United States v. John Roberts , 919 F.3d 980 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0054p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 17-6512
v. │
│
│
JOHN ROBERTS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:16-cr-00199-1—Waverly D. Crenshaw, Jr., District Judge.
Argued: December 6, 2018
Decided and Filed: March 28, 2019
Before: MOORE, GIBBONS, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, PC, Nashville,
Tennessee, for Appellant. Thomas J. Jaworski, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF
DAVID L. COOPER, PC, Nashville, Tennessee, for Appellant. Thomas J. Jaworski, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
COOK, Circuit Judge. John Roberts challenges several of the district court’s decisions at
trial and sentencing: an evidentiary ruling, the district court’s refusal to authorize Criminal
Justice Act (CJA) funds for a forensic accountant, its reliance on judge-found facts to calculate
No. 17-6512 United States v. Roberts Page 2
the appropriate Guidelines range, the application of six sentencing enhancements, and the
substantive reasonableness of his sentence. We affirm in part and remand some issues for further
proceedings.
I.
The facts of this case are not complicated. John Roberts and seven coconspirators
worked together to steal millions of dollars’ worth of sensitive military equipment from a local
army base and sell it on eBay. Although Roberts took the stand and denied that he knowingly
trafficked stolen goods, the jury convicted him on all thirteen counts in the indictment: one count
of conspiracy to steal government property valued at over $1,000 (18 U.S.C. § 371); ten counts
of wire fraud (18 U.S.C. § 1343); and two counts of unauthorized export of prohibited military
equipment (22 U.S.C. § 2778(b)(2)). The district court applied six enhancements to Roberts’s
sentence: eighteen offense levels for stealing more than $3.5 million of military equipment under
USSG § 2B1.1(b)(1)(J), two levels for mass-marketing under USSG § 2B1.1(b)(2)(A)(ii), two
levels as a “person in the business of receiving and selling stolen property” under USSG
§ 2B1.1(b)(4), two levels for committing a crime involving sophisticated means under USSG
§ 2B1.1(b)(10)(C), four levels for organizing or otherwise leading the criminal conspiracy under
USSG § 3B1.1(a), and two levels for willfully obstructing justice under USSG § 3C1.1.
Ultimately, the court sentenced Roberts to 180 months’ imprisonment, varying downward from
the 210- to 262-month range suggested by the Guidelines.
Roberts appeals, contesting several of the district court’s decisions at trial and sentencing.
II.
A. Evidentiary ruling
Before trial, Roberts notified the government that he intended to introduce into evidence
other, current eBay listings by different sellers to prove that he accidentally—rather than
knowingly—committed a crime. These listings offered similar types of sensitive military
equipment as those in the indictment: combat helmets, night vision goggles, body armor vests,
and communication headsets. Roberts expected to tell the jury that he saw posts on eBay before
No. 17-6512 United States v. Roberts Page 3
he began selling on the internet, presumed that these military products freely circulated in the
market, and concluded that he could have lawfully bought and sold them. He ended up selling
stolen goods, he would have argued, but that doesn’t mean that he did so knowingly. After
reviewing the parties’ motions in limine and discussing the issue during two bench conferences,
the district court excluded the evidence.
Roberts argues that the district court abused its discretion in excluding evidence that
would have critically undercut the government’s case. The government, on the other hand,
contends that it did not ask the jury to infer mens rea from the nature of the equipment Roberts
sold on eBay. Instead, the government called three of Roberts’s coconspirators to testify that he
knew that he sold stolen goods. And it introduced several text messages between the
coconspirators further substantiating that testimony. Thus, the government argues, the eBay
listings had limited probative value, if any, and could have confused the jury into reasoning that
Roberts ought not be convicted for a crime that others freely continue to commit. The
government has the better of the argument.
An appellate court must be mindful of its limitations when reviewing evidentiary
determinations. Unlike a district court, we rely on a record devoid of a trial’s “nuances,
dynamics, and atmosphere.” United States v. Chambers, 441 F.3d 438, 456 (6th Cir. 2006).
Thus, we review a district court’s evidentiary rulings for abuse of discretion, deferring to the
court’s decision to admit or exclude evidence “unless we are left with the definite and firm
conviction” that it clearly erred in weighing the relevant factors. United States v. Wagner,
382 F.3d 598, 616 (6th Cir. 2004); see also United States v. Weaver, 610 F. App’x 539, 543 (6th
Cir. 2015).
