U.S. v. Ewing, 97-1933

• Decision Date: 18 November 1997
• Docket Number: No. 97-1933,97-1933
• Citation: 129 F.3d 430
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lynell R. EWING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 430

129 F.3d 430

UNITED STATES of America, Plaintiff-Appellee, v. Lynell R. EWING, Defendant-Appellant.

No. 97-1933.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 3, 1997.

Decided Nov. 18, 1997.

Peggy A. Lautenschlager, Rita M. Rumbelow (argued), Office of the U.S. Atty., Madison, WI, for Plaintiff-Appellee.

Jordan Loeb (argued), Madison, WI, for Defendant-Appellant.

Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.

KANNE, Circuit Judge.

In this appeal, Ewing challenges the length of his sentence. He specifically attacks the district court's findings that he attempted to obstruct justice under United States Sentencing Commission, Guidelines Manual ("U.S.S.G."), § 3C1.1 (Nov.1995), that he did not accept responsibility under U.S.S.G. § 3E1.1, and that his criminal history category did not adequately reflect the seriousness of his criminal record under U.S.S.G. § 4A1.3. Because the district court properly determined Ewing's sentence, we affirm its judgment.

I. HISTORY

On November 13, 1996, a federal grand jury in the Western District of Wisconsin indicted Lynell Ewing, Debra Couch, and Mary Ellen Johnson (a.k.a. Mary Colleen Trotter). The indictment charged Ewing with two counts of possessing stolen credit cards with intent to defraud in violation of 18 U.S.C. § 1029(a)(3).

The charges stemmed from the defendants' arrest on November 5, 1996. Law enforcement officers found the defendants in possession of stolen credit cards and wallets. A subsequent investigation determined that Ewing, Couch, and Johnson engaged in a crime spree while traveling through Nebraska, Colorado, Minnesota, and Wisconsin. In the months immediately prior to their arrest, the defendants entered office buildings and stole wallets from unattended offices throughout that part of the country. They then used the stolen credit cards and identification to acquire merchandise and cash before moving to the next town. $99,442.08 in charges and withdrawals have been attributed to Ewing.

At their arraignment, all three defendants pled not guilty. The court ordered them detained in the Dane County Jail pending trial and scheduled a trial date for February 18, 1997. Before trial, each of Ewing's co-defendants entered guilty pleas.

On January 22, 1997, Ewing attempted to pass a letter through an unincarcerated third party to his girlfriend and co-defendant, Debra Couch. In the letter, Ewing coached Couch on her testimony. Ewing wrote:

Now what you must do is write that I had no knowledge of any of that activity until the night we were arrested ... just make sure your first letter and what you told pretrial services and what you write Judge Crabb all coincide and matches up together, please think back and make sure. We don't want an obstruction of justice charge.... So you have to be real convincing, baby, and if everything goes right we got a chance!

On February 13, 1997, Couch's attorney informed the district court that Couch would exercise her Fifth Amendment right against compelled self-incrimination if Ewing called her as a witness.

The next day, Ewing pled guilty to both counts. February 14, 1997 was the last business day before the trial's scheduled start because Monday, February 17, 1997 was a federal holiday. On February 15, Ewing sent Judge Crabb a letter claiming that his criminal involvement was minimal and that he was motivated by a desire to visit his sick father.

The district court sentenced Ewing on April 8, 1997. The applicable guideline for a violation of 18 U.S.C. § 1029 is U.S.S.G. § 2F1.1. The base offense level for this crime is six; the presentence investigation report recommended six additional levels in this instance because the loss was greater than $70,000. See U.S.S.G. § 2F1.1(b)(1)(G). In addition, the Guidelines require two more levels as the offense involved more than minimal planning. Id. § 2F1.1(b)(2). Based on Ewing's January 22, 1997 letter to Couch, the presentence investigation report recommended a two level increase for obstruction of justice pursuant to U.S.S.G. § 3C1.1. It also suggested that the court deny Ewing a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Judge Crabb agreed with these recommendations. Specifically, she concluded (1) that Ewing's letter was an attempt "to influence the course of justice" that qualified for a "two point enhancement," Sentencing Hr'g Tr. at 5, United States v. Ewing, No. 96 CR 88 (W.D.Wis. Apr. 8, 1997), and (2) that Ewing failed to show acceptance of responsibility by "contest[ing] the government ... until the last possible moment," by failing to display remorse for his victims until his allocution, and by his "general attitude of disregard of other people's rights or interests or concerns," Id. at 11-12.

