                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0598n.06
                            Filed: August 21, 2007

                                            No. 05-6620

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                        )
                                                )
               Plaintiff- Appellee,             )
                                                )       ON APPEAL FROM THE
v.                                              )       UNITED STATES DISTRICT
                                                )       COURT FOR THE EASTERN
ANTORIC WILSON                                  )       DISTRICT OF TENNESSEE
                                                )
               Defendant-Appellant.             )              OPINION
                                                )

BEFORE:        COLE and McKEAGUE, Circuit Judges; COHN, District Judge.*

       AVERN COHN, District Judge: This is a criminal case. Defendant-Appellant Antoric

Wilson (“Wilson”) appeals his sentence based on his guilty plea to one count of conspiracy to

distribute fifty grams or more of crack cocaine and 500 grams or more of powder cocaine in violation

of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B). Wilson raises three related issues

on appeal: (1) whether the district court’s application of a two-level enhancement for obstruction of

justice based on his testimony at the sentencing hearing was in error; (2) whether the district court’s

denial of a three-level reduction for acceptance of responsibility was in error; and (3) whether his

sentence is substantively or procedurally unreasonable.

       As we find no error in the district court’s decision, we will affirm Wilson’s sentence.



       *
        The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.

                                                    1
             I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       On June 30, 2004, a search warrant was executed at Wilson’s residence in Chattanooga,

Tennessee. Approximately 1,100 grams of powder cocaine, forty grams of crack cocaine, 750

grams of marijuana, $7,500 in cash, and an SKS semiautomatic assault rifle were seized from

Wilson’s bedroom. Wilson was arrested that same day. After waiving his Miranda rights,

Wilson made a statement to Detective Narramore and Detective Ballard (“investigators”), of the

Chattanooga Police Department.

       On November 4, 2004, Wilson pled guilty to one count of conspiracy to distribute fifty

grams or more of a mixture and substance containing cocaine base and 500 grams or more of

powder cocaine. Three related drug charges were dropped. The written agreement contains a

statement of the factual basis for the plea, in which Wilson admitted possession of the drugs and

the rifle found in his bedroom. The plea agreement also stated that Wilson told investigators

the following:

       [H]e had been selling crack for $800 an ounce, $800 for an ounce of powder
       cocaine, and $20 for a bag of marijuana. Defendant gave the name of his source
       for cocaine and stated that the source was “fronting ounces” of cocaine to him,
       then the source fronted him a kilogram of powder cocaine. Wilson stated that the
       price for the kilogram of cocaine was $25,000. Wilson stated that he had sold
       cocaine regularly in the past.

(J.A. 31.)

       The probation office prepared a Pre-sentence Investigation Report (“PSR”). The

probation office based the amount of drugs attributable to Wilson on the investigators’ report that

Wilson had told them that he “sold four ounces of cocaine hydrochloride per week for the last

two years and that he sold two ounces of crack cocaine per week for the past two or three



                                                2
months.” (J.A. 228.) Based on these amounts, the probation office recommended a base offense

level of 36.

       Wilson filed an objection to the amount of drugs attributed to him, arguing that he told

the investigators that he had been selling drugs for two months, not two years. The district court

held an evidentiary sentencing hearing on February 14, 2005. Detective Ballard testified that

Wilson told investigators that he sold four ounces of powder cocaine per week for the last two

years, and that he sold two ounces of crack cocaine per week for the last two to three months.

Ballard also testified that Wilson said that a man named Phillip Grayson fronted him the

kilogram of cocaine powder seized at his residence for $25,000. The district court asked Ballard

whether it was likely that someone who had been selling drugs for a short period of time would

be fronted $25,000 worth of cocaine. Ballard answered that a person would have to be involved

in drug trafficking with the source of the drugs for “quite some time” to establish trust before the

source would front that much cocaine to a dealer.

       Wilson then testified, stating that he had only one drug supplier –a man known only as

“Tennessee” or “Rico.” Wilson stated that he began getting cocaine from Tennessee/Rico two

months before his arrest, when he began selling drugs for the first time. Wilson stated that

Tennessee/Rico fronted him the kilogram of cocaine powder the day before his arrest, and that

this was the first time he ever received such a large amount of cocaine. Wilson said that

Tennessee/Rico fronted him a kilogram of cocaine because he wanted to help Wilson record a

CD to get started in the music business.

