Case Information
*1 Before W OOD Chief Judge, S YKES T INDER Circuit Judges .
T INDER Circuit Judge
. Maria convicted nine counts wire fraud, sentenced months’ imprisonment. appeals, arguing erred applying two level en hancement offense level cause failed necessary findings. We affirm.
I. Background
A jury charged Chychula nine counts of par ‐ ticipating in scheme defraud by means of interstate wire communications in violation of U.S.C. 1343. The indict ‐ ment charged Chychula and codefendants engaged broad investment scheme, pursuant which they de ‐ frauded more than investors and obtained almost $4.5 million. scheme lasted several years and took on various forms, including investment Gnxpert Companies— companies Chychula and co schemers incorporated. In furtherance scheme, Chychula sent infor mation investors by electronic mail and facsimile, and caused wire transfers funds investors’ bank accounts Cinema Investment Fund. Following review psycho logical report regarding Chychula’s competency and par ties’ arguments, district court found Chychula fit stand trial.
At bench trial government proved scheme de fraud Chychula and co schemers, among other things, overstated profits, misled investors existing contracts and products market, and convert ed investment money defendants’ own use. scheme proved through witness and hun dreds exhibits, including testimo ny, emails between Chychula others, bank records. At conclusion trial, guilty all nine counts wire fraud. moved judgment acquittal new trial; both motions denied.
A presentence investigation report (PSR) prepared provided parties. calculat *3 ing Chychula’s offense level, PSR included two level for justice pursuant U.S.S.G. 3C1.1, based on jury. In support enhancement, PSR stated:
The willfully obstructed or impeded, or tempted impede, administration when testified falsely before ju ry. She made several including: She [Chychula] communicate inves tors they [Gnxpert companies] were bil lion dollar company, when, fact, told Helmet Mueller on January 2008, Gnxpert companies worth one billion dollars.
defendants spent nothing themselves personally, save for food basic survival items. In fact, withdrew almost $500,000 cash, diverted an additional $100,000 family members. Furthermore, codefendants withdrew one million dollars cash.
Motion Picture Association America (MPAA) agreed license antipiracy tech nology. fact, MPAA denies entering into such agreement, stated would been entity license such. An attorney for 3M said company would pay move 3M’s corporate headquarters, pay $50 million Gnscope. 3M denies making these statements. *4 12 3695
Chychula had prior convictions so she was in the least severe criminal history category I. With an offense level criminal history category I, PSR stated advisory guideline range was months.
Chychula filed sentencing memorandum making vari ‐ ous objections to PSR. Relevant to appeal, she object ‐ ed enhancement obstruction ground evidence insufficient prove her intent justice, she argued any obstructive con duct could explained by diminished capacity. The government argued appropriate because Chychula committed in jury. The government responded had know ingly made number false statements regarding fense conviction 3C1.1 requires, citing ex amples listed PSR. addition these examples, hearing, government referenced had made apparent attempt explain fel low schemers made investors business pro spects Century Fence Company Douglas Marine Corporation. The government sought sentence within guideline range projected PSR. court agreed
ment appropriate. After rejecting another recommended enhancement, calculated advisory guideline range months. ultimately imposed below guidelines sentence months ap pealed. *5 5 12 3695
II. Discussion single issue this appeal whether two level sentencing enhancement for of properly based on made jury. guidelines authorize such ‐ ment if defendant “willfully obstructed or impeded, or attempted or impede” investigation or prose cution offense of conviction “the obstructive con duct related … offense conviction … .” U.S.S.G. § 3C1.1. “A finding committed perjury supports enhancement.” United States v. Riney 742 F.3d 785, 790 (7th Cir. 2014) (citing United States v. Dun nigan U.S. 87, (1993) U.S.S.G. 3C1.1, cmt. n.4(B)). “A commits if, while testifying under oath, [s]he gives false concerning a matter willful intent provide false testimony, ra ther than result confusion, mistake, faulty memory.” Id. (quoting United States v. Johnson, 966, (7th Cir. 2012) (internal quotation marks omitted).
