Judges: Rovner
Filed: Aug. 30, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit No. 12-3596 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FARSHAD GHIASSI, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:11-cr-00029-RLY-WGH-1 — Richard L. Young, Chief Judge. ARGUED APRIL 2, 2013 — DECIDED AUGUST 30, 2013 Before ROVNER, WILLIAMS, and SYKES, Circuit Judges. ROVNER, Circuit Judge. Farshad Ghiassi pleaded guilty to being a felon in p
Summary: In the United States Court of Appeals For the Seventh Circuit No. 12-3596 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FARSHAD GHIASSI, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:11-cr-00029-RLY-WGH-1 — Richard L. Young, Chief Judge. ARGUED APRIL 2, 2013 — DECIDED AUGUST 30, 2013 Before ROVNER, WILLIAMS, and SYKES, Circuit Judges. ROVNER, Circuit Judge. Farshad Ghiassi pleaded guilty to being a felon in po..
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In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3596
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FARSHAD GHIASSI,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:11‐cr‐00029‐RLY‐WGH‐1 — Richard L. Young, Chief Judge.
ARGUED APRIL 2, 2013 — DECIDED AUGUST 30, 2013
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
ROVNER, Circuit Judge. Farshad Ghiassi pleaded guilty to
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1). The district court ordered him to serve a
prison term of 70 months. Ghiassi appeals his sentence,
contending that the district court erred as a matter of fact in
finding him responsible for eight or more firearms and
deprived him of due process by relying, in substantial part, on
2 No. 12‐3596
his co‐defendant’s testimony at her sentencing to make that
finding. Finding no error, we affirm.
I.
In February and early March of 2011, Alicia Wiseman
purchased a total of eight handguns at outdoor‐gear retail
stores in southern Indiana: six of them she acquired from a
Gander Mountain store in Evansville, Indiana, and the other
two she purchased at a Bass Pro Shops in Clarksville, Indiana.
Chad Foreman, a Special Agent with the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”), looked into those
purchases. When Foreman interviewed Wiseman on March 21,
2011, she told him that she had purchased the guns for Ghiassi.
Ghiassi was prohibited from possessing firearms on two
grounds: he had prior felony convictions for stalking and
taking another person’s vehicle without the owner’s consent,
and he was also the subject of a protective order which
prohibited him from possessing a firearm. Wiseman indicated
to Foreman that Ghiassi would shop for the type of handgun
he wanted, and he would then advise Wiseman of his choice.
Wiseman in turn would buy the gun on his behalf, and in
connection with each purchase complete an ATF Form 4473 in
which she falsely averred that she would be the individual
possessing the firearm. Following the purchase, she would
deliver the gun to Ghiassi at his apartment, on the understand‐
ing that he would reimburse her for it.
Upon Wiseman’s additional disclosure that Ghiassi had an
AK‐47 assault rifle that he wished to sell, Foreman arranged to
make an undercover purchase of that weapon. Wiseman, who
agreed to cooperate, advised Ghiassi by text message that she
had a friend who was interested in buying the gun; Ghiassi in
No. 12‐3596 3
turn instructed Wiseman to have her friend call him. Foreman
did so, and arranged by phone to purchase the gun for $550.
Foreman was to meet Ghiassi in the parking lot of an Evans‐
ville movie theater on March 23, 2011.
At the scheduled place and time, Ghiassi arrived at his
meeting with Foreman in a Subaru automobile driven by Chad
Gamblin. Ghiassi sold the assault rifle to Foreman as agreed for
$550. After Ghiassi turned the weapon over to Foreman, both
he and Gamblin were taken into custody. A subsequent search
of the trunk of the Subaru produced multiple weapons that
had been purchased by Wiseman.
In a post‐arrest interview, Ghiassi admitted that Wiseman
had illegally purchased weapons on his behalf at both Gander
Mountain in Evansville and at Bass Pro Shops in Clarksville.
