The opinion
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0203n.06
No. 16-1970
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 05, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
LIVERTIS RILEY )
a.k.a. LEVERTIS RILEY, )
OPINION
)
Defendant-Appellant. )
)
Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Livertis Riley, also known as Levertis
Riley, appeals his convictions after a jury trial for counts of unlawful possession of firearms and
ammunition by a felon, in violation of 18 U.S.C. § 922(g). Riley makes six claims of error.
First, Riley challenges the district court’s failure to grant his motion to suppress. Second, Riley
claims that the trial court allowed prejudicial and inadmissible rebuttal evidence to be presented
at trial. Third, Riley challenges the sufficiency of evidence supporting his conviction. Fourth,
Riley argues that he is entitled to a new trial on the basis of newly discovered evidence. Fifth, he
claims that his sentence is procedurally unreasonable. Finally, he argues that the cumulative
effect of these errors amounts to a denial of due process. We VACATE the sentence and
REMAND for resentencing consistent with this opinion. We AFFIRM in all other respects.
No. 16-1970, United States v. Riley
I. BACKGROUND
In October 2014, the FBI Violent Crime Task Force (“VCTF”), a Detroit-based unit
composed of police officers and FBI agents, became aware of an outstanding arrest warrant for
Riley out of the state of West Virginia. R. 115 (Jan. 6, 2016 Trial Tr. at 6, 27) (Page ID #830,
851). The warrant was related to an alleged armed robbery of a residence. R. 116 (Jan. 7, 2016
Trial Tr. at 15) (Page ID #955). Upon learning of the warrant, Agent Matt Krupa ran a database
check and obtained a copy of Riley’s photograph from his driver’s license. R. 115 (Jan. 6, 2016
Trial Tr. at 55–56) (Page ID #879–80). Krupa also found two Detroit addresses associated with
Riley: 3920 Buckingham and 15420 Sussex. Id. at 56 (Page ID #880). Each house is roughly a
thirty-minute drive away from the other. Id. at 59 (Page ID #883).
On October 14, 2014, Krupa and Officer Robert George drove to the Buckingham
address. Id. at 56–57 (Page ID #880–81). Krupa testified that the Buckingham house appeared
unoccupied; he observed that there was no furniture in the front family room and there was a “for
rent” sign at the front of the house. Id. at 58 (Page ID #882).
Krupa and George then drove to the Sussex house. Id. at 60 (Page ID #884). There,
Krupa observed several people standing on the front porch, including Riley. Id. Krupa also
observed a blue GMC Yukon parked in the driveway, and discovered that the car was registered
to Riley at the Buckingham address. Id. at 62 (Page ID #886). Krupa and George, along with
other members of the VCTF, surveilled the Sussex house for three hours until it began raining
and they lost visibility. Id. at 62–63 (Page ID #886–87). The GMC Yukon remained parked
outside the house during the entire three hours. Id. at 63 (Page ID #887). When the VCTF
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surveillance team returned the next day, they again observed the GMC Yukon, and saw Riley
coming in and out. Id. at 64 (Page ID #888). The VCTF team observed Riley and his co-
defendant, Michael Murray, loading furniture and boxes into the GMC Yukon. Id. at 35–36
(Page ID #859–60). Eventually, defendant’s mother, Deidre Lucas, got in the GMC Yukon and
drove away. Although the VCTF team initially planned to arrest Riley by initiating a traffic stop,
after several hours of surveillance, Riley had not left the Sussex house. Id. at 65 (Page ID #889).
The VCTF team therefore obtained a search warrant to enter the house. Id.
The VCTF team surrounded the house before knocking and shouting, “Police! Search
Warrant!” Id. at 66–67 (Page ID #890–91). They heard no response. Id. at 68 (Page ID #892).
The team then breached the front exterior and interior doors with a battering ram. Id. at 68–69
(Page ID #892–93). A “very aggressive” pit bull came to the front and was shot by an agent. Id.
at 69 (Page ID #893). They encountered two more dogs in the kitchen, and another in a
bedroom, which they were able to restrain. Id. at 72–74 (Page ID #896–98). The VCTF team
continued to shout “Police! Search Warrant!” and ordered any occupants to come out, but they
heard no response. Id. at 69–70 (Page ID #893–94).
