged the jury to acquit Rash in
part because he “did not” purchase the gun.
At sentencing, the court applied a two-level upward ad-
justment for obstruction of justice, see U.S.S.G. § 3C1.1. The
court found that the store’s videotape footage showed “clearly
that [he was] engaged in assisting in the purchase of that gun”
and that he was “not just a disinterested man in the store.”
The court concluded that the statements Rash made denying
No. 16-1672 3
“helping [his] girlfriend pick up the gun and that [he was] not
paying attention to her and [was] just walking around” were
“clearly false,” and therefore provided “a basis for points for
obstructing in this case.” The court noted, however, that the
obstruction enhancement did “not essentially change” the
Guidelines range since Rash was subject to a 15-year manda-
tory minimum sentence as an armed career criminal, see 18
U.S.C. § 924(e).
Rash’s sentence later was vacated under 28 U.S.C. § 2255
after Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated
the part of the Armed Career Criminal Act that determined
Rash’s sentence. During his resentencing hearing in 2016,
Rash’s attorney argued against the proposed enhancement for
obstruction of justice. When, as here, the enhancement is
based on perjury, it has three elements: (1) “providing false
testimony”; (2) “concerning a material matter”; (3) “with the
willful intent to provide such false testimony.” United States v.
Arambula, 238 F.3d 865, 868 (7th Cir. 2001). Without disputing
the first and third elements, counsel contended only that
Rash’s statements regarding his role in the gun store were not
material because Rash had admitted at trial that he possessed
a gun.
The district court disagreed and applied the enhancement.
Initially it ruled that Rash’s testimony was material simply be-
cause it was sworn: “What a witness has to say under oath in
a determination by—in a hearing where the finder of fact
needs to assess the credibility of all the proof is material.” The
government then argued that Rash’s testimony was material
because it minimized his connection to the gun and therefore
could have “encourage[d] the jury to nullify and not convict
him of possession … .” The court agreed with that logic as
4 No. 16-1672
well. It then applied the two-level adjustment, producing a
guideline range of 92 to 115 months. Without the enhance-
ment, the guidelines would have called for a sentence be-
tween 77 and 96 months. See U.S.S.G. Ch. 5, Pt. A. The court
imposed a mid-range sentence of 100 months.
II. DISCUSSION
We start with a brief word about mootness. Although Rash
was released from prison on September 9, 2016, his appeal is
not moot because he is currently serving a term of supervised
release (a form of custody), and a resentencing can still pro-
vide him some relief by shortening that term. See United States
v. Laguna, 693 F.3d 727, 729 (7th Cir. 2012); United States v. Gar-
cia-Garcia, 633 F.3d 608, 612 (7th Cir. 2011); United States v. Lar-
son, 417 F.3d 741, 747 (7th Cir. 2005). Consequently we pro-
ceed to the merits.
Rash argues on appeal that the district court erroneously
ruled that his testimony was material and therefore improp-
erly applied the upward adjustment for obstruction. Under
§ 3C1.1, testimony is material if it is information “that, if be-
lieved, would tend to influence or affect the issue under de-
termination.” U.S.S.G. § 3C1.1, cmt. n.6. The parties focus on
Rash’s testimony about his role in the gun store, and the gov-
ernment proposes two ways in which that testimony was ma-
terial: First, it could have encouraged the jury to acquit
through nullification. Second, it could have influenced the
sentence. After considering both contentions, we agree with
the first but not the second.
We begin with the nullification argument. Rash maintains
that his false testimony was not material because, after he ad-
mitted to possessing the firearm, his lie about his role in its
No. 16-1672 5
purchase was not “crucial to the question of guilt or inno-
cence.” Arambula, 238 F.3d at 868. See United States v. Senn, 129
F.3d 886, 899 (7th Cir. 1997) (defendant’s admission that he ac-
cepted marijuana proved the offense; false testimony about
what he did with it was immaterial, rendering the obstruction
enhancement clear error), abrogated on other grounds by United
States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012); United States v.