Ghiassi apparently did not, however, acknowledge any
particular number of weapons that Wiseman had purchased
for him. Separately, Gamblin disclosed that he had taken
possession of Ghiassi’s weapons approximately one week
earlier.
Foreman subsequently reviewed camera surveillance
footage from the Bass Pro Shops in Clarksville. In footage
corresponding to a date on which Wiseman said she had
purchased a firearm for Ghiassi, Ghiassi could be seen at the
firearms counter looking over guns with Wiseman. Ghiassi
then left the counter, at which point Wiseman completed the
requisite paperwork and purchased a firearm.
A grand jury indicted both Foreman and Wiseman on a
variety of gun‐related charges. Ghiassi was charged with
conspiring with Wiseman to provide false information in
4 No. 12‐3596
connection with the sale of a firearm and to possess a firearm
following a felony conviction, in violation of 18 U.S.C. § 371;
possession of a firearm following a felony conviction, in
violation of § 922(g)(1); and possession of a firearm following
a conviction for a misdemeanor crime of domestic violence,
§ 922(g)(9). Wiseman was charged with, in addition to conspir‐
acy, multiple counts of knowingly making false statements in
connection with the sale of a firearm, in violation of 18 U.S.C.
§ 922(a)(6).
Ghiassi and Wiseman both pleaded guilty. Wiseman
pleaded guilty to Count Six of the indictment, one of the false
information charges. She was ultimately sentenced to three
years’ probation. Ghiassi opted to plead guilty to Count Two,
the felon‐in‐possession charge. There was no plea agreement
between Ghiassi and the government.
Ghiassi appeared before the court to change his plea on
May 29, 2012. Things proceeded smoothly until Ghiassi voiced
disagreement with the government’s proffer of the evidence it
would present if the case were to go to trial. During that
proffer, Special Agent Foreman had testified, inter alia, that: (1)
Wiseman admitted that she had purchased eight firearms at
two different locations on Ghiassi’s behalf; (2) he (Foreman)
had purchased an AK‐47 rifle from Ghiassi; and (3) a total of
nine guns had been seized from Ghiassi’s possession during
the course of the ATF’s investigation, including the AK‐47 that
Ghiassi sold to Foreman, seven guns that were recovered from
the trunk of Gamblin’s Subaru, and another handgun that was
found in Ghiassi’s bed, beneath his pillow. Ghiassi acknowl‐
edged responsibility for the AK‐47, the weapon which under‐
lay the felon‐in‐possession charge to which he was pleading
No. 12‐3596 5
guilty, but he disputed the notion that Wiseman had pur‐
chased eight other weapons on his behalf. He contended that
Wiseman had only purchased one gun for him, which he kept,
and that he “had nothing to do with … the other weapons.”
R. 70 at 29. The court pointed out that Wiseman was scheduled
for sentencing later that same day, and that Ghiassi’s statement
as to the number of guns Wiseman had purchased for him was
at odds with her own account, as set forth in the probation
department’s pre‐sentence report (“PSR”) for Wiseman. In
view of the conflict, the court postponed its decision whether
to accept Ghiassi’s plea and added that it would question
Wiseman further about the number of guns she had purchased
for Ghiassi at her sentencing. The court adjourned the plea
proceeding to a later date, but ordered the probation depart‐
ment to prepare a pre‐sentence report for Ghiassi in the
meantime.
On November 2, 2012, the court convened what turned out
to be both a continued change‐of‐plea hearing as well as a
sentencing hearing. The court engaged Ghiassi in a fresh
change‐of‐plea colloquy, during which Special Agent Foreman
once again outlined the evidence that the government would
present if Ghiassi were to proceed to trial. Foreman recounted,
in some detail, the evidence he had gathered during the ATF’s
investigation, including his purchase of the AK‐47 from
Ghiassi as well as Wiseman’s statement that she had purchased
a total of eight handguns on Ghiassi’s behalf in February and
early March of 2011 and that she had subsequently delivered
the guns to Ghiassi’s apartment and was reimbursed for them.