The agents finally came to a bedroom door on the northeast corner of the first floor of the
house and found it locked. Id. at 75 (Page ID #899). Co-defendant Murray spoke through the
door, and asked what they wanted. Id. at 77 (Page ID #901). Agent Krupa identified himself,
and again announced that they had a search warrant and told them to come out of the room. Id.
Murray identified himself and asked why they shot his dog. Id. Krupa and Murray then spoke
through the door for “[s]everal minutes.” Id. at 79 (Page ID #903). Eventually, Riley also
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identified himself and said that this was his mother’s house. Id. Krupa asked Riley if there were
any drugs in the house, and Riley said that there were none. Id. at 80 (Page ID #904). Krupa
also asked if there were any guns in the house, and Riley said that “there might be a gun in here.”
Id. Krupa then said they needed to surrender, and asked if there was a gun in the room with
them, but did not get a response. Id. After “[a] few minutes” of silence, one of the officers
informed Krupa that Riley and Murray said they were coming out of the room. Id. at 81 (Page
ID #905). Krupa warned them not to come out with any guns, and then heard movement in the
room, including a loud noise that “sounded to [him] like something was dropping on the
ground.” Id. Murray and Riley then emerged from the room unarmed and were taken into
custody. Id. at 82 (Page ID #906).
The VCTF team then searched the room that Riley and Murray emerged from, and found
a rifle and a magazine under a mattress on the floor. Id. at 85 (Page ID #909); R. 116 (Jan. 7,
2016 Trial Tr. at 23–24) (Page ID #963–64). Based on their discovery, they obtained a search
warrant to search the entire house. R. 115 (Jan. 6, 2016 Trial Tr. at 85) (Page ID #909). They
found six firearms, including two handguns, three assault rifles, and a machine gun, as well as
ammunition and magazines in the bedroom where Riley and Murray had hidden. Id.; R. 116
(Jan. 7, 2016 Trial Tr. at 38–39) (Page ID #978–79). They also found bags that contained papers
that appeared to belong to Riley, including Christmas and birthday cards and government
paperwork. R. 85 (Jan. 13, 2016 Trial Tr. at 91) (Page ID #517).
A grand jury indicted Riley and Murray for being felons in possession of firearms and
ammunition, in violation of 18 U.S.C. § 922(g). R. 14 (Indictment at 1–2) (Page ID #20–21).
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No. 16-1970, United States v. Riley
Murray pleaded guilty, and in October 2015 he was sentenced to thirty-seven months in custody.
R. 85 (Jan. 13, 2016 Trial Tr. at 11) (Page ID #437). Shortly thereafter, Murray agreed to
cooperate with authorities and testify against Riley. Id. at 11–13 (Page ID #437–39).
Prior to trial, Riley moved to suppress his statement to Krupa in the Sussex house, when
he said that there “may be a gun in here.” R. 39 (Mot. to Suppress) (Page ID #121–36). Riley
argued that although he was in a home, he was not free to leave, and that this interrogation took
place without proper Miranda warnings. Id. at 3 (Page ID #123). The district court denied the
motion, and held that Riley was neither in custody nor subject to interrogation, and that the
public-safety exception to Miranda applied. R. 54 (Order Denying Mot. to Suppress at 3) (Page
ID #242).
At trial, Murray testified that at the time of the arrest, Riley was living at the Sussex
address with his mother because Riley was afraid that the police would search for him at his
Buckingham address after the armed robbery in West Virginia. R. 85 (Jan. 13, 2016 Trial Tr. at
17–18) (Page ID #443–44). Murray stated that he began living with Riley and his mother at the
Sussex house after Murray was released from prison, and that when he arrived, the guns in
question were already in the house. Id. at 18–19 (Page ID #444–45). Murray testified that on
the day of the arrest, Riley pushed Murray into the bedroom when he heard the police enter. Id.
at 24 (Page ID #450). He said that Riley picked up an AR-15, which he pointed at the bedroom
door, handed Murray a gun, and said he was “not going back to jail.” Id. at 25, 28 (Page ID
#451, 454).