Parker, 25 F.3d 442, 448–449 (7th Cir. 1994) (vacating an ob-
struction enhancement for a defendant who admitted his
guilt, but falsely stated that he stole $200 rather than $1252
from a bank); United States v. Stenson, 741 F.3d 827, 831 (7th
Cir. 2014) (adjustment upheld in firearm possession because
defendant falsely testified “that it was his cell phone, not a
firearm, that the police officers saw in his possession when
they arrived”); United States v. Saunders, 359 F.3d 874, 879 (7th
Cir. 2004) (adjustment upheld because defendant lied about
possessing a gun, “the central issue at his trial”); United States
v. Sheikh, 367 F.3d 683, 687 (7th Cir. 2004) (upholding an ad-
justment because each defendant lied about knowingly re-
deeming illegally obtained food stamps, a matter that was
“certainly crucial” to guilt).
But even if his false testimony was not material to whether
he possessed the gun unlawfully, it was nonetheless material
to his conviction for that crime. When Rash lied that he had
no role in buying the gun, he sanitized his connection to it and
bolstered his exculpatory claim that he possessed the gun
only to return it to its owner after he found it in his house.
That spin on his conduct might have swayed the jury to de-
cide that, despite his admitted unlawful possession, it should
disregard the law and acquit him. A jury has the unreviewa-
ble power to nullify the law by acquitting a defendant even
when the facts and law compel conviction. See United States v.
6 No. 16-1672
Sorich, 709 F.3d 670, 678 (7th Cir. 2013); United States v. Kerley,
838 F.2d 932, 938 (7th Cir. 1988). Jury nullification is a material
risk when, as in this case, the jury receives information that
invites it to ignore the law. See Laguna, 693 F.3d at 731. For that
reason, the government may punish advocacy of jury nullifi-
cation as obstruction of justice. See Braun v. Baldwin, 346 F.3d
761, 763 (7th Cir. 2003). Rash’s lie that he played no role in the
gun’s purchase might not have risked influencing the jury
quite as much as the government fears. But because Rash’s
(false) testimony potentially invited the jury to ignore the law,
his testimony created a material risk of nullification. It there-
fore warranted the enhancement for obstruction of justice.
We note that the district court initially made an incorrect,
but ultimately harmless, overstatement when it suggested
that material testimony includes anything a witness says un-
der oath. Not all sworn testimony, even if false, is material.
See, e.g., Senn, 129 F.3d at 899; Parker, 25 F.3d at 448–449. But
the court later adopted the government’s more limited ra-
tionale for the obstruction enhancement: Rash’s lie put his il-
legal behavior in a favorable light, and that lie, “if believed,
would tend to influence or affect,” U.S.S.G. § 3C1.1, cmt. n.6,
the jury to use its nullification power. So the district court’s
earlier misstatement was harmless. See United States v. Hill,
645 F.3d 900, 906 (7th Cir. 2011).
For completeness, we explain why Rash’s false testimony
was not material to his sentencing. False testimony is material
if it could affect a defendant’s sentence. See United States v.
Sapoznik, 161 F.3d 1117, 1121 (7th Cir. 1998) (holding that a de-
fendant obstructs justice not only when he makes it more dif-
ficult for the government convict him, but “also when he
makes it more difficult for the court to give him the sentence
No. 16-1672 7
that is his just desert”). But Rash’s false testimony deflecting
his role in purchasing the gun did not have a realistic possi-
bility of affecting his sentence. Once he was convicted of un-
lawful possession of a firearm in 2008, he necessarily faced a
mandatory minimum of 15 years under 18 U.S.C. § 924(e) as
an armed career criminal. The prospect that § 924(e) was un-
constitutional, rendering his testimony at trial material to sen-
tencing, was too remote—the Supreme Court would not de-
cide Johnson for another seven years.
Finally we observe that in imposing its obstruction adjust-
ment, the district court did not find that Rash specifically in-
tended to obstruct justice through his lie, a finding that this
court has previously required. See United States v. Gage, 183
F.3d 711, 717 (7th Cir. 1999) (remanding a case for resentenc-
ing when the district court’s obstruction enhancement did not
include a specific “factual finding that [the defendant] told the
lie intending to obstruct justice”). But because Rash limited
his argument on appeal to the materiality of this testimony,
we have addressed only that one contested issue.
III. CONCLUSION
Because Rash’s false testimony was material to the risk of
jury nullification for the purposes of a § 3C1.1 obstruction ad-
justment, we affirm.