U.S. v. Lozoya-Morales, LOZOYA-MORALES and F

• Decision Date: 10 May 1991
• Docket Number: LOZOYA-MORALES and F,Nos. 90-2380 and 90-2381,s. 90-2380 and 90-2381
• Citation: 931 F.2d 1216
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Joserederico Borrego Sanchez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1216

931 F.2d 1216

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Jose LOZOYA-MORALES and Frederico Borrego Sanchez Defendants-Appellants.

Nos. 90-2380 and 90-2381.

United States Court of Appeals Seventh Circuit.

Argued Feb. 14, 1990.

Decided May 10, 1991.

Jeffrey Anderson, Asst. U.S. Atty., Office of the U.S. Atty., Madison, Wis., for plaintiff-appellee.

Alexander M. Salerno, Stevenson & Salerno, Palos Heights, Ill., Edmund P. Wanderling, Stickney, Ill., for defendants-appellants.

Before COFFEY and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The appellants Jesus Morales ("Morales") and Frederico Sanchez ("Sanchez") appeal their convictions and sentences for distribution and conspiracy to distribute cocaine, see 21 U.S.C. Secs. 841(a)(1) and 846. We must decide whether sufficient evidence supports their convictions, and whether the District Court erred by increasing their offense category under Sec. 3C1.1 of the Federal Sentencing Guidelines ("Sentencing Guidelines") by two levels for willful obstruction of justice. We affirm the convictions and Morales' sentence. Because the jury's verdict does not conclusively establish the falsity of Sanchez's testimony and because the District Court made no independent finding that Sanchez had lied on the witness stand we vacate Sanchez's sentence and remand to Judge Crabb for resentencing.

Factual Background.

This is a cocaine conspiracy case arising from an undercover government sting operation. With Morales and Sanchez, the indictment named a third co-conspirator, Darryl Stout ("Stout"). Stout is the person who actually made the deliveries of cocaine to undercover authorities. The indictment alleged one count of conspiracy and two counts of distribution against all of the defendants, and two additional counts of distribution against Stout and Morales. Stout cooperated with authorities, pleaded guilty to one count of distribution of cocaine, and testified against Morales and Sanchez at the trial below.

Morales and Sanchez conceded at trial that if the jury believed Stout's testimony, a guilty verdict on all counts would necessarily follow. But the appellants challenged Stout's credibility, pointing out to the jury that much of his testimony was uncorroborated by government surveillance officers. The jury apparently did not believe everything to which Stout had testified because it acquitted both Morales and Sanchez of one count each of distribution. However, the jury did not entirely reject Stout's testimony because it convicted the appellants on the remaining counts.

Both Morales and Sanchez testified on their own behalf at trial. Morales denied his involvement in the alleged conspiracy. Sanchez denied that he had ever handed drugs to Stout for delivery to the undercover officers. The District Court explicitly found that Morales had lied during his testimony and increased his offense category under the Sentencing Guidelines by two levels for willful obstruction of justice. See Sec. 3C1.1. ¹ The District Court also adjusted Sanchez's sentence under Sec. 3C1.1, but made no specific finding that Sanchez had lied in his trial testimony. Rather, the record indicates that Sanchez's adjustment was based on the jury's guilty verdict. Both Morales and Sanchez have appealed their convictions as unsupported by sufficient evidence and their sentences as being improperly adjusted under Sec. 3C1.1.

Sufficiency of the Evidence.

The challenges to the sufficiency of the evidence are without merit. Morales and Sanchez concede that Stout's testimony, if believed by the jury, supports their convictions. They argue that the jury could not have believed this testimony because Stout is an inherently incredible witness. But "[t]o be incredible as a matter of law, a witness' testimony must be unbelievable on its face. In other words, it must have been either physically impossible for the witness to observe that which he or she claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all. Mere inconsistencies in the witness' testimony do not render it legally incredible." United States v. Dunigan, 884 F.2d 1010, 1013 (7th Cir.1989) (citations omitted). Stout's testimony is not unbelievable on its face. We leave the credibility determination to the jury and affirm the convictions because Stout's testimony supports the jury's verdict.

Sanchez' Sentence.

Sanchez contends that adjustment of his sentence for obstruction of justice was an improper application of the Sentencing Guidelines. We will affirm the District Court's sentence if we find it is the result of a correct application of the Sentencing Guidelines to facts not found to be clearly erroneous. United States v. Jordan, 890 F.2d 968, 972 (7th Cir.1989). When a sentence is adjusted for obstruction of justice, the factual finding that the defendant willfully obstructed justice is reviewed under the clearly erroneous standard. However, we review de novo the District Court's legal interpretation of the Sentencing Guidelines. See United States v. Teta, 918 F.2d 1329, 1332 (7th Cir.1990). The question before us involves a legal interpretation of the Sentencing Guidelines requiring de novo review.

In his trial testimony, Sanchez denied having ever given cocaine to Stout to distribute to the undercover officers. After the jury returned a guilty verdict, the District Court explained the obstruction of justice assessment in this case:

[Y]our argument is that anytime a defendant takes the stand and is found guilty, that he'll be found to have perjured himself. It may very well be true, but I'm not sure that there's anything wrong with that. If a defendant gets up on the stand and gives a story that the jury does not believe, the jury is finding that he is not telling the truth.

* * * * * *

I'm punishing him for testifying untruthfully. The jury found that he testified untruthfully because they believed that he had in fact been involved in the distribution of cocaine.

Transcript of Sanchez Sentencing at 10, 11. Neither this statement nor any other portion of the record indicates that the District Court made an independent factual finding that Sanchez had committed perjury in his trial testimony. Rather, it appears that the obstruction of justice adjustment is based entirely upon the jury's verdict. And at oral argument in this Court, the United States conceded that nothing in the jury verdict necessarily establishes the falsity of Sanchez's testimony. ²

The adjustment here, absent an independent finding by the District Court that Sanchez lied, is improper. In our view, the District Court, based upon its observations of Sanchez's testimony and other evidence, must independently determine whether the defendant lied on the witness stand. Imposing the penalty automatically from a jury verdict that concededly does not establish the defendant lied in his testimony impinges upon the right to testify in one's behalf.

Our conclusion accords with the Supreme Court's pre-Sentencing Guidelines opinion from which Sec. 3C1.1 is born. United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). The Court, while recognizing that the criminally accused do possess the right to testify, held that this right is not impermissibly chilled when the sentencing judge imposes a stiffer sentence based upon the judge's determination that the defendant committed perjury. But Grayson does not give a wholesale right to adjust every time a jury returns a guilty verdict after a defendant has testified. The Supreme Court was very concerned that defendants would hesitate to testify if they were worried their sentence would be thereby increased following a guilty verdict.

Grayson's further argument that the...