                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2884
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                 v.


NATHANIEL SAUNDERS,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 01 CR 369-1—James B. Zagel, Judge.
                          ____________
     ARGUED APRIL 18, 2003—DECIDED MARCH 1, 2004
                     ____________



 Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. Nathaniel Saunders’s rap
sheet contained three felony convictions prior to the
incident that gave rise to this appeal: aggravated battery
(1975), armed robbery (1980), and murder (1983). After he
was released in 1999 from the prison term he was serving
for the murder conviction, Saunders managed to stay out of
trouble until December 20, 2000. On that evening he was
involved in an altercation that resulted in his current
2                                                No. 02-2884

conviction for being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). On appeal, Saunders
argues that the district court improperly applied Rule 403
of the Federal Rules of Evidence rather than Rule 609(a)(1)
when it ruled that evidence of his prior conviction for
murder would be admissible to impeach his testimony at
trial. Saunders also claims that the district court erred
when it adjusted his offense level two notches upward for
obstruction of justice under U.S. Sentencing Guidelines
(U.S.S.G.) § 3C1.1. Finding no merit to his arguments, we
affirm.


                              I
  Saunders and Willie Allen got into a fight late in the
evening on December 20, 2000. The scuffle left a bullet hole
in Saunders’s left jacket pocket. This incident led to federal
charges against Saunders for violating 18 U.S.C.
§ 922(g)(1), which bars convicted felons from possessing
guns that have traveled in interstate commerce. At trial,
the parties stipulated that Saunders had a prior felony
conviction that was “punishable by a term of imprisonment
of more than one year.” His only defense against the
§ 922(g)(1) charge was to claim that he was not in posses-
sion of the firearm.
   At trial, the government informed Saunders that if he
elected to testify that he was not in possession of a firearm,
it would impeach his testimony with evidence of his prior
felony convictions. Saunders objected on the basis of FED. R.
EVID. 403 and 609(b) to the introduction of the 1975 and
1980 convictions, and the district court agreed that the
government could not use these convictions to impeach
Saunders. The court ruled, however, that evidence of
Saunders’s 1983 murder conviction was admissible with a
limiting instruction directing the jury to consider it ex-
No. 02-2884                                                3

clusively for purposes of impeaching Saunders’s testimony
that he was not in possession of a gun.
  In addition to evidence of the prior murder conviction,
which Saunders’s own lawyer elicited from him on direct
examination, the jury also heard the testimony of four gov-
ernment witnesses, each of whom helped to establish that
Saunders possessed a firearm that evening. The first was
Carrie Slater, who witnessed the fight between Saunders
and Allen. She testified that earlier in the evening
Saunders showed her a gun and then put it in his jacket
pocket. Carrie further explained that she, Saunders, and
her sister Earline Slater, then got into Saunders’s car with
Saunders sitting in the driver’s seat, Earline in the front
passenger seat, and Carrie in the back seat. According to
Carrie, Saunders reached back, handed her his gun and told
her to “put it up”, meaning to “put it up under the seat.” As
the three sat in Saunders’s car, a third Slater sister—Linda
Slater—arrived with her boyfriend Willie Allen. Carrie
testified that Saunders got out of his car, but before doing
so asked her to hand him his gun, which she did. Saunders
then approached Allen’s car where the two began to argue.
Earline joined them and Carrie got out of Saunders’s car to
watch the commotion from the street. She then saw a police
car approach and called out to alert Saunders who began to
walk away when Allen grabbed him from behind. According
to Carrie’s testimony, the two struggled to the ground. One
of Saunders’s hands remained in his left jacket pocket. The
police approached and Carrie testified that she heard a
single gunshot. At the time of the gunshot both Allen and
Saunders were on the ground and both had one hand in
Saunders’s jacket pocket. On re-direct examination Carrie
testified that she did not see anything in Allen’s hand when
he put it into Saunders’s jacket pocket.
    Two additional government witnesses provided testi-
mony that contradicted Saunders’s testimony that he did
not have a gun on him that evening. Earline testified that
4                                                No. 02-2884

