CA7: Def’s false suppression hearing testimony gets him 2 level obstruction sentencing enhancement

Defendant’s false testimony at suppression hearing results in 2 level enhancement under the Sentencing Guidelines. United States v. Jones, 2017 U.S. App. LEXIS 18204 (7th Cir. Sept. 20, 2017):

2. Sentencing Enhancements

Kelsey challenges the two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1. We review a district court’s factual findings underlying this enhancement for clear error, and we review de novo whether these findings adequately support the enhancement. United States v. Nichols, 847 F.3d 851, 858 (7th Cir. 2017).

The Guidelines permit a two-level upward adjustment if a defendant “willfully obstructed or impeded, or attempted to obstruct or impede” the prosecution of the offense of conviction. U.S.S.G. § 3C1.1. In applying this enhancement based on perjury, the district court should indicate it has found the elements of perjury: falsity, materiality, and willfulness. United States v. Brown, 843 F.3d 738, 742 (7th Cir. 2016) (citation omitted).

Kelsey argues that the false testimony he provided at the suppression hearing was not willful. He claims that he testified to the best of his ability as to his interactions with law enforcement agents on April 5, 2014. He argues that his testimony at the suppression hearing was along the lines of simply not being able to recall being shown a consent-to-search form and that he never gave oral consent to the search.

We disagree. The district court found that Kelsey gave more than just misstatements but “intentionally false responses that were made in an effort to get the evidence suppressed.” The court referenced its findings from its order denying Kelsey’s suppression motion, which detailed his internally inconsistent testimony. For example, Kelsey submitted an affidavit in which he denied giving the agents oral consent to search his apartment and represented that he refused to sign a consent-to-search form. In contrast, he testified that Agent Labno never showed him a document and that he never saw a consent-to-search form. But this was not the end of the contradictions. On cross-examination, Kelsey testified that he did not recall having a conversation with Agent Labno about consent to search his apartment. Contrary to this claim, he testified that Agent Labno asked him to sign a consent-to-search form and that he told Agent Labno that “there’s nothing in my apartment. I’m not signing no consent.” The district court found that Kelsey’s testimony was contradictory, evasive, and not credible. Accordingly, the district court properly applied the enhancement for obstruction of justice under § 3C1.1.²

2. In light of this discussion, we note that Kelsey also challenges the denial of his suppression motion, arguing that the district court erred in finding that he gave consent to the search of his apartment. It is well established that a search conducted pursuant to voluntary consent from the person whose property is searched is not a violation of the Fourth Amendment. See Georgia v. Randolph, 547 U.S. 103, 109, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006). “Whether consent was given is a factual issue that we review for clear error.” United States v. Gonzalez-Ruiz, 794 F.3d 832, 835 (7th Cir. 2015). Kelsey fails to show that the court committed clear error in finding that he gave consent or that its decision to credit the agent’s testimony over his own was “completely without foundation.” Id. The court properly denied Kelsey’s motion.