United States v. Ofcky, Robert

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1420

United States of America,

Plaintiff-Appellee,

v.

Robert Ofcky,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 98 CR 101--Rudy Lozano, Judge.

Argued November 1, 2000--Decided January 23, 2001

Before Cudahy, Coffey, and Easterbrook, Circuit

Judges.

Cudahy, Circuit Judge. Robert Ofcky was

convicted of unlawful possession of a firearm by

a convicted felon in violation of 18 U.S.C. sec.

922(g)(1). On February 4, 2000, following a

sentencing hearing, Ofcky was sentenced to 78

months in prison, three years of supervised

release and a special assessment of $100. He

appeals his sentence, and we affirm.

During the week of March 16, 1998, Nancy Ofcky,

the defendant’s wife, left the family home in

fear and sought the counsel of Stanley Jablonski,

a divorce attorney. Nancy informed her attorney

that her husband was a convicted felon and that

there were numerous firearms and ammunition

hidden throughout their home. She also told

Jablonski that she had been "straw" purchasing

firearms for Ofcky, meaning that Ofcky gave her

money and directed her to purchase particular

firearms and turn them over to him. Jablonski

forwarded this information to the United States

Attorney’s Office. A federal search warrant for

Ofcky’s residence was obtained and executed on

March 17, 1998. Recovered from Ofcky’s home was

a tidy arsenal--13 rifles, more than 1,000 rounds

of ammunition, 23 ammunition magazines,

miscellaneous gun parts, The Anarchist Cookbook

and gun literature.

The district court found that in addition to

the items found at Ofcky’s home that day, there

had previously been two M-11 firearms in a hidden

compartment in the bathroom. The court based this

finding on the testimony of Ofcky’s wife, Nancy,

and his son, Christopher, who both testified that

they were familiar with the characteristics of a

fully automatic machine gun.

The district court determined that the total

offense level under the U.S. Sentencing

Guidelines was 26. It started with an offense

level of 20 because the offense involved a

machine gun and the defendant was a "prohibited

person."/1 The judge added four levels for the

number of weapons and two levels for obstruction

of justice. See U.S. Sentencing Guidelines Manual

sec.sec. 2K2.1(b) (number of weapons), 3C1.1

(obstruction of justice).

Ofcky appeals on three grounds. First, he

argues that the district court erred in finding,

as relevant conduct, by a preponderance of the

evidence, possession of an automatic weapon. This

enhanced his base offense level from 14 to 20,

thereby nearly doubling his maximum base sentence

from 24 to 46 months. Second, Ofcky contends that

the district court was clearly erroneous in

finding him guilty of obstruction of justice.

Third, he argues that the district court failed

to give proper consideration to the mitigating

factors that he believes mandated a downward

departure in the sentencing calculations.

I.

Ofcky’s first claim is that the district court

erred in enhancing his sentence based on his

possession of an automatic weapon. When reviewing

the decision of a district court to enhance a

sentence based on relevant conduct under U.S.

Sentencing Guideline sec. 1B1.3(a)(2), we accord

deference to the district court:

Our review of a district court’s sentencing

decision is deferential. We will uphold a

Guidelines sentence "so long as the district

court correctly applied the Guidelines to

findings of fact that were not clearly

erroneous." United States v. Duarte, 950 F.2d

1255, 1262 (7th Cir. 1991), cert. denied, 506

U.S. 859, 113 S.Ct. 174, 121 L.Ed.2d 120 (1992);

see also United States v. Rivera, 6 F.3d 431, 444

(7th Cir. 1993). The determination that uncharged

activity constitutes "relevant conduct" . . . is

a finding of fact, which we will not disturb

unless it is clearly erroneous.

United States v. Sykes, 7 F.3d 1331, 1335 (7th

Cir. 1993). We will reverse for clear error only

if we have "a definite and firm conviction that

a mistake has been committed." United States v.

Kroledge, 201 F.3d 900, 905 (7th Cir. 2000).

Ofcky challenges the district court’s

application of a "preponderance of the evidence"

standard in determining his relevant conduct.

Because Ofcky failed to object to the use of the

preponderance standard at the time the district

court determined his relevant conduct, he waived

this issue on appeal. See United States v.

Rivero, 993 F.2d 620, 623 (7th Cir. 1993). Thus,

we must reverse only if we find plain error. See

United States v. Robinson, 20 F.3d 270, 273 (7th

Cir. 1994); Rivero, 993 F.2d at 623.