while Saunders and Allen struggled to the ground,
Saunders had his hand in his jacket pocket and that a gun
was fired as the two lay on the ground. Although Earline
testified that she never saw Saunders give or receive a gun
from her sister Carrie while the three sat in his car, she
later testified that she saw Saunders throw an object that
she could not identify under a car. Earline testified that she
then saw the police retrieve a gun from under the car.
  The government also called Special Investigator Charles
Hollender of the Chicago Police Department, who was the
arresting officer and who was present at the scene when the
gun was fired. Hollender testified that he heard the gun-
shot, saw down feathers fly from Saunders’s coat, and then
saw the gun “slide from under Mr. Saunders to beneath a
car.” Hollender further testified that following his arrest,
Saunders told him that he carried a gun because “you never
know what these young dudes are going to do,” a statement
Saunders denied making.
  Finally, Joseph Thibault of the Chicago Police
Department’s Forensic Science Center testified that his ex-
amination of Saunders’s jacket revealed evidence that “was
consistent with a contact shot, which means the muzzle of
the firearm was in contact with the lining of the jacket.”
After sorting through the down feathers in the jacket,
Thibault “was able to pretty quickly locate some unburnt
gunpowder.” On cross-examination, Thibault conceded that
he could not tell from his examination of Saunders’s jacket
who fired the gun.
  Following Thibault’s testimony the government rested
and Saunders took the stand. His account of the evening
was different to the extent that he claimed to have felt a
hard object in his back when Allen grabbed him from
behind. According to Saunders, the two struggled to the
ground and the gun went off. Saunders claimed that he
then removed Allen’s hand from his pocket along with the
No. 02-2884                                                5

gun. On cross-examination Saunders explained the se-
quence of events leading up to the shooting as follows: “We
were in the snow, we slipped, both of our hands and the gun
was in my pocket when the gun went off.”
  The defense rested following Saunders’s testimony, and
the jury returned its verdict finding him guilty of violating
§ 922(g)(1). Several months later the district court held a
sentencing hearing, at which time the government moved
for and was granted a two-level upward adjustment under
U.S.S.G. § 3C1.1 for obstruction of justice. Saunders now
appeals his conviction and sentence.


                             II
                             A
  Saunders claims that he is entitled to a new trial because
the district court, relying on the wrong rule of evidence,
allowed the jury to hear evidence of his prior conviction for
murder. As an initial matter, we must decide whether
Saunders is barred from challenging the district court’s
evidentiary decision by the rule set forth in Ohler v. United
States, 529 U.S. 753 (2000).
   In Ohler, the Supreme Court held that a defendant may
not appeal an evidentiary ruling allowing evidence
of a prior conviction if the defendant herself actually in-
troduced the prior conviction, even if a proper contem-
poraneous objection was made. Id. at 760. This challenge
is foreclosed on appeal because a defendant knowingly
waives her claim when, as a strategic matter, she intro-
duces the prior conviction in order to deprive the govern-
ment of its full impeachment effect on cross-examination.
Id. at 757-58. Where tough trial decisions are concerned,
the Supreme Court has made it clear that a defendant must
live with the consequences that flow from her choices. Id. at
758-59. In Ohler, this meant that after trying and failing to
6                                                No. 02-2884

keep evidence out, the defendant who preemptively intro-
duced prior conviction evidence to lessen its sting waived
her right to appeal the initial ruling.
  This case is the same in all material respects. Saunders
objected to the introduction of evidence of his prior mur-
der conviction on the ground that the probative value of the
evidence of his prior conviction was substantially out-
weighed by its prejudicial effect. The district judge disa-
greed and ruled that the evidence could come in through
cross-examination if Saunders decided to testify. Saunders
asserts, and the government concedes, that the district
judge relied on the wrong rule of evidence in granting
the government’s motion. Rather than looking
to FED. R. EVID. 403, as it did, the court should have con-
sulted FED. R. EVID. 609(a)(1) in considering whether to
allow evidence of Saunders’s prior murder conviction.
Saunders seizes on this error to distinguish Ohler. He notes
that in Ohler, there was no claim that the district court
considered the wrong rule of evidence in deciding to admit
the prior crimes evidence; this distinction, he urges, should
permit him to avoid the Ohler rule.
  But such an exception would swallow up the Ohler
rule—who would appeal if there were no claim that the
district court make a mistake? Just as in Ohler, Saunders
was faced with a decision. He could have chosen not to
testify and thus precluded the government from using his
prior murder conviction as an impeachment tool. Or he
could have testified, as he chose to do, and in doing so, he
could have risked not raising his prior conviction preemp-
tively. He did neither; he chose instead to testify on his own
behalf and to raise the prior conviction. In those circum-
stances, the principle animating Ohler applies notwith-
standing any possible error in the district court’s eviden-
tiary ruling. Therefore Saunders has waived his opportunity
to appeal the district court’s application of the incorrect
evidentiary rule.
No. 02-2884                                                7

  Because Saunders waived his claim, we need not consider
whether it was plain error for the district court to allow
evidence of his prior murder conviction under FED. R. EVID.
403 rather than FED. R. EVID. 609(a)(1).