Foreman added that during his own post‐arrest interview,
Ghiassi admitted that Wiseman had purchased handguns for
6 No. 12‐3596
him at both Gander Mountain in Evansville and Bass Pro
Shops in Clarksville. Foreman also recounted for the court his
review of the surveillance recording from Bass Pro Shops,
which showed Ghiassi and Wiseman looking at guns, Ghiassi
leaving the gun counter, and then Wiseman completing the
paperwork and making a gun purchase. After asking Foreman
to confirm that Ghiassi had acknowledged Wiseman’s pur‐
chase of multiple firearms for him at both Gander Mountain
and Bass Pro Shops, the district court then asked Ghiassi
whether that was true. Ghiassi again denied that Wiseman had
purchased eight handguns on his behalf, and that he had
possessed those guns. He acknowledged that Wiseman had
brought the guns to him so that he could clean and paint the
engraving on them for her, but contended they were not his
guns. Most of those guns, he said, he and Wiseman later gave
to Gamblin, so that he could sell them on her behalf. Ghiassi
ultimately admitted that, in addition to the AK‐47 (which he
had purchased himself), he had possessed two additional guns
(including the one found underneath his pillow), for a total of
three. But he denied that Wiseman had purchased for him, and
that he possessed, as many as eight guns. In that respect,
Ghiassi insisted, Wiseman was lying.
There being no question at this juncture that Ghiassi
admitted the conduct underlying Count Two of the indict‐
ment—possession of the AK‐47 that he sold to Foreman—the
district court accepted Ghiassi’s guilty plea. The dispute as to
the number of additional guns that he possessed was a matter
that the court resolved when it turned to the task of sentencing
Ghiassi.
No. 12‐3596 7
The district court made a factual determination that Ghiassi
had obtained a total of eight guns through Wiseman. In
making that finding, the court relied in part upon Foreman’s
summary of both Ghiassi’s post‐arrest admission that Wise‐
man had purchased multiple guns for him at Gander Mountain
and Bass Pro Shops and Gamblin’s post‐arrest statement that
Ghiassi had given him multiple guns for safekeeping approxi‐
mately one week prior to their arrest. R. 69 at 65. But the court
relied principally on Wiseman’s statement, at her own sentenc‐
ing hearing, that she had purchased a total of eight guns on
Ghiassi’s behalf; and the court expressly found Wiseman a
more credible witness on this point than Ghiassi:
So I either have to believe Mr. Ghiassi and find that
Ms. Wiseman, Special Agent Foreman, and Mr.
Gamblin are lying. I choose not to do that. I’ve had
trouble with Mr. Ghiassi’s credibility not only last
time we tried to take a plea but today, as well. So in
terms of credibility here, I’m giving great weight to
the credibility of defendant Wiseman. She really has
no reason to lie.
Mr. Ghiassi admits here today that he sold the AK‐
47 because he needed money. Certainly, it would be
consistent that he would have Ms. Wiseman pur‐
chase guns for him so that he could sell those at a
profit, as well. He was actually caught on film at
Bass Pro Shops with Ms. Wiseman at the gun coun‐
ter, so it gives great credibility to her version of the
event, which in response to my question:
Q How many guns did you end up buying?
8 No. 12‐3596
A There was a total of eight.
Q Okay, when you bought these guns, then
did you give them to Mr. Ghiassi?
A Yes.
Q Did he pay you for those?
A He bought three to four of them. The oth‐
ers, he said he would promise to pay back,
and he never did.
R. 69 at 65‐66.
The court’s decision to credit Wiseman’s testimony as to the
number of guns she purchased for Ghiassi triggered an
increase in his offense level. One of the specific offense
characteristics identified by the unlawful firearms possession
guideline is, of course, the number of firearms involved in the
offense. § 2K2.1(b)(1). That total includes not only the specific
gun or guns which the defendant was convicted of possessing,
but any firearm the possession of which qualifies as relevant
conduct–which would include guns possessed pursuant to the
same course of conduct as the offense of conviction.