When applying based on perjury, “‘the should finding all factual predicates necessary for finding perjury: testimony, materiality, willful intent.’” Id. (quoting Unit ed States v. Johnson, (7th Cir. 2010)). “Sepa rate findings each element perjury, though preferable, are necessary if makes finding ‘encom passes all factual predicates perjury.’” Id. (quoting Dunnigan, U.S. 95). We review de novo adequacy court’s findings review un derlying factual findings clear error. *6 6 12 3695 Cheek , 740 F.3d 440, 453 (7th Cir.), cert. denied , 134 S. Ct. 2152 (2014). some cases, held that judge’s error
in failing to make explicit findings as to each element per to support enhancement was harmless. See, e.g. , Johnson , 680 F.3d 982 (concluding that court’s finding “that defendant lied about matters crucial question defendant’s guilt” can sufficient support perjury finding); United States v. Savage , 505 F.3d 754, 763–64 (7th Cir. 2007) (holding that court’s error in fail ing specific findings each element in imposing justice was harmless where stated that defendant “did testify truth fully” specifically found he “has obstructed tempted in case,” which arguably en compassed willful intent element, where was clear defendant willfully lied about matters); United States v. Sheikh , F.3d 683, 687 (7th Cir. 2004) (hold ing court’s each defendant lied mat ter crucial his guilt was sufficient support ment); United States v. Saunders , F.3d 874, (7th Cir. 2004) (concluding court’s error in making findings “too skimpy” harmless where charged being felon possession firearm, took stand his defense, denied possessing gun, found told “a lie one would believe”). But see United States v. Parker 999, 1011–13 (7th Cir.) (vacating sentence remanding because context left us “unsure whether [defendant’s] denial involvement scheme willful”), cert. denied S. Ct. (2013); Johnson 894–95 (7th Cir. 2010) *7 (vacating sentence remanding where could not de ‐ termined that that “made particular false statement willful intent, suffi ‐ cient [his] sentence obstructing justice”). other cases, concluded failure make sufficient finding element harmless because error effect on sentence imposed. See, e.g. Riney (holding court’s failure willfulness harmless “because armed career criminal guideline trumped effect enhancement” sen ‐ tenced below guideline range).
Like Savage dis trict case did specifically identify statements were perjurious. Yet government’s memorandum argued Chy chula “made number knowingly re garding ‘offense conviction,’” identifying PSR identified supporting en hancement:
Defendant testified co schemers communicate investors they [the companies] bil lion dollar company.
Defendant testified co schemers spent nothing themselves person ally other than food basic survival items. Defendant testified [MPAA] agreed license anti piracy technology. *8 ‐
Defendant testified that attorney for 3M said the company would even pay for move 3M’s corporate headquarters. An attorney for 3M said company would pay $50 million for Gnxscope.
And at sentencing, government mentioned these same examples gave two others, referencing jury about business prospects Douglas Marine Corporation Century Fence Company. (Chychu la’s attorney referred testimony; he argued that “Chychula simply could separate certainty ac complishment desires”—an argument persuade district court.) government maintained “[w]hat [Chychula] trying do defend lies told in e ‐ mails”; immediately thereafter, district said, “All right. I think I have enough exam ples.” Similar Savage , context district judge’s statement strongly suggests considered all Chy chula’s statements, whether identified PSR relied by government at sentencing, constitute perjury thus justify obstruction ‐ justice ment. See Savage F.3d at 763–64 (concluding context colloquy among defendant’s counsel, government, “strongly suggests” court con sidered both sets perjury applying justice enhancement).
We said “[a] finding ‘lied’ matter can sufficient some cases” support en hancement. Riney 791; see also Sheikh (“It enough determine ‘the *9 ‐ lied about matters crucial the question the defendant’s guilt.’” (quoting Holman (7th Cir. 2002)). judge’s assertion that she had “enough examples” right after the prosecutor stated that Chychula attempting defend the lies she told emails strongly suggests the judge adopted the prosecu tor’s view implicitly found Chychula’s grand jury statements themselves were lies. As noted, “like perjury, lying involves willfully making false statement.” Riney 791. Thus judge implicitly made findings Dunnigan requires.
And if there is any lingering doubt this, before making guidelines calculations, judge said parties’ written arguments heard their oral arguments. Then judge said: “[T]he Court is going uphold justice two point enhancement” “the Court will adopt presentence investigation [re port] change Court has set forth offense level criminal history category 1.” Thus, per taining justice enhancement, adopted PSR its entirety. judge’s explicit adoption PSR, clearly identified several false made when testifying before grand jury stated willfully obstructed tempted administration so testify ing, confirms those jury state ments perjurious.
