Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 698-Ronald A. Guzman, Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before FLAUM, ROVNER, and WILLIAMS, Circuit Judges.
Chicago police arrested James Selvie for weapons crimes stemming from his possession of a loaded handgun. While in custody, he contacted his girlfriend, Juvona Robinson, and asked her to file a complaint with the Chicago Police Department ("CPD"), alleging that his arresting officers planted the gun on him and arrested him falsely. Robinson did so, and CPD initiated an investigation into Selvie's allega- tions. As part of its investigation, CPD contacted Robinson, who immediately recanted her complaint and confessed that she had no actual knowledge of what transpired during Selvie's arrest. CPD terminated its investigation.
Federal authorities ultimately assumed jurisdiction over Selvie's case and charged him with being a felon in possession of a firearm, 18 U.S.C. § 922(g). He pled guilty pursuant to a plea agreement. He appeals his sentence, arguing that the district court improperly enhanced his base offense level for obstruction of justice, predicated on the false complaint he lodged with CPD. We affirm the district court's sentence.
On May 3, 2010, Chicago police officers on patrol observed James Selvie, a known gang member, with a bulge in his waistband that they deemed suspicious. They exited their squad car to investigate further, at which time Selvie fled on foot and tossed a loaded handgun onto a nearby porch. The officers arrested Selvie and recovered the gun.
The State's Attorney's Office charged Selvie with various weapons offenses. The charges constituted a parole violation, and he remained in custody at the Statesville Correctional Facility.
On May 8, 2010, Selvie's girlfriend called CPD to file a complaint. She alleged that Selvie's arresting officers planted the gun on him and arrested him falsely. Sergeant William Gentile was assigned to investigate her allegations. When he contacted her, she immediately volunteered that she made the complaint at Selvie's request, that she was not present when he was arrested, and that she lacked any first-hand knowledge about the arrest. She also informed Gentile that she could not substantiate her complaint, refused to provide a sworn statement, and requested that he terminate the investigation. Gentile closed the investigation.
In August 2010, the United States Attorney's Office for the Northern District of Illinois indicted Selvie for being a felon in possession of a firearm, 18 U.S.C. § 922(g). The state charges against him were dismissed. Selvie pled guilty to the federal charge pursuant to a plea agreement. The agreement did not contain an enhancement for obstruction of justice.
Before sentencing, Selvie's probation officer provided a Presentencing Report to the court. The officer contended that Selvie caused his girlfriend to file a false report in order to obstruct CPD's investigation. He recommended a two-level increase to the base offense level. Selvie objected to the proposed enhancement, arguing that his girlfriend never suggested that she witnessed his arrest and that his conduct did not obstruct justice under Section 3C1.1 of the Sentencing Guidelines.
At sentencing, the government agreed that Selvie's conduct did not amount to obstruction. Yet, the district court, signaling that it found significant Selvie's attempt to induce a third party to file a complaint, instructed the government to brief the issue and continued the hearing. The government filed the requested brief, in which it reversed its position and endorsed an obstruction enhancement. Selvie, it concluded, attempted to intimidate or influence the arresting officers into withholding their testimony by inducing his girlfriend to file a complaint against them. Subsequently, the probation department amended the Presentencing Report, withdrawing its request for an obstruction enhancement. It explained that the enhancement was inappropriate because, in light of the fact that Selvie's girlfriend did not witness his arrest, Selvie's putative attempt to obstruct the investigation was ill-conceived, had little chance of success, and was quickly abandoned.
Nevertheless, when sentencing resumed, the district court found that Selvie obstructed justice and enhanced his base offense level by two levels. His guideline range increased from 37-46 months to 46-57 months. ...