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No. 16-1970, United States v. Riley
Riley’s counsel argued that the guns belonged to Murray, not Riley, and that Murray had
been staying at the Sussex house with the permission of Riley’s mother. R. 115 (Jan. 6, 2016
Trial Tr. at 19, 23) (Page ID #843, 847). They argued that Riley’s mother was in the process of
moving out of the Sussex house, and that Riley lived at the house on Buckingham. Id. at 17–20
(Page ID #841–44). Riley called four witnesses, including his mother, who testified that Riley
did not live on Sussex. The government later called a rebuttal witness, John Jones, who was not
listed on the government’s witness list. R. 85 (Jan. 13, 2016 Trial Tr. at 167) (Page ID #593).
Jones testified that he purchased 3920 Buckingham in June 2014, months before the arrest took
place, and that at the time he purchased the property it appeared abandoned, that “you couldn’t
reside in that property,” and that he observed “grass . . . growing up to your chest.” Id. at 167–69
(Page ID #593–95). He stated that after he had rehabilitated the property, his first tenant began
living in the house in November 2014. Id. at 170 (Page ID #596).
After a six-day trial, a jury convicted Riley of one count of illegally possessing firearms
and one count of illegally possessing ammunition, both as a previously convicted felon, in
violation of 18 U.S.C. § 922(g)(1). The district court determined Riley’s total offense level was
28 and his criminal history level was II, found the guidelines range to be 87 to 108 months, and
sentenced Riley to 90 months of imprisonment. R. 112 (Cont’d Sentencing Hr’g Tr. at 12–13)
(Page ID #775–76). Riley moved for a new trial based on newly discovered evidence. R. 103
(Mot. for New Trial) (Page ID #712–17). The district court found that the evidence was not
material and denied the motion. R. 111 (Order Denying Mot. for New Trial) (Page ID #758–63).
Riley timely appealed.
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II. ANALYSIS
A. Motion to Suppress
Riley argues on appeal that the district court erred in denying his motion to suppress
statements made in violation of Miranda. Riley contends that, when he admitted to Krupa that
there might be a gun in the Sussex house, he was subject to a custodial interrogation, and that the
statement was therefore inadmissible absent the proper Miranda warnings. The government
responds that Riley’s statement, made during an armed standoff with the police, was not made
while he was in custody or subject to interrogation. In the alternative, the government also
argues that the public-safety exception nonetheless applies.
1. Standard of Review
We review the denial of a motion to suppress for clear error as to factual findings and de
novo as to conclusions of law. United States v. Brown, 732 F.3d 569, 572 (6th Cir. 2013).
We view the evidence “in the light most likely to support the district court’s decision.” United
States v. Garcia, 496 F.3d 495, 502 (6th Cir. 2007) (citation omitted).
2. Public-Safety Exception
In Miranda v. Arizona, 384 U.S. 436, 478–79 (1966), the Supreme Court held that an
individual subject to custodial interrogation by the authorities must be notified of his right
against self-incrimination. Statements made in the absence of Miranda warnings are
inadmissible at trial. Id. at 479. In order for the rule to apply, the individual must be in custody
and subject to interrogation. United States v. Crowder, 62 F.3d 782, 785 (6th Cir. 1995).
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No. 16-1970, United States v. Riley
We need not decide whether Riley was “in custody” for the purposes of Miranda,
however, because the public-safety exception clearly applies. The public-safety exception
applies “when officers have a reasonable belief based on articulable facts that they are in
danger.” United States v. Talley, 275 F.3d 560, 563 (6th Cir. 2001). “For an officer to have a
reasonable belief that he is in danger,” and thus for the exception to apply, “he must have reason
to believe (1) that the defendant might have (or recently have had) a weapon, and (2) that
someone other than police might gain access to that weapon and inflict harm with it.” United
States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). Where applicable, the public-safety
exception permits police officers and agents to ask “questions necessary to secure their own
safety or the safety of the public” as opposed to “questions designed solely to elicit testimonial
evidence from a suspect.” New York v. Quarles, 467 U.S. 649, 659 (1984).
