[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 11, 2006
No. 05-11558 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00288-CR-T-23-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENEVA ELLWOOD,
THOMAS HEROLD,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 11, 2006)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Defendants Geneva Ellwood and Thomas Herold appeal their convictions
and sentences imposed after a jury found them guilty of conspiring to possess with
intent to distribute certain controlled substances in violation of
21 U.S.C. §§ 841(b)(1)(A)(ii) and (iii), 846. Ellwood, who was found guilty of
conspiring to possess with intent to distribute 50 grams or more of cocaine base
(“crack”), argues that the evidence was insufficient to support her conspiracy
conviction, while Herold, who was found guilty of conspiring to possess with
intent to distribute 5 kilograms or more of cocaine, challenges the district court’s
denial of his motion for judgment of acquittal based on the conjunctive wording of
the indictment.
Ellwood received a 360-month sentence while Herold received a sentence
of 210 months. Both make constitutional challenges to their sentences based on
United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
Ellwood also challenges her sentence based on the drug quantity the district court
used to determine her base offense level, the lack of a mitigating role adjustment
pursuant to U.S.S.G. § 3B1.2, and reasonableness grounds. Herold challenges the
propriety of the obstruction of justice enhancement pursuant to U.S.S.G. §3C1.1
and asserts that the district court, in sentencing him, improperly imputed a quantity
of crack to him in addition to cocaine.
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We first address each defendant’s challenge to their conviction, and then
turn to their sentencing arguments.
I.
(a) Ellwood’s sufficiency challenge
On appeal, Ellwood argues that there was insufficient evidence to support
her conspiracy conviction because evidence showed only that she bought drugs,
not that she had entered into an agreement with anyone to distribute drugs or sold
drugs for profit. We review de novo a preserved sufficiency-of-the-evidence
challenge, “viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences and credibility choices in favor of the jury's
verdict.” United States v. Fulford, 267 F.3d 1241, 1244 (11th Cir. 2001). A
conviction must be upheld, “unless the jury could not have found the defendant
guilty under any reasonable construction of the evidence.” United States
v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999). As a general rule, jury
credibility determinations are upheld on appeal, and may only be overturned if
incredible as a matter of law. Id. For testimony to be deemed incredible as a
matter of law, “‘it must be unbelievable on its face,’ i.e., testimony as to ‘facts that
[the witness] physically could not have possibly observed or events that could not
have occurred under the laws of nature.’” United States v. Rivera, 775 F.2d 1559,
3
1561 (11th Cir. 1985) (citation omitted).
“In order to prove a drug distribution conspiracy, the government must
establish beyond a reasonable doubt: (1) the existence of an agreement among two
or more persons; (2) that the defendant knew of the general purpose of the
agreement; and (3) that the defendant knowingly and voluntarily participated in the
agreement.” United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). The
agreement and participation in the conspiracy need not be explicit and may be
inferred from circumstantial evidence. United States v. Prince, 883 F.2d 953, 957
(11th Cir. 1989). A defendant may be found guilty of conspiracy notwithstanding
that she did not know all the details of the conspiracy or played only a minor role
in its total operation; although existence of a simple buyer-seller relationship alone
does not furnish the requisite evidence of conspiratorial agreement, where the
buyer knowingly assumes a role instrumental to the success of the conspiracy, a
jury may properly infer that she is a member of it. United States v. Bascaro,
742 F.2d 1335, 1359 (11th Cir. 1984).
It is unlawful for an individual to knowingly possess a controlled substance
with the intent to distribute it. 21 U.S.C. § 841(a). In order to prove possession of
drugs with intent to distribute, the government must establish that the defendant
knowingly possessed drugs and intended to distribute them. United States
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v. Lopez-Ramirez, 68 F.3d 438, 440 (11th Cir. 1995).
An abundance of evidence supports Ellwood’s conviction. First, an
agreement to possess with intent to distribute crack existed between Michael
Arline, the head of a large drug ring, and Ellwood, as illustrated by Arline’s trial
testimony about his selling relationship with Ellwood. He testified that he sold her
crack on a daily basis during the five-week period of the wiretap of his telephone.