§ 1B1.3(a)(2); see, e.g., United States v. LePage, 477 F.3d 485, 490‐
91 (7th Cir. 2007). For offenses involving 8 to 24 firearms, the
guideline calls for a four‐level increase to the defendant’s base
offense level. § 2K2.1(b)(1)(B). The district court’s finding that
Wiseman purchased eight weapons on Ghiassi’s behalf, and
that he possessed those weapons in addition to the AK‐47 that
he sold to Agent Foreman, brought to nine the total number of
firearms for which Ghiassi was responsible, triggering the
four‐level enhancement. R. 69 at 66. Had the court credited
No. 12‐3596 9
Ghiassi’s testimony that he only possessed a total of three
firearms, there would have been a more modest two‐level
enhancement to his offense level. See § 2K2.1(b)(1)(A).
The court’s finding that Ghiassi was not credible had a
second effect on the determination of his offense level.
Ghiassi’s decision to plead guilty, provided it reflected a
genuine acceptance of responsibility for his offense, presump‐
tively entitled him to a two‐level decrease in his offense level
pursuant to § 3E1.1(a). Moreover, at the outset of the change‐
of–plea process, the government signaled its intent to ask the
court to grant Ghiassi an extra one‐level reduction in his
offense level in recognition of his timely declaration of his wish
to plead guilty. See § 3E.1.1(b). But after Ghiassi gave what the
district court found to be false testimony regarding the number
of guns that he possessed, the court denied him the standard
two‐level credit for acceptance of responsibility pursuant to
§ 3E1.1(a), which of course rendered any question of an
additional reduction moot, see § 3E1.1(b): “And I’m not going
to find acceptance here because the story of Mr. Ghiassi
regarding his involvement just doesn’t ring true to me in view
of the other testimony presented.” R. 69 at 66; see § 3E1.1,
comment. (n.1(A)). Ghiassi’s offense level thus was not
decreased by three levels as he had expected.
Ghiassi’s final offense level was 26, which in conjunction
with a criminal history category of II resulted in an advisory
sentencing range of 70 to 87 months. Had the court instead
credited Ghiassi’s representation that he only possessed a total
of three firearms, and had it granted Ghiassi the maximum
credit for acceptance of responsibility, his offense level would
have been 21, and the advisory sentencing range would have
10 No. 12‐3596
been 41 to 51 months. The court’s finding that Ghiassi was not
credible as to the number of guns, and in turn was not genu‐
inely accepting responsibility for his offense, consequently had
a pronounced effect on his sentence.
II.
Given the impact that the district court’s determination as
to the number of guns he possessed had on his sentencing
range, Ghiassi’s appeal naturally focuses on the validity of that
finding. He challenges both the evidentiary basis for the court’s
finding as well as the fairness of the process that the court
followed in making that finding.
Ghiassi contends first that the evidence does not support
the district court’s finding that he ultimately possessed nine
firearms: “A total of nine (9) firearms were recovered during
the course of the investigation and there was no evidence,
other than a statement of a convicted co‐defendant[,] that the
Defendant ever possessed, intended to possess or in any way
was involved with all nine (9) firearms.” Ghiassi Br. 8. As
Ghiassi acknowledges, a preponderance of the evidence is the
quantum of proof necessary to support the district court’s
findings as to specific offense characteristics. E.g., United States
v. Davis, 682 F.3d 596, 612 (7th Cir. 2012). Our review of the
district court’s factual finding as to the number of firearms
involved in the offense is for clear error. 18 U.S.C. § 3742(e);
e.g., United States v. Grigsby, 692 F.3d 778, 787‐88 (7th Cir. 2012).