After calculating an adjusted offense level of 16 and a criminal history category of VI, the court departed upward three levels because Ewing's criminal history category did not adequately represent his criminal record. It then imposed a sentence of 78 months which was the high end of the resulting guideline range. The sentencing court based its sentence on the extensiveness of the scheme, the number of victims, and Ewing's lifestyle. Moreover, it concluded the sentence was necessary to provide individual and general deterrence, to protect the community, and to hold Ewing accountable for his actions.

Ewing appeals his sentence. He claims that the district court erred by finding he obstructed justice and by refusing to recognize his acceptance of responsibility. Ewing also asserts that the court's upward departure for his criminal history was unreasonable.

II. ANALYSIS

A. Standard of Review

In general, we defer to the district court's sentencing determinations. "[F]actual determinations underlying the application of the guidelines" are reviewed for clear error. United States v. Owolabi, 69 F.3d 156, 162 (7th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 959, 133 L.Ed.2d 882 (1996) (quoting United States v. Ritsema, 31 F.3d 559, 564 (7th Cir.1994)). We only overturn a factual finding made at sentencing if our review of the record leaves us with a firm conviction that a mistake has been made. See United States v. Gabel, 85 F.3d 1217, 1221 (7th Cir.1996). Questions involving the interpretation of the Guidelines are subject to de novo review. See Owolabi, 69 F.3d at 162.

B. Obstruction of Justice

Ewing asserts that the district court erred in finding that Ewing attempted to obstruct justice. A sentencing court shall increase the defendant's base offense level by two if he "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense." U.S.S.G. § 3C1.1. Examples of obstruction of justice include "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so," and "committing, suborning, or attempting to suborn perjury." U.S.S.G. § 3C1.1, comment. (n.3(a), (b)). Section 3C1.1 requires specific intent to obstruct justice. See United States v. Henderson, 58 F.3d 1145, 1153 (7th Cir.1995). The prosecution bears the burden to prove by a preponderance of the evidence that the enhancement is warranted. See United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir.1994).

Ewing argues that his January 22 letter does not amount to obstruction of justice because he did not threaten or bribe Couch; rather, he was simply reinforcing an idea. The district court concluded that Ewing was "trying to influence the course of justice" by telling Couch, who "is apt to follow his instructions just because of their close connection," "what he wants the witness to testify to." Sentencing Hr'g Tr. at 5. The district court's enhancement is appropriate if it reasonably interpreted Ewing's January 22 letter. See United States v. Madoch, 108 F.3d 761, 766 (7th Cir.1997).

In United States v. Cherif, the defendant wrote his love interest (who aided in his criminal activity) immediately after he was questioned by the FBI. 943 F.2d 692, 703 (7th Cir.1991). The letter stated, "You know you're innocent and there is no way conceivable that you could have known anything about anything." Id. Cherif's girlfriend later admitted this statement was false. This Court affirmed the district court's conclusion that Cherif was attempting to influence her to lie. See id. Among other things, we noted that the girlfriend "would know whether she knew about the scheme; Cherif did not have to tell her. Why else, then write a letter telling [her] she did not know anything, except as a subtle and somewhat clever attempt to tell her, 'Don't spill the beans.' " Id.

Similarly, in Madoch, the defendant wrote a codefendant advising him how to behave if the IRS questioned him about his returns. See 108 F.3d at 764. The letter then proceeded to "rehearse" the "facts" underlying the co-defendant's various tax returns. See id. We affirmed the sentencing court's enhancement for obstruction of justice in part because the information in the letter was not "detailed or arcane information that a tax client would have needed a CPA to decipher." Id. at 766. It was reasonable to assume that a person should remember who his employer is and whether he is "running his own business." Id. at 767. Thus, it was appropriate for the district court to conclude that "the letter was rehearsing the cover story the two had chosen to use on the fraudulent forms." Id.

For analogous reasons, the district court reasonably concluded that Ewing attempted to suborn perjury with his January 22 letter. Ewing reminded Couch of events of which she had first hand knowledge. Like the girlfriend's participation in Cherif and the co-defendant's employment in Madoch, Ewing's statements about his knowledge of any illegal activity is a thinly veiled means of rehearsing their cover story. Ewing's...