       Wilson further testified that he had been using cocaine daily for two years. He also stated

that he had not been employed since 2000, and that he supported his drug habit by selling CDs,


                                                 3
shirts, and by breeding pit bull dogs and selling their puppies. Wilson stated that he sold pit bulls

for $200 to $400 per puppy and that he usually had three or four litters per year. Wilson also

stated that the $7,500 found in his dresser came from selling CDs, puppies, and shirts.

       On cross-examination Wilson admitted that after his arrest he initially lied to the

investigators by telling them that he and his brother had found the cocaine in the woods. Wilson

also admitted that he later told investigators that a man named Phillip Grayson had been fronting

him cocaine, which was also a lie.

       The district court then questioned Wilson about his distribution of cocaine. Wilson stated

that he started selling cocaine two or three months before his arrest by contacting two or three

individuals with whom he used drugs. These individuals became his customers and also bought

drugs for other people. Wilson stated that he bought two ounces of cocaine per week, and that he

personally used some of the drugs. Wilson explained that he could get approximately twenty-

two $100 packages out of an ounce of cocaine, which he would sell in about three days, and that

the typical cocaine user spends about $150 to $200 per day buying drugs.

       After Wilson testified, the government argued that according to Wilson’s testimony, his

two-year drug habit would have cost him approximately $30,000 to $40,000 a year. Since

Wilson was not employed during this time, the district court could reasonably conclude that he

was selling drugs during this time.

       The district court then stated its calculation of Wilson’s offense level. First, the district

court adopted the PSR recommendation of a base offense level of thirty-six based on the amount

of drugs attributable to Wilson. The district court found that Wilson sold powder cocaine for

approximately two years before his arrest, and sold crack cocaine for approximately two months


                                                  4
before his arrest. Next, the district court applied a two-level enhancement for possession of a

firearm, raising the offense level to thirty-eight. The district court then sua sponte found that

Wilson obstructed justice by committing perjury1 during his sentencing testimony in an attempt

to have his sentence reduced, and applied a two-level enhancement under the Federal Sentencing

Guidelines (the “Guidelines”), section 3C1.1.2 The district court said that it believed Wilson was

untruthful about “the drug quantities, his income, his expenses, his source of supply for the

drugs, the number of customers he had, how he located his customers, [and] what the customers

were doing with the drugs when he gave the drugs to them.” (J.A. 163.) This enhancement

raised Wilson’s offense level to forty. The district court also found that Wilson did not accept

responsibility for his crime and denied his request for a three-level reduction under the

Guidelines, section 3E1.1.3

       1
          The portions of Wilson’s testimony that the district court found to be “perjurious” are
better characterized as “false statements.”
       2
           U.S.S.G. § 3C1.1 states:
       If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or
       impede, the administration of justice with respect to the investigation,
       prosecution, or sentencing of the instant offense of conviction, and (B) the
       obstructive conduct related to (i) the defendant's offense of conviction and any
       relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

       3
           U.S.S.G. § 3E1.1 states:

       (a) If the defendant clearly demonstrates acceptance of responsibility for his
       offense, decrease the offense level by 2 levels.
       (b) If the defendant qualifies for a decrease under subsection (a), the offense level
       determined prior to the operation of subsection (a) is level 16 or greater, and upon
       motion of the government stating that the defendant has assisted authorities in the
       investigation or prosecution of his own misconduct by timely notifying authorities
       of his intention to enter a plea of guilty, thereby permitting the government to
       avoid preparing for trial and permitting the government and the court to allocate

                                                  5
       Wilson’s attorney then set forth mitigating factors –citing to Wilson’s youth, lack of

education, and the fact that he grew up in a fatherless household. Wilson’s attorney also argued

that Wilson did not purposely make false statements during his sentencing testimony, but was

probably confused. Wilson’s attorney asserted that Wilson was a slow learner and pointed out

that while he received an attendance certificate from high school, he did not graduate.

       Altogether, the district court calculated an offense level of forty and a criminal history

category of I, which yielded an advisory Guidelines range of 292 to 365 months imprisonment.