There is question material, element only weakly contested. For purposes enhancement, “a mat ter ‘material’ if concerns information ‘that, if believed, *10 would tend influence or affect issue under determina tion.’” Id. at (quoting U.S.S.G. § 3C1.1, cmt. n.6). Chychu la suggests her statements not because they did not affect issue under determination grand jury proceedings; after all, argues, government obtained nine count indictment against her others. “[I]t is true an attempt at justice has no consequence is not permissible basis obstruc tion enhancement.” Wells (7th Cir. 1998). However, statement need only “ tend influence or affect issue under determination” be material, U.S.S.G. § 3C1.1, cmt. n.6 (emphasis added); statement need not actually have any influence or effect. grand jury satisfy stand ard—they concern her representations investors state companies soundness alleged investments heart scheme defraud. grand jury obviously did not believe her charged her notwithstanding her denials. Had jury be lieved her whole or part, it might not have indicted her, or perhaps would not charged many counts.
Along similar lines, maintains conduct more difficult apprehended, convicted or sentenced. But is applicable only when actually obstructed impeded administration justice, but also when tempted do so. See U.S.S.G. 3C1.1. fact Chychu la’s attempts deceive ultimately failed moment. *11 11 3695
But even if erred not making sepa ‐ rate findings each element perjury, error harm less. An error failing make separate findings each element perjury is harmless where record is clear willfully lied about material matters while tes tifying. See, e.g. Savage , at 764; Saunders , F.3d at 878–79; see also Johnson at (recognizing failure specific, separate findings elements can be harmless error where record allowed appellate determine “the lied about issue”). Chychu la’s false grand jury were directly contradicted by government’s evidence at trial. For example, gov ernment introduced audio recording transcript January conversation Chychula investor Helmut Mueller, represented “billion dollar company.” Another example comes testimony Frank Both Century Fence; he testified Gnnxpert product “didn’t perform like wanted to,” Century Fence decided product did work communicated Chychula “several times.” record is clear Chychula willfully lied materi al matters while testifying before jury.
Moreover, only real dispute sentencing, much principal defense trial, whether Chychu la’s mental state affected intent; con test whether were only weakly contested whether they material. See, e.g. Def.’s Objections Presentence Investigation Report & Sen tencing Mem. (“There evidence Ms. intended justice. Any discrepancy between Grand Jury any writings can attributed *12 Diminished Capacity. No upward adjustment should be given pursuant 3C1.1.”). district judge clearly re solved the mental status issue against the defendant trial. guilty, the judge determined that “was sufficiently knowledgeable understand that re ports investors signed contracts imminent cash flow false,” 6/21/12 Tr. 2; 6/21/2012 Docket Entry the expert “did not indicate was un able distinguish truth fiction right from wrong,” 6/21/12 Tr. 3; 6/21/2012 Docket Entry 1. Thus the judge was “unpersuaded was unable form the mental state necessary be culpable the charges against her, instead [found] the evidence establishes beyond reasonable doubt possessed the requisite mental state.” 6/21/12 Tr. 3; 6/21/2012 Docket Entry 1–2. judge who rejected the mental state defense pur poses conviction is same judge who decided the obstruction enhancement proper based perjury. Because did not contest falsity cited support enhancement, perhaps judge can be forgiven failing explicitly identify specific justified enhancement. And judge who claims signed contracts, business prospects successes, cash flow be false. This distinguishes cases such Johnson jury’s disbelief defendant’s testi mony insufficient support ment. See 894–95 (“[A]n enhancement warranted merely because believe defendant’s testimony; should only ap plied if determines committed perjury.”). Here, disbelieved *13 13 testimony, her was and will ful.
That said, the failed to make explicit findings to all the factual predicates necessary a finding perjury, which is the preferred practice. See, e.g. Dunnigan U.S. (“[I]f a objects a sentence enhancement resulting from her testimony, district court must review the evidence make independent findings necessary establish willful impediment or obstruction justice, or an attempt do same, under the definition.”). District judges should continue follow Dunnigan our other case law require particular findings ob struction enhancement based on perjury.
But error was harmless given context case: convicted following trial; defend ant’s only real dispute whether her alleged diminished mental capacity prevented from forming intent justice; previously rejected claim personality disorder rendered “unable distinguish truth fiction right from wrong,” “unable form [requisite] mental state”. And noted, record is clear will fully lied matters while testifying before jury. Moreover, imposed sentence so far below advisory guidelines range—almost months below bottom range—that there suggestion effect ultimate sentence imposed. See, e.g., Riney (concluding judge’s failure willfulness harmless “because armed career criminal guideline trumped effect *14 ment” judge sentenced below advisory guideline range); United States v. Hill 900, (7th Cir. 2011) (“Harmless error review ‘removes pointless step returning when we are convinced sentence imposes will identi cal one we remanded.’”) (quoting Ab bas (7th Cir. 2009)). We doubt if remanded more explicit findings, would impose sentence again.
We accordingly A FFIRM .