In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2316

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

R OBERT M C M ATH,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
           No. 07-CR-154—Charles N. Clevert, Jr., Judge.



    A RGUED JANUARY 16, 2009—D ECIDED M ARCH 19, 2009




  Before B AUER, F LAUM, and W OOD , Circuit Judges.
  F LAUM, Circuit Judge. Robert McMath was convicted
in a one-day jury trial of possessing a firearm after being
convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). The district court sentenced McMath to
sixty-three months in prison, which included a two-level
enhancement for perjury and obstruction of justice.
McMath challenges both his conviction and sentence on
appeal. With regard to his conviction, McMath argues
that the district court erred when it did not make factual
2                                               No. 08-2316

findings pursuant to his Batson challenge and also that
remarks made by the prosecutor during closing argu-
ments denied him of a fair trial. With regard to his sen-
tence, McMath challenges the district court’s two-level
enhancement of his sentence for obstruction of justice.
   For the reasons explained below, we remand this case
for further proceedings in light of this opinion. Upon
remand, the district court should first determine
whether it can make factual findings on the Batson issue. If
it is unable to do so or finds that McMath’s challenge
was meritorious, it must vacate McMath’s conviction. If
the district court is able to make factual findings and
holds that the Batson challenge should be denied, the
district court should proceed to resentencing in light of
our conclusion that the district court’s obstruction of
justice enhancement relied on a mistaken factual finding.


                      I. Background
A. Events of May 8, 2007
  On the evening of May 8, 2007, Milwaukee police
officers Chad Boyack and Cory Washington were on
patrol when they observed a Pontiac Bonneville driving
above the speed limit. The officers pursued the vehicle
and activated their lights and siren. The officers observed
the rear passenger (later identified as McMath, an
African American male) sitting “between the middle and
passenger side” of the vehicle. Both officers noticed
McMath moving around in the back of the car. As the
vehicles approached the corner of Keefe and Palmer
No. 08-2316                                              3

streets, the Bonneville took a fast, hard right turn. As it
made the turn, the squad car’s lights shone into the
Bonneville and both officers observed McMath lift
himself up, put both arms toward the back passenger
window (which was about half-way open), and toss a
gun out of the window.
  The Bonneville pulled over about a half-block later and
the officers arrested McMath. The officers noticed that
the back passenger-side window was still about half-way
down. The gun was later recovered from the west side
of Palmer Street.


B. Jury Selection
  The district court called thirty-six prospective jurors
for the voir dire in McMath’s case. No jurors were ex-
cused for cause. The government exercised one of its
peremptory challenges to excuse Juror 7, one of two
African-American jurors on the panel. When the clerk
announced the jurors selected, McMath’s counsel,
Mr. Erickson, objected and the prosecutor, Ms. Black-
wood, responded. The following excerpt from pre-trial
proceedings captures the entire discussion regarding the
challenge:
   MR. ERICKSON:         I have an issue about Juror 7, the
                         African-American.
   THE COURT:            All right.
   MR. ERICKSON:         So, I mean, if you want to—do
                         you want me to do it now?
   THE COURT:            What is the issue?
4                                             No. 08-2316

    MR. ERICKSON:      Yeah, I was thinking under
                       Batson, obviously he’s Afri-
                       can-American. He was struck.
                       The only information we had
                       about him is he was retired. He
                       worked at Social Services, janito-
                       rial. There’s other jurors left on
                       this jury that are retired. Under
                       similar circumstances I think it
                       would be incumbent upon the
                       Government to raise a racially
                       neutral factor at this point.
    MS. BLACKWOOD: Your honor, there are two Afri-
                   can-Americans that were on the
                   panel; one was struck. There is
                   no pattern of discrimination
                   that’s been demonstrated.
    MR. ERICKSON:      Your honor, even though one is
                       left on, there still, I think, has to
                       be a race neutral factor and
                       there’s not here.
    MS. BLACKWOOD: Race neutral factor is expression
                   on his face. That’s all I can say.
                   He looked angry and not happy
                   to be here.
    MR. ERICKSON:      I think pretty much the whole
                       jury looked like that.
    MS. BLACKWOOD: I disagree. I didn’t see that ex-
                   pression.
No. 08-2316                                                5

   MR. ERICKSON:         There were several people that
                         had the same expression.
   THE COURT:            The Batson challenge is denied.
The district court did not discuss the matter further and
Juror 7 was excused.