The parties agreed to abide by a provision in the plea agreement stating that the sentence must be

within the Guidelines range. The district court accepted this provision, while noting that Booker

made the Guidelines advisory. After stating that it had also considered the factors under 18

U.S.C. § 3553(a), the district court announced a sentence of 292 months.

       On March 24, 2005, the district court ordered Wilson to undergo a psychological

evaluation, based on a joint motion by the parties for a competency evaluation. In granting the

motion, the district court agreed to withhold sentencing pending the evaluation. Wilson was

found to be competent, although of lower-than-average intelligence. Wilson waived a

competency hearing.

       The district court resumed the sentencing hearing on September 16, 2005. Wilson’s

attorney argued that the obstruction of justice enhancement should be removed and that the

reduction for acceptance of responsibility should be applied because Wilson has lower

intelligence and did not intentionally give false testimony during the sentencing hearing. The



       their resources efficiently, decrease the offense level by 1 additional level.


                                                 6
district court disagreed, holding that since Wilson was found to be competent, the prior finding

that he intentionally made false statements stood. The district court announced its intention to

sentence Wilson to 292 months. At this point, the parties agreed to waive the provision in the

plea agreement that stated that the sentence must be within the Guidelines range, and jointly

requested a lower sentence. The district court accepted the waiver, and imposed a sentence of

240 months imprisonment. Wilson’s attorney requested a further reduction for acceptance of

responsibility, which the district court denied.

       Wilson filed a timely notice of appeal. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

                                          II. ANALYSIS

                         A. The Obstruction of Justice Enhancement

                                      1. Standard of Review

       A district court's ruling that a defendant obstructed justice is a finding of fact which will

be disturbed on appeal only if clearly erroneous. United States v. August, 984 F.2d 705, 714 (6th

Cir.1992), cert. denied, 510 U.S. 854 (1993).

       Where a defendant objects to an enhancement resulting from his testimony, the district

court must identify the portions of the testimony found to be false, and make a finding that the

false testimony concerned a material matter, and was given intentionally, rather than as the result

of confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94-95 (1993);

United States v. Paulette, 457 F.3d 601, 607 (6th Cir. 2006).

                                           2. Argument




                                                   7
        Wilson says that the district court erred in applying the obstruction enhancement because

while it found some of his testimony to be inconsistent with the statement he gave to

investigators, it failed to cite to the actual testimony it found to be false and also failed to make a

finding that the testimony was material and intentional. Wilson argues that the inconsistencies

were not intentional. Wilson says that he is mentally handicapped and that he was subjected to

close scrutiny on cross-examination by both the government and the district court at the

sentencing hearing, which caused him to become confused. Wilson also argues that the district

court’s comments that Wilson appeared to be “motivated” to give false statements in an effort to

reduce his offense level and sentence, were not a finding of materiality because:

        Materiality is determined at the time a statement is made and requires the ability
        or tendency to influence a decision. United States v. Lee, 349 F.3d 412, 416 (6th
        Cir. 2004). Motive, on the other hand, is the inducement that leads or temps one
        to act. BLACKS LAW DICTIONARY.

Petitioner’s Brief, at 17.

                                           3. Resolution

                                                  a.

        The district court did not err in applying the obstruction enhancement. The sentencing

hearing was quite lengthy and split-up over two days. While the district court did at times

summarize the testimony it found to be false, it also discussed at length the specific testimony it

found to be false. For instance, after the district court first raised the issue of whether it should

apply the obstruction enhancement, Wilson’s attorney and the district court engaged in the

following exchange:

        [WILSON’S ATTORNEY]: [I] don’t believe that he has a motive, in his
        responses, that someone of a higher education level or someone with a higher


                                                   8
       intelligence would form. He is a slow learn[er]. He’s slow to respond, slow to
       understand. being a special --

       THE COURT: So you want the court to believe that the defendant received drugs
       worth $25,000 from some person he only knows as Rico or Tennessee, he’s only
       known for a couple of months, that he met him at some point through a dog
       transaction? I don’t know that it takes much in the way of intelligence for
       someone to create a fictitious person.

(J.A.163-64.)

       The district court’s comment clearly reflects that it found Wilson’s testimony false

regarding the circumstances leading up to his possession of the kilogram of powder cocaine, and

the length of time he had been dealing drugs.