This testimony is corroborated by Ellwood’s numerous phone calls to Arline, and
undercover narcotics agent Steve Staklinski’s testimony that Ellwood voluntarily
told him of her frequent purchases from Arline. Testimony also established that
Ellwood bought crack from others who obtained it from Arline.
The evidence at trial showed an intent to distribute on the part of Ellwood
and Arline’s awareness of this. Arline testified that Ellwood told him she gave the
crack she bought to her friends, and sometimes placed two orders with him. Phone
calls played to the jury corroborated this evidence of placing two orders.
Furthermore, Arline testified to specific incidents where a jury could infer an intent
to distribute. The testimony of John Whitmore, another member of the drug
conspiracy, revealed that he had sold Ellwood crack at her apartment and she had
collected money from people there and handed that money to Whitmore.
It can be inferred from the circumstances of Ellwood’s dealings with Arline
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that she knowingly and voluntarily joined the conspiracy. Arline testified that, in
payment for drugs, Ellwood would steal things that he wanted including jewelry,
televisions, and computers. Arline characterized Ellwood as one of his best
customers because she got him what he needed and saved him money because he
did not have to spend cash. Furthermore, Arline testified that Ellwood offered the
services of one of her friends in exchange for crack. Even assuming that she
herself did not make a profit, she still knowingly contributed to the conspiracy’s
success by stealing specific items for Arline.
Viewing the evidence in a light most favorable to the government, the
evidence is sufficient to sustain Ellwood’s conspiracy conviction, and we affirm as
to this issue. See Chastain, 198 F.3d at 1351.
(b) Herold’s sufficiency challenge
On appeal, Herold argues that because the indictment was worded in the
conjunctive and included both cocaine and crack, the government was required to
prove that he was involved with both drug types, but that it only proved his
involvement with cocaine. Herold moved for a judgment of acquittal at the
conclusion of the government’s case in chief. After the government rested its case,
however, Herold presented evidence and did not renew his motion for judgment of
acquittal at the close of all the evidence. A defendant’s decision to present his case
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after denial of a motion for judgment of acquittal operates as a waiver of his
objection to the denial of his motion for acquittal. United States v. Williams, 144
F.3d 1397, 1402 (11th Cir. 1998). Because Herold did not renew his motion at the
close of all the evidence, we will affirm his conviction absent a miscarriage of
justice. United States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985). Such a
miscarriage requires “a finding that the evidence on a key element of the offense is
so tenuous that a conviction would be shocking.” Id. (citation omitted).
When an indictment charges in the conjunctive several means of violating a
statute, a conviction may be obtained on proof of only one of the means. United
States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000). “[W]hen a jury returns a
guilty verdict on an indictment charging several acts in the conjunctive . . . the
verdict stands if the evidence is sufficient with respect to any one of the acts
charged.” United States v. Rivera, 77 F.3d 1348, 1351 (11th Cir. 1996) (quoting
Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 654, 24 L.Ed.2d 610
(1970)). The use of the conjunctive in an indictment does not change the essential
elements of the offense or the government’s burden of proof. United States
v. Corona, 849 F.2d 562, 563 n.2 (11th Cir. 1988).
The government was not required to prove both cocaine and crack dealing in
order to convict Herold, but was only required to prove a conspiracy under § 841,
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which sets forth a complete substantive drug offense without reference to drug
type. Thus, a defendant can violate § 841 in many ways and the indictment in the
instant case set forth only two. The government could obtain a valid conviction on
proof of a conspiracy involving only one drug type. See Simpson, 228 F.3d at
1294. The use of the conjunctive in the indictment did not require the government
to prove nor the jury to find that Herold conspired to possess with intent to
distribute both cocaine and crack. Therefore, the jury’s verdict must stand if the
evidence is sufficient to prove at least one of these offenses, and here, the evidence
is more than sufficient to demonstrate Herold’s participation in the cocaine
conspiracy, as Herold concedes on appeal. Testimony from numerous individuals
and phone calls from Herold to Arline also illustrated Herold’s cocaine
distribution. Therefore, the district court’s denial of Herold’s motion for judgment
of acquittal did not result in a miscarriage of justice.
Even assuming that the government needed to prove that the conspiratorial
agreement included both cocaine and crack, the district court did not err in denying
Herold’s motion for judgment of acquittal with respect to crack because a jury
could infer Herold’s involvement as to crack based on the trial evidence.