Here, the VCTF team was executing an arrest warrant related to an armed robbery
allegedly committed by Riley in West Virginia. Under the circumstances, it was reasonable for
officers to believe that Riley might have firearms. See United States v. Williams, 272 F. App’x
473, 477 (6th Cir. 2008) (holding that “the police officers plainly had a reasonable belief that
[defendant] might possess a weapon” because his “criminal history . . . suggested not only that
he possessed weapons, but also that he was willing to use force, as evidenced by his aggravated
robbery conviction and his arrest for discharging a weapon into a home or school”). It was also
reasonable for the VCTF team to believe that someone other than the police might gain access to
a weapon and inflict harm with it. Riley and Murray were hiding behind a door, and they were
not visible to Krupa at the time of questioning. Riley could have had, and indeed did have,
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multiple weapons behind that door with which to inflict harm. Given their initial refusal to come
out and surrender to the police, it was reasonable for Krupa and others to fear for their safety and
the safety of the public. The district court properly denied defendant’s motion to suppress on the
basis of the public-safety exemption.
B. Rebuttal Witness Testimony
Riley next claims that the district court abused its discretion in allowing the testimony of
rebuttal witness John Jones, who was not listed on the government’s witness list. Jones, the
owner of the house on Buckingham where Riley claimed he lived, testified as to the abandoned
state of the property when Jones purchased the Buckingham house months prior to the arrest, and
verified that no one lived on the property until November 2014, a month after the arrest. We
review a district court’s decision to admit rebuttal witnesses for abuse of discretion. United
States v. Rayborn, 495 F.3d 328, 343 (6th Cir. 2007).
Riley’s contention is that “[r]ebuttal testimony is properly admitted to ‘rebut new
evidence or new theories proffered in the defendant’s case-in-chief,’” and that the district court
abused its discretion by admitting rebuttal testimony for the sole purpose of verifying Riley’s
address when the government knew that Riley’s address was at issue. Appellant’s Br. at 33, 37
(quoting United States v. Caraway, 411 F.3d 679, 683 (6th Cir. 2005)). The government
responds that it did not know that it would need to call Jones as a witness until Riley presented
four witnesses who testified that Riley lived at the Buckingham residence, making Jones’s
rebuttal testimony regarding that residence relevant. Although a district court may limit the
scope of rebuttal testimony to rebut new evidence or theories, “it is not required to do so and it is
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not an abuse of discretion not to impose such a limit.” Rayborn, 495 F.3d at 344. The district
court did not abuse its discretion here in allowing Jones to testify as a rebuttal witness.
C. Sufficient Evidence
Riley also claims that there was insufficient evidence to support his conviction, and that
the district court therefore erred in denying his motion for judgment of acquittal notwithstanding
the verdict. See R. 81 (Mot. for Judgment of Acquittal) (Page ID #405–12); R. 86 (Order
Denying Mot. for Judgment of Acquittal) (Page ID #604–06). “[W]e review his motion de
novo” and view “the evidence in the light most favorable to the prosecution to determine
whether any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). We draw all
reasonable inferences and credibility findings in favor of the verdict. Id.
Riley was convicted of possessing firearms and ammunition in violation of 18 U.S.C.
§ 922(g)(1). In order to convict a defendant under 18 U.S.C. § 922(g)(1), the government must
prove three elements: (1) the defendant had a prior felony conviction; (2) he knowingly
possessed a firearm; and (3) the firearm traveled in interstate commerce. United States v.
Nelson, 725 F.3d 615, 619 (6th Cir. 2013). Riley has stipulated that he had a prior conviction
and that the firearms at issue traveled in interstate commerce. R. 115 (Jan. 6, 2016 Trial Tr. at
50–52) (Page ID #874–76). We must therefore ask whether any rational trier of fact could have
found beyond a reasonable doubt that Riley knowingly possessed these firearms.