Although the Federal Rules of Evidence favor admission, a trial court may exclude
relevant evidence if the danger of unfair prejudice resulting from admitting it substantially
outweighs its probative value. Fed. R. Evid. 403. We reject the trial court’s balancing only
when we are firmly convinced that the district court erred, and, even then, only if that error
resulted in substantial injustice. United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005);
Kovacevich v. Kent State Univ., 224 F.3d 806, 832 (6th Cir. 2000).
No. 17-6512 United States v. Roberts Page 4
Viewing the evidence in the light most favorable to Roberts by maximizing its probative
value and minimizing its prejudicial effect, as we must, United States v. Brady, 595 F.2d 359,
361 (6th Cir. 1979), we are not convinced that the district court abused its discretion. Even taken
generously, the eBay evidence does little more than demonstrate that many users illicitly sell
stolen goods over the internet. These listings not only postdate the indictment, but they also do
not rebut the bevy of other evidence the government offered to prove that Roberts knew the
goods were stolen—such as text messages discussing the conspiracy and other witness
testimony. The evidence more likely would have confused the issues and convinced the jury to
acquit “on [the] improper basis” that other users illicitly sell stolen goods with impunity. See
United States v. Rey, 923 F.2d 1217, 1222 (6th Cir. 1991).
Moreover, even if we did conclude that the district court erred, any such error is
harmless. The government offered abundant evidence that Roberts knew he trafficked stolen
goods. Thus, excluding the eBay listings would not have had a “substantial and injurious effect
or influence” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
B. Violating CJA by denying funding for a forensic accountant
Under the CJA, attorneys for indigent defendants can petition a court for federal funds to
retain an investigator, expert witness, or professional whose services the attorney needs to
provide adequate representation. 18 U.S.C. § 3006A(e)(1). To obtain these funds, an indigent
defendant must show that “(1) such services are necessary to mount a plausible defense, and
(2) without such authorization, the defendant’s case would be prejudiced.” United States v.
Gilmore, 282 F.3d 398, 406 (6th Cir. 2002).
Roberts argues that he did both. Before sentencing, he asked the court for $2,500 in CJA
funds to cover the costs of a forensic accountant. He justified the expenditure by explaining that
the presentence report did not explain the government’s valuation method in calculating loss, and
that “many of the items and pieces of equipment were ‘used’ so that full retail value may not be
appropriate. Depreciation of the value of the property may or may not have been taken into
account by the government when considering the amount of loss.” R. 230, PageID 873–74. And
the value of the stolen items directly enhanced his sentence. In a text-only order, the visiting
No. 17-6512 United States v. Roberts Page 5
judge from the Middle District of Georgia denied the motion. R. 232. Roberts appeals this
decision, arguing that the district court abused its discretion.
When a district court gives no explanation of its reasoning in denying such a motion, we
find ourselves at a loss. Reviewing for abuse of discretion does not mean that we substitute our
judgment for the trial court’s, affirming if we come to the same conclusions after reviewing the
record. United States v. Mathis-Gardner, 783 F.3d 1286, 1288–89 (D.C. Cir. 2015). On the
other hand, we don’t require a district court to labor over detailed explanations for every ruling;
sometimes, clear and compelling reasons warrant promptly denying relief. Id. at 1289. “[W]hen
the reasons for denying a colorable motion are apparent on the record, or when granting relief
was clearly appropriate from the face of the record, we can properly review whether the district
court appropriately exercised its discretion, even without an explanation.” Id. (internal
quotations and citations omitted).
At the time the district judge denied Roberts CJA funds, no clear and compelling reason
supported that conclusion. But we need not remand for the district court to explain why it denied
the motion because sentencing made clear that a forensic accountant could not have helped
Roberts’s sentencing position.
During oral argument, counsel clarified that two sources of inventory drove the
sentencing enhancement: the $4.1 million of items Roberts sold on eBay, and the $1.4 million of
items seized in his warehouse. The value of the eBay items had been determined by the market
prices they sold for—the only question for the judge was how many items had been stolen and
illegally sold outside military channels. In contrast to the eBay inventory, the items seized at the
warehouse had not yet been sold. The military valued those items at $1.4 million, but Roberts
theorized that with a forensic accountant he could properly challenge that figure.
But challenging it would not have affected Roberts’s sentence. The government’s
witness testified that between ninety and ninety-five percent (over the threshold $3.5 million1) of
1This may not be readily apparent from the sentencing transcript because the district court erroneously
twice reduced the value of the eBay items to account for stolen goods. The government’s witness testified that
Roberts earned $4.1 million in eBay sales and testified that ninety to ninety-five percent of those items were stolen.