Witnesses testified that Herold had cooked cocaine into crack in their presence.
Thus, the jury’s verdict is supported and the district court committed no error.
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II.
(a) Booker challenge
On appeal, Ellwood argues that the district court erred in using the 245-gram
drug quantity from the presentence investigation report (PSI) because the jury did
not find it and she did not admit it. She also maintains that, after United States
v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court
was limited to using the amount found by the jury. Herold argues that the district
court violated his Sixth Amendment right to a jury trial when it unilaterally
determined that he obstructed justice.
Because Ellwood objected to the use of the drug quantity below based on the
jury finding, she has sufficiently preserved her Booker objection. See United
States v. Dowling, 403 F.3d 1242, 1245 (11th Cir.), cert. denied, 126 S.Ct. 462
(2005) (holding that to preserve a Booker constitutional claim for appellate review,
a defendant can refer to the right to have a jury decide a disputed fact or raise a
challenge to the role of the judge as a factfinder with regard to sentencing). Thus,
we review her challenge de novo. United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005). While Herold objected to the obstruction of justice enhancement
below and acknowledged that under Booker, the application of the enhancement
was in the court’s discretion, it is unclear whether this sufficiently preserved his
9
constitutional Booker argument for appellate review. However, we need not reach
this issue as Herold’s argument fails under either de novo or plain error review.
With regard to Booker constitutional errors, an individual’s Sixth
Amendment right to a jury trial is violated where a judge enhances an individual’s
sentence based solely on judicially found facts under a mandatory guidelines
system. Paz, 405 F.3d at 948. “The constitutional error is the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge;
the error is in the mandatory nature of the guidelines once the guidelines range has
been determined.” United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005).
Extra-verdict enhancements under an advisory guidelines system are permissible.
See United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir.), cert. denied,
125 S.Ct. 2935 (2005) (noting that Booker specifically provides for extra-verdict
enhancements in all future sentencings and that the same extra-verdict
enhancement provisions apply after Booker as before).
No Booker error is present here because the drug quantity attributable to
Ellwood and Herold’s obstruction of justice enhancement were determined under
advisory guidelines. See Shelton, 400 F.3d at 1331 (noting that constitutional error
is in the mandatory nature of the guidelines once the guidelines range has been
determined). Thus, the district court was allowed to find a drug quantity beyond
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the amount found in the jury verdict and that Herold obstructed justice.
(b) Drug quantity
Ellwood argues that the trial testimony did not establish the 245-gram
quantity attributed to her. Generally, we review the drug quantity attributable to a
defendant found by the district court for clear error. United States v. Zapata, 139
F.3d 1355, 1357 (11th Cir. 1998). However, because Ellwood did not object to the
drug quantity below on factual or sufficiency grounds, we review her challenge for
plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We
will, in our discretion, correct plain error where there is (1) error, (2) that is plain,
and (3) that affects substantial rights, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 125 S.Ct. 2935 (2005)
(internal citations and quotations omitted). We note that the outcome would be the
same under either standard.
“Although sentencing may be based on fair, accurate, and conservative
estimates of the quantity of drugs attributable to a defendant, sentencing cannot be
based on calculations of drug quantities that are merely speculative.” Zapata, 139
F.3d at 1359. “In estimating the quantity of drugs attributable to a defendant, a
court may base its computation on evidence showing the average frequency and
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amount of a defendant's drug sales over a given period of time.” United States
v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996). Additionally, “the court could
consider any information, including reliable hearsay . . . so long as the defendant
has ‘the opportunity to rebut the evidence or generally to cast doubt upon its
reliability.’” United States v. Query, 928 F.2d 383, 385 (11th Cir. 1991) (quotation
omitted).