C. The Trial and Closing Statements
  At trial, the government’s case relied almost exclusively
on the testimony of Officers Boyack and Washington,
who testified to the facts outlined above. McMath took
the stand in his defense and testified that he had been
drinking that night and that he had dozed off during the
car ride with his head against the back driver’s-side
window. He stated that he awoke when the car took the
hard right turn and he “kind of leaned” to the right side.
He said that he ended up on the right/passenger side of
the car because he was “kind of—wobbly, so I went over
that way.” He denied throwing a gun out of the rear
window and stated that he did not see anyone throw a
gun out of the car. On cross, McMath acknowledged that
he knew that he would go to prison if he was caught
with a gun. He also admitted that he asked an officer
during an interview later that night, “If I can prove that
the gun isn’t mine, I can beat this, right?”
 The prosecution’s closing statement and rebuttal state-
ment contained two types of remarks now challenged on
6                                                No. 08-2316

appeal.1 First, the prosecutor commented on the credi-
bility of the testifying police officers as well as McMath.
In her closing statement, the prosecutor stated that the
jury should believe the officers because “[t]hey’re not out
to get Robert McMath. They’re out to get guns off the
street and out of the hands of felons, and they saw what
they saw.” In her rebuttal, the prosecutor also told the
jury that the officers would lose their jobs if they lied:
    [I]f you want to buy that they came in and perjured
    themselves to get Robert McMath who they don’t
    know from Adam just to get somebody, that would be
    immoral; that would be unethical, that would be a
    million things; that would be the loss of their job.
    I mean, you know, is that reasonable . . . ?
The prosecutor stated that she “knew” McMath did not
want to admit his guilt to the jury and that his story was
“completely bogus” based on “physics and centrifugal
force” in the car.
  Second, the prosecutor made statements regarding the
lack of DNA evidence in the case. During her rebuttal, the
prosecutor stated:



1
  For context, McMath’s attorney argued in closing that the
police conducted a sloppy investigation. He stated that the
police likely did not see who threw the gun out the window but
attributed it to McMath after he handed them a Wisconsin
Department of Corrections identification card. Defense
counsel also pointed out that there was no physical evidence,
such as DNA or fingerprints, linking McMath to the gun.
Finally, McMath’s counsel argued that there was reasonable
doubt.
No. 08-2316                                                7

    Now, again, you know, this whole specter of finger-
    prints and DNA evidence and equating that with
    reasonable doubt; once again, I’m afraid that Holly-
    wood has done a service—disservice to law enforce-
    ment because Hollywood makes you believe that
    you’re always going to be expecting to find DNA and
    fingerprint evidence.
She also implied that one reason the government did this
forensic testing was to prevent defense counsel from
pointing out the lack of such testing:
    Well, I guess we’re damned if we do, and we’re
    damned if we don’t. Why did they even check for DNA
    and fingerprint evidence if it doesn’t matter. That’s
    what he [defense counsel] says. And yet if we hadn’t
    checked for it he’d be stomping and pounding the
    podium and yelling about why didn’t they check for
    prints, why didn’t they check for DNA; so police do
    it as a matter of course. Sometimes you’re lucky;
    sometimes you’re not.
  After closing statements the jury retired to deliberate and
returned a guilty verdict on the one-count indictment.


D. Sentencing
  The district court sentenced McMath to sixty-three
months in prison, which included a two-level increase in
his offense level for obstruction of justice pursuant to
U.S.S.G. § 3C1.1.
 In explaining its decision on the obstruction enhance-
ment, the district court recounted portions of McMath’s
8                                                No. 08-2316