The district court acknowledged that the eBay portion of the loss would amount to around $3.6 million (using the
No. 17-6512 United States v. Roberts Page 6
the items sold on eBay had been stolen. And that number alone drove the loss-value sentencing
enhancement. Thus, even if we decided that the district court erred here, its error was harmless.
See United States v. Clark, 385 F.3d 609, 618 (6th Cir. 2004) (employing the harmless error rule
where district judge denied a defendant CJA funds).
C. Violating Sixth Amendment by denying funding for a forensic accountant
Roberts also claims that by denying him funding for a forensic accountant, the district
court denied him effective assistance of counsel, violating his Sixth Amendment rights. But
Roberts contends only that the district court denied his counsel the opportunity to challenge the
loss valuation at sentencing, not that his counsel ineffectively represented him. See United States
v. Thurmon, 413 F.3d 752, 755 (8th Cir. 2005); see also United States v. Osoba, 213 F.3d 913,
917 (6th Cir. 2000). This allegation is therefore more appropriately construed as an argument
that the district court violated the CJA, see Thurmon, 413 F.3d at 755, and we have already
found that contention meritless.
D. Relying on judge-found loss valuation to calculate the sentencing range
The district court questioned government witness Agent Perry at sentencing on the value
of Roberts’s theft to calculate the appropriate guideline range. Roberts did not object to the
district court taking on this role. We thus review the judge’s fact-finding at sentencing for plain
error, reversing only if we find “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected
defendant’s substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of
the judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)
(quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
The Sixth Amendment includes no prohibition on district courts making factual findings
or relying on those findings to impose a sentence below the statutory maximum. United States v.
Bonick, 711 F. App’x 292, 299 (6th Cir. 2017). Although we concluded in Bonick that these
practices will not “always result in a constitutional sentence,” neither a majority of the Supreme
lower end of the witness’s estimate, ninety percent). It later mistakenly commented that the eBay portion of the loss
amounted to “90 percent of the $3.5 million.” R. 327, PageID 2145. The true portion of the loss amount, at least as
determined initially by the district court, was ninety percent of $4.1 million and therefore exceeded $3.5 million.
No. 17-6512 United States v. Roberts Page 7
Court nor a majority of this court has recognized an as-applied Sixth Amendment challenge to
this fact-finding. Id. Thus, even if we credited Roberts’s argument and found error, it would be
neither obvious nor clear. Id.; Vonner, 516 F.3d at 386.
E. Procedural reasonableness
Roberts also challenges the procedural reasonableness of his sentence, attacking the
district court’s application of six sentencing enhancements, and the adequacy of its explanations
in choosing to apply them. Because Roberts again failed to object, we review for plain error.
United States v. Penson, 526 F.3d 331, 337 (6th Cir. 2008).
Loss value. Roberts challenges the adequacy of the district court’s ruling on the amount
of loss attributable to his theft, see Fed. R. Crim. P. 32(i)(3)(B), specifically alleging that the
court relied on an incorrect valuation of the loss amount, failed to distinguish between stolen
army equipment and legally trafficked items, and mistakenly attributed some of the items to
Roberts rather than his coconspirators.
When a defendant actively disputes a factual portion of the presentence report that might
affect his sentence, the district court must affirmatively rule on the matter and “may not merely
summarily adopt the factual findings in the presentence report or simply declare that the facts are
supported by a preponderance of the evidence.” United States v. White, 492 F.3d 380, 415 (6th
Cir. 2007); Fed. R. Crim. P. 32(i)(3)(B). Our cases require “literal compliance” with Rule 32
and mandate that sentencing courts explain their calculation methods, id., ensuring that
“defendants are sentenced on the basis of accurate information and provid[ing] a clear record for
appellate courts,” United States v. Tackett, 113 F.3d 603, 613–14 (6th Cir. 1997). This
calculation need only reasonably estimate the loss, but it must reflect the district court’s work in
arriving at it. USSG § 2B1.1 cmt. n.3(C); United States v. Poulsen, 655 F.3d 492, 513 (6th Cir.
2011).
Roberts challenged the presentence report’s calculation of the loss amount. The
government contends that the district court adequately explained its findings, but we disagree.