Possession may be “actual” or “constructive,” and can be proved by circumstantial
evidence. United States v. Walker, 734 F.3d 451, 455 (6th Cir. 2013). Actual possession means
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that the firearm “is within the immediate power or control of the individual.” Id. (quoting United
States v. Murphy, 107 F.3d 1199, 1207–08 (6th Cir. 1997)). Constructive possession means the
defendant “knowingly has the power and the intention at a given time to exercise dominion and
control over an object, either directly or through others.” Id. (quoting United States v. Craven,
478 F.2d 1329, 1333 (6th Cir. 1973)).
Six firearms were found in the house on Sussex where Riley and Murray were arrested,
along with ammunition and magazines. Although Riley claims he did not live at the address
where the firearms were found, Murray testified that Riley did live at that address, that Riley
possessed a Glock handgun, that Riley had barricaded both of them in the bedroom upon hearing
the police arrive, and that all the firearms found by the police were at the address when Murray
began living there. Agents also found other items in the house that appeared to belong to Riley,
including Christmas and birthday cards and government paperwork. When agents initially
conducted a database search for Riley prior to the arrest, the Sussex address was listed as one of
the several residences associated with Riley. Finally, when Krupa asked if there were any
weapons in the home, Riley answered that there “might be some” in the room with him. There is
clearly ample evidence to support the verdict in this case.
Riley argues that the government’s case rested “almost entirely” on the testimony of
Murray, who he claims is not credible. Appellant’s Br. at 39. Riley relies on the same
arguments raised at trial as to Murray’s credibility, namely, that Murray originally told his
lawyer that the firearms were his and that Murray entered into a plea agreement and decided to
testify in exchange for a reduced sentence. R. 85 (Jan. 13, 2016 Trial Tr. at 11–13, 52) (Page ID
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No. 16-1970, United States v. Riley
#437–39, 478). We find no reason on appeal to diverge from the jury’s credibility determination
as to Murray, particularly given the evidence weighing against Riley’s defense that he lived at
the Buckingham address. We hold that there was sufficient evidence for the jury to find that
Riley possessed the firearms and ammunition in question.
D. Motion for New Trial
Prior to sentencing, Riley filed a motion for a new trial pursuant to Federal Rule of
Criminal Procedure 33, and argued that newly discovered material evidence called into question
Murray’s credibility. R. 103 (Mot. for New Trial at 5) (Page ID #716). Specifically, there was a
question both during and after trial about whether a certain Glock pistol seized during the arrest
was a stolen firearm. Id. at 2 (Page ID #713). Murray had previously testified that he had seen
Riley with the pistol and that “[Riley’s] brother brought the . . . handgun back from West
[V]irginia” around July or August of 2012. Id. Because the status of the pistol was relevant to
sentencing, a federal agent interviewed the purported owner of the pistol after the conclusion of
trial, who stated that she purchased the pistol in May 2012 in West Virginia, but did not discover
it had gone missing until October 2015. Id. at 3 (Page ID #714). The district court denied
Riley’s motion for a new trial and held that the new evidence in question was not material or
likely to produce an acquittal. R. 111 (Order Denying Mot. for New Trial at 5) (Page ID #762).
We review a ruling on a motion for a new trial for abuse of discretion. United States v.
Willis, 257 F.3d 636, 645 (6th Cir. 2001). No such abuse occurred here. The newly discovered
evidence did not call into question Murray’s testimony, let alone contradict it. Rather, the
interview with the owner of the pistol corroborates Murray’s version of where the pistol was
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obtained, and the timing of when it might have been obtained. Because the newly discovered
evidence was immaterial and unlikely to produce an acquittal, we affirm the district court’s
denial of Riley’s motion for a new trial.
E. Sentencing
In addition to challenging the district court’s evidentiary rulings, Riley challenges his
sentence as procedurally unreasonable. Appellant’s Br. at 44. The district court found Riley’s
guidelines range to be 87 to 108 months based on a total offense level of 28 and a criminal
history level of II and sentenced Riley to 90 months in custody. R. 112 (Cont’d Sentencing Hr’g
Tr. at 12–13) (Page ID #775–76). Riley argues that the district court erred in applying
sentencing enhancements without sufficient evidence, in imposing a sentence in disparity with
his co-defendant’s sentence, and in imposing a sentence that overrepresented his prior criminal
record.