testimony. The court said that “Mr. McMath’s state-
ment regarding his activities in the car, his location in the
car, his denial that he had a gun or saw a gun in my
view were untrue, perjury, an attempt to obstruct the
proceeding and a factual basis for this court to assess the
two points under the sentencing guidelines.” Significantly,
the district court also discussed a photograph of the
Pontiac Bonneville that showed that the window on the
rear passenger side was open. The district court asserted
that McMath had testified that the window was up, and
stated that “[t]hat [discrepancy] alone is enough to
justify the obstruction points. That alone.” At sentencing
McMath, the district court told McMath:
    [Y]ou did not tell the truth when you took the stand
    in this case. And if your perjury were not as clear
    the court might be more inclined to cut you a break.
    That’s one reason why I even asked you if you
    wished to make a statement. That’s one reason why
    I gave you an opportunity to reflect on what you
    testified to during the trial. That is one reason why
    I offered up the photograph [of the car], so that you
    could observe that when you testified about the win-
    dow in the back seat of the car being up, the objective
    proof shows it was not. But you still did not accept
    responsibility.
However, contrary to the district court’s assertion, the trial
transcript shows that McMath did not testify that the
rear window on the passenger side was closed; rather he
testified that the rear window on the driver’s side was
closed.
No. 08-2316                                                     9

                        II. Discussion
A. Batson Challenge
  In Batson v. Kentucky, 

(1986) the Supreme
Court held that a state’s exercise of peremptory chal-
lenges to exclude jurors on account of race violated the
defendant’s equal protection rights. Batson challenges
require a three-step inquiry: (1) the defendant must
establish a prima facie case that a peremptory challenge
was used to exclude a juror on the basis of race; (2) once
the defendant establishes the prima facie case, the pros-
ecutor must provide a race-neutral explanation for the
exclusion; and (3) the court must determine whether the
objecting party has carried his burden to prove discrim-
ination. United States v. Cooper, 

, 1158 (7th
Cir. 1994).
  McMath alleges that the district court improperly failed
to make factual findings when ruling on his Batson chal-
lenge. Traditionally, we review the district court’s Batson
findings for clear error. See Rice v. Collins, 

, 338
(2006) (“On direct appeal in federal court, the credibility
findings a trial court makes in a Batson inquiry are re-
viewed for clear error.”); accord United States v. Evans, 

, 700 (7th Cir. 1999). However, because McMath
alleges that the district court failed to appropriately
conduct the Batson inquiry, a legal error, our review is
de novo.2



2
 In United States v. Taylor, 

, 843-44 (7th Cir. 2007),
we declined the defendants’ invitation to apply de novo review
                                                    (continued...)
10                                                 No. 08-2316

  As recounted above, the district court denied
McMath’s Batson challenge without comment on the
matter. McMath argues that by not making factual
findings on the credibility of the government’s proffered
race-neural reason for the strike, the district court acted
contrary to the Supreme Court’s recent decision in
Snyder v. Louisiana, ___ U.S. ___, 

, 1207-08
(2008). The government asserts that McMath failed to
make a prima facie case of discrimination, as required by
Batson, and also that the judge’s ultimate denial of the
Batson challenge should be understood as “implicit find-
ings” on whether the prosecutor’s race-neutral reason
was credible.
  We first look to the government’s argument that
McMath never satisfied the first prong of the Batson
inquiry of making a prima facie case of discrimination. As
an initial matter, this argument appears to be moot under



2
   (...continued)
to what the defendant characterized as the district court’s
misapprehension of the Batson procedure. However, in that
case, unlike here, the court found the defendant’s claims of
legal error to be overstated. Here, that is not the case, and
de novo review of the district court’s Batson inquiry appears to
be appropriate. In any event, however, a mistake of law gener-
ally satisfies clear error, de novo or for that matter abuse of
discretion review. See Maynard v. Nygren, 

, 467 (7th
Cir. 2003) (“[A] district court by definition abuses its discre-
tion when it makes an error of law, and, while factual findings
are generally reviewed only for clear error, findings which
are tainted by the application of an inapposite standard are
subject to fuller review”) (internal citations omitted).
No. 08-2316                                                11

Hernandez v. New York, 

, 356-58 (1991) because,
despite the government’s contention now that the defen-
dant did not present a prima facie case, at the time of
the challenge, the prosecution provided a race-neutral
reason and the district court ruled on the Batson chal-
lenge. In Hernandez, the Supreme Court considered essen-
tially the same scenario. In that case, the defendant raised
a Batson objection, and, as in this case, the prosecutor did
not wait for a ruling on whether the defendant had estab-
lished a prima facie question of racial discrimination.
Rather, the prosecutor volunteered his reasons for
striking the jurors in question and the trial court denied the
defendant’s challenge to the exclusion. 