At sentencing, the district judge repeatedly asked Perry to explain how she could assume that
ninety percent of the items sold on eBay had been stolen, expressing discomposure when Perry
No. 17-6512 United States v. Roberts Page 8
replied that she had not itemized the stolen equipment and could not provide the court with any
documentation supporting her testimony. R. 237, PageID 2142–44. “I’m just trying to find out
how you arrived at these numbers,” the judge repeated, “[a]nd you testify with great enthusiasm
as to [these numbers], but if you go into much deeper than that, you hit a stump.” Id. at 2144.
But the judge moved on almost immediately, accepting Perry’s best guess at estimating
the loss value: “The Court finds that 80 percent of Exhibit 1 was illegal; 80 percent of
$1.4 million and 90 percent of the $3.5 million. Okay. Thank you.” R. 327, PageID 2145.
Quite plainly, “a district court implicitly adopt[ing] the United States’ reasoning as part of its
findings does not suffice” for the purpose of Rule 32. United States v. Griffin, 656 F. App’x 138,
142 (6th Cir. 2016); see also White, 492 F.3d at 418. In United States v. Nelson, for instance, we
found that a district court’s bare recitation that he “had an opportunity to review the submissions
by both the defendant and the government and . . . concluded that the government is correct and
that it is no longer necessary to go through the exercise of doing further research,” did not reveal
how the district court determined the government accurately calculated the loss, nor did it
respond to Nelson’s specific objections. 356 F.3d 719, 723 (6th Cir. 2004).
“[I]t is not [a reviewing] court’s duty to supply reasons for the district court’s sentencing
decision.” United States v. Fowler, 819 F.3d 298, 306 (6th Cir. 2016). Because this error drove
the court’s enhancement of Roberts’s sentence, it affected his substantial rights. See United
States v. Cotton, 535 U.S. 625, 633 (2002) (“affecting substantial rights” means that the error
“affected the outcome of the district court proceedings” (internal citation omitted)). Thus, we
vacate the loss value enhancement, and remand for resentencing consistent with this opinion.
Finally, should the district court find that the eBay portion of the loss amount is less than
$3.5 million, it should reconsider any requests by Roberts for a forensic accountant to aid in
determining the loss amount attributable to the other recovered goods.
Mass-marketing. Roberts also contends that the district court failed to make the
necessary factual findings as to the applicability of a mass-marketing enhancement. But Roberts
never challenged the factual foundation of the mass-marketing enhancement, and therefore never
triggered Rule 32’s affirmative ruling requirement. United States v. Lang, 333 F.3d 678, 681
No. 17-6512 United States v. Roberts Page 9
(6th Cir. 2003). He did not specifically allege, for example, that the presentence report
incorrectly identified the victim of his fraud. Instead he referenced the Second Circuit’s reading
of the mass-marketing enhancement as “properly appl[ying] only when the targets of the mass-
marketing . . . are also in some way victims of the scheme.” United States v. Lacey, 699 F.3d
710, 714 (2d Cir. 2012). Though a novel question, it did not put any facts in dispute, and the
district court therefore did not procedurally err by failing to address it.
A person in the business of selling and receiving stolen property. Here too, Roberts
argues that the district court procedurally erred when it failed to resolve the factual dispute over
whether Roberts derived income solely from selling stolen goods. But the presentence report left
open the possibility that Roberts sometimes sold legitimately-purchased items. It explained that
Roberts qualified for the USSG § 2B1.1(b)(4) enhancement because he trafficked volumes of
stolen goods, maintained a large inventory in a storage unit, involved a number of
coconspirators, and facilitated and encouraged other thefts from the military. USSG § 2B1.1
cmt. n.5. Thus, with no factual disagreement to resolve, nothing triggered the district court’s
responsibility under Rule 32 to adequately explain its findings. United States v. Treadway,
328 F.3d 878, 886 (6th Cir. 2003).
Leadership. Roberts contends that the district court again failed to make the required
findings under Rule 32 that he organized or led “a criminal activity that involved five or more
participants” sufficient to enhance his sentence under USSG § 3B1.1(a). As before, Roberts
failed to raise a factual dispute below, and did not trigger Rule 32’s requirements. To put a fact
in dispute, a defendant must “produce more than a bare denial” or suggest a different
enhancement. Lang, 333 F.3d at 681.
