           Case: 12-13748   Date Filed: 02/26/2013   Page: 1 of 10

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13748
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:12-cr-00008-WHA-WC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NACRETIA LEWIS,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (February 26, 2013)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:
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       Nacretia Lewis appeals her convictions and 15-month sentence, imposed

after a jury found her guilty of perjury, in violation of 18 U.S.C. § 1623, and

making a false statement, in violation of 18 U.S.C. § 1001. On appeal, Lewis

argues that: (1) the evidence was insufficient to support her convictions; and (2)

her sentence was procedurally and substantively unreasonable.

                                           I.

       Lewis’s perjury conviction stems from her giving false alibi testimony under

oath before the U.S. District Court for the Middle District of Alabama. She

testified at the jury trial of Janika Bates concerning the whereabouts of Bates on

January 20, 2011. Lewis’s false statement conviction is based on her repeating the

false alibi story to an IRS special agent after Bates’s conviction.

       Bates went to trial on charges of conspiracy, identity theft, aggravated

identify theft, and wire fraud in September 2011. At Bates’s trial, the government

presented evidence from two witnesses, IRS special agent Lisa Fontanette and

Natasha Harris (Bates’s co-worker), that Bates fled from her workplace at NCO

Financial Systems, Inc. (NCO) on January 20, 2011, when IRS agents attempted to

arrest her.

       Lewis testified to a different version of events. Lewis testified that on

January 20, 2011, she was with Bates, a close friend from her childhood who she

referred to as her “cousin.” Lewis told the jury she picked up Bates from NCO at


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around 10:00 a.m. and went to a couple of stores to waste time and have lunch

before Lewis’s shift started at noon. Lewis claimed she never took Bates back to

work, but rather dropped her off at Bates’s mother’s house. Then, apparently,

Lewis returned to NCO a few minutes after noon, where she stayed working until

9:30 p.m. that night. Lewis further testified that she never saw police around

Bates’s car that day.

       After Bates was convicted, IRS Agent Fontanette interviewed Lewis to

determine whether Lewis had given false testimony at Bates’s behest. The

question of whether Bates solicited perjury was relevant to Bates’s guideline

calculation for her sentencing. Lewis continued to claim that her testimony was

truthful.

       Lewis was then indicted for perjury and making a false statement.

At Lewis’s trial, the government presented a number of witnesses. Agent

Fontanette testified that her team, in police attire, arrived at NCO’s parking lot

around 11:45 a.m. and discovered Bates’s car in the parking lot. After waiting for

Bates and unsuccessfully calling her at around 1:30 p.m., the agents looked inside

the NCO building but were unable to find her.

       Agent Fontanette also testified that she met with Lewis after Bates had been

convicted in order to question Lewis about her testimony. During that meeting,

Agent Fontanette informed Lewis that lying to federal agents was a crime and that


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she had records from NCO showing that Lewis did not work on January 20, 2011,

and that NCO did not pay her for work that day. Lewis’s only response was that

the phone system employees used to log in was sometimes wrong. Agent

Fontanette then asked Lewis whether Bates had asked her to lie for her during the

trial. Lewis denied that Bates had done so, and asked Agent Fontanette to leave.

      Lewis’s alibi testimony from the Bates trial was contradicted by several

witnesses. Natasha Harris, a supervisor at NCO, testified that she had seen Bates

and interacted with her at the NCO offices on January 20, 2011, after the police

arrived and surrounded Bates’s vehicle. Steven Behrend, the human resource

manager for NCO, testified that if an employee did not log into her phone, she

would not be able to do any work and that payroll records were based on phone

log-ins. He confirmed that the records did not show that Lewis worked on January

20, 2011, and that Lewis was not paid for working that day. Finally, Lewis’s

mother, Linda Hadnott, testified that she had a phone conversation in which Lewis

told her that a cousin wanted Lewis to lie for her, but did not mention the cousin by

name or mention that the lie would be on the witness stand.

      The government rested, and Lewis asked for a judgment of acquittal, which

the court denied. The jury found Lewis guilty on both counts. Lewis again moved

for a judgment of acquittal on both counts, arguing that the evidence was

insufficient to support her convictions. The court also denied that motion. The


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district court sentenced Lewis to 15 months’ imprisonment on each count to run

concurrently.

                                          II.

      Lewis argues that the evidence was insufficient to sustain her convictions for

perjury and making a false statement to a federal agent. She asserts that the

government did not establish her trial testimony as material or that she knowingly

gave the false testimony. Lewis further asserts that her statements to Agent

Fontanette were not knowingly false or material.

      We review the sufficiency of the evidence de novo, viewing the evidence in

the light most favorable to the government and drawing all reasonable inferences

and credibility choices in favor of the jury’s verdict. United States v. Friske, 640

F.3d 1288, 1290–91 (11th Cir. 2011). It is unnecessary for the government to

present evidence which “exclude[s] every reasonable hypothesis of innocence or

[is] wholly inconsistent with every conclusion except that of guilt.” United States

v. Harris, 20 F.3d 445, 453 (11th Cir. 1994). A jury is free to choose among

reasonable constructions of the evidence, and we must accept the jury’s credibility

determinations and reasonable inferences from the evidence. United States v.

Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006).

                                     A. Perjury




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       To sustain a conviction for perjury under 18 U.S.C. § 1623(a), the

government must prove beyond a reasonable doubt that the testimony was: (1)

false; (2) material; and (3) made with knowledge of its falsity. United States v. De

La Torre, 634 F.2d 792, 795 (5th Cir. Unit A Jan. 1981).1 The test for materiality

is whether the false statement “has a natural tendency to influence, or was capable

of influencing, the decision making body to which it was addressed.” United

States v. Johnson, 485 F.3d 1264, 1270 (11th Cir. 2007) (quotation marks omitted).