The
Supreme Court ruled that in this situation—where “a
prosecutor has offered a race-neutral explanation for the
peremptory challenges and the trial court has ruled on
the ultimate question of intentional discrimination”—the
issue of whether the defendant has made a prima facie
case “becomes moot.” 

It thus appears that the
question of whether McMath made a prima facie case
is moot.
  However, even if this question was not moot, it
appears that the defendant satisfied the requirements of
the prima facie case. In Johnson v. California, 

,
173 (2005), the Supreme Court reaffirmed the principle
that, in making a prima facie case, a defendant need only
produce evidence sufficient to permit an inference of
discrimination in order to satisfy the first step of the
Batson analysis. The test is not rigorous: suspicion even
less than “more likely than not” suffices. See id.; accord
United States v. Stephens, 

, 512 (7th Cir. 2005)
12                                              No. 08-2316

(“[T]he burden at the prima facie stage is low, requiring
only circumstances raising a suspicion that discrim-
ination occurred, even when those circumstances are
insufficient to indicate that it is more likely than not
that the challenges were used to discriminate.”).
  Here, the defendant met this threshold. The defendant
noted that the prosecution had used its peremptory
challenge to remove Juror 7, one of two African-American
jurors, and also noted that “[t]he only information we
had about him is he was retired. He worked at Social
Services, janitorial. There’s other jurors left on this jury
that are retired [who were not struck].” Although this
evidence is certainly not conclusive, it suffices for the
prima facie case. While it is true that it would not have
been sufficient for defense counsel merely to point to the
stricken juror’s race, see, e.g., Anderson v. Cowan, 

, 901-02 (7th Cir. 2000), defense counsel’s statement
that jurors sharing Juror 7’s only other known characteris-
tic, his status as a retiree, had been retained by the pros-
ecution pointed out a relevant circumstance that was
sufficient to permit an inference of discrimination and
prompt the prosecution to provide a race neutral justifica-
tion for the exclusion. See United States v. Taylor, 

, 844 (7th Cir. 2007) (proper to compare stricken
black jurors to unstricken white jurors in the context of
a Batson challenge) (citing Miller-El v. Dretke, 

, 241 (2005)).
  We turn now to the second step of the Batson inquiry in
this case. The government claimed that it struck Juror 7
because of the expression on his face; specifically, the
No. 08-2316                                                13

government stated that he “looked angry and not happy
to be here.” It is well-established that a juror’s demeanor
is a valid race-neutral basis for a peremptory strike, which
is all that is required for step two of the Batson inquiry.
See, e.g., United States v. Hinton, 

, 397-98 (7th
Cir. 1996) (listing a number of demeanor-based reasons
which may properly be the basis of choosing jurors); see
also United States v. Briscoe, 

, 1489 (7th Cir.
1990) (accepting that “intuitive assumptions that are not
fairly quantifiable” play a role in jury selection). Thus, the
prosecutor’s reason, if credible, was a proper reason
for striking Juror 7 in this case.
  We thus come to the third step of the Batson inquiry: the
district court’s determination regarding discrimination.
Specifically, we must decide whether the district court’s
summary ruling on the Batson issue was legally sufficient
to dispose of McMath’s Batson challenge. The Supreme
Court’s recent decision in Snyder v. Louisiana, ___ U.S. ___,

, 1207-08 (2008) is highly relevant to our
analysis. In Snyder, the defendant made a Batson chal-
lenge and the prosecutor explained that he had requested
the strike first because the juror in question looked
“nervous,” and second because the prosecutor worried
that the juror might attempt to deliver a guilty verdict to
a lesser charge in order to keep deliberations short and
get back to his job more quickly. The trial court did not
make any findings regarding the challenge, saying only:
“All right. I’m going to allow the challenge. I’m going to
allow the challenge.” 

  The Supreme Court first emphasized that the trial court
has a “pivotal role” in evaluating Batson claims. 