Sophisticated means. Next, Roberts asserts that the district court procedurally erred and
violated Rule 32(h) when it imposed a two-level enhancement under USSG § 3B1.1(b)(10)(C)
rather than (10)(B) without notifying counsel beforehand. Rule 32(h) requires that before a court
departs from the applicable sentencing range on a ground that neither the presentence report nor
the party’s prehearing submissions raise, “the court must give the parties reasonable notice that it
is contemplating such a departure.” Our cases teach, however, that a district court’s sua sponte
decision to apply a Guidelines provision under one subsection rather than another does not
No. 17-6512 United States v. Roberts Page 10
qualify as a “departure” requiring notice. United States v. Bathily, 392 F. App’x 371, 375 (6th
Cir. 2010) (collecting cases); see also United States v. Hayes, 171 F.3d 389, 393 (6th Cir. 1999)
(the district court need not supply notice when it “plans to apply the Guidelines in a manner
different from what is recommended in the presentence report”). We therefore find no error
here.
Obstruction. Finally, Roberts challenges the district court’s imposition of an obstruction
of justice enhancement under USSG § 3C1.1. The district court, he claims, both failed to make
necessary factual findings after Roberts challenged the enhancement, and incorrectly relied on
the jury’s verdict to determine that Roberts lied at trial.
Supreme Court strictures protect a defendant’s right to testify by tightly circumscribing
the circumstances under which a district court may enhance a sentence for willfully presenting
false testimony at trial: “if a defendant objects to a sentence enhancement resulting from her trial
testimony, a district court must review the evidence and make independent findings necessary to
establish a willful impediment to or obstruction of justice, or an attempt to do the same, under
the perjury definition we have set out.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). Best
practices would have a sentencing judge “address each element of the alleged perjury in a
separate and clear finding.” Id. Yet the Supreme Court confirmed that it would uphold
applications of an obstruction enhancement if a court fulfills Dunnigan’s broad mandate and
“makes a finding of an obstruction of, or impediment to, justice that encompasses all of the
factual predicates for a finding of perjury.” Id.
To fulfill Dunnigan’s directive, this circuit instituted two requirements for a district court
imposing an obstruction enhancement for perjury: “first, it must identify those particular portions
of the defendant’s testimony that it considers to be perjurious, and second, it must either make
specific findings for each element of perjury or at least make a finding that encompasses all of
the factual predicates for a finding of perjury.” United States v. Sassanelli, 118 F.3d 495, 501
(6th Cir. 1997) (internal quotations omitted).
Our cases recite firm rules, instructing that we will not “review [a] record independently
to make our own findings and infer that the district court had the same statements in mind.”
No. 17-6512 United States v. Roberts Page 11
United States v. Chance, 306 F.3d 356, 389–90 (6th Cir. 2002). Nor will we neglect Dunnigan’s
independent-finding mandate, affirming “on an inference that [an enhancement] was based upon
the government’s arguments.” United States v. McRae, 156 F.3d 708, 713 (6th Cir. 1998); see
also United States v. Warner, 646 F. App’x 478, 480 (6th Cir. 2016). But while we sometimes
insist on rigid adherence to these rules, see United States v. Macias-Farias, 706 F.3d 775, 783
(6th Cir. 2013), other times we’ve affirmed on less work, “so long as the record below is
sufficiently clear to indicate those statements that the district court considered to be perjurious
and that the district court found that those statements satisfied each element of perjury,”
Sassanelli, 118 F.3d at 501. We have even concluded that a colloquy or other contextual clues
can satisfy the Dunnigan test. See United States v. Roman-Oliver, 564 F. App’x 156, 165 & n.2
(6th Cir. 2014).
In United States v. Clark, we held that “the better practice, and the requirement that
should be followed hereafter, is that, when assigning points for obstruction of justice, the district
court should identify specifically which statements or actions by a defendant constitute an
obstruction of justice.” 982 F.2d 965, 970 (6th Cir. 1993) (emphasis added). Regardless of
interim cases that may lean a different way, we follow Clark’s binding precedent here. See
Darrah v. City of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001); see also Macias-Farias, 706 F.3d
at 783.
The district court made no findings whatsoever. Roberts challenged the obstruction
enhancement both before and during sentencing, triggering the judge’s obligation to “make
independent findings necessary to establish” that the defendant willfully and materially perjured
himself. Dunnigan, 507 U.S. at 95. But after hearing brief argument from both parties at
sentencing—and in direct response to the government’s admonishment that the Sixth Circuit
requires a specific finding for an obstruction enhancement—the district judge uttered just eleven
words: “The Court makes a specific finding that the defendant testified falsely.” R. 327, PageID
2154.