                             B
  Saunders also challenges the district court’s imposition of
a two-level enhancement in his offense level for the obstruc-
tion of justice under U.S.S.G. § 3C1.1. The reason the court
gave for doing so was that Saunders had perjured himself
in his trial testimony. In United States v. Dunnigan, 507
U.S. 87, 95 (1993), the Supreme Court clarified when a
sentence may be enhanced for obstruction of justice under
§ 3C1.1 on the basis of perjured testimony. For sentence
enhancement purposes, the Court adopted the definition of
perjury set forth in the federal criminal perjury stat-
ute—“false testimony concerning a material matter with the
willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” 507 U.S. at
94 (quoting 18 U.S.C. § 1621). A court may impose the two-
level enhancement for obstruction of justice based on
perjury when it “makes a finding of an obstruction of, or
impediment to, justice that encompasses all of the factual
predicates for a finding of perjury.” Id. at 95. Whether the
Dunnigan standard was met in Saunders’s case is a ques-
tion of law that we review de novo; any fact findings that
the district court made in order to reach its conclusion are
reviewed for clear error. United States v. McGiffen, 267 F.3d
581, 591 (7th Cir. 2001).
  Saunders first asks that we reverse his sentence because
the district court failed to make the type of explicit fact
findings that the Supreme Court has said are needed in
order to justify a sentence enhancement under § 3C1.1.
Dunnigan, 507 U.S. at 95 (“[I]f a defendant objects to a
sentence enhancement resulting from her trial testimony,
8                                                No. 02-2884

a district court must review the evidence and make inde-
pendent findings necessary to establish a willful impedi-
ment to or obstruction of justice, or an attempt to do the
same, under the perjury definition we have set out.”); see
also McGiffen, 267 F.3d at 592; United States v. Gage, 183
F.3d 711, 716-17 (7th Cir. 1999). This requirement is met,
we have found, “[a]s long as the trial court determined that
the defendant lied to the judge and jury about matters
crucial to the question of the defendant’s guilt.” United
States v. Holman, 314 F.3d 837, 846 (7th Cir. 2002).
   Here, the court’s findings were too skimpy. The judge
merely observed that Saunders took the stand and told “a
lie which no one would believe,” but which constituted his
defense. The error, however, is harmless. It is clear from
the record before this court that Saunders took the stand in
his defense and lied when he denied possessing a gun.
Saunders’s testimony that Allen put the gun in his pocket
directly contradicted Carrie Slater’s account of the events.
The court found Saunders’s version incredible, as did the
jury, and the lack of more explicit findings on materiality or
intent, although regrettable, does not justify remanding this
case for resentencing.
  Saunders also argues that the district court misunder-
stood the legal standard for increasing an offense level
under § 3C1.1. The district court interpreted the Sentencing
Guidelines as drawing “a clear distinction between conduct
in Court and conduct outside of Court.” From that premise
the court reasoned that when a false statement is made in
court, “even if it doesn’t matter, perjury is an offense
against the solemnity and dignity of the judicial system”
and the obstruction of justice enhancement is warranted.
  This was an incorrect statement of the law. Willful
obstruction of justice includes perjury in court only when a
defendant “gives false testimony concerning a material
matter with the willful intent to provide false testimony.”
No. 02-2884                                                9

Dunnigan, 507 U.S. at 94. If Saunders had perjured himself
on an immaterial matter, even in court, there would be no
obstruction of justice. United States v. Buckley, 192 F.3d
708, 710 (7th Cir. 1999). But this false testimony was
material. Under oath, Saunders denied possessing a gun on
the evening of December 20, 2000. This testimony ad-
dressed the only contested issue at trial. Because Saunders
lied about the central issue at his trial, the district court
properly granted the government’s motion for a sentence
enhancement under § 3C1.1.


                            III
 For these reasons, Saunders’s conviction and sentence are
AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                    USCA-02-C-0072—3-1-04
