United States v. Burgess
| Decision Date | 06 January 2022 |
| Docket Number | No. 20-2940,20-2940 |
| Citation | 22 F.4th 680 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward B. BURGESS, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy W. Funnell, Attorney, Office of the United States Attorney, Green Bay, WI, Jonathan H. Koenig, Julie F. Stewart, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before Easterbrook, Ripple, and St. Eve, Circuit Judges.
Edward B. Burgess burned down the apartment he shared with his girlfriend on December 7, 2018. While on the run from police, Burgess robbed a Metro PCS store at gunpoint. At sentencing, the district court applied a 2-level adjustment for obstruction of justice under U.S.S.G. 3C1.1. The court based the adjustment on Burgess's perjurious testimony at his suppression hearing and on his violations of a no-contact order prohibiting communication with his girlfriend. On appeal, Burgess contends the factual findings at sentencing did not support either basis for the § 3C1.1 adjustment.
We find the district court did not plainly err in applying the § 3C1.1 adjustment. The factual findings upon which the district court relied establish by a preponderance of the evidence that Burgess's violations of the no-contact order amounted to obstruction. Accordingly, we affirm.
Appellant Edward B. Burgess had a domestic dispute with Titierra Howard, his girlfriend, on December 7, 2018. Burgess left their shared apartment but continued to text Howard, threatening to kill her and burn down the apartment. Later that night, Burgess set a fire that destroyed the building and all of Howard's and her children's belongings (including those of Burgess's son with Howard), rendering them homeless. Fortunately, neither Howard nor her children were harmed.
Burgess fled and eluded law enforcement for a little over four months, during which he committed another crime. On April 15, 2019, Burgess walked into a Metro PCS store and instructed the clerk to open the register. When the clerk refused, Burgess displayed a semi-automatic handgun, told the clerk he was not "playing," and advised the clerk not to "do anything." The clerk opened the register and Burgess stole $650.
At this point, Burgess's luck ran out. The Metro PCS he robbed had a security camera which allowed a citizen to identify Burgess and tip off the Milwaukee Police Department ("MPD"). On April 19, 2019, executing an arrest warrant based on the citizen tip, MPD arrested Burgess at his sister's house and recovered a handgun and the clothing Burgess wore during the Metro PCS robbery. The government indicted Burgess on four counts arising out of the December 7, 2018, arson and the April 15, 2019, robbery: arson (Count I), being a felon in possession of a firearm (Count II), Hobbs Act robbery1 (Count III), and use of a firearm during a robbery (Count IV).
Soon after arresting Burgess, the government moved for an emergency no-contact order between Burgess and Howard. The government presented evidence Burgess had contacted Howard extensively while in custody, discouraging her from cooperating with law enforcement and encouraging her to change her account of the events on December 7, 2018. A magistrate judge granted the government's motion and entered a no-contact order on May 14, 2019. Despite numerous reminders to abide by the order, Burgess consistently and repeatedly contacted Howard.
Burgess moved to suppress evidence obtained during his arrest, arguing MPD lacked probable cause to believe he was inside his sister's house at the time. Burgess indicated he might call Howard to testify as a witness on his behalf. In the month leading up to the suppression hearing, Burgess contacted Howard numerous times over the phone despite the no-contact order. The magistrate judge held a suppression hearing on August 2, 2019. The crucial issue at the suppression hearing was whether, as officers represented, Burgess exited his sister's house to take out the garbage the day of his arrest.
The government presented the testimony of Officer Michael Lopez, tasked with conducting undercover surveillance on Burgess's sister's house the morning of Burgess's arrest. Lopez believed Burgess was in the home because Burgess's phone was "pinging" from that location. Lopez, who studied a booking photo and physical description of Burgess prior to initiating surveillance, testified he saw Burgess exit his sister's house carrying trash bags, place the bags in garbage cans, and walk to the back yard. Lopez was confident Burgess reentered his sister's house after taking out the garbage because he knew the house had a side door and none of the other officers surveilling the house saw Burgess leave the property. The government offered a contemporaneous audio recording of the radio transmissions between Lopez and his fellow officers which corroborated Lopez's testimony.
