§320 Contempt, Obstruction, Perjury, Impersonation, Bail Jumping
(U.S.S.G. §2J)
8th Circuit upholds increase in obstruction offense level for threatening witnesses. (320) Defendant, detained for possession of a firearm by a felon, telephoned a friend and said that other defendants had a “green light” to “smash” certain witnesses. Based on this, defendant was convicted of witness retaliation, in violation of 18 U.S.C. § 1513(f), and the district court added eight levels under § 2J1.2(b)(1)(B) for “causing or threatening to cause physical injury to a person.” Defendant claimed he was not the but-for cause of threats made to witnesses because those who received his messages were “ready and willing” to hurt the witnesses without defendant’s encouragement. The Eighth Circuit upheld the enhancement, finding that the guideline is satisfied if defendant caused or threatened harm to the victim; it does not require that defendant’s acts caused the harm. U.S. v. Bender, __ F.3d __ (8th Cir. June 24, 2019) No. 17-3819.
3rd Circuit reverses false statement offense incorrectly sentenced under § 2J1.2. (320) Defendant, a traffic court judge, was part of a large group of defendants charged with operating a ticket-fixing scheme in Philadelphia Traffic Court. During the investigation by the FBI, defendant was among those interviewed. The jury acquitted defendant of all counts of wire fraud, mail fraud, and conspiracy, but found him guilty of making false statements to the FBI. At sentencing, over defendant’s objection, the district court sentenced defendant using § 2J1.2, the obstruction guideline. On appeal, the government agreed that the single count on which defendant was convicted did not contain all of the elements of obstruction. Accordingly, the Third Circuit vacated the judgment and remanded for resentencing. U.S. v. Hird, __ F.3d __ (3d Cir. Aug. 21, 2018) No. 14-4754.
2nd Circuit finds defendant knew mortgage fraud involved more than $1.5 million. (320)(380) Defendant, a state senator, was convicted of obstruction of justice in connection with a mortgage fraud investigation into Ahmad, a local businessman. Guideline § 2J1.2(c) directed the court to § 2X3.1, which led the court to § 2B1.1. It then applied a 16-level increase under § 2B1.1(b)(1)(I) for a loss of more than $1.5 million. The Second Circuit affirmed the 16-level enhancement, finding no “clear error” in the district court’s finding that defendant knew or should have known about Ahmad’s mortgage fraud, as well as its value. Defendant was aware that New York State regulators were investigating Ahmad’s business, and he knew that Ahmad had received inquiries from these regulators concerning forged signatures on some documents. During a recorded conversation, defendant strongly implied that he understood that Ahmad was committing fraud. He also expressed familiarity with the government’s publicly filed indictment in Ahmad’s case, which alleged that the fraud was worth over $50 million. Given this, it was not clear error for the district court to conclude that defendant should have known that Ahmad was defrauding individuals of more than $1.5 million. U.S. v. Sampson, __ F.3d __ (2d Cir. Aug. 6, 2018) No. 17-343-cr.
5th Circuit reverses cross-reference to obstruction guideline where facts did not show another offense. (220)(320) Defendant pled guilty to aiding and abetting the making of false statements to the U.S. Marshal’s Service, in violation of 18 U.S.C. §§1001(a)(2). The district court applied the cross-reference provision in §2B1.1(c)(3) to §2J1.2. Defendant argued that the district court erred in applying the cross-reference because the government did not specify, and the district court did not find, that the facts alleged in the indictment supported any offense other than a violation of §1001(a)(2). The Fifth Circuit agreed. A district court may apply the cross-reference in §2B1.1(c)(3) only if the facts alleged in the indictment establish the elements of another offense for which the other guideline is applicable. The facts alleged in the indictment did not support a conviction under 18 U.S.C. §1505, which required proof that the defendant acted “corruptly.” The generalized mens rea required to violate §1001 was not sufficient to prove the more specific mens rea required to violate §1505. U.S. v. Griego, __ F.3d __ (5th Cir. Sept. 15, 2016) No. 15-51197.
8th Circuit finds obstruction scheme was extensive in planning and preparation. (320) While in jail facing carjacking charges, defendant mailed a letter to his former girlfriend, Peterson, asking her to find a person to play the part of “Sam,” a fictitious person who would speak with defendant in a recorded prison telephone call and falsely confess to the carjacking. The letter included a detailed script for a conversation between defendant and Sam. He used the name of a fellow inmate on the envelope to conceal his authorship. One week later, defendant wrote a second letter to Peterson providing a longer and more detailed script. Defendant later called Peterson and, using a code he had described in the letter, attempted to find out whether she had found someone. Peterson refused to participate and turned the letters over to an ATF agent. The Eighth Circuit upheld a two-level enhancement under §2J1.2(b)(3)(C) because defendant’s obstruction offense was “extensive in scope, planning, or preparation.” While defendant’s conduct might not have been extensive in scope, the panel agreed that defendant’s elaborate and complicated scheme was “extensive in planning [and] preparation.” U.S. v. Petruk, 836 F.3d 974 (8th Cir. 2016).
8th Circuit limits knowledge requirement for conspiracy to specific offense characteristics. (320)(330) (380) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back which the officers later discovered had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The court found §2X3.1 applied, which provides for a base offense level of six levels lower than the offense level for the underlying offense—Hicks’ conviction for being a felon in possession of a firearm. Defendant argued that he did not, and should not have known that Hicks committed the offense after having been previously convicted of a crime of violence or controlled substance offense. The Eighth Circuit found this argument contrary to the plain language of 2X3.1. Note 1 says that the underlying offense level is calculated by applying the base offense level plus any applicable specific offense characteristics that were known, or reasonably should have been known, to the defendant. The knowledge requirement is thus limited to the applicable specific offense characteristics. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
8th Circuit reverses gun increase where court made no finding of defendant’s knowledge. (320)(330)(380) Defendant was a backseat passenger in a vehicle stopped by police. Another passenger, Hicks, threw a loaded handgun into the back seat which the officers later found had been stolen. Defendant refused to testify before a grand jury investigating Hicks, and pled guilty to criminal contempt, in violation of 18 U.S.C. §401(3). The district court sentenced him under §2X3.1, basing the offense level on the underlying offense, i.e., Hicks’ conviction for being a felon in possession of a firearm. The Eighth Circuit reversed. Under Note 1 to section 2X3.1, the sentence for an accessory after the fact is based on the base offense level for the underlying offense, plus any applicable specific offense characteristics that reasonably should have been known by the defendant. Here, the only evidence of defendant’s knowledge about the stolen handgun was paragraph 5 of the PSR, which stated only that “authorities later determined that the revolver had been stolen during a home burglary.” Since the government did not prove that defendant knew or should have known that the handgun was stolen, the district court erred in applying the enhancement. On remand, the government should have the opportunity to expand the record. U.S. v. Davis, __ F.3d __ (8th Cir. June 3, 2016) No. 15-3306.
