                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 02-3122
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of North Dakota.
Galen G. Robertson,                       *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: February 13, 2003

                                   Filed: April 9, 2003
                                    ___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Galen Robertson appeals his conviction for lying to a federal officer in
violation of 18 U.S.C. § 1001 and the ten-month sentence imposed thereon. He
argues that the evidence was insufficient to support the conviction and that the district
court erred in applying a three-level upward departure during sentencing. We affirm
the conviction, vacate the sentence, and remand for resentencing.
                                          I.

       In the early morning hours of March 23, 2001, Robertson went to a party at the
home of Clark Cavanaugh in St. Michael, North Dakota, on the Spirit Lake Indian
Reservation. Robertson argued with Cavanaugh, whereupon Cavanaugh, who is
wheelchair-bound, ordered him to leave. Robertson left the Cavanaugh home,
retrieved a handgun from his vehicle, fired approximately four to six shots outside the
home, reentered the home, and pointed the gun at Cavanaugh’s face. Robertson left
with the gun before the police arrived. Before returning home, Robertson gave the
gun to a friend to keep for him. Robertson was arrested at his residence a short time
later. Bureau of Indian Affairs Special Agent Bentley Grey Bear interviewed
Robertson at the Fort Totten jail that evening. Robertson admitted pointing a gun at
Cavanaugh, but claimed that it was a CO2-powered BB gun and that he was just
playing a joke on Cavanaugh. Robertson also stated that Cavanaugh had grabbed the
BB gun from his hand and stomped on it, breaking it. According to Robertson, he
(Robertson) then picked up the pieces and threw them into the garbage inside
Cavanaugh’s house. Federal Bureau of Investigations Special Agent Mike Wilson
and Special Agent Grey Bear found no evidence at the Cavanaugh residence that
supported Robertson’s statements. At Robertson’s residence, Robertson’s girlfriend
gave Wilson and Grey Bear a BB gun that she said belonged to Robertson.

                                          II.

      In reviewing a defendant’s challenge to the sufficiency of the evidence,
      we view the evidence in the light most favorable to the verdict and take
      as established all reasonable inferences tending to support the verdict.
      Reversal is appropriate only if no reasonable jury could have found the
      defendant guilty beyond a reasonable doubt.

United States v. Sherman, 262 F.3d 784, 790 (8th Cir. 2001) (citations omitted).
Section 1001 of Title 18 prohibits “in any matter within the jurisdiction of any

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department or agency of the United States . . . mak[ing] any false, fictitious or
fraudulent statements or representations.” To sustain a conviction under this section,
the government must prove that any false statements made by the defendant were
material to the governmental inquiry. United States v. Gaudin, 515 U.S. 506, 509
(1995). “[I]n general, a false statement is material if it has a natural tendency to
influence, or [is] capable of influencing, the decision of the decision making body to
which it was addressed.” Preston v. United States, 312 F.3d 959, 961 n.3 (2002) (per
curiam) (internal quotation marks omitted) (quoting Neder v. United States, 527 U.S.
1, 16 (1999)).

       Robertson contends that the government presented no evidence that any false
statements he made were material. Robertson told Special Agent Grey Bear three
falsehoods: (1) that he had used a BB gun, not a .22 caliber handgun; (2) that he was
only joking; and (3) that the gun had been smashed and thrown into the trash.
Robertson argues that his confession that he had pointed a BB gun at Cavanaugh was
sufficient to support an assault charge, thus any false statements he told along the way
were immaterial. We disagree. Robertson’s false statements about the type of
weapon used and what became of it were material to Special Agent Grey Bear’s
investigation. It is elementary that when police officers investigate a crime, they will
seek out physical evidence, such as the weapon that was used. Materiality does not
require proof that the government actually relied on the statement. See United States
v. Hicks, 619 F.2d 752, 754-55 (8th Cir. 1980). A jury could reasonably conclude
that Robertson’s false statements had a natural tendency to influence the course of the
investigation and thus were material to the investigation.