14                                              No. 08-2316

The Court noted that especially where “race-neutral
reasons for peremptory challenges [ ] invoke a juror’s
demeanor (e.g., nervousness, inattention),” the trial
court’s first-hand observations are “of even greater im-
portance.” 

stated that when a prosecutor
invokes a juror’s demeanor as the race-neutral reason
for the strike, “the trial court must evaluate not only
whether the prosecutor’s demeanor belies a discrimina-
tory intent, but also whether the juror’s demeanor can
credibly be said to have exhibited the basis for the
strike attributed to the juror by the prosecutor.” 

the case, the Supreme Court observed that
“nervousness” could not be shown from a cold transcript,
which, it noted again, showed why the trial judge’s
evaluation must be given deference. 

How-
ever, the trial judge in Snyder had not made findings
concerning the juror’s demeanor and instead simply
allowed the peremptory strike without explanation. As
the Court observed, it was difficult to tell why the trial
court denied the challenge. 

judge may not
have recalled the juror’s demeanor at the time it made
its ultimate ruling (a day after the challenge), or the
judge may have credited the prosecutor’s second basis for
the strike (that the juror was likely to deliver a verdict to
a lesser charge in order to keep deliberations short).
Because there was no way to tell why the judge ruled as
it did, the Court could not “presume that the trial judge
credited the prosecutor’s assertion that [the juror] was
nervous.” 

In light of the “absence of anything
in the record showing that the trial judge credited the
claim that [the juror] was nervous”—and because the
No. 08-2316                                               15

prosecutor’s second basis for the strike appeared to be
pretextual, see 

record did not show
that the prosecution would have pre-emptively chal-
lenged the juror based on his nervousness alone. 

Since there was no “realistic possibility that this
subtle question of causation [for the peremptory challenge]
could be profitably explored further on remand” more
than a decade after the defendant’s trial, the Court’s ruling
had the effect of setting aside the defendant’s conviction
and sentence. See State v. Snyder, 

(La. 2008)
(observing that the Supreme Court’s decision “effectively
sets aside defendant’s conviction and sentence”).
  Here, like Snyder, the district court made no findings
regarding the prosecutor’s race-neutral demeanor-
based justification of the strike. Rather, the judge simply
stated that the Batson challenge was denied. The dis-
trict court did not indicate whether it agreed that Juror 7
had an unhappy expression on his face, did not indicate
whether this expression was unique to Juror 7 or common
to other jurors, and made no evaluation of the prosecutor’s
credibility. Like Snyder, the record here does not show
that the prosecutor based the strike on Juror 7’s expression
alone and, as Snyder teaches, we cannot presume that
the prosecutor’s race-neutral justification was credible
simply because the district judge ultimately denied the
challenge.
  The government urges us to find that the district court’s
summary denial was an “implicit finding” that the pros-
ecutor’s explanation was credible. However, the notion
that a district judge’s summary denial of a Batson chal-
16                                              No. 08-2316

lenge can be interpreted as “implicit findings” on the
proffered race-neutral justification for the strike clearly
undermines Snyder. 

Snyder makes clear that a
summary denial does not allow us to assume that the
prosecution’s reason was credible; rather, the district
court’s silence leaves a void in the record that does not
allow us to affirm the denial. We thus conclude that the
district court clearly erred in denying the Batson chal-
lenge without making findings regarding the credibility
of the proffered race-neutral justification for the strike.
   We believe that remanding for further findings and a
possible evidentiary hearing on the Batson issue is the
most appropriate step at this time. See, e.g., 

(retaining jurisdiction but remanding for
the district court to supplement the record with factual
findings); United States v. Taylor, 277 Fed. Appx. 610, 612-
13 (7th Cir. May 13, 2008) (“Taylor II”) (concluding that
the district court made insufficient factual findings
after Taylor I and remanding again for an evidentiary
hearing to develop the record). In Snyder, remand for
the trial judge to make findings regarding the juror’s
demeanor was deemed fruitless because the trial had
occurred more than ten years prior. 