The district court did not err in using the 245-gram amount determined by
the probation officer because the evidence presented at trial supported such a
finding. Arline testified that Ellwood bought crack from him on at least a daily
basis for a five-week period and that he typically gave Ellwood seven grams at a
time, though sometimes this amount was more and sometimes less. Agent
Staklinski also testified that Ellwood herself told him that she purchased between
$300 and $400 of crack on a more than daily basis from Arline. The district court
was permitted to make its computation on the average frequency and amount of
Ellwood’s purchases over this period. See Frazier, 89 F.3d at 1506. The extensive
testimony from Arline about the frequency and extent of Ellwood’s purchases is
not merely speculative, and the 245-gram quantity was conservative considering
that the amount was limited to the five-week period of the wiretap, even though
Arline testified to selling crack to Ellwood outside of this period. Ellwood had
12
opportunity to rebut the quantity or attack Arline’s credibility during trial, but
failed to do so nor did she object to the PSI’s characterization of her frequency of
purchasing. Thus, the evidence supports the district court’s drug quantity finding
and we affirm in this respect.
(c) Mitigating role adjustment
Ellwood argues that the district court erred in denying her a role adjustment
because it found that others involved in the conspiracy were more culpable than
she was. We review a sentencing court’s determination of a defendant’s role in an
offense for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The proponent of the downward adjustment always bears the
burden of proving the mitigating role in the offense by a preponderance of the
evidence. Id. at 939.
The Sentencing Guidelines permit a court to decrease a defendant’s offense
level by four levels if it finds that the defendant was a “minimal participant” or two
levels if it finds that the defendant was a “minor participant” in the criminal
activity. U.S.S.G. § 3B1.2. A minimal participant is one who is “plainly among
the least culpable of those involved in the conduct of a group,” U.S.S.G. § 3B1.2,
cmt. n. 4, while a minor participant is one “who is less culpable than most other
participants, but whose role could not be described as minimal,” U.S.S.G. § 3B1.2,
13
cmt. n. 5.
In determining whether a mitigating role adjustment is warranted, a district
court first must evaluate the defendant’s role in the relevant conduct for which she
has been held accountable at sentencing. De Varon, 175 F.3d at 940. In looking at
relevant conduct, “the district court must assess whether the defendant is a minor
or minimal participant in relation to the relevant conduct attributed to the defendant
in calculating her base offense level.” Id. at 941. “Only if the defendant can
establish that she played a relatively minor role in the conduct for which she has
already been held accountable – not a minor role in any larger criminal conspiracy
– should the district court grant a downward adjustment for minor role in the
offense.” Id. at 944. Furthermore, “the amount of drugs . . . is a material
consideration in assessing a defendant’s role in her relevant conduct” and, in some
cases, could be dispositive. Id. at 943.
The district court may also evaluate a defendant’s role by comparing it to
that of other participants in her relevant conduct. Id. at 940. When measuring a
defendant’s conduct against other participants’ conduct, a district court may
consider only those participants who are identifiable by the evidence and who were
involved in the relevant conduct for which the defendant was convicted. Id. at 944.
“The fact that a defendant’s role may be less than that of other participants engaged
14
in the relevant conduct may not be dispositive of her role in the offense, since it is
possible that none are minor or minimal participants.” Id. “[T]he district court
must determine that the defendant was less culpable than most other participants in
her relevant conduct.” Id. (emphasis in original); see also U.S.S.G. § 3B1.2,
comment. (n. 3(A)).
Finally, this court has held that a defendant sentenced as a career offender is
ineligible for a mitigating role adjustment. United States v. Jeter, 329 F.3d 1229,
1230 (11th Cir. 2003). Ellwood was sentenced as a career offender. Because of
Ellwood’s career offender status, she was not eligible for a mitigating role
adjustment and the district court did not clearly err in denying her such an
adjustment. See Jeter, 329 F.3d at 1230.
Even had Ellwood been eligible for the adjustment, the district court did not
clearly err in refusing to grant it. Here, where Ellwood’s relevant conduct was
conspiring to possess with intent to distribute 245 grams of crack, she must
establish that she was a minor participant with respect to that relevant conduct, and
cannot point to, as she does, a broader criminal conspiracy. See De Varon, 175
F.3d at 944. Also, since Ellwood is held accountable only for the drugs she
obtained from Arline, not for drugs that other co-conspirators obtained, the district
court was allowed to conclude that she played an important or essential role in the
15
conspiracy to possess those drugs. See id. at 942-43.