Even if the statement did not actually influence the tribunal, it is sufficient if it

could have possibly influenced it. Id.

       Lewis’s alibi testimony at Bates’s trial directly contradicted the

government’s evidence of Bates’s flight from her impending arrest on January 20,

2011. Indeed, if Lewis’s testimony was believed it would have “a natural tendency

to influence” the jury’s assessment of Bates’s guilt. See Johnson, 485 F.3d at

1270. Therefore, Lewis’s testimony was material as a matter of law.

       There was also sufficient evidence for a jury to find that Lewis’s statements

were made knowingly. Lewis testified that she referred to Bates as her “cousin.”

Lewis’s mother testified that Lewis told her that a cousin wanted Lewis to lie for

her. A reasonable juror could have inferred that the cousin Lewis was referring to

was Bates, and that Lewis knew Bates wanted her to lie for Bates at the upcoming

1
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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trial. We must accept that reasonable inference here. See Garcia, 447 F.3d at

1334. Thus, Lewis’s mother’s testimony established the element of knowledge and

we affirm Lewis’s conviction for perjury.

                             B. Making a False Statement

      To sustain a conviction under 18 U.S.C. § 1001 for making a false statement,

the government must prove: “(1) that the defendant made a false statement; (2) that

the statement was material; (3) that the defendant acted with specific intent to

mislead; and (4) that the matter was within the purview of a federal government

agency.” United States v. McCarrick, 294 F.3d 1286, 1290 (11th Cir. 2002).

      Lewis does not contest that she made the statements or that they fell within

the purview of a federal government agency. However, she says her statements

were not false, were not material, and were not made with intent to mislead. There

was sufficient evidence to contradict Lewis’s testimony and support a finding that

her statements were false.

      Lewis’s statements were material because at the time they were made the

government was investigating whether it should pursue a sentencing enhancement

against Bates. Therefore, Lewis’s reiteration of her false testimony to Agent

Fontanette was material because it could have influenced the sentence the

government sought for Bates. See United States v. Boffil-Rivera, 607 F.3d 736,

741 (11th Cir. 2010).


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      Finally, Lewis’s mother’s testimony established that Lewis knew her in-

court testimony was a lie and Agent Fontanette explained to Lewis that lying to a

federal agent was a crime. Thus, the element of specific intent to mislead was

satisfied and we affirm Lewis’s conviction for making a false statement.

                                         III.

      Lewis also challenges the procedural and substantive reasonableness of her

15-month sentence of imprisonment. Prior to sentencing, the probation officer

calculated Lewis’s guideline range to be 15 to 21 months’ imprisonment, based on

a total offense level of 14 and criminal history category of I. Lewis argues that her

15-month sentence, imposed at the low end of the guideline range, was

procedurally unreasonable because the court failed to consider the possibility of

probation and did not adequately consider the § 3553(a) factors. She also argues

that her sentence was substantively unreasonable because, among other things, a

non-prison sentence would enable her to care for her special-needs son and receive

the weekly therapy she needs to treat her mental illness.

      We review the reasonableness of a sentence “under a deferential abuse of

discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2). 18

U.S.C. § 3553(a). The court must also consider the other statutory factors listed in


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§ 3553(a)(1), (3)–(7), such as the history and characteristics of the defendant and

the kinds of sentences available. Id.

      We first ensure that the sentence was procedurally reasonable, meaning that

the district court properly calculated the guideline range, treated the guidelines as

advisory, considered the § 3553(a) factors, did not select a sentence based on

clearly erroneous facts, and adequately explained the chosen sentence. Gall, 552

U.S. at 51, 128 S. Ct. at 597. Once we determine that a sentence was procedurally

sound, we examine whether the sentence was substantively reasonable. Id.

      The party who challenges the sentence bears the burden of showing that it is

unreasonable in light of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Although we do not automatically

presume that a sentence falling within the guideline range is reasonable, we

ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008).

      Lewis argues that her sentence was procedurally unreasonable because the

district court did not consider imposing only probation given Lewis’s medical and

familial issues. However, the record clearly shows to the contrary that the district

court carefully considered all of Lewis’s arguments for a downward variance and

the § 3553(a) factors, including her medical and familial issues. See United States

v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (stating that “an acknowledgment by


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the district court that it has considered the defendant’s arguments and the factors in

§ 3553(a) is sufficient”). The court explained both that it considered Lewis’s

actions to be serious enough to “undermine[] the entire justice system” and that the

medical attention available in prison would be sufficient to “lay a foundation for

further help after getting out of prison.” The sentence was therefore not

procedurally unreasonable.

       Neither was Lewis’s sentence substantively unreasonable. Under Tome and

Hunt, there is a high burden for establishing substantive unreasonableness—a

burden Lewis cannot meet. Nothing in the record suggests that the district court

made a clear error in judgment in determining that the seriousness of Lewis’s

offense, the need to create adequate deterrence, and the need to avoid unwarranted

sentence disparities with similarly situated defendants outweighed Lewis’s

personal and family characteristics. 2 Accordingly, Lewis’s sentence is

substantively reasonable.

       AFFIRMED.




2
 Lewis also argues in her reply brief that the district court was substantively unreasonable
because it did not impose a downward departure pursuant to U.S.S.G. §§ 5K2.0, 5K2.13, 5H1.3,
5C1.1, and 5H1.6. However, we lack jurisdiction to hear this argument. United States v. Norris,
452 F.3d 1275, 1282 (11th Cir. 2006).
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