       The district court also compared Wilson’s testimony regarding his drug distribution to his

testimony about his dog breeding activities. The district court noted that while Wilson was able

to discuss in depth the breeding and selling of pit bulls and even drew distinctions between the

selling prices of puppies bred from several different combinations of dogs, he had trouble

testifying to his selling of cocaine despite the fact that he was referring to $100 or $250 sales,

which involve little aggregation or math skills. (J.A. 167-68.) In particular, the district court

noted that Wilson’s demeanor on the stand led it to believe that he was giving false testimony:

       [I] was convinced, based upon his testimony and the way he answered the
       questions, he actually did have some experience in breeding dogs and selling
       dogs, because he was direct, he had command of the facts, and was
       knowledgeable. With respect to the drug sales, I found him to be very evasive,
       very, very vague, and very general. And the Court’s conclusion was, he was not
       being truthful with respect to those.

(J.A. 167.)




                                                  9
                                                 b.

       Next, Wilson’s argument that the district court’s observation that Wilson appeared

motivated to lie in an effort to have his sentence reduced is not the equivalent of a finding of

materiality is unavailing. Under the Guidelines, a “material” statement is one that, “if believed,

would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, comment

n. 6. Wilson’s testimony as to the amount of drugs attributable to him, was unquestionably

material to the length of his sentence because the primary factor in determining his base offense

level was the amount of drugs attributed to him. Thus the district court’s observation that Wilson

was motivated to lie in order to reduce his sentence encompassed a finding of the materiality of

his false statements.

                                                 c.

       The district court also found that Wilson knowingly made false statements. First, the

district court specifically noted that Wilson was found to be competent after a psychological

evaluation. Second, the district court specifically stated that it was rejecting Wilson’s argument

that his inconsistent testimony was the result of low intelligence, confusion, or inadvertence,

because Wilson had demonstrated that he knew the difference between truth and lies:

       [A]ccording to the defendant’s own admission, although he did not create a
       fictitious person, he did make up a story about someone else earlier,4 and the
       reasons he made it up was because he was under pressure from the officers. And
       here today he’s under pressure because of the sentence that he might receive. So I
       don’t know that it’s a stretch of the imagination to think that the defendant has the
       capability of creating a false story if he thinks it would benefit him. He’s already
       admitted he’s done it before.



       4
          The district court appears to be referring to Wilson’s testimony that he told
investigators that Phillip Grayson fronted him cocaine, which was a lie.

                                                 10
(J.A. 164, footnote added)

                                B. Acceptance of Responsibility

                                     1. Standard of Review

       We review for clear error a district court's determination of whether a defendant has

accepted responsibility for his crime. United States v. Robinson, 152 F.3d 507, 512 (6th Cir.

1998). A defendant who pleads guilty is not automatically entitled to a reduction for acceptance

of responsibility as a matter of right. United States v. Mahaffey, 53 F.3d 128, 134 (6th Cir.

1995). Wilson bears the burden of establishing that he has accepted responsibility within the

meaning of U.S.S.G. § 3E1.1. Id. (citing United States v. Meachem, 27 F.3d 214, 217-18 (6th

Cir. 1994)). Also, the application of the obstruction enhancement ordinarily indicates a lack of

acceptance, although it is not an absolute bar. U.S.S.G. § 3E1.1, comment n. 4.

                                          2. Argument

       Wilson argues that the district court’s erroneous finding of obstruction led it to

erroneously deny him a three-level reduction based on his acceptance of responsibility. Wilson

says that he pled guilty to the conspiracy because he was factually guilty, and signed a detailed

factual stipulation supporting his guilty plea. Wilson points out that although he disputed

portions of Detective Ballard’s account of his post-arrest statement regarding the length of time

he sold drugs, he acknowledged that he trafficked cocaine from the moment he was detained by

law enforcement.

                                          3. Resolution

       Wilson has not demonstrated that the district court clearly erred in denying him a

reduction for acceptance. A defendant who is not forthcoming as to his offense conduct in an


                                                11
attempt to affect his sentence has not accepted responsibility. See United States v. Garcia, 252

F.3d 838, 841-42 (6th Cir. 2001) (district court properly denied an adjustment for acceptance

where a defendant testified at the sentencing hearing and was frequently evasive as to his drug

trafficking activities.) Here, the district court’s rejection of a reduction was based on its finding

that Wilson’s description of his drug trafficking activities was evasive, illogical, and contrary to

it’s experience and knowledge of the activities of drug dealers.