This fails to satisfy the most forgiving reading of Dunnigan. Even in cases where we
parse colloquies between the government and the court to find that the district court made
independent findings of perjury, district judges have done more to prove that they independently
No. 17-6512 United States v. Roberts Page 12
arrived at a conclusion, adhering to Dunnigan’s law if not Clark’s gloss. See, e.g., United States
v. Ledezma, 26 F.3d 636, 644 (6th Cir. 1994) (court explicitly referenced the government’s
argument and concluded that the defendant perjured herself)2; United States v. Rhodes, 314 F.
App’x 790, 795 (6th Cir. 2008) (discussing particular testimony and finding it false); United
States v. Thomas, 272 F. App’x 479, 488 (6th Cir. 2008) (court detailed three specific instances
in which the defendant’s testimony contradicted other, more believable testimony); United States
v. Hover, 293 F.3d 930, 935 (6th Cir. 2002) (explicitly noting that the district court reviewed the
transcript and concluded that, “[the defendant] committed perjury” and that “[t]here’s no reason
to repeat what the government just said and [the prosecutor] just said because that’s exactly what
the transcript reflects. Clearly greatly at odds with all the evidence in this case.”); United States
v. Hooper, 65 F.3d 169, 1995 WL 514649, at *5 (6th Cir. Aug. 29, 1995) (per curiam) (table) (at
sentencing, judge discussed why he determined that the defendant lied on the stand, thereby
meriting the obstruction enhancement).
The district court plainly, clearly, and obviously erred. It did no independent work—
certainly not enough to satisfy the Dunnigan requirements. Our controlling precedent provides
clear direction when a district judge fails to make independent findings: we will not rely on
inference to deduce what he considered when he imposed the enhancement. Otherwise, we risk
eroding Dunnigan’s safeguards. True, “there is a sizeable gap between good sentencing
practices and reversibly bad sentencing practices,” Vonner, 516 F.3d at 389, but this is the latter.
We will not make “factual findings of perjury in the first instance, even if we believe
there is evidence in the record that supports such findings.” Macias-Farias, 706 F.3d at 782–83.
We thus vacate the obstruction enhancement and remand for the district court either to find on
the record that Roberts “(1) made a false statement under oath (2) concerning a material matter
(3) with the willful intent to provide false testimony, or to resentence him . . . without the
obstruction-of-justice enhancement.” United States v. Warner, 646 F. App’x 478, 480–81 (6th
Cir. 2016) (per curiam) (internal citations omitted).
2We distinguish Ledezma on its facts, but also note that though Ledezma purports to follow Clark, it has
established a disturbing practice where we look only to colloquies between the court and counsel to satisfy
Dunnigan, essentially abrogating the district court’s responsibility to identify specific statements as perjurious. Id.
Clark clearly permits no such thing. See Sassanelli, 118 F.3d at 501.
No. 17-6512 United States v. Roberts Page 13
F. Substantive reasonableness
Roberts also challenges the substantive reasonableness of his sentence, alleging that the
district court impermissibly accounted for the probability that good-time credit would decrease
his effective imprisonment. We consider a sentence “substantively unreasonable when the
district court selects a sentence arbitrarily, bases the sentence on impermissible factors, or gives
an unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d
508, 520 (6th Cir. 2008). Our ordinary abuse of discretion standard applies. Vonner, 516 F.3d at
397.
No such abuse of discretion occurred here. When it imposed Roberts’s sentence, the
district court explained that Roberts would probably spend only about twelve years of it in
prison, “[a]nd 12 years to a man locked up is a long time. I think that’s long enough.” The court
did not, as Roberts alleges, consider good-time credit as a stand-alone factor in fashioning the
length of the sentence. See United States v. Al-Din, 631 F. App’x 313, 338 (6th Cir. 2015)
(affirming where the district court similarly did not consider good-time credit as a stand-alone
factor). The mention of the availability of good-time credits does not render the sentence
substantively unreasonable, although we do not comment on the substantive reasonableness of
the sentence the district court will issue upon remand.
III.
We VACATE the loss enhancement under USSG § 2B1.1(b)(1)(J) and the obstruction
enhancement under USSG § 3C1.1, and REMAND for further proceedings consistent with this
opinion. As for the other sentencing enhancements, the evidentiary ruling, denial of CJA funds,
and the substantive reasonableness of Roberts’s sentence, we AFFIRM.