The second prong of the De Varon analysis further precludes a mitigating
role adjustment. Though the district court noted that others in the conspiracy may
have been more culpable than Ellwood, this does not automatically entitle her to a
mitigating role adjustment since it is possible that none of the participants are
minor or minimal. See id. at 944. Indeed, the district court found that her role in
the larger conspiracy as a long term, steady buyer fit the role of other members in
the conspiracy. The PSI indicated, and Ellwood did not object, that she bought
crack from Arline on a daily basis for a five-week period. Thus, she has not shown
that she is substantially less culpable than most other participants in the relevant
conduct, and the district court’s characterization of her as a long term, steady buyer
was not clearly erroneous.
Ellwood was not entitled to a mitigating role adjustment because she was a
career offender. Nevertheless, the district court considered the mitigating role
adjustment and adequately articulated an acceptable reason for not granting the
adjustment. As such, we affirm the district court’s ruling on this issue.
(d) Reasonableness
Ellwood maintains that her 360-month sentence is unreasonable, especially
when many of her codefendants received 10 years or less. After the district court
16
has accurately calculated the guidelines range, it “may impose a more severe or
more lenient sentence” that we review for reasonableness. United States
v. Crawford, 407 F.3d 1174, 1178-79 (11th Cir. 2005). Such review is deferential,
requiring us to “evaluate whether the sentence imposed by the district court fails to
achieve the purposes of sentencing.” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). Moreover, the reasonableness standard is applied to the ultimate
sentence, not each individual decision made during the sentencing process. United
States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).
In reviewing a sentence for reasonableness, we are guided by the factors in
18 U.S.C. § 3553(a). Winingear, 422 F.3d at 1246. Relevant factors include:
(1) the nature and circumstances of the offense and the history and characteristics
of the defendant; (2) the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense,
afford adequate deterrence to criminal conduct, protect the public from other
crimes by the defendant, and the need to provide defendant with needed medical
care; (3) the available sentences; and (4) the guidelines range. 18 U.S.C.
§ 3553(a)(1)-(4). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in § 3553(a).” Talley, 431 F.3d at 788.
17
District courts do not need to establish the reasonableness of the sentences
they impose by explicitly considering every factor from § 3553(a) on the record;
some indication in the record that the court adequately and properly considered
appropriate factors in conjunction with the sentence will be sufficient. United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (sentence imposed at low end
of guidelines range).
In sentencing Ellwood, the district court considered the appropriate §
3553(a) factors and the sentence imposed achieved the purposes of sentencing.
Notably, the district court spoke at length about Ellwood’s criminal history and
career offender status, finding that she had made herself vulnerable to a harsh
sentence. In addition to considering Ellwood’s history, the district court found that
the sentence imposed reflected the seriousness of the offense and provided just
punishment. See 18 U.S.C. § 3553(a)(2)(A). The record supports the district
court’s findings because Ellwood had an extensive criminal history, including
many prior drug, forgery and theft convictions, that accrued to 44 criminal history
points. The district court also clearly recognized and considered the sentencing
disparity when it imposed sentence, but thought the disparity issue was outweighed
by Ellwood’s criminal history. Furthermore, disparity between sentences imposed
on codefendants is generally not an appropriate basis for relief on appeal. See
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United States v. Regueiro, 240 F.3d 1321, 1325-26 (11th Cir. 2001) (dealing with
§ 5K2.7 departure).
The district court also sentenced Ellwood at the low end of the guidelines
when it could have imposed a life sentence on her. See Winingear, 422 F.3d at
1246 (comparing, as one indication of reasonableness, the actual prison term
imposed against the statutory maximum). Since the district court sentenced
Ellwood at the low end of the applicable advisory guidelines range and considered
appropriate sentencing factors in imposing sentence, and no other circumstances
compel a contrary result, her sentence is reasonable.
(e) Obstruction of justice enhancement
Defendant Herold argues that he should not have been assessed the
enhancement for obstruction of justice because the district court’s findings were
not adequate for purposes of appellate review because it did not make findings of
how the false statements made at the hearing on his motion for a new trial were
material or how they significantly obstructed justice. Whether or not the district
court properly applied the obstruction of justice enhancement is a mixed question
of law and fact. We review the district court’s factual findings for clear error and
its application of the Sentencing Guidelines to those factual findings de novo.
United States v. Arguedas, 86 F.3d 1054, 1059 (11th Cir. 1996).