Under the Sentencing Guidelines, possession of

a firearm by a prohibited person has a base

offense level of 14 points and a sentence range

of 18 to 24 months. U.S. Sentencing Guidelines

Manual sec. 2K2.1(a)(6); ch. 5, pt. A./2 After

a finding of relevant conduct, the district court

increased Ofcky’s base offense level from 14 to

20, giving him a sentence range of 37 to 46

months. See id. ch. 5, pt. A. This, Ofcky

contends, was such a dramatic increase that it

warranted a finding of relevant conduct only by

clear and convincing evidence. Ofcky argues that

our decision in United States v. Hardin, 209 F.3d

652 (7th Cir. 2000), requires that, in extreme

cases, a sentencing factor must be proven by

clear and convincing evidence./3 What we did say

in Hardin was that "perhaps in extreme

circumstances . . . clear and convincing

evidence" would be the standard of proof for

sentencing factors. 209 F.3d at 654. Ofcky

concludes that his case is such a case because

the enhancement under the Sentencing Guidelines

almost doubled the maximum sentence Ofcky could

have otherwise received. For this assertion,

Ofcky relies on the Supreme Court’s decision in

McMillan v. Pennsylvania, 477 U.S. 79 (1986); his

reliance is misplaced. In McMillan, Ofcky argues

that the Supreme Court concluded that due process

requires a clear and convincing standard where

the magnitude of a contemplated departure is

sufficiently great that it can be characterized

as "a tail which wags the dog of the substantive

offense." See 477 U.S. at 88. The Court in

McMillan was dealing with a penalty statute that

provided for a mandatory minimum sentence of five

years’ imprisonment if the sentencing judge

found, by a preponderance of the evidence, that

a person "visibly possessed a firearm" during the

commission of one of certain enumerated offenses.

477 U.S. at 81 (quoting Pennsylvania’s Mandatory

Minimum Sentencing Act, 42 Pa. Const. Stat. sec.

9712 (1982)). The petitioners argued that--even

if visible possession was not an element of the

offense for which one is convicted--due process

required proof by more than a preponderance of

the evidence. The Court disagreed, and concluded

that the preponderance standard was sufficient.

McMillan, 477 U.S. at 90-91. It reasoned that the

statute at issue did not alter the maximum

penalty for the crime or create a separate

offense with a separate penalty; instead, the

statute "operates solely to limit the sentencing

court’s discretion within the range already

available to it without the special finding of

visible possession of a firearm. Section 9712

’ups the ante’ for the defendant only by raising

to five years the minimum sentence which may be

imposed within the statutory plan." Id. at 87-88.

There is nothing in this ruling that says what

Ofcky wants it to say--that a significant

increase in a sentence must be supported by facts

proven by clear and convincing evidence.

The government correctly notes that "simply a

preponderance of the evidence is all that is

required for a factual finding under the

Sentencing Guidelines." United States v. Porter,

23 F.3d 1274, 1277 (7th Cir. 1994). This court

has not yet determined when the increase in a

defendant’s sentence is so great as to require a

more demanding standard of proof. See United

States v. Rodriguez, 67 F.3d 1312, 1322 (7th Cir.

1995). But it has decided cases in which a large

sentence increase was not so great as to require

a higher standard of proof. See, e.g., id. at

1323 (upholding sentence enhancement from 51-63

months to life imprisonment); Porter, 23 F.3d at

1276 (7th Cir. 1994) (enhancement from 92-115

months to 137 months); United States v. Masters,

978 F.2d 281, 283-85 (7th Cir. 1992) (enhancement

from 33-41 months to 40 years). Ofcky’s

enhancement, standing alone, is not an extreme

case, particularly in light of the increases this

court has already approved.

Ofcky’s second challenge to the enhancement is

premised on an argument that--even under a

preponderance of the evidence standard--the

evidence lacked sufficient foundation,

credibility and corroboration to warrant a

finding of possession of an automatic weapon.

Ofcky was not in possession of an automatic

weapon at the time of his arrest. The only

evidence presented at trial on this issue was the

testimony of Ofcky’s wife, Nancy, and son,

Christopher.