The court had before it ample evidence that Ghiassi
possessed eight or more guns, thus supporting the four‐level
enhancement under § 2K2.1(b)(1)(B). The court was presented
with statements (both in and out of court) from multiple
No. 12‐3596 11
witnesses on this point, it explored the subject conscientiously,
and ultimately decided that Ghiassi was not credible. Certainly
there was no clear error in the court’s finding.
The fact that no government witness on this point other
than Foreman testified at Ghiassi’s change‐of‐plea and sentenc‐
ing hearings is beside the point. In the sentencing context, the
district court is not bound by the rules of evidence and, so long
as it is reliable, may consider a wide range of evidence,
including hearsay, that might otherwise be inadmissable at
trial. Fed. R. Evid. 1101(d)(3); U.S.S.G. § 6A1.3(a); e.g., Grigsby,
692 F.3d at 788; United States v. Nunez, 627 F.3d 274, 281 (7th
Cir. 2010). Moreover, as the Sixth Amendment’s confrontation
clause does not apply to a sentencing proceeding, the court
may rely on the testimony or other statement of a witness even
if that witness has not been subject to cross‐examination by the
defendant. See Williams v. Oklahoma, 358 U.S. 576, 584, 79 S. Ct.
421, 426 (1959) (due process); Williams v. New York, 337 U.S.
241, 69 S. Ct. 1079 (1949) (due process); United States v. Harmon,
2013 WL 3466881, at *10 (7th Cir. July 11, 2013) (citing United
States v. Isom, 635 F.3d 904, 907‐08 (7th Cir. 2011)); United States
v. Miller, 450 F.3d 270, 273 (7th Cir. 2006) (citing, inter alia,
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005)),
abrogated in part on other grounds by Kimbrough v. United States,
552 U.S. 85, 128 S. Ct. 558 (2007).
The district court’s finding had the support of Wiseman’s
statements, both to Special Agent Foreman and to the district
court at her own change‐of‐plea and sentencing proceedings.
Foreman testified that Wiseman told him she had purchased
six handguns for Ghiassi at Gander Mountain and another two
at Bass Pro Shops. This was obviously a point within Wise‐
12 No. 12‐3596
man’s personal knowledge, as she bought the guns and gave
them to Ghiassi.
It is true, as Ghiassi points out, that Foreman was unable to
independently verify that Ghiassi ultimately possessed each of
eight firearms Wiseman had purchased; but this was simply a
factor for the district court to consider in assessing the credibil‐
ity of her testimony rather than one which precluded the court
from crediting her or which calls into doubt the sufficiency of
the evidence underlying the court’s finding as to the number
of guns Wiseman possessed. See Isom, 635 F.3d at 907‐08.
Moreover, Wiseman’s statements were corroborated in
part. Ghiassi himself had admitted to Foreman that Wiseman
had bought guns for him at both Gander Mountain and Bass
Pro Shops; and the surveillance video at Bass Pro Shops
documented both the fact of one of those purchases as well as
the modus operandi that Wiseman had described. Ghiassi also
admitted at the November 2 hearing that he did have at least
temporary possession of all eight of the guns (so that he could
clean them and paint the engraving for Wiseman), and longer‐
term possession of two of them. For his part, Gamblin con‐
firmed that Ghiassi had given him a number of guns for
safekeeping one week prior to their arrest. And, of course,
Foreman indicated that a total of nine guns were seized in the
course of his investigation.
Only Ghiassi himself gave evidence that was in any way
consistent with Wiseman’s testimony. His own story as to the
number of guns he possessed, let us say, evolved over time: at
the first change‐of‐plea hearing, he said that he only possessed
one gun in addition to the AK‐47; at the second hearing he
No. 12‐3596 13
upped that figure to two. And yet, although he denied that he
had ever asked Wiseman to purchase firearms for him, and
insisted that he did not take possession of all eight firearms
from her, he did acknowledge that he possessed all of them at
least temporarily in order to clean and paint the engraving on
them for Wiseman. We cite this last aspect of his testimony not
as an admission that Ghiassi did, in fact possess all eight guns,
but see United States v. Matthews, 520 F.3d 806 (7th Cir. 2008)
(felon’s voluntary, albeit momentary, possession of unloaded
firearm sufficient to establish guilt under § 922(g)(1)), but
rather as an example of his shifting position as to the guns,
which undercut his own credibility.