Supreme Court to decide if escape is a violent felony. (320) Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” A “violent felony” is defined in part to mean an offense that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court granted certiorari to determine whether escape is a violent felony within the meaning of the definition of “violent felony.” Chambers v. U.S. __ U.S. __, 128 S. Ct. __ (April 21, 2008) (granting certiorari).
Supreme Court holds that felony DUI is not a violent felony. (320) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined to mean an offense that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Defendant had 12 prior New Mexico convictions for driving under the influence of alcohol. Under New Mexico law, the fourth such conviction is a felony punishable by more than one year in prison. The Supreme Court held that New Mexico’s felony DUI law does not define a “violent felony” under the ACCA. In an opinion by Justice Breyer, the Court reasoned that even if felony DUI involves conduct that presents a serious risk of physical injury to others, it is too unlike the other crimes listed in the definition to qualify as a violent felony. Begay v. U.S., 553 U.S. 137, 128 S. Ct. 1581 (2008).
Supreme Court says that ACCA exemption does not apply to offender who never lost civil rights. (320) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a 15-year mandatory minimum sentence if he has three prior convictions for “violent felonies.” A state-law misdemeanor may qualify as a “violent felony” if it carries a maximum sentence of more than two years. A prior conviction that otherwise constitutes a violent felony does not qualify if the defendant “has had [his] civil rights restored” for the conviction. The Supreme Court unanimously held that the ACCA’s exemption for convictions for which the offender’s civil rights have been restored does not apply to defendants who did not lose their civil rights upon conviction. Accordingly, defendant’s misdemeanor conviction counted as a violent felony. Logan v. U.S., 552 U.S. __, 128 S.Ct. 475 (2007).
Supreme Court finds 33-month sentence for perjury and obstruction reasonable. (320) Federal agents investigating a gun manufacturer questioned defendant about firearms he had purchased from the company. Defendant lied to federal investigators, then made two false statements under oath to a grand jury. He was convicted of perjury, making false statements, and obstruction of justice. At sentencing, he sought a sentence below the guidelines range of 33-41 months on the grounds that he would be especially vulnerable in prison, suffered health problems, and had served 25 years in the Armed Forces. The district court imposed a sentence of 33 months, and the Court of Appeals affirmed on the ground that the sentence was not unreasonable. The Supreme Court agreed that the sentence was not unreasonable. Rita v. U.S., 127 S.Ct. 2456 (2007).
Supreme Court holds that court may suspend sentence despite mandatory two year sentence for person who commits a felony while on bail. (320) 18 U.S.C. § 3147 provides that anyone who commits a felony while on release on bail must be sentenced to at least two years’ imprisonment in addition to the sentence imposed for the underlying felony. In a per curiam opinion, the Supreme Court held that neither the language nor the legislative history of § 3147 provides any basis for concluding that it was intended to affect the power of trial judges to suspend sentence under 18 U.S.C. § 3651 and impose probation instead. Rodriguez v. U.S., 480 U.S. 522, 107 S.Ct. 1391 (1987).
1st Circuit affirms increase for committing offense while on release where defendant failed to surrender. (320) Defendant was convicted of failing to surrender to serve his sentence. 18 U.S.C. § 3146(a)(2). The district court applied an increase under § 3147 for committing an offense while released, since the failure to surrender offense was committed while defendant was released. See Note 1 to § 3C1.3. The First Circuit rejected defendant’s argument that § 3147 does not apply to convictions under § 3146(a)(2), noting that § 3147 provides, without exception, that a defendant “convicted of an offense committed while released under this chapter [Chapter 207] shall be sentenced, in addition to the sentence prescribed for that offense to … a term of imprisonment for not more that ten years if the crime is a felony[.]” Failure to surrender for service of sentence is “an offense” under Chapter 207, and it is “committed while released.” Application Note 2 to 2J1.6 appeared to contradict this conclusion. However, because § 3C1.3 required an increase, and § 3147 clearly applies in this case, the panel disregarded Note 2. U.S. v. Chuong Van Duong, 665 F.3d 364 (1st Cir. 2012).
1st Circuit bases loss on entire amount of outstanding child support. (320) Defendant was convicted of willful failure to pay child support. Note 2 to § 2J1.1 defines the loss amount as “the amount of child support that the defendant willfully failed to pay.” The First Circuit held that the district court did not err by using the entire amount due to calculate defendant’s guideline range. The evidence established that defendant, a patent attorney and licensed engineer who owned several properties and luxury automobiles, had sufficient income-earning potential and assets to pay his child support obligations, but that he made no payments. U.S. v. Mitrano, 658 F.3d 117 (1st Cir. 2011).
1st Circuit finds sentence for failing to appear for supervised release revocation hearing is based upon maximum sentence for underlying offense. (320) Defendant failed to appear for a supervised release revocation hearing. Under 18 U.S.C. § 3146(b)(1)(a), an individual who fails to appear in court as required by the terms of his release from custody is subject to punishment. The severity of the punishment for that failure to appear depends on the severity of the maximum sentence available for the offense in connection with which the individual was released. The First Circuit held that where the failure to appear relates to a supervised release revocation hearing, the relevant punishment is the incarceration available for the underlying offense which led to the imposition of the supervised release, not the period of incarceration available for the supervised release violation. A violation of a supervised release condition is not a “criminal offense” in violation of an “Act of Congress” that is “triable” in federal court. Thus, it cannot qualify as a felony within the meaning of § 3146(b) (1)(A)(iii). Judge Selya dissented. U.S. v. Smith, 500 F.3d 27 (1st Cir.2007).