Ofcky claims that the testimony of both these

family witnesses lacks credibility. Nancy he

deems incredible because she is estranged from

him and because she was granted immunity from

prosecution in exchange for testifying against

Ofcky. Christopher’s testimony is supposedly

incredible because he loves his mother, comes

from a broken family and fears the loss of both

his parents, Ofcky argues. App. Br. at 14-15.

This is not enough to ascribe error to the

district court in crediting Nancy’s and

Christopher’s testimony. We give credibility

determinations a lot of deference. See 18 U.S.C.

sec. 3742(e)(4); United States v. Moutry, 46 F.3d

598, 603 (7th Cir. 1995). As a general matter,

testimony will only be found incredible as a

matter of law if it is impossible for the witness

to have possessed the information to which he or

she testified or when the testimony defies the

laws of nature. See United States v. Wallace, 32

F.3d 1171, 1173 (7th Cir. 1994) (quoting United

States v. Dunnigan, 884 F.2d 1010, 1013 (7th Cir.

1989)). Hence, the district court’s conclusion

regarding the credibility of Nancy and

Christopher must stand.

Ofcky next challenges the testimony of Nancy

and Christopher on the grounds that it lacked

sufficient indicia of reliability. See United

States v. Morrison, 207 F.3d 962, 967 (7th Cir.

2000) (sentencing court may consider a wide range

of information in making sentencing

determinations, but only if it has sufficient

indicia of reliability to support its probable

accuracy). Ofcky contends that neither witness

established that he or she knew what an automatic

weapon is, and when or where Ofcky possessed one.

They both testified that they knew Ofcky

possessed a weapon that could shoot multiple

bullets with one pull of the trigger. Nancy

testified that she had shot such a weapon before.

Christopher testified that Ofcky had told him the

difference between a semi-automatic weapon and a

fully automatic weapon. This testimony, together

with the fact that the judge and jury found these

witnesses credible, is sufficient to indicate the

reliability of their testimony about the nature

of the automatic weapons and Ofcky’s possession

of them.

Ofcky also claims that his possession of the

fully automatic weapons was in doubt because

there was no evidence to corroborate Nancy’s and

Christopher’s testimony. This argument, too,

fails to register. It is well established that a

conviction may be based solely upon the

uncorroborated testimony of an accomplice. See

United States v. Henderson, 58 F.3d 1145, 1148-49

(7th Cir. 1995). We will not re-evaluate the

credibility of testimony even if it is wholly

uncorroborated. See United States v. Wilson, 31

F.3d 510, 514 (7th Cir. 1994).

Ofcky’s strongest argument about whether the

enhancement was appropriate is that the

government failed to establish that the relevant

conduct had sufficient similarity, regularity and

temporal proximity to the offense of conviction,

as required under United States v. Sykes, 7 F.3d

1331, 1336 (7th Cir. 1993). In Sykes, we noted

that we could not prescribe the relative

importance of these elements, but if one element

is not present at all, we would demand a stronger

presence of at least one of the other components.

See id. The government notes that sufficient

evidence was presented at the sentencing hearing

to demonstrate that possession of the fully

automatic weapons satisfied this test. The

sentencing exhibits presented by the government

on this point were interviews conducted by Bureau

of Alcohol, Tobacco and Firearms Agent Eric Ellis

of the defendant’s sons, Andrew and Christopher

Ofcky. Both believed the M-11 firearms were

hidden in the bathroom just prior to the search.

Also admitted was an interview of Nancy Ofcky,

who said she had straw purchased the two firearms

for Ofcky and gave them to him, and that he later

demonstrated to her how they were fired. Paul

Wright, a gun salesman, was also interviewed by

Agent Ellis, and he said he had observed Ofcky in

possession of an M-11 firearm. Ofcky offered

nothing to contradict this evidence. This

evidence is sufficient to establish, by a

preponderance of the evidence, that the

possession of the fully automatic weapons was

relevant conduct for the purpose of sentencing.

Witnesses testified to the existence of the gun,

as part of Ofcky’s extensive and regular

collection, just prior to the search-- how this

could fail the Sykes test has not been

demonstrated. It was therefore not clearly

erroneous for the district court to conclude,

based on the testimony of the two government

witnesses, and by a preponderance of the

evidence, that Ofcky possessed an automatic

weapon.

II.

Ofcky next argues that the court’s enhancement

of his sentence for obstruction of justice was

not supported by the evidence, as provided by

sec. 3C1.1. of the U.S. Sentencing Guidelines.

