Opinion
22-1434
03-02-2023
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MILES WILBOURN, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted February 22, 2023
Appeal from the United States District Court for Northern District of Indiana, South Bend Division. No. 3:20CR22-002 Damon R. Leichty, Judge.
Before DIANE S. SYKES, Chief Judge DAVID F. HAMILTON, Circuit Judge JOHN Z. LEE, Circuit Judge
ORDER
After initially giving notice of his intent to present an alibi defense, Miles Wilbourn pleaded guilty to three counts of aiding and abetting carjacking, 18 U.S.C. §§ 2, 2119. At sentencing, the district judge found-over Wilbourn's objections-that he had provided a false alibi and minimized, even at sentencing, his role in the carjackings. As a result, the judge applied an enhancement under § 3C1.1 of the Sentencing Guidelines for obstruction of justice and declined to reduce Wilbourn's offense level under § 3E1.1 for acceptance of responsibility. The judge sentenced Wilbourn to 222 months' imprisonment and specified that he would have imposed the same sentence, regardless of his guidelines rulings, based on the sentencing factors in 18 U.S.C. § 3553(a). Wilbourn appeals the sentence, and we affirm.
In 2019, Wilbourn and at least two accomplices were involved in three violent carjackings in South Bend, Indiana. Pretending online and in text messages to be women interested in meeting for a sexual encounter, they lured male victims to locations where the men were robbed of their vehicles and personal items and, in two cases, beaten. Indiana State Police officers eventually found Wilbourn driving one of the stolen vehicles, but they were forced to call off their high-speed chase for safety reasons. Wilbourn successfully fled local police officers twice more, but on the latter of these occasions, he left behind his cell phone, which officers obtained a warrant to search.
Two days later, armed with an arrest warrant, officers tracked down Wilbourn, who fled on foot before he was subdued with a Taser and captured. An investigation revealed that Wilbourn and an accomplice had planned the crimes through Facebook Messenger and that Wilbourn's cell phone was used to lure the victims.
After being charged, Wilbourn provided notice of his intent to present an alibi defense, asserting that "he was with his significant other . . . on each occasion when the alleged robberies occurred." (He did not specify where he and his girlfriend, Brejanya Johnson, had been.) But ultimately, 21 months after his arrest and two weeks before trial, Wilbourn pleaded guilty to all charges without a plea agreement. At his plea hearing, Wilbourn asserted that his role in each carjacking consisted simply of loaning his phone to an accomplice, knowing it would be used to lure the victims.
But at the sentencing hearing, the government presented evidence suggesting Wilbourn was not with Johnson, his purported alibi, during the robberies. For example, as Wilbourn's phone was being used to lure a victim to an ambush, it also sent a message to Johnson: "We're just waiting on the dude to pull up so just come post by the hills." Just before another carjacking, Johnson sent the message, "come back to me the same way you left," to Wilbourn's phone. Still, the government conceded that it could not prove Wilbourn's physical presence at the crime scenes; the victims could not identify their assailants because the robberies took place swiftly and at night.
Based on the information derived from Wilbourn's phone, the presentence investigation report recommended applying a two-level enhancement for obstruction of justice, see U.S.S.G. § 3C1.1, and denying any reduction for acceptance of responsibility, id. § 3E1.1, because Wilbourn's "false alibi . . . hindered the prosecution of this case" and because he provided only a "thin factual basis" for his guilty plea. Wilbourn objected, maintaining that he had not been present at any of the carjackings and that an accomplice had used his phone. At his sentencing hearing, however, Wilbourn admitted that he was not "with his girlfriend specifically" during the robberies.
The district judge overruled Wilbourn's objections and applied the obstruction enhancement, finding that, with respect to two of the robberies, the text messages and Wilbourn's recantation demonstrated his alibi's falsity. The judge further found that that Wilbourn "falsely minimized his role at the change of plea" when he asserted that his only role was loaning his phone to an accomplice. The judge also determined that Wilbourn had not "clearly demonstrate[d]" acceptance of responsibility under U.S.S.G. § 3E1.1(a) because he had repeatedly fled police, pleaded guilty only just before trial, minimized his role, and maintained his false alibi through sentencing.