1st Circuit approves use of murder as underlying offense where defendant knew grand jury was investigating possible murder. (320) Defendant, a retired police officer, was the brother of a gangster that ran a criminal enterprise in Boston. Defendant was convicted of obstruction of justice, perjury and related charges based on charges that he helped hide a cache of weapons and lied to a grand jury in order to impede an investigation of his brother. At sentencing, the district court identified murder, rather than gun possession, as the most serious offense underlying his obstructive conduct, and the First Circuit affirmed. When defendant testified before the grand jury about the group’s reserve arsenal, the grand jury was investigating, and defendant had reason to know it was investigating, whether members of the organization were involved in violent racketeering activities such as murder. Defendant was not required to know “the full nature and scope” of his brother’s criminal activities, or whether any of the guns in question had been used in a murder or other violent offense. When defendant told the grant jury that he did not know whether a particular woman was alive, he knew, or at least had reason to know, that it was investigating whether the woman had been murdered by members of the criminal group. U.S. v. Flemmi, 402 F.3d 79 (1st Cir. 2005).
1st Circuit holds that perjury cross-reference not applicable to lies at bail hearing. (320) While in custody for a supervised release violation, defendant was accused of beating a fellow prisoner. The judge found that stabbing charge was not proven and defendant was set free, still on supervised release. Three days later, he allegedly stabbed another man, and was re-arrested for violating supervised release. At a hearing before a magistrate judge to determine whether defendant should be released on bail or detained, defendant denied that he had assaulted either victim. The magistrate found otherwise and detained him as a danger to the community. Defendant eventually pled guilty to perjury and obstruction of justice based on his testimony at the bail hearing. Guideline § 2J1.3(c) says that if an offense involved perjury “in respect to a criminal offense,” a court should apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense if it would result in a higher offense level. The First Circuit held that the cross-reference was inapplicable. The cross reference is based on the potential of the perjury to derail or miscarry a judicial or similar proceeding. The lies here had little potential to interfere with prosecution of the crimes lied about. Thus, the underlying crime’s seriousness was not a suitable measure of defendant’s perjury. The lies did have the capacity to obstruct the bail hearing, and so came pretty close to warranting an enhancement for obstructing that proceeding. U.S. v. Bova, 350 F.3d 224 (1st Cir. 2003).
1st Circuit says court was not required to hold evidentiary hearing to determine underlying offense. (320) Defendant, a former FBI agent, was convicted of racketeering, obstruction of justice and making false statements. Section 2J1.2 directs a court to use § 2X3.1 (accessory after the fact) if the obstruction of justice interfered with the investigation or prosecution of a criminal offense. Section 2X3.1 provides for an offense level based on the “underlying offense.” The district court found that the “underlying offense” was murder, which carries an offense level of 43. Defendant argued for the first time on appeal that the district court erred in using the murder guidelines without conducting any further fact-finding as to what exactly constituted the “underlying offense.” The First Circuit found no error. The plain language of § 2J1.2(c) and § 2X3.1 does not in any way oblige the court to conduct an evidentiary inquiry into the substance of the other offense. Here, the jury found that defendant had obstructed the prosecution of another case at various times, including after the grand jury had returning a superceding indictment charging various defendants with a number of crimes that included first-degree murder. The court reasonably looked to the most serious offense contained in the superseding indictment. U.S. v. Connolly, 341 F.3d 16 (1st Cir. 2003).
1st Circuit rejects Apprendi challenge to application of § 3147. (320) Under 18 U.S.C. § 3147, a defendant convicted of an offense committed while on release shall be sentenced to an additional term of up to ten years, and the sentence shall be consecutive to any other sentence of imprisonment. Section 3147 has been incorporated into the guidelines through USSG § 2J1.7, which provided for a three-level increase if the § 3147 enhancement applies. The Sentencing Commission, in its Background Commentary to § 2J1.7, has characterized § 3147 as an enhancement provision and not a count of conviction. The First Circuit found that the Sentencing Commission’s assimilation of § 3147 in § 2J1.7 effectively mooted any challenge to the application of § 3147 under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Application Notes encourage sentencing judges to sentence within the guideline range by using a § 3147 enhancement only for purposes of calibrating where, within the underlying guideline range, a sentence below the applicable maximum may be imposed. The judge here carefully followed this protocol by imposing a total sentence within the guideline range. U.S. v. Randall, 287 F.3d 27 (1st Cir. 2002).
1st Circuit holds that unpaid support due after child turned 18 was properly included in loss and restitution. (320) Defendant pled guilty to willfully failing to pay child support, in violation of the Child Support Recovery Act, 18 U.S.C. § 228(a)(3) (the Act). Note 2 to § 2J1.1 says that for offenses involving the willful failure to pay court-ordered child support, the most analogous guideline is § 2B1.1, and in that transposition, “[t]he amount of loss is the amount of child support that the defendant willfully failed to pay.” The district court found a loss of $67,163, the amount of a Family Court judgment against him less $20,000 he paid after his arrest. Defendant contended that the term “child” under the Act refers to a person under the age of 18, and that loss and restitution can only be based on the support obligations applicable to a period prior to a child’s 18th birthday. The First Circuit disagreed, ruling that Congress did not intend to confine “child” to a person of a particular age – “child” refers to any child covered by the court-ordered support obligation at issue in a given case. Courts are not required to “slice and dice” state-court child support orders to determine which portions of those orders related to pre-age 18 support. Similarly, there was no basis for excluding interest and costs from the loss calculation. These were “embedded” in the Family Court order and were “part and parcel” of what was needed to put defendant’s former wife and children in the financial position that they would have been had he honored his support obligations. U.S. v. Molak, 276 F.3d 45 (1st Cir. 2002).