When a court makes a finding that a defendant

obstructed justice, we review for clear error.

See United States v. Webster, 125 F.3d 1024, 1037

(7th Cir. 1997).

The court found at the sentencing hearing that

Ofcky committed perjury and willfully obstructed

justice. Citing United States v. Buchannan, Ofcky

argues that the district court must make specific

separate findings sufficient to establish an

obstruction of justice claim. See 115 F.3d 445,

450 (7th Cir. 1997). For a court to conclude that

an enhancement is required, he argues, "it is

preferable for a District Court to address each

element of the alleged perjury in a separate and

clear finding." Id. at 451 (quoting United States

v. Dunnigan, 507 U.S. 87, 95 (1992)). It

certainly is preferable, but in its decision in

Dunnigan, on which we relied in Buchannan, the

Supreme Court noted that application of the

enhancement is acceptable where "the court makes

a finding of an obstruction of, or impediment to,

justice that encompasses all of the factual

predicates for a finding of perjury." Dunnigan,

507 U.S. at 95; see also Buchannan, 115 F.3d at

451. The factual predicates consist of a witness’

testifying under oath or by affirmation, giving

"false testimony concerning a material matter

with the willful intent to provide false

testimony, rather than as a result of confusion,

mistake, or faulty memory." Id. at 94.

Here, the court found that Ofcky committed

perjury in testifying that he was an expert in

firearms, that he did not own or have access to

the firearms nor possess the keys to the gun

cabinet and that he did not purchase guns from

Paul Wright. This testimony was directly

contradicted by the government’s witnesses. The

government correctly notes that an obstruction of

justice enhancement is appropriate where the

trial judge weighed the testimony of the

defendant against that of others and determined

that the defendant’s testimony lacked

credibility. See United States v. Pedigo, 12 F.3d

618, 629 (7th Cir. 1993). The determination of

the district court met all the standards required

for the enhancement. See United States v.

Mustread, 42 F.3d 1097, 1105-06 (7th Cir. 1994)

(separate findings on each element are not

strictly necessary). Thus, this sentencing

enhancement will stand.

III.

Ofcky’s final argument is that the district

court erred in not decreasing Ofcky’s sentence

because the Indiana code at the time of Ofcky’s

arrest permitted a convicted felon to possess a

firearm in his home. See Ind. Code sec. 35-47-4-4

(repealed 1999). A district court may depart

downward from the Guidelines if the judge finds

a "mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration

by the Sentencing Commission in formulating the

guidelines." 18 U.S.C. sec. 3553(b). But the

government correctly notes that this court lacks

jurisdiction to review a sentencing court’s

refusal to exercise its discretion to depart

downward from the sentence prescribed by the

Guidelines. See United States v. Sinclair, 74

F.3d 753, 763 (7th Cir. 1996). The only time such

a refusal is reviewable is when the court

erroneously concludes that it did not have

authority for such a departure. See id.; United

States v. Poff, 926 F.2d 588, 590-91 (7th Cir.

1991). Ofcky has not argued that this was the

case, and nothing in the record indicates that

the district court labored under such an

erroneous impression. Thus, the district court

did not err in failing to take this ostensibly

mitigating factor into account.

For the foregoing reasons, the judgment of the

district court is

Affirmed.

/1 U.S. Sentencing Guidelines Manual sec.

2K2.1(a)(4)(B). For the purpose of this

Guideline, one may satisfy the definition of

"prohibited person" by meeting one of several

standards. Here, Ofcky qualified as a prohibited

person because he had "been convicted of[ ] a

’crime punishable by imprisonment for more than

one year,’ as defined by 18 U.S.C. sec.

921(a)(20) . . . ." U.S. Sentencing Guidelines

Manual sec. 2K2.1, cmt. n.6 (1998).

/2 This is based on Ofcky’s criminal history

category of II, pursuant to sec. 4A1.1 of the

U.S. Sentencing Guidelines.

/3 A sentencing factor, as we know from Apprendi v.

New Jersey, 120 S.Ct. 2348 (2000), may require

proof beyond a reasonable doubt--if it increases

the potential sentence beyond the statutory

maximum. That is not Ofcky’s contention here; the

sentencing range considered by the district court

was below the statutory maximum of 10 years. See

18 U.S.C. sec. 942(a)(2) (penalty provision for

violations of sec. 922(g)).