19
To allow for meaningful appellate review, a district court applying an
obstruction of justice enhancement must specifically state what the defendant did,
why that action merited the enhancement, and how that action actually impeded the
administration of justice of the offense. United States v. Taylor, 88 F.3d 938, 944
(11th Cir. 1996). We need not order a remand where the district court fails to
make individualized findings regarding the obstruction of justice enhancement if
the record clearly reflects and supports the basis for the enhancement. Id.
A district court may grant a two-level enhancement for obstruction of justice
if “the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the investigation, prosecution, or
sentencing of the instant offense of conviction,” and the “obstructive conduct
related to the defendant’s offense of conviction and any relevant conduct.”
U.S.S.G. § 3C1.1. Obstructive conduct can vary widely in nature and is not
precisely defined. § 3C1.1 cmt. n.3. The obstruction enhancement is warranted
where a defendant: (1) attempts to unlawfully influence a codefendant or witness;
(2) commits, suborns or attempts to suborn perjury; and (3) provides materially
false information to a judge or magistrate. § 3C1.1 cmt. n. 4(a), (b), (f). A material
statement is defined as one “that, if believed, would tend to influence or affect the
issue under determination.” Id. at n.6.
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Here, the district court made adequate findings. It identified Herold’s
knowingly false testimony at the hearing on the motion for a new trial and the false
circumstances he attributed to his conversations with Arline as the basis for its
obstruction enhancement. The district court further found that Herold’s actions fell
within § 3C1.1 and noted that the provision included false statements made to
judicial and law enforcement officers. The district court also stated that if it had
believed Herold’s witnesses’ testimony “his verdict should rightly have been
affected.” This fits § 3C1.1's definition of materiality as it would tend to influence
the issue under determination. U.S.S.G. § 3C1.1 cmt. n. 6). The district court may
not have stated with specificity how the action actually impeded the administration
of justice, but remand is not required because the record clearly reflects and
supports the basis for the enhancement. See Taylor, 88 F.3d at 944.
From the testimony at the hearing on the motion for a new trial, it is clear
that Herold was trying to reduce the drug quantity that he was held accountable for.
He procured the testimony of his fellow inmates to say that Arline had exaggerated
the amount he had testified to at trial. Testimony by government witnesses
revealed that Herold tried to get Arline to change his trial testimony and
approached others in an effort to obtain their statements to this effect. This, as the
district court characterized, falls within § 3C1.1. Herold’s actions attempted to
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influence a witness, attempted to suborn perjury, and involved false statements to a
judicial officer. Though Herold focuses his arguments on appeal about the
materiality of the false statements, it is clear from the record that the enhancement
applies for more reasons than just this. Furthermore, the testimony, if believed,
would have impacted his guidelines range. See U.S.S.G. § 2D1.1(c)(4), (5)
(distinguishing between offense levels for between 3.5 and 5 kilograms of cocaine
and between 5 and 15 kilograms of cocaine). Herold maintained that he was
responsible for less than 5 kilograms; thus, he would have been at a lower base
offense level. So, even if the only basis for the enhancement was the false
statements he made to the district court, the record demonstrates materiality.
Because the record reflects that Herold attempted to influence witnesses,
procured false statements at a hearing on his motion for a new trial, and made false
statements to a judicial officer that could have affected his guidelines calculation,
the district court did not err in assessing the obstruction enhancement.
(f) Attribution of crack in addition to cocaine
Herold also argues on appeal that the district court violated Booker when it
determined that Herold was responsible for conspiring to deal crack because the
jury did not return a drug quantity finding with respect to crack, only cocaine.
Herold’s argument is wholly without merit because nothing in the record
22
indicates that the district court held Herold responsible for 50 grams or more of
crack. This amount was not used by the probation officer in calculating Herold’s
base offense level, but rather the 5 kilograms or more of powder cocaine contained
in the jury verdict was used. The district court adopted the findings of the PSI.
The district court also made no mention of crack in sentencing Herold or
discussing the § 3553(a) factors. Furthermore, his Booker argument is without
merit because, as noted above, the district court was permitted to make
extra-verdict enhancements under advisory guidelines.
Because Ellwood and Herold cannot establish any error with respect to their
convictions or sentences, we affirm.
AFFIRMED. 1
1
Ellwood’s request for oral argument is denied.
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