       Moreover, Wilson has failed to show that the district court committed an error

“substantially affecting his rights.” Fed. R. Crim. P. 52(a).5 If a reviewing court is certain that an

alleged error “did not affect the district court’s selection of the sentence imposed,” the court will

not vacate the sentence and remand. United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir.

2005) (quoting Williams v. United States, 503 U.S. 193, 203 (1992)). Here we can be certain that

the alleged error was harmless because the district court expressly stated that “[i]f the Court had

found that the [G]uidelines were somewhat different, the Court can conceive of no reason why it

would have imposed a different sentence.” (J.A. 207.) Moreover, we note that if the district

court reduced the offense level by three, this would have resulted in a offense level of thirty-

seven and a criminal history category of I, which yields an advisory range of 210-262 months.6

The 240-month sentence that the district court selected was within this range. Therefore, a



       5
           Fed. R. Crim. P. 52(a) states:

                (a) Harmless Error. Any error, defect, irregularity, or variance that does
                not affect substantial rights must be disregarded.

       6
        We refer to the 2004 Sentencing Guidelines Manuel, which the probation office used to
determine Wilson’s sentencing recommendation.

                                                 12
correction of the alleged error as to acceptance would not have resulted in a lower sentence.

                          C. Substantive and Procedural Due Process

                                     1. Standard of Review

        We recently explained in United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006)

that:

        We have now split our reasonableness review into two inquiries: procedural
        reasonableness and substantive reasonableness. A sentence may be procedurally
        unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines
        range or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and
        instead simply selects what the judge deems an appropriate sentence without such
        required consideration.” United States v. Webb, 403 F.3d 373, 383 (6th Cir.
        2005). A sentence may be considered substantively unreasonable when the
        district court “select[s] the sentence arbitrarily, bas[es] the sentence on
        impermissible factors, fail[s] to consider pertinent § 3553(a) factors or giv[es] an
        unreasonable amount of weight to any pertinent factor.” Id. at 385.

Moreover, a district court is required to properly compute the advisory Guidelines range for

consultation. Hazelwood, 398 F.3d at 801.

                                           2. Argument

        Wilson argues that the district court did not impose a reasonable sentence because it

improperly calculated his Guidelines range by adding the obstruction enhancement and denying

the reduction for acceptance of responsibility. Wilson says that the proper range should have

been based upon an offense level of 35, and criminal history category of I, which yields a range

of 168 to 210 months imprisonment.

        Wilson next argues that his sentence was unreasonable because the district court based

its decision on impermissible factors. Specifically, Wilson says that the district court

unreasonably ignored the Guidelines as opposed to considering them in an advisory manner



                                                 13
when it stated that “since it’s a non[G]uidelines sentence, I think that it would necessarily

follow that the Court ignored the Guidelines and imposed the sentence that it did.” (J.A. 207.)

                                           3. Resolution

       The district court properly considered the correct Guidelines range. As discussed in

sections II.A. and II.B., the district court reasonably enhanced Wilson’s offense level for

obstruction of justice and reasonably denied his request for a reduction for acceptance of

responsibility.

       Next, Wilson’s argument that the district court relied on impermissible factors by

“ignoring” the Guidelines is meritless. Wilson takes the district court’s comment out of context.

The district court expressly stated that the 240-month sentence took into account its previous

findings of the drug amount attributed to Wilson, as well as the section 3553(a) factors such as

Wilson’s lack of remorse and failure to accept responsibility. (J.A. 204-05.) The district court

then went on to say that it was “ignoring” the Guidelines because it was agreeing to reduce

Wilson’s sentence at the parties’ request. The district court immediately explained that, “[h]ad

it stayed within the Guidelines, the sentence would have been higher.” (J.A. 207.) Thus, the

district court clearly maintained throughout the sentencing hearing that it was taking into

account the Guidelines and section 3553(a) factors as the starting point for the sentence, then

varying the sentence at the parties’ joint request.

                                       III. CONCLUSION

       For the reasons stated above, Wilson’s sentence is AFFIRMED.




                                                  14