The district court was thus presented with a classic choice
of whom to believe. Although the court did not receive
testimony as to the number of guns Ghiassi possessed in a
formal, adversarial manner, the court nonetheless saw and
heard each of the three witnesses whose knowledge and
credibility was key to determining how many guns Ghiassi
possessed. Ghiassi addressed this point at both of the two
hearings before the court, and Foreman likewise recounted
Ghiassi’s and Wiseman’s post‐arrest statements at those
hearings. (Foreman, by the way, was subject to cross‐
examination on both occasions.) And, after the dispute as to
the number of guns Wiseman purchased for Ghiassi revealed
itself at Ghiassi’s first change‐of‐plea hearing, the court
questioned Wiseman on this subject at her own sentencing. The
court was therefore uniquely and well‐situated to assess the
credibility of these witnesses.
We have no reason to second guess the court’s decision to
credit Wiseman. It is true, as Ghiassi points out, that Wiseman
14 No. 12‐3596
in pleading guilty to the false statement charge admitted that
she had lied in purchasing guns on Ghiassi’s behalf. But that
acknowledgment, and for that matter her resulting status as a
convicted felon, were hardly unusual, and certainly they did
not render her untrustworthy as a matter of law. The district
judge, having accepted Wiseman’s plea and sentenced her,
certainly was aware of these blemishes, and Ghiassi’s counsel
reminded the court of them in urging it to reject her state‐
ments. The court found her credible nonetheless.
Ghiassi’s alternative argument, that the court deprived him
of due process by relying on the statements Wiseman made
about the guns at her own sentencing hearing, without giving
him an opportunity to cross‐examine her, is a non‐starter.
Ghiassi and his counsel were on notice from the beginning that
the court intended to rely on Wiseman’s statements, and they
had ample opportunity to contest those statements.
First, the district court made clear at Ghiassi’s first change‐
of‐plea hearing that it intended to ask Wiseman about the
number of guns she gave to Ghiassi when she appeared before
the court for sentencing, so it could not have surprised Ghiassi
and his counsel when, at the second hearing, the district court
read from a transcript of the statements Wiseman made on this
subject at her sentencing. Indeed, given Foreman’s testimony
at the first hearing recounting the statements Wiseman had
made to him regarding the guns she purchased for Ghiassi, the
defense knew what Wiseman was likely to say on the subject
when asked by the district court. Yet, at no time did Ghiassi’s
counsel object to the court’s plan to question Wiseman or to
rely on her answers, so at most our review would be for plain
No. 12‐3596 15
error. See, e.g., United States v. Peterson, 711 F.3d 770, 774‐75
(7thCir. 2013).
Second, knowing that the court considered Wiseman to be
a crucial witness and that the court intended to question her on
that point at her sentencing, nothing prevented Ghiassi’s
counsel from obtaining a transcript of her sentencing in
preparation for his client’s own sentencing, which took place
more than five months after Wiseman’s. It is thus inaccurate to
contend, as Ghiassi has, that he had no access to the evidence
on which the court relied in sentencing him.
