05-2791 U.S. v. Warren

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“Warren did challenge the obstruction-of-justice adjustment, and the district court made appropriate factual findings to support it. On appeal, Warren renews his argument that the jury’s guilty finding alone does not lead to the conclusion that he lied under oath. He could, for example, honestly have believed that he was acting as a confidential informant, and the jury could still have found him guilty on the grounds that his belief was unreasonable. The district court recognized this and made its own findings as follows: ‘[W]hat we have here is that I need to make a finding, and unfortunately I do find that he made material misstatements under oath on the stand.’ The court went on to point out that it was authorized to decide that Warren had obstructed justice, and found specifically that, ‘when he said that these agents all said that his conduct would be legal, that he knew that that was not true . . . when he asserted that Agent Brian Koch was not truthful when he claimed he deactivated the defendant, that the defendant knew that was not true . . . when he said that no one ever told him to stop working for the Secret Service, that he knew that that was not true . . . when he said that the Secret Service authorized his activity with respect to the checks charged in the indictment, he knew that was not true; and when he said that he was still in deep cover, he knew that that was not true.’

“Unsatisfied with these findings, Warren argues that in the wake of United States v. Booker, 543 U.S. 220 (2005), the jury must make the factual findings necessary to support an obstruction-of-justice enhancement. His argument is meritless. As we recently recognized in another obstruction-of-justice case, the Supreme Court in Booker ‘held that a Sixth Amendment problem arises where the sentence exceeds the statutory maximum for the charged crime or is imposed under a mandatory sentencing scheme, not that district courts may not conduct judicial fact-finding.’ United States v. White, 443 F.3d 582, 592 (7th Cir. 2006). White continues, ‘[t]o the contrary, “Booker resolved the problem by making the guidelines advisory; judicial fact-finding in sentencing is acceptable because the guidelines are now nonbinding.”’ Id. (quoting United States v. Robinson, 435 F.3d 699, 701-02 (7th Cir. 2006)). Thus, the district court was authorized to find that Warren testified falsely as to a material issue, namely, whether he believed he was acting as a confidential informant at the time he committed the fraud with Studnicka. Warren does not suggest, nor could he, that the factual findings themselves are clearly erroneous. We see no error in the district court’s discharge of its duty to make independent findings under the definition of perjury, Dunnigan, 507 U.S. at 87, as required to support the enhancement.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Rovner, J.