1st Circuit rejects using obstruction guideline for false statement conviction. (320) Application Note 14 to guideline § 2F1.1 says that when a conviction establishes an offense “more aptly covered by another guideline,” that guideline should be applied rather than 2F1.1. Here, defendant was convicted of making a false statement to the FBI in violation of 18 U.S.C. § 1001. The district court relied on Application Note 14 to sentence him under the obstruction of justice guideline, § 2J1.2, reasoning that his conviction established a violation of 18 U.S.C. § 1503. The First Circuit reversed, holding that Application Note 14 applies only when the conviction or the stipulated facts in the PSR establish the essential elements of a crime to which another guideline applies. Here, there was nothing to show that defendant knew there was a pending proceeding that his false statements would obstruct. The district court did not find that he knew of the pending grand jury proceeding or that his statements would be provided to the grand jury. U.S. v. Scungio, 255 F.3d 11 (1st Cir. 2001).
1st Circuit says offense underlying perjury not dependent on offense of conviction. (320) Defendant, a Boston police officer, was present when Cox, a plain clothes Boston police officer, was allegedly mistaken for a fleeing suspect and beaten by unknown police officers. Defendant was convicted of perjury and obstruction of justice after he told a grand jury that he did not see Cox chase the fleeing suspect and did not see Cox being beaten. The court applied cross-references in §§ 2J1.2(c)(1), § 2J1.3(c)(1), and § 2X3.1, to sentence defendant under § 2H1.1, finding that the “underlying offense” was the violation of constitutional rights by the intentional use of excessive force by police officers. The court then calculated defendant’s sentence under § 2A2.2, the aggravated assault guideline. Defendant claimed that since he was only convicted of lying about seeing Cox chase the suspect, and was acquitted of lying about seeing Cox being beaten, the underlying offense could not include the intentional use of force. The First Circuit found that defendant’s acquittal had no bearing on what offenses were under investigation when he testified before the grand jury, and thus had no bearing on the offenses underlying the perjury conviction. Section 2J1.2(c)(1)’s cross reference does not depend on the defendant’s actual conviction as an accessory after the fact to the offense under investigation. U.S. v. Conley, 186 F.3d 7 (1st Cir. 1999).
1st Circuit applies obstruction guideline for refusal to testify before grand jury. (320) Defendant was involved in the theft of two cars. One of the cars was later used in an armored car robbery in which a guard was killed. Despite being granted immunity, defendant refused to testify before a federal grand jury and was convicted of criminal contempt. The guidelines direct a court to use the guideline for the most analogous criminal conduct. The First Circuit upheld the use of the obstruction guideline as the most analogous guideline for defendant’s refusal to testify before the grand jury. Presumably, the term “obstruction of justice” in § 2J1.2 has the same meaning as in 18 U.S.C. § 1503. An obstruction does not violate the statute unless there is a “corrupt” purpose. The “corruptly” requirement is satisfied if the defendant’s purpose in refusing to testify is to prevent the grand jury from locating the criminals. The district court’s finding that defendant was friends with the car thieves and involved in the robbery plot made it highly likely that his refusal to testify was motivated by a desire to frustrate the investigation of the robbery and protect his friends. Thus, the court’s findings were either findings of obstruction of justice or were so close that the analogy to the obstruction guideline was apt. U.S. v. Brady, 168 F.3d 574 (1st Cir. 1999).
1st Circuit applies obstruction of justice guideline to criminal contempt conviction. (320) Defendant was convicted of criminal contempt for refusing to comply with a summons to appear before a grand jury. The First Circuit upheld the application of the obstruction of justice guideline, § 2J1.2, rather than the guideline dealing with failure to appear by a material witness, § 2J1.5. There is no specific sentence mandated for criminal contempt under 18 U.S.C. § 401. Defendant was a bookmaker who was privy to evidence of the extortion activities of a gang under investigation by the grand jury. He knew that his refusal to answer grand jury questions about the gang would have an adverse effect upon and would obstruct the grand jury proceedings. The case cited by defendant involved a defendant who did not intend to obstruct justice. U.S. v. Marquardo, 149 F.3d 36 (1st Cir. 1998).
1st Circuit affirms obstruction enhancement for threatening associate who cooperated with authorities. (320) Defendant was convicted of threatening bodily injury with intent to retaliate for information given to law enforcement officials. He received an eight-level enhancement under guideline section 2J1.2(b)(1) because the offense involved a threat to physically injure a person in order to obstruct the administration of justice. Defendant contended the enhancement was improper because his conviction on the retaliation count implied only that he sought to punish his victim for post cooperation, and that the language of the guideline demands an intent to affect the victim’s willingness to cooperate in the future. The 1st Circuit upheld the enhancement, finding no incompatibility between a conviction for retaliation and an enhancement under section 2J1.2(b)(1). U.S. v. Weston, 960 F.2d 212 (1st Cir. 1992), abrogated on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
1st Circuit finds no double jeopardy in obstruction of justice enhancement and consecutive sentence for firearm charge. (320) Defendant was convicted of threatening a victim in retaliation for information the victim had given to law enforcement officials and of carrying a firearm during a crime of violence. He received an eight-level enhancement under section 2J1.2(b)(1) because the offense involved a threat to physically injure a person in order to obstruct the administration of justice. The 1st Circuit found no double jeopardy problem. Defendant would have been subject to the enhancement for the threats to cause physical injury, whether by means of a firearm or in any other manner. The enhancement would have applied even if defendant had used a “wet noodle” to threaten the witness. The firearm count, however, specifically required the use of a firearm. U.S. v. Weston, 960 F.2d 212 (1st Cir. 1992), abrogated on other grounds by Stinson v. U.S., 508 U.S. 36, 113 S.Ct. 1913 (1993).
1st Circuit affirms that defendant’s perjury interfered with the administration of justice. (320) Defendant, a police officer, participated in a payoff scheme involving local prostitutes. He was convicted of committing perjury before a grand jury investigating the scheme. The 1st Circuit affirmed a three level enhancement under guideline section 2J1.3(b)(2) because such perjury “resulted in substantial interference with the administration of justice.” Had defendant admitted his involvement at the outset, the government arguably would not have needed to locate all three of the prostitutes who testified about receiving police protection in return for weekly payments, or the several witnesses who corroborated this testimony. Had defendant testified truthfully, the government might not have immunized persons whom it otherwise could have prosecuted. U.S. v. Butt, 955 F.2d 77 (1st Cir. 1992).