(“[T]here
is no realistic possibility that this subtle question of
causation could be profitably explored further on remand
at this late date, more than a decade after petitioner’s
trial.”). But remand may be more worthwhile in this case,
as voir dire occurred only a little over a year ago. While
it is certainly possible that the passage of time will make
it impossible for the district judge to make findings of
fact, our concern for judicial economy persuades us that
No. 08-2316                                                17

allowing the district judge the opportunity for such
findings is the correct course. Upon remand, if the
passage of time precludes the district court from
making factual findings, it must vacate the judgment of
conviction. In the event the district court can arrive at
appropriate findings of fact satisfying the Batson inquiry,
it should proceed to resentencing in accord with this
opinion, as explained in Part C of our analysis.


B. Prosecutorial Misconduct
  The defendant claims that several comments made by
the prosecutor in her closing argument and rebuttal
argument denied him a fair trial. Because McMath did not
object to the remarks during trial, we review for plain
error. See Fed. R. Crim. P. 52(b); United States v. Olano, 

, 731-36 (1993). Reversal is only warranted where
there is “(1) error, (2) that is plain, and (3) that affect[s]
substantial rights” and “(4) the error seriously affect[s] the
fairness, integrity, or public reputation of judicial proceed-
ings.” See Johnson v. United States, 

, 466-67
(1997) (internal quotations omitted).
  This Court employs a two-part test to assess allegations
of prosecutorial misconduct in closing arguments. First,
the court will “consider the prosecutor’s disputed remarks
in isolation to determine whether they are improper.”
United States v. Johnson-Dix, 

, 1304 (7th Cir.
1995). If the remarks are improper in isolation, we “con-
sider the remarks in the context of the entire record and
assess whether they ad the effect of denying the defendant
18                                              No. 08-2316

a fair trial.” 

the statements, the court
should consider
     the nature and seriousness of the statement; whether
     the statement was invited by the conduct of defense
     counsel; whether the district court sufficiently in-
     structed the jury to disregard such statements; whether
     the defense could counter the improper statement
     through rebuttal; and finally, whether the weight of
     the evidence was against the defendant.
United States v. Severson, 

, 1014 (7th Cir. 1993);
accord 

(quoting 

). As a general matter, improper comments
during closing arguments “rarely rise to the level of
reversible error, and considerable discretion is entrusted
to the district court to supervise the arguments of coun-
sel.” United States v. Wilson, 

, 353 (7th Cir.
1993) (quotation marks and citation omitted).


     1. Comments Regarding Witness Credibility
  We first consider the prosecutor’s remarks about the
police officers’ testimony. The prosecutor stated that the
jury should believe the police officer witnesses because
“[t]hey’re not out to get Robert McMath. They’re out to
get guns off the street and out of the hands of felons, and
they saw what they saw.” In her rebuttal, the prosecutor
also told the jury that the testimony of the officers was
“clear and really credible” and further commented that
the officers would lose their jobs if they lied. The first
comment—that the officers’ goal was to get guns of the
No. 08-2316                                                19

street—did not likely have a negative effect on the jury.
The jury heard evidence that McMath was arrested by
the officers for being a felon in possession of a weapon,
and thus likely intuited that combating such conduct was
part of the officers’ job. See United States v. Amerson, 

, 686 (7th Cir. 1999) (prosecutor’s statement that
it was officers’ job to arrest dope peddlers was not im-
proper vouching). The prosecutor’s comment regarding
the officers being “really credible,” while technically
improper vouching, also seems fairly innocuous in con-
text. Credibility was a central issue in the case and while
the prosecutor should not have commented directly on
the officers’ credibility, we cannot conclude that
McMath’s substantial rights were affected by the remark.
   However, it was improper for the prosecutor to say that
the officers would lose their jobs if they lied, as the gov-
ernment has conceded. See 

-05 (improper for prosecutor to assert that law en-
forcement agent would risk his job if he lied); United States
v. Swiatek, 

, 731 (7th Cir.) (improper for prose-
cutor to argue that agent had no reason to lie and to risk
his career and reputation), cert. denied, 

