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United States v. Rash

United States Court of Appeals, Seventh Circuit

October 27, 2016

United States of America, Plaintiff-Appellee,
v.
Oscar Rash, Defendant-Appellant.

          Argued October 5, 2016

         Appeal from the United States District Court for the Eastern District of Wisconsin No. 07 CR 201 - Charles N. Clevert, Jr., Judge.

          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), challenges the district court's decision to apply a two-level upward 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 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 adjustment 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 something, 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 returning the gun to Monica, the owner. But the government introduced video footage from a gun store showing that Rash had a deeper connection to the gun-he had twice accompanied 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 adjustment 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 "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 mandatory 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 because 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 well. It then applied the two-level adjustment, producing a guideline range of 92 to 115 months. Without the enhancement, the guidelines would have called for a sentence between 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 provide 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. Larson, 417 F.3d 741, 747 (7th Cir. 2005). Consequently we proceed to the merits.

         Rash argues on appeal that the district court erroneously ruled that his testimony was material and therefore improperly applied the upward adjustment for obstruction. Under § 3C1.1, testimony is material if it is information "that, if believed, would tend to influence or affect the issue under determination." 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 government proposes two ways in which that testimony was material: First, it could have encouraged the jury to acquit ...


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