1st Circuit upholds application of fraud guideline to defendant who impersonated a DEA agent. (320) Defendant pled guilty to impersonating a DEA agent. The impersonation guideline, section 2J1.4(c)(1), states that if the impersonation was to facilitate another more serious offense, the guideline for an attempt to commit that offense should be applied. The attempt guideline, section 2X1.1(b)(1) instructs a court to apply the guideline for the actual offense (fraud) where all the necessary acts were completed. Accordingly, the district court sentenced defendant under the fraud guideline, section 2F1.1, and the 1st Circuit affirmed. Defendant falsely told two women that he was a DEA agent, that he would help them avoid arrest, and that they must follow his orders or drug “kingpins” would harm them. He convinced one woman’s father to invest $8,760 in his business, and obtained his credit card numbers and authority to manage his bank accounts. He convinced the women to quit their jobs and work at his business, paying them with checks that often bounced. Even if obtaining money by fraud was not defendant’s primary purpose for the impersonation, the impersonation did facilitate the offense. U.S. v. Pavao, 948 F.2d 74 (1st Cir. 1991).
1st Circuit rules three year sentence for contempt was “plainly unreasonable.” (320) There is no guideline for contempt. Thus the district court must look at sentences for analogous crimes, and the appellate court must do the same in determining whether the sentence is “plainly unreasonable.” Here, a witness asserted the Fifth Amendment in good faith but incorrectly, and was sentenced to three years for contempt. In an opinion written by First Circuit Judge Breyer, who is a member of the Sentencing Commission, and joined in by Ninth Circuit Judge Reinhardt, the court held that the sentence was “plainly unreasonable” when compared to (1) similar cases involving witnesses who refuse in good faith to testify, (2) guideline levels for more serious crimes, and (3) the closely analogous guideline for “failure to appear by a material witness,” which has a base offense level of 6. The court reversed and ordered the trial judge to impose a sentence of no more than six months. U.S. v. Underwood, 880 F.2d 612 (1st Cir. 1989).
2nd Circuit finds dad “interfered with administration of justice” by abducting child and taking him abroad. (320) Defendant took his child from his estranged wife without her permission. She filed a petition in Family Court to obtain a court order for the child’s return. Several weeks later, he informed his wife that his parents had taken the child to India, but he refused to provide contact information. Because defendant refused to attend the proceedings in Family Court, the court entered a default judgment again him, granted his wife custody of the child, and issued a warrant for defendant’s arrest. He was convicted of making a false statement on a passport application, international parental kidnapping, and conspiracy. He challenged a three-level increase under § 2J1.2(b)(2) for substantial interference with the administration of justice, arguing that he was never served with process from the Family Court and thus was not under the jurisdiction of that court. The Second Circuit affirmed the enhancement, finding the case controlled by U.S. v. Amer, 110 F.3d 873 (2d Cir. 1997). Defendant’s abduction of the child “prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice.” U.S. v. Hasan, 586 F.3d 161 (2d Cir. 2009).
2nd Circuit holds that entire amount of child support arrears constituted loss amount. (320) Defendant was convicted of failing to make support payments for his twin daughters as required by a court order. Note 1 to §2J1.2 defines loss amount as “the amount of child support that the defendant willfully failed to pay.” The district court found that the total arrears, $106,000, was the loss amount for sentencing purposes. The Second Circuit affirmed. The failure to pay is willful to the extent that the defendant had the ability to pay. The district court found that defendant could have paid the total arrears. The earnings from defendant’s wife provided defendant with “a very comfortable way of life with respect to all necessities,” and defendant could easily have earned a higher income. U.S. v. Kerley, 544 F.3d 172 (2d Cir. 2008).
2d Circuit rejects Apprendi challenge to increase for committing offense while on release. (320) If a defendant commits an offense while on release and an enhancement under 18 U.S.C. § 3147 applies, guideline § 2J1.7 provides that a court should add three levels to the offense level for the offense committed while on release. Defendant argued that the three-level enhancement he received violated Apprendi, but the Second Circuit disagreed. In this Circuit, Apprendi applies not only where an enhanced sentence exceeds the statutory maximum, but also where an enhancement exposes the defendant to the risk of a sentence that exceeds the statutory maximum. U.S. v. Gonzalez, 420 F.3d 111 (2d Cir. 2005). It was undisputed that the sentence did not exceed the statutory maximum punishment that the court could have imposed, and the panel ruled that defendant was not “exposed” to a higher maximum sentence than the maximum for the offenses to which he pled guilty. U.S. v. Confredo, 528 F.3d 143 (2d Cir. 2008).
2nd Circuit holds that cross-reference to accessory after the fact guideline applied to defendant convicted of obstruction under endeavoring theory. (320) Defendant was convicted of “endeavoring” to obstruct justice in violation of 18 U.S.C. § 1503. Section 2J1.2 applied, and required a cross-reference to § 2X3.1, the accessory after the fact guideline, whenever the offense “involved obstructing the investigation or prosecution of a criminal offense.” Defendant argued that the cross reference did not apply because he was convicted of endeavoring to obstruct justice but was not proven to have actually obstructed justice. The Second Circuit held that the § 2J1.2 cross-reference applied to his endeavoring offense. The panel agreed with the reasoning of four sister circuits that have considered the issue. Since § 2J1.2 is the only section of the guidelines that covers § 1503 (obstruction of justice), it follows that endeavoring to obstruct justice, a subpart of § 1503, is to be included within § 2J1.2. U.S. v. Giovanelli, 464 F.3d 346 (2d Cir. 2006).
2nd Circuit holds that message left on probation officer’s answering machine was implied threat. (320) Defendant’s probation officer attempted to visit defendant at his home in order to discuss defendant’s criminal behavior, but no one answered the door. That same day, defendant left a message on the officer’s answering machine, stating in part that it was a “good idea” that the officer left before defendant got to the door “cause right now I’m not sure what I would have done if I had been put face-to face with you. You bastard.” The Second Circuit upheld an eight-level increase under § 2J1.2(b)(1) for “threatening to cause physical injury … in order to obstruct the administration of justice” based on the phone message defendant left with the probation officer. Although the message made no explicit reference to future acts, it was an implied threat. The court reasonably inferred that the words were intended to discourage the officer from fulfilling his duties as an officer of the court by visiting defendant again. U.S. v. Loudon, 385 F.3d 795 (2d Cir. 2004).