       Robertson also contends that the district court erred in its decision to depart
upward from the sentencing guidelines pursuant to U.S.S.G. § 5K2.9. We review a
decision to depart from the guidelines for abuse of discretion, giving due deference
to the district courts’ institutional advantage in these matters. Koon v. United States,
518 U.S. 81, 98-99 (1996). However, “an abuse-of-discretion standard does not mean

                                          -3-
a mistake of law is beyond appellate correction.” Id. at 100. The sentencing court
may depart from the prescribed sentencing range only if “the court finds that there
exists an aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission in formulating the
guidelines that should result in a sentence different from that described.” 18 U.S.C.
§ 3553(b). Each guideline is considered to carve out a “heartland” of typical cases;
consequently, if the defendant’s conduct “significantly differs from the norm” the
sentencing court should consider whether a departure is warranted. United States v.
Reinke, 283 F.3d 918, 923 (8th Cir. 2002) (quoting U.S.S.G. ch. 1, pt. A, introductory
cmt. 4(b)); United States v. Culver, 929 F.2d 389, 392 (8th Cir. 1991) (affirming
upward departure for conspiracy to transport stolen aircraft where crime was
committed to facilitate drug trafficking). In making this determination, the sentencing
court should ask:

      1) What features of this case, potentially, take it outside the Guidelines'
         “heartland” and make of it a special, or unusual, case?
      2) Has the Commission forbidden departures based on those features?
      3) If not, has the Commission encouraged departures based on those
         features?
      4) If not, has the Commission discouraged departures based on those
         features?

Reinke, 283 F.3d at 923 (quoting Koon, 518 U.S. at 95).

       The sentencing guideline applicable to a violation of 18 U.S.C. § 1001
prescribes a base offense level of six.1 U.S.S.G. app. A. The presentence report
suggested a two-level enhancement for obstruction of justice, citing Robertson’s
statement that he used a BB gun and the witness statements and shell casings found
at the scene that indicated that he used a .22 caliber handgun. The district court


      1
       The district court applied U.S.S.G. § 2F1.1 (2000), which has since been
consolidated into § 2B1.1 (2002).

                                         -4-
rejected the U.S.S.G. § 3C1.1 obstruction-of-justice enhancement, reasoning that it
would constitute improper double counting of an element in the underlying offense.
Combined with Robertson’s criminal history category of I, the applicable guideline
range was zero to six months’ imprisonment. After application of the § 5K2.9
upward departure, the guideline range was four to ten months’ imprisonment.

        The district court cited several factors in determining that an upward departure
was warranted: (1) the underlying conduct involved a gun; (2) the gun was fired
outside Cavanaugh’s home; (3) the victim of the underlying assault was confined to
a wheelchair; (4) Robertson tried to hide his involvement by giving the gun to his
friend; and (5) the false statement was meant to conceal or mitigate his underlying
criminal conduct. These factors do not remove the offense of conviction from the
heartland of § 1001 offenses. They either are unrelated to the offense or have been
taken into account by the guideline range established for a violation of § 1001.
Robertson was convicted of lying to a federal agent. It would not seem to be unusual
for § 1001 violations to involve suspects or witnesses who lie to federal agents to
conceal their own or their associates’ wrongdoing. See, e.g., Brogan v. United States,
522 U.S. 398, 399 (1998); United States v. Baker, 200 F.3d 558, 561 (8th Cir. 2000).
On this point, we respectfully disagree with United States v. LeMaster, 54 F.3d 1224,
1232 (6th Cir. 1995) (rejecting the defendant’s contention that the guidelines
applicable to violations of § 1001 already take into account circumstances involving
lies told to conceal other crimes). The only case cited in LeMaster for the proposition
that § 1001 violations are commonly “motivated by purposes other than the
concealment of other crimes” involved a defendant who falsely told the FBI that his
wife was conspiring to assassinate the president so that the FBI would locate her for
him. Id. (citing United States v. Rodgers, 466 U.S. 475 (1984)). Although the
Sentencing Commission could not consider and account for every variation on false
statements to federal agents, the possibility that a suspect would lie to an interrogator
in order to minimize his exposure to criminal prosecution most certainly would have
been within its consideration. We do not believe that a case in which the defendant

                                          -5-
knowingly lies to a federal agent regarding a fact material to the agent’s investigation
falls outside the heartland of such offenses merely because the defendant told the lie
to conceal aspects of the offense for which he was arrested. See United States v.
Evans, 148 F.3d 477, 485 (5th Cir. 1998) (affirming § 5K2.9 upward departure from
extortion sentence but noting “the sheer scale of the violations” set the offense apart
from the incidental violations taken into account by the Sentencing Commission).

       We affirm the judgment of conviction, vacate the sentence, and remand to the
district court for resentencing.

      A true copy.

          Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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