Burgess testified on his own behalf, claiming he was "100 percent sure" he "never" exited his sister's house the morning of April 19, 2019, prior to his arrest. Burgess also confirmed he heard Lopez's testimony to the contrary but insisted several times Lopez was incorrect. Burgess confirmed he understood that, on his motion to suppress, he was arguing evidence should be suppressed because MPD lacked probable cause to enter his sister's house. Burgess verified he understood that, if the magistrate judge credited his account of events, the evidence might be suppressed, which would strengthen his defense.
The magistrate judge recommended denying Burgess's motion to suppress. The magistrate judge found Lopez's testimony more credible given the corroboration of the contemporaneous audio recording and Burgess's strong motivation to lie. The district court adopted the facts in the magistrate judge's report, accepted the magistrate judge's recommendation, and denied the motion to suppress. The district court agreed Burgess's testimony was less credible than Lopez's as Lopez had far less motive to lie and Burgess "admit[ed] to attempting to influence his girlfriend to give false testimony," which impacted his credibility.
On the eve of trial, Burgess pled guilty without a plea agreement to Count III (Hobbs Act robbery) and Count IV (use of a firearm during a robbery).2 The Probation Office prepared a presentence investigation report ("PSR") that recommended a 2-level enhancement of Burgess's offense level under U.S.S.G. § 3C1.1. Section 3C1.1 recommends a 2-level offense level increase where:
U.S.S.G. § 3C1.1. The PSR included two bases for the enhancement. First, Burgess committed perjury by "testif[ying] falsely at an evidentiary hearing ... asserting under oath that he never left a residence when contemporaneous record evidence proved otherwise[.]" Second, Burgess "repeatedly violated the Court's no-contact order, which prohibited Mr. Burgess from contacting Ms. Howard from jail ... most often during the month of July 2019, which is when his motion to suppress, in support of which he claimed Ms. Howard might be a witness, was pending."
The PSR contains limited context surrounding the perjury or violations of the no-contact order supporting the § 3C1.1 adjustment. As to perjury, the PSR does not indicate Burgess made the statement at a suppression hearing, how his statement related to a material issue of the hearing, the source of the MPD's probable cause, the timing of Burgess's testimony in relation to Lopez's, how frequently Burgess offered the false testimony, or Burgess's motivation to lie. As to violations of the no-contact order, while the PSR contains records of text and Facebook messages between Burgess and Howard from December 7, 2018, through January 5, 2019, it does not include similar descriptions of or records for the period after May 14, 2019, when the no-contact order went into effect.
Applying the 2-level § 3C1.1 adjustment, the Probation Office calculated a total offense level of 28 and a criminal history category of III for Burgess. This yielded a guidelines range of 97 to 121 months' imprisonment.
The district court sentenced Burgess, who appeared pro se , on October 1, 2020. Burgess confirmed he had an adequate opportunity to review the PSR and, when asked whether he wished to raise "additional matters that have not been addressed in the [PSR]," inquired only after four pending motions: a motion to withdraw his guilty plea, a motion to dismiss, and two motions for reconsideration. The district court orally denied each pending motion. Turning to the PSR's recommended sentencing guidelines and calculation, the district court confirmed Burgess had no objections. The district court adopted the PSR's guidelines and calculations. In the "Court Findings on Presentence Investigation Report" section of the subsequent statement of reasons, the district court "adopt[ed] the revised presentence investigation report," in effect adopting the PSR's factual findings as its own.
At sentencing, Burgess sought the mandatory minimum sentence while the government requested a total of 205 months' imprisonment (121 months for Counts I and III and the mandatory 84 months for Count IV). The government highlighted Burgess's escalating behavior, the devastating nature of his crimes, and his attempts to influence and threaten Howard. Burgess challenged the government's...
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