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United States v. Ewing

November 18, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

LYNELL R. EWING, DEFENDANT-APPELLANT.



Appeal from the United States District Court

for the Western District of Wisconsin. No. 96 CR 88--Barbara B. Crabb, Judge.

Before Posner, Chief Judge, and Manion and Kanne, Circuit Judges.

Kanne, Circuit Judge.

Argued September 3, 1997

Decided November 18, 1997

In this appeal, Ewing challenges the length of his sentence. He specifically attacks the district court's findings that he attempted to obstruct justice under United States Sentencing Commission, Guidelines Manual ("U.S.S.G."), sec. 3C1.1 (Nov. 1995), that he did not accept responsibility under U.S.S.G. sec. 3E1.1, and that his criminal history category did not adequately reflect the seriousness of his criminal record under U.S.S.G. sec. 4A1.3. Because the district court properly determined Ewing's sentence, we affirm its judgment.

I. History

On November 13, 1996, a federal grand jury in the Western District of Wisconsin indicted Lynell Ewing, Debra Couch, and Mary Ellen Johnson (a.k.a. Mary Colleen Trotter). The indictment charged Ewing with two counts of possessing stolen credit cards with intent to defraud in violation of 18 U.S.C. sec. 1029(a)(3).

The charges stemmed from the defendants' arrest on November 5, 1996. Law enforcement officers found the defendants in possession of stolen credit cards and wallets. A subsequent investigation determined that Ewing, Couch, and Johnson engaged in a crime spree while traveling through Nebraska, Colorado, Minnesota, and Wisconsin. In the months immediately prior to their arrest, the defendants entered office buildings and stole wallets from unattended offices throughout that part of the country. They then used the stolen credit cards and identification to acquire merchandise and cash before moving to the next town. $99,442.08 in charges and withdrawals have been attributed to Ewing.

At their arraignment, all three defendants pled not guilty. The court ordered them detained in the Dane County Jail pending trial and scheduled a trial date for February 18, 1997. Before trial, each of Ewing's co-defendants entered guilty pleas.

On January 22, 1997, Ewing attempted to pass a letter through an unincarcerated third party to his girlfriend and co-defendant, Debra Couch. In the letter, Ewing coached Couch on her testimony. Ewing wrote:

Now what you must do is write that I had no knowledge of any of that activity until the night we were arrested . . . just make sure your first letter and what you told pretrial services and what you write Judge Crabb all coincide and matches up together, please think back and make sure. We don't want an obstruction of justice charge . . . . So you have to be real convincing, baby, and if everything goes right we got a chance!

On February 13, 1997, Couch's attorney informed the district court that Couch would exercise her Fifth Amendment right against compelled self-incrimination if Ewing called her as a witness.

The next day, Ewing pled guilty to both counts. February 14, 1997 was the last business day before the trial's scheduled start because Monday, February 17, 1997 was a federal holiday. On February 15, Ewing sent Judge Crabb a letter claiming that his criminal involvement was ...


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