2nd Circuit holds that faking death in September 11 attacks resulted in “substantial interference with administration of justice.” (320) Defendant pled guilty to passport fraud, bail jumping for failing to appear on the passport fraud charges, and obstruction of justice for attempting to fake his death to avoid the fraud charges. Section § 2J1.2(b)(2) provides for a three-level increase if an obstruction of justice offense resulted in “substantial interference with the administration of justice.” The district court applied the increase based on the additional expenditure of resources by the U.S. Marshals involved in tracking down and arresting defendant after he feigned his death and failed to appear in court. The Second Circuit affirmed the three-level enhancement. It was clear that by faking his death, defendant forced the government to expend substantial additional resources that otherwise would have been unnecessary. At the time of the first court conference, no one involved, including defendant’s counsel, knew whether he was alive. To confirm that defendant had not perished in the September 11 attack, numerous marshals spent significant time consulting with the New York City law department, the missing persons unit, the company defendant allegedly worked for, as well as conducting interviews with family members, former employers, and others. Even if he stopped faking his death by the time he failed to appear his court, the government expended substantial time and resources in dealing with the consequences of his “death,” since he took no steps to correct the misunderstanding he purposely created. U.S. v. Leung, 360 F.3d 62 (2d Cir. 2004).
2nd Circuit holds that cross-reference applies only if elements of another offense are established by conduct set forth in indictment. (320) Defendant pled guilty to one count of making false statements to representatives of the U.S. Attorney’s office and the FBI, in violation of 18 U.S.C. § 1001. At sentencing, the government argued that U.S.S.G. § 2B1.1(c)(3), a cross-reference provision, permitted the court to sentence defendant under U.S.S.G. § 2J1.2(c)(1), the obstruction of justice guideline, rather than under § 2B1.1, the fraud guideline that applied to § 1001 violations. The Second Circuit held that the § 2B1.1(c)(3) cross-reference applies only if the elements of another offense are established by conduct set forth in the count of conviction and proven by a preponderance of the evidence. The cross-reference was not applicable here. The indictment did not set forth a sufficient nexus between defendant’s false statements and a federal judicial proceeding to set forth a violation of 18 U.S.C. § 1503. The indictment also did not establish a violation of 18 U.S.C. § 1512, which requires a specific intent to interfere with the communication of information to authorities. However, the fact that the cross-reference was not applicable did not bar the district court from departing under Note 15 to § 2B1.1, which permits a departure where the primary objective of the offense was an aggravating non-monetary objective. The district court incorrectly concluded that Note 15 could not be used “as a back door to allowing an upward departure” that was otherwise prohibited by the inapplicability of the § 2B1.1(c)(3) cross-reference. U.S. v. Genao, 343 F.3d 578 (2d Cir. 2003).
2nd Circuit applies escape status increase to defendant who failed to report for sentence. (320) Defendant failed to report to serve his sentence, in violation of 18 U.S.C. § 3146(a)(2). The court added two criminal history points under § 4A1.1(d) because defendant’s offense occurred while he was on the equivalent of escape status from a criminal justice sentence (i.e. the sentence for which he failed to surrender). Defendant argued that the § 4A1.1(c) increase constituted double counting because § 2J1.6’s base offense level necessarily took into consideration the fact that he committed the offense while under a criminal justice sentence. The Second Circuit found that any double counting was intentional, and thus not improper. Four other circuits have found that § 4A1.2(d) applies to a failure to surrender. In addition, every circuit to consider the question has found the § 4A1.1(d) increase to be applicable in the analogous situation of a defendant being sentenced for escaping from imprisonment. See, e.g. U.S. v. Meader, 195 F.3d 66 (1st Cir. 1999); U.S. v. Thomas, 930 F.2d 12 (8th Cir. 1991); U.S. v. Goolsby, 908 F.2d 861 (11th Cir. 1990). The reasoning of these cases was persuasive. The Sentencing Commission’s intention that the enhancement be applied was demonstrated by the unmistakable language of the guidelines, its statement that § 4A1.1(d) applies to escape cases, and the guidelines’ explanation in § 4A1.2(n) and the § 4A1.1(d) commentary that failure to report for sentence is to be treated as an escape from that sentence. U.S. v. Aska, 314 F.3d 75 (2d Cir. 2002).
2nd Circuit applies obstruction of justice guideline to defendant who posed as attorney in criminal cases. (320) For about six year, defendant, who was not licensed to practice law and who never attended law school, masqueraded as an attorney. In addition to representing parties in civil cases, he made court appearances or filed papers indicating that he was an attorney in more than a dozen criminal cases. He pled guilty to making false statements during matters within the jurisdiction of judicial and executive branches, in violation of 18 U.S.C. § 1001. The Second Circuit held that the district court properly sentenced defendant under § 2J1.2, a provision applicable to obstructions of justice, rather than under § 2F1.1, which generally governs frauds. Note 14 to § 2F1.1 states that § 1001 is a general statute, and that if the offense is also covered by a more specific statute for which a different guideline would be more apt, the court should apply the more apt guideline rather than § 2F1.1. Given the nature of defendant’s conduct, which deprived defendants in criminal cases of their constitutional rights to be represented by a bona fide attorney, there was no doubt that the obstruction of justice guideline more aptly covered his conduct. U.S. v. Kurtz, 237 F.3d 154 (2d Cir. 2001).
2nd Circuit holds that Rule 35(c) authorized court to change apportionment of sentence. (320) Defendant received a three-level increase under § 2J1.7 because he committed bank fraud while release on bail for other crimes. The district court imposed a 51-month sentence, attributing 46 months to the underlying fraud offense and five months to the § 2J1.7 enhancement. Defendant moved to correct his sentence under Rule 35(c) because the term apportioned to the underlying offense did not fall within the guideline range that would be applied to that offense regardless of the § 2J1.7 increase. Defendant’s guideline range without the § 2J1.7 increase would have been 30-37 months. The district court granted the Rule 35(c) motion, and resentenced defendant to 51 months, this time attributing 37 months to the underlying offense and 14 months to the enhancement. Defendant contended that Rule 35(c) authorized the reduction of the 46-month sentence, but that the five-month sentence for the enhancement could not be modified because it contained no error. The Second Circuit disagreed. Defendant improperly viewed his sentence as having two independent components, one of which was in error and one of which was not. However, the court’s intent was to impose a total sentence of 51 months. The error in the sentence was not that total, but the court’s apportionment of the total between the sentence for the underlying offenses and the enhancement. Rule 35(c) authorized the correction of that apportionment. U.S. v. Chaklader, 232 F.3d 343 (2d Cir. 2000).