We apply an abuse-of-discretion standard in reviewing a sentence. Gall v. United States,
552 U.S. 38, 51 (2007). Significant procedural error could include “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” Id.
1. Stolen firearm enhancement
The district court imposed a two-level enhancement of Riley’s total offense level under
USSG § 2K2.1(b)(4), because at least one of the firearms was stolen. R. 112 (Cont’d Sentencing
Hr’g Tr. at 12) (Page ID #775). In order for this enhancement to apply, a defendant need not
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have knowledge that the firearm was stolen. See United States v. Murphy, 96 F.3d 846, 848–49
(6th Cir. 1996).1
Here, an ATF trace report revealed that a Glock handgun found during Riley’s arrest
belonged to a woman in West Virginia, who later confirmed that the gun was missing. R. 99-2
(ATF Trace Report) (Page ID #689). The district court’s application of this enhancement was
supported by a preponderance of the evidence.
2. Obstruction of Justice enhancement
In addition to the stolen firearm enhancement, the district court imposed another two-
level enhancement for obstruction of justice, because Riley had suborned perjury by calling
witnesses, including his mother, to lie to the jury about where he lived. R. 112 (Cont’d
Sentencing Hr’g Tr. at 12) (Page ID #775); USSG § 3C1.1. The Guidelines commentary notes
that that the obstruction of justice enhancement applies to “committing, suborning, or attempting
to suborn perjury.” USSG § 3C1.1 cmt. n.4(B). The commentary also states that a defendant is
accountable for his “own conduct and for conduct that the defendant aided or abetted, counseled,
commanded, induced, procured, or willfully caused.” USSG § 3C1.1 cmt. n.9. “Perjury is
defined as (1) a false statement under oath (2) concerning a material matter (3) with the willful
1
Riley requests that we revisit our decision in Murphy, where we held that the lack of a
scienter requirement in § 2K2.1(b)(4) did not violate due process. Riley presents no argument
for why our prior published decision should not be upheld, and points only to United States v.
Handy, 570 F. Supp. 2d 437 (E.D.N.Y. 2008), a district court decision that not only does not
control in this circuit, but is apparently no longer good law in its own circuit. See United States
v. Thomas, 628 F.3d 64, 68–69 (2d Cir. 2010) (upholding the validity of § 2K2.1(b)(4) and
noting commentary observing that the enhancement is intended to apply regardless of knowledge
that the firearm was stolen).
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intent to provide false testimony.” United States v. Collins, 799 F.3d 554, 593 (6th Cir. 2015)
(internal quotation marks omitted). For an obstruction enhancement stemming from a
defendant’s own testimony, we have held that “the obstruction-of-justice enhancement applies
only if the district court (1) identif[ies] those particular portions of defendant’s testimony that it
considers to be perjurious; and (2) either make[s] a specific finding for each element of perjury
or, at least, make[s] a finding that encompasses all of the factual predicates for a finding of
perjury.” Id. at 593–94 (internal quotation marks omitted) (alterations in original); see also
United States v. Dunnigan, 507 U.S. 87, 95 (1993). We enforce this requirement “[i]n order to
minimize the danger that application of the [obstruction] guideline would discourage defendants
from testifying truthfully at trial” and “to provide the appellate court with a meaningful record to
determine that such an independent finding has been made.” United States v. Sassanelli, 118
F.3d 495, 500–01 (6th Cir. 1997). “We have consistently and repeatedly vacated sentences
imposing an obstruction of justice enhancement for failure to comply” with this requirement.
United States v. Paulette, 457 F.3d 601, 607 (6th Cir. 2006). Although most frequently we are
called on to enforce these requirements as to obstruction enhancements stemming from a
defendant’s own testimony, the purposes behind the requirements apply with equal force to
allegedly perjurious testimony from witnesses. Whether we are dealing with testimony from a
defendant or witness, it is necessary to minimize the danger of discouraging truthful testimony
and to provide the appellate court with a meaningful record. See Sassanelli, 118 F.3d at 500–01.