Third, Ghiassi’s counsel could reasonably anticipate that
the court would resolve the dispute as to the number of guns
his client possessed in the event that the court accepted
Ghiassi’s guilty plea at the second hearing in November, as it
ultimately did. Ghiassi’s counsel says that he assumed the
ongoing dispute as to the number of guns would lead the court
to reject the plea. That was one possibility, given the court’s
decision to continue the change‐of‐plea hearing rather than
accept the plea at the first hearing. But as Ghiassi’s counsel has
himself acknowledged, Ghiassi freely admitted that he
possessed the AK‐47 that he sold to Foreman, so his candor
and culpability as to the charge to which he was pleading was
never truly in doubt. Moreover, when the court continued the
change‐of‐plea hearing, it also ordered the preparation of a
PSR, which was an unmistakable signal that the court might
accept Ghiassi’s plea and move forward to sentencing. The PSR
itself advocated a four‐level enhancement pursuant to
§ 2K2.1(b)(1), based on the notion that Ghiassi had possessed
eight or more guns, and Ghiassi had objected to that aspect of
the PSR in advance of the second hearing. So all parties
16 No. 12‐3596
understood that the number of guns Ghiassi possessed would
be an issue for the court to resolve if and when it accepted
Ghiassi’s guilty plea and proceeded to sentencing.
Fourth, as we have already noted, the Sixth Amendment’s
confrontation clause does not apply at sentencing, so the court
was not precluded from relying on Wiseman’s statements
simply because Wiseman had not been subject to adversarial
questioning. Instead, as we have also noted, reliability is the
criterion for the evidence which a sentencing judge may
consider. There is no reason to doubt that Wiseman’s state‐
ments were reliable: she was speaking from personal knowl‐
edge, the statements were against her own penal interest, she
made the statements in court, the court found her credible, her
statements in court were consistent with what she previously
had told Foreman, and they were corroborated in significant
part by other evidence.
Fifth, at no time did Ghiassi seek to have Wiseman testify
at his own sentencing, nor has he even articulated what, if
anything, he expected adversarial questioning might reveal
that the court did not already know. As we have discussed,
Ghiassi simply emphasizes Wiseman’s acknowledged history
of making false statements in obtaining firearms for him; but,
of course, the court was necessarily aware of that history. We
can see no sense in which Ghiassi was deprived of a fair
sentencing hearing by the court’s consideration of the state‐
ments Wiseman made at her own sentencing.
The court’s finding that Ghiassi possessed all eight of the
guns that Wiseman purchased, and that his statements to the
court denying the same were false, in turn supports the
No. 12‐3596 17
decision to deny him any credit for acceptance of responsibility
pursuant to § 3E1.1. Ghiassi’s brief concedes that “if this Court
determines the trial court did not err in making its relevant
conduct determination then the denial of [credit for] accep‐
tance of responsibility naturally follows.” Ghiassi Br. 10. In
light of that concession, our comments on this point may be
brief. Although Ghiassi only pleaded guilty to the charge that
he unlawfully possessed the AK‐47, he does not dispute that
the eight guns that Wiseman purchased for him constitute
relevant conduct properly considered by the court in ascertain‐
ing his Guidelines offense level. A defendant is not required to
affirmatively admit relevant conduct beyond the offense of
conviction in order to be credited for accepting responsibility,
but neither may he falsely deny or frivolously contest such
conduct. § 3E1.1, comment. (n.1(A)); see, e.g., United States v.
Etchin, 614 F.3d 726, 739‐40 (7th Cir. 2010); United States v.
Chen, 497 F.3d 718, 720‐21 (7th Cir. 2007). Ghiassi chose to
dispute his possession of the additional firearms purchased by
Wiseman, to label her a liar, and to make multiple statements
to the court denying responsibility for those firearms that the
court deemed incredible. The court committed no clear error in
denying him credit for acceptance of responsibility pursuant to
§ 3E1.1(a). See, e.g., United States v. Black, 636 F.3d 893, 900 (7th
Cir. 2011) (decision to deny credit for acceptance of responsibil‐
ity is reviewed for clear error).
In sum, the district court committed no error in determin‐
ing Ghiassi’s offense level and the resulting Guidelines range.
Ghiassi’s sentence was at the low end of that advisory range
and thus is presumptively reasonable. Ghiassi has not other‐
18 No. 12‐3596
wise challenged the reasonableness of his sentence. We
therefore AFFIRM the sentence.