(1987).
Thus, we must consider whether the statement—in the
context of the entire record—deprived McMath of a
fair trial.
  We first note that McMath’s counsel had no oppor-
tunity to counter the statement, as it was made in the
government’s rebuttal argument. However, the rest of the
relevant factors counsel against a finding that McMath’s
substantial rights were violated by this comment. The
20                                                No. 08-2316

prosecutor did not misstate any evidence in her remark.
Although the district court did not immediately instruct
the jury to disregard the comment, it later instructed
the jury that closing arguments were not evidence. Most
importantly, the record reflects that the officers’ credibility
was solidly established apart from the prosecutor’s im-
proper remark. The defendant’s cross-examinations of
the officers revealed no significant inconsistencies in
their testimony or biases which may have motivated
them to lie. Thus, although the remark was improper,
we do not believe that it jeopardized the fairness or
integrity of McMath’s trial. See 

.
  The prosecutor also made remarks about McMath’s
credibility. She stated that McMath’s story was “com-
pletely bogus” based on “physics and centrifugal force” in
the car and that she “knew” McMath did not want to
admit his guilt to the jury. These comments did not
constitute plain error. First, the prosecutor was in some
sense correct that McMath’s testimony was belied by
physics. McMath testified that when the Bonneville took
a hard right turn he leaned to the right. But when a car
turns right, passengers are thrown to the left. Second,
while the prosecutor probably should not have said that
she “knew” McMath did not want to admit his guilt,
challenging McMath’s veracity and stating that his
version was “bogus” does not meet the standard for
plain error. We have held that a prosecutor is permitted
to draw reasonable inferences from the evidence in dis-
cussing witness credibility, and may go so far as to call
the defendant a liar if the record supports that accusation.
See United States v. Andreas, 

, 671 (7th Cir.
No. 08-2316                                               21

2000). Here, there was reason to question McMath’s
account. In any case, these statements did not affect the
fairness of the trial and thus do not constitute plain error.


    2. Comments Regarding Physical Evidence
  McMath challenges the prosecutor’s statements made in
rebuttal regarding the lack of DNA evidence. In McMath’s
closing argument, his lawyer stated, regarding DNA
evidence:
    You know, if that wasn’t really important, why the
    heck did [the police] [have the gun checked for prints
    and DNA]? I mean, no matter what spin is put on it,
    [McMath’s] fingerprints are not on that gun, his DNA
    are [sic] not on that gun.
During her rebuttal, the prosecutor stated:
    Now, again, you know, this whole specter of finger-
    prints and DNA evidence and equating that with
    reasonable doubt; once again, I’m afraid that Holly-
    wood has done a service—disservice to law enforce-
    ment because Hollywood makes you believe that
    you’re always going to be expecting to find DNA and
    fingerprint evidence.
The prosecutor also indicated that one reason the gov-
ernment conducted DNA and fingerprint testing was to
prevent defense counsel from pointing out the lack of
such testing. Specifically, she stated:
    Well, I guess we’re damned if we do, and we’re
    damned if we don’t. Why did they even check for DNA
22                                            No. 08-2316

     and fingerprint evidence if it doesn’t matter. That’s
     what he [defense counsel] says. And yet if we hadn’t
     checked for it he’d be stomping and pounding the
     podium and yelling about why didn’t they check for
     prints, why didn’t they check for DNA; so police do
     it as a matter of course. Sometimes you’re lucky;
     sometimes you’re not.
McMath argues that these statements were not based on
the evidence and violated a district court ruling which
barred Officer Boyack from testifying to similar matters.
  We do not find these comments to be clear error. While
the district court had earlier ruled that Officer Boyack
could not testify about the frequency with which DNA
or fingerprint evidence was obtained, it is worth noting
that neither the defendant nor the court made any con-
temporaneous objection to the prosecutor’s comments. This
is not entirely surprising: it does not appear that the
prosecutor was trying to introduce expert-type testi-
mony about the frequency with which DNA or fingerprint
evidence is obtained, as defendant contends. Rather, the
prosecutor was stating—perhaps inartfully—that such
results cannot always be expected and that the absence
of such evidence should not be held against the govern-
ment. As the government states, the comment “was not a
reference to ‘facts’ outside the record, but instead was
an argument about how the jury ought to weigh the
absence of scientific evidence.” In any case, even if the
comments shaded into impermissible commentary, the
comments did not render the petitioner’s trial unfair.
No. 08-2316                                                 23