The district court failed to satisfy these requirements. During the sentencing hearing, the
district court noted that Riley’s mother had been indicted for perjury. R. 112 (Cont’d Sentencing
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Hr’g Tr. at 12) (Page ID #775); R. 99-4 (Indictment of Deidra Lucas) (Page ID #692–97). When
reminded by the government, the district court agreed that the court relied on the portions of
testimony identified in the indictment. R. 112 (Cont’d Sentencing Hr’g Tr. at 14) (Page ID
#777). The court did not specify—or even necessarily indicate that it knew—what the
indictment said. When asked, “Is the court relying upon that portion specifically identified in the
indictment against Mrs. Lucas?” the court simply said, “the answer is yes to your question. Is
that sufficient?” Id. Even if this exchange satisfies the requirement that the court identify
particular portions of the testimony, it does not satisfy the requirement that the court “make[] a
finding that encompasses all of the factual predicates for a finding of perjury” (i.e., falsity,
materiality, and willfulness). Collins, 799 F.3d at 594. Therefore, the district court did not make
the factual findings necessary to impose an enhancement for obstruction of justice for suborning
perjury.
3. Disparity of Sentences and Overrepresentation of Criminal History
Riley objects to the disparity between the length of his sentence as compared with that of
his co-defendant, Murray. Riley cites no cases or statutes in support of this argument, and we
find that it is unpersuasive. Moreover, as the government points out, we have held that the
§ 3553(a)(6) factor requiring a district court to consider the need to avoid unwarranted
sentencing disparities pertains to national disparities, but that “the district judge could but was
not required to consider disparities between codefendants.” United States v. Conatser, 514 F.3d
508, 521 (6th Cir. 2008). Although Murray and Riley received very different sentences, there
are a number of factors that influenced that outcome, including Murray’s decision to enter into a
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No. 16-1970, United States v. Riley
plea agreement and cooperate with the government, their relative criminal histories, and their
relative culpability. In sum, we conclude that the district court did not err in imposing a longer
sentence on Riley.
Riley also argues that his sentence overrepresents the seriousness of his criminal history,
because his prior offenses were committed when he was only fifteen. In 2001, Riley was
convicted as a juvenile for solicitation of murder, felony firearm, armed robbery, conspiracy to
commit armed robbery, and conspiracy to assault with intent to murder. Riley claims that the
district court should have departed downward pursuant to USSG § 4A1.3(b)(1) “based upon the
age of the conviction” and his youth at the time. Appellant’s Br. at 50.
“[W]e do not review a district court’s decision not to depart downward unless the record
shows that the district court was unaware of, or did not understand, its discretion to make such a
departure.” United States v. Santillana, 540 F.3d 428, 431 (6th Cir. 2008). At the sentencing
hearing, Riley’s counsel raised the same argument regarding the seriousness of Riley’s criminal
history before the district court. R. 112 (Cont’d Sentencing Hr’g Tr. at 7) (Page ID #770). The
court stated its familiarity with that argument, id., and rejected it, id. at 12 (Page ID #775). We
therefore do not review the district court’s decision not to depart downward.
F. Cumulative Effect
Riley finally argues that the cumulative effect of the trial errors was so prejudicial that he
is entitled to a new trial. We found no significant errors with regard to the claims raised above.
We also find unpersuasive Riley’s argument that he was further prejudiced by
interruptions made by the district court during voir dire and cross-examination. This argument
17
No. 16-1970, United States v. Riley
was not raised in the district court and so we review for plain error. See generally United States
v. Olano, 507 U.S. 725, 734 (1993). It is well established that a district court has wide latitude in
imposing reasonable limits on the scope of questioning. United States v. Beverly, 369 F.3d 516,
535 (6th Cir. 2004). The fifteen interruptions that occurred were made over the course over a
six-day jury trial, and apparently served to limit the use of repetitive or irrelevant questions. We
cannot find plain error here.
III. CONCLUSION
Based on the foregoing, we VACATE the sentence and REMAND for resentencing
consistent with this opinion. We AFFIRM in all other respects.
18