2nd Circuit holds that perjury about corruption did not interfere with administration of justice. (320) Defendant, a New York State Parole officer, was convicted of perjury based on his testimony before a grand jury investigating whether decisions by the New York parole board were influenced by campaign contributions. Defendant’s grand jury testimony concerned a 1996 parole hearing at which he was lead commissioner and at which a decision was made to release an inmate whose family had made large contributions to a New York gubernatorial campaign. The district court imposed a three-level enhancement under §§ 2J1.2(b)(2) and 2J1.3(b)(2) for offenses resulting in “substantial interference with the administration of justice.” The Second Circuit reversed, since that any interference with the administration of justice arose from defendant’s corrupt acts, rather than from defendant’s perjury before the grand jury about such acts. Defendant was not indicted for being improperly influenced or corrupt; he was indicted for denying before a federal grand jury that he was improperly influenced or corrupt. If defendant had truthfully admitted his corruption before the grand jury, the same erosion of “confidence in the integrity of the parole release proceedings” would have occurred. U.S. v. McSherry, 226 F.3d 153 (2d Cir. 2000).
2nd Circuit holds that perjury “in respect to a criminal offense” needs not specifically refer to the crime. (320) A grand jury investigating the 1993 World Trade Center bombing sought defendant’s testimony about a trip he had taken to Pakistan with Ajaj, one of the men convicted of the bombing, to attend a terrorist camp. Defendant was convicted of perjury for testifying that he traveled alone to Pakistan and had never seen Ajaj in possession of bomb-making manuals. The Second Circuit affirmed a § 2J1.3(c)(1) enhancement for committing perjury “in respect to a criminal offense,” even though defendant was never directly questioned about his involvement in the bombing. Perjury “in respect to a criminal offense” is not limited to situations where the questions asked and the false statements given in response specifically refer to a criminal offense. As long as the witness has been alerted that a grand jury is investigating a criminal offense, false answers to material questions will almost always merit enhanced punishment. In the present case, defendant understood that the grand jury was investigating the bombing, and thus he committed perjury “in respect to a criminal offense” under § 2J1.3(c)(1). U.S. v. Suleiman, 208 F.3d 32 (2d Cir. 2000).
2nd Circuit rules conviction for failure to appear had to be grouped with underlying offense. (320) Defendant pled guilty to making false statements to federal agents and then failed to appear at his scheduled sentencing hearing. Guideline § 3D1.2(c) required that defendant’s failure to appear conviction be grouped with his false statement conviction. However, § 3D1.1(b) excludes from § 3D1.2 any count for which the statute requires a consecutive sentence. See also § 5G1.2(a) (a sentence imposed on a count for which the statute requires a consecutive sentence shall be determined by that statute). The failure to appear statute, 18 U.S.C. § 3146(b), says that any term of imprisonment for failure to appear shall be consecutive to the sentence for the underlying offense. The Second Circuit held that because § 3146 does not require that a term of imprisonment be imposed (a court may order a fine only), §§ 3D1.1(b) and 5G1.2(a) did not apply; thus, the failure to appear conviction should have been grouped with the underlying offense. This reading is consistent with Amendment 579 in the 1998 guidelines, implemented after defendant was sentenced. Note 3 to § 2J1.6 now states that a failure to appear count and the counts for the underlying offense are to be grouped together under § 3D1.2(c) and specifies that § 3D1.1(b) does not apply. Amendment 579 is a clarification that must be given effect on direct review. U.S. v. Kirkham, 195 F.3d 126 (2d Cir. 1999).
2nd Circuit upholds enhancement for substantial interference with administration of justice. (320) Defendant was Chief Financial Officer of Empire Blue Cross/Blue Shield. During an U.S. Senate subcommittee investigation into a number of Blue Cross/Blue Shield heath care providers, defendant gave false information and was convicted of obstruction of justice and perjury. The Second Circuit affirmed an enhancement under §§ 2J1.2(b)(2) and 2J1.3(b) (2) for substantial interference with the administration of justice. In order to warrant such an enhancement, the government need not “particularize a specific number of hours expended by government employees.” It was clear that the staff of the Senate committee was required to spend significant additional time on the Empire hearings as a result of defendant’s misconduct. U.S. v. Weissman, 195 F.3d 96 (2d Cir. 1999).
2nd Circuit holds release order gave notice of additional mandatory sentence under § 3147. (320) Defendant was charged with tampering with vehicle identification numbers. Before being released on bail, he signed a release order which stated that the commission of an offense while on pretrial release “may” result in an additional sentence upon conviction of such offense. It further stated that this sentence “shall be consecutive to any other sentence,” and be “in addition to” the sentence imposed for the offense itself. Defendant then committed the instant drug offense while on release. The district court refused to apply the additional mandatory sentence required by 18 U.S.C. § 3147 and guideline § 2J1.7, ruling that defendant did not receive adequate notice that the commission of a crime while on release would result in an enhanced penalty. The Second Circuit did not address the question of whether such notice is required, since even if it was, the notice received here was adequate. Reading the notice as a whole, it adequately conveyed the mandatory nature of the enhancement, even though the first sentence contained permissive language. Section 3147 applied to defendant even though he was ultimately acquitted of the tampering charges. The enhancement applies to a defendant who commits a crime while on pretrial release. Whether he ultimately is acquitted of the charges giving rise to the release is irrelevant. U.S. v. Davis, 114 F.3d 400 (2d Cir. 1997).