The judge calculated a total offense level of 35 and criminal history category of II, resulting in a guidelines range of 188-235 months' imprisonment, rather than the range of 105-135 months that would have applied if Wilbourn's objections had been sustained. After thoroughly discussing the § 3553(a) sentencing factors, the judge imposed a 222-month prison sentence.
While acknowledging Wilbourn's personal challenges-including substance abuse, for which he now requested treatment-the judge noted the serious and violent nature of the carjackings, the "methodical grooming" of the victims, and the "persistent disregard for the law" demonstrated by the robbers. Further, the judge noted, the "growing scourge" of carjackings created a "true need for deterrence" and protection of the public. And the judge concluded that, although Wilbourn's codefendant received a 151-month prison sentence, a higher sentence for Wilbourn was justified by his repeated and dangerous flight, his lies to the court, and his obstruction. The judge also stated that, based on his analysis of the § 3553(a) factors, he would have imposed the same prison sentence "notwithstanding the fact of [his] rulings on the guideline objections."
On appeal, Wilbourn challenges the district judge's application of the obstruction-of-justice and acceptance-of-responsibility guidelines, largely repeating his arguments from sentencing. We review the judge's factual findings for clear error and whether those findings support the application of the guidelines provisions de novo. United States v. DeLeon, 603 F.3d 397, 402, 406 (7th Cir. 2010).
Wilbourn first argues that the district judge erroneously applied the obstruction-of-justice enhancement because, he says, the government failed to prove that Wilbourn was "actually physically present" at the crimes. But Wilbourn did not merely assert that he was elsewhere; he notified the government and the court that he intended to prove that he was with his girlfriend "on each occasion when the alleged robberies occurred." And the record supports the district judge's conclusion that Wilbourn lied: Wilbourn belatedly admitted that the alibi was false for two of the carjackings, and the text messages sent during the crimes confirm that, wherever he was, Wilbourn was not with Johnson.
Wilbourn further contends that the obstruction enhancement was inappropriate because the false alibi was never "presented in court." But § 3C1.1 does not require perjury in court, and "material misinformation that exerts any impact on the government's resources may elicit an obstruction enhancement." United States v. Selvie, 684 F.3d 679, 684 (7th Cir. 2012). Further, the enhancement was also based on his false description of his role in the crimes, and "when a defendant lies during a plea hearing by attempting to minimize his role in an offense, that lie is material for purposes of § 3C1.1." United States v. White, 582 F.3d 787, 797 (7th Cir. 2009).
Next, Wilbourn argues that he met the "fundamental criterion" for acceptance of responsibility by pleading guilty before trial. But although a guilty plea before trial is "significant evidence of acceptance of responsibility," U.S.S.G. § 3E1.1 n. 3, it does not create an entitlement. For one thing, an obstruction-of-justice enhancement "ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct." Id. § 3E1.1 n. 4. And the judge's additional reasons are amply supported: Wilbourn falsely denied offense conduct like communicating with the victims, repeatedly fled from police, and delayed pleading guilty until the eve of trial. Wilbourn is correct that he had no obligation to volunteer other criminal acts beyond the offense conduct, but his persistent attempts to minimize his role and mislead the court, even during sentencing, demonstrated a lack of acceptance of responsibility. See United States v. Ali, 619 F.3d 713, 720 (7th Cir. 2010) (minimizing one's involvement "not the sort of genuine contrition the acceptance of responsibility reduction seeks to reward").
Finally, the government asserts, and we agree, that any potential error in resolving the guidelines objections-and we see none-would be harmless. The district judge, after a thorough discussion of the § 3553(a) sentencing factors and consideration of Wilbourn's arguments in mitigation, stated both at the sentencing hearing and in his written statement of reasons that he would impose the 222-month sentence "notwithstanding [his] ruling on the guideline objections" for the reasons he articulated. This makes it clear that the sentence was selected on "factors independent of the Guidelines." Molina-Martinez v. United States, 578 U.S. 189, 200 (2016). Any challenge to Wilbourn's sentence based on erroneous guidelines calculations would therefore be frivolous. See United States v. Clark, 906 F.3d 667, 671 (7th Cir. 2018) (collecting cases).
AFFIRMED
We granted the parties' joint motion to waive oral argument, and therefore the appeal is submitted on the briefs and record. FED. R. APP. p. 34(f).