C. Sentencing
  McMath contends that the district court based its ob-
struction of justice sentencing enhancement on a mis-
taken belief regarding McMath’s testimony. We review
de novo the adequacy of the district court’s obstruction of
justice findings and any underlying factual findings
for clear error. United States v. Carroll, 

, 793
(7th Cir. 2005).
  In reaching its decision on the enhancement, the
district stated that “Mr. McMath’s statement regarding his
activities in the car, his location in the car, his denial that
he had a gun or saw a gun in my view were untrue,
perjury, an attempt to obstruct the proceeding and a
factual basis for this court to assess the two points under
the sentencing guidelines.” The court also relied in part
on a photograph of the Bonneville that showed that the
window on the rear passenger side was open. The dis-
trict court asserted that McMath had testified that the
window was closed, and stated that “[t]hat alone is
enough to justify the obstruction points. That alone.”
  In sentencing McMath, the district court told him:
    [Y]ou did not tell the truth when you took the stand
    in this case. And if your perjury were not as clear the
    court might be more inclined to cut you a break. That’s
    one reason why I even asked you if you wished to
    make a statement. That’s one reason why I gave you
    an opportunity to reflect on what you testified to
    during the trial. That is one reason why I offered up
    the photograph [of the car], so that you could observe
    that when you testified about the window in the
24                                               No. 08-2316

     back seat of the car being up, the objective proof
     shows it was not. But you still did not accept responsi-
     bility.
However, the trial transcript shows that McMath did not
testify that the rear window on the passenger side was
closed; rather he testified that the rear window on the
driver’s side was closed.
     Q. And your window was halfway open, correct?
     A. No, my window was up.
     Q. Your window was up?
     A. Yeah, my arm—the window behind the driver
        was up. The window I was laying on—
     Q. But the other window was halfway open, correct?
     A. I mean, I really don’t even know; but I seen from
        the pictures that it was, so yes.
It thus appears that the district court was mistaken when
it found that McMath had testified falsely that the
passenger-side window was closed.
  We must defer to the district court’s findings of fact
unless they are clearly erroneous, and we arrive at a
“definite and firm conviction that a mistake has been
made.” United States v. Brierton, 

, 1137 (7th
Cir. 1999). Although the district court based its perjury
finding on several areas of McMath’s testimony other
than testimony regarding the passenger-side window, the
district court focused on the window issue quite a lot
when pronouncing McMath’s sentence. The district
court even stated that “if your perjury were not as clear
No. 08-2316                                                  25

the court might be more inclined to cut you a break. . . .
That is one reason why I offered up the photograph [of
the car], so that you could observe that when you testi-
fied about the window in the back seat of the car being
up, the objective proof shows it was not. “
  Where a district court selects a guidelines range by
relying on a clearly erroneous factual finding, “we are
obliged to remand for resentencing unless, reviewing the
record as a whole, we can conclude that the error was
harmless, i.e., that the error did not affect the district
court’s selection of the sentence imposed.” United States v.
Hollis, 

, 958 (7th Cir. 2000) (citing Williams v.
United States, 

, 201-04 (1992)). Here, we cannot
conclude that the error did not affect the district court’s
sentence and thus we vacate and remand for possible
resentencing.3 See, e.g., United States v. Berheide, 

, 539 (7th Cir. 2005) (vacating and remanding sentence
because district court relied on erroneous factual
finding regarding loss amount).


                       III. Conclusion
  For the reasons explained above, we R EMAND this case
for further proceedings in light of this opinion. Upon
remand, the district court should first determine whether



3
  Of course, resentencing will only be necessary if the district
court is able to make factual findings on the Batson issue and
concludes that the Batson challenge should be denied, as
explained above.
26                                             No. 08-2316

it can make factual findings on the Batson issue. If it is
unable to do so or finds that McMath’s challenge was
meritorious, it should vacate McMath’s conviction. If the
district court is able to make factual findings and holds
that the Batson challenge should be denied, the district
court should proceed to resentencing in light of our
conclusion that the district court’s obstruction of justice
enhancement relied on a mistaken factual finding.




                          3-19-09