2nd Circuit finds adequate notice of mandatory sentence for crime committed while on release. (320) Defendant committed the instant drug offense while on release while awaiting sentencing on a counterfeiting conviction. Under 18 U.S.C. § 3147, a person who commits an offense while on release is subject to an additional consecutive term of imprisonment. This is implemented through guideline § 2J1.7, which requires the sentencing court to add three levels to the offense level of a defendant convicted of a crime committed while on release. Defendant argued that he was not given adequate notice at the time of his release that the enhancement was mandatory. The Second Circuit found it unnecessary to decide whether notice at the time of release was required, because defendant received such notice. The warning that defendant signed upon his release advised him that if he committed a crime, he “could be” subject to a mandatory consecutive sentence. The phrase “could be” did not render the warning insufficient. The warning described the possible penalty as a “mandatory” consecutive sentence, which put defendant on notice that there were at least some circumstances under which a consecutive sentence was required. U.S. v. Vazquez, 113 F.3d 383 (2d Cir. 1997).
2nd Circuit rules removing children from U.S. justified § 2J1.2(b)(2) enhancement. (320) Defendant, an Egyptian citizen residing in the U.S., violated the International Parental Kidnapping Crime Act by abducting his children from their mother and taking them to Egypt. The Second Circuit upheld a § 2J1.2(b)(2) enhancement for “substantial interference with the administration of justice.” Defendant’s “self-help” act of removing the children from the U.S. properly could serve as the basis of this enhancement. The enhancement is not limited to cases where a defendant has disrupted an ongoing proceeding. Although the abduction did not interfere with an ongoing proceeding, it prevented proper legal proceedings from occurring by taking matters completely outside the purview of the administration of justice. U.S. v. Amer, 110 F.3d 873 (2d Cir. 1997).
2nd Circuit agrees that perjury substantially interfered with administration of justice. (320) Defendant, a police officer, was convicted of perjury after lying to a grand jury investigating police misconduct. The district court increased the sentence under § 2J1.3(b)(2) because defendant’s perjury resulted in substantial interference with the administration of justice. The application notes state that substantial interference includes a premature or improper termination of a felony investigation. Defendant argued that the government’s investigation terminated not because of his responses to its questions but because the government’s tactics before the grand jury were not designed to elicit helpful answers. He contended that the government asked him indirect questions and refused to refresh his recollection. The Second Circuit affirmed the enhancement. The government’s questions before the grand jury were not “irrelevant” but were designed to refresh his recollection. The district court properly found that the investigation terminated on account of defendant’s false statements. U.S. v. Regan, 103 F.3d 1072 (2d Cir. 1997).
2nd Circuit upholds misprision of felony guideline as most analogous for refusing to testify. (320) Defendant was convicted of criminal contempt after refusing to testify at the trial of the captain in a crime family. Section 2J1.1 directs a court to apply § 2X5.1, which in turn directs a court to apply the most analogous guideline. In U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996), a Second Circuit panel rejected the determination that the guideline for misprision of a felony was the most analogous guideline. This was in conflict with U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996), decided by a different panel the next day. On rehearing, the Second Circuit upheld the application of the misprision of a felony guideline. The sentencing judge’s decision is predominantly an application of a guideline to the facts, a decision which should be given great deference. U.S. v. Versaglio, 96 F.3d 637 (2d Cir. 1996).
2nd Circuit upholds misprision of felony guideline as most analogous for refusing to testify. (320) Defendant was convicted of criminal contempt after refusing to testify at the trial of a captain in a crime family despite a grant of immunity. Section 2J1.1 directs a court to apply § 2X5.1, which in turn directs a court to apply the most analogous offense guideline. The Second Circuit, seemingly in conflict with U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996), decided by a different panel the day before, upheld misprision of a felony as the most analogous guideline. The guideline for Failure to Appear by a Material Witness, 2J1.5, did not address the seriousness of the crime being prosecuted in the underlying trial. Although the judge found defendant acted in bad faith and intended to obstruct justice, the guideline for Obstruction of Justice, 2J1.2, was not most analogous. The court said U.S. v. Remini, 967 F.3d 754 (2d Cir. 1992) did not require the court to apply the obstruction guideline. The judge’s choice of misprision of felony was reasonable, because both crimes address a defendant’s withholding of information concerning a crime. U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996).
2nd Circuit disapproves misprision of felony guideline as most analogous for refusing to testify. (320) Defendant was convicted of criminal contempt after refusing to testify at the trial of a captain in a crime family despite a grant of immunity. Section 2J1.1 directs a court to apply § 2X5.1, which in turns direct a court to apply the most analogous offense guideline. The Second Circuit, seemingly in conflict with U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996), decided by a different panel the next day, rejected the determination that the guideline for misprision of a felony was the most analogous. The judge concluded that the obstruction guideline, 2J1.2(c), would be more appropriate for obstructive conduct that threatens a witness, whereas defendant merely refused to testify. However, the remedy is to apply additional sanctions appropriate for the more serious conduct, not to disregard the applicability of the obstruction guideline. Under U.S. v. Remini, 967 F.3d 754 (2d Cir. 1992), the obstruction guideline is the most appropriate. U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996).
2nd Circuit says criminal contempt statute does not permit both prison and fine. (320) Defendant was convicted of criminal contempt under 18 U.S.C. § 401. That section prohibits imposing both a fine and a term of imprisonment. The government argued that the Sentencing Reform Act (“SRA”) amended the statute to permit both to be imposed. The Second Circuit disagreed, holding that the SRA did not alter the prohibition. Defendant’s payment of the fine precluded the court from resentencing defendant to imprisonment. The fact that defendant paid the fine before legally required did not alter this fact. However, on remand the court may revise the fine in light of the invalidity of the imprisonment. A sentencing court may revise upward one component of a sentence after another component has been held invalid. In selecting $25,000 as the appropriate fine, the judge probably had in mind the aggregate punitive effect of this sentence. U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996).
2nd Circuit says sentence apportioned to offense of conviction must be within range absent § 2J1.7 enhancement. (320) Defendant received a § 2J1.7 enhancement for committing the instant narcotics offense while on release. The district court sentenced defendant to 292 months for the narcotics offense, plus an additional consecutive months under § 2J1.7, for a total sentence of 293 months. Defendant argued that the district court improperly apportioned his sentence between the underlying narcotics offense and the § 2J1.7 enhancement, because 292 months was greater than the applicable guideline range absent the § 2J1.7 enhancement (168-210 months). The Second Circuit agreed that the district court must apportion the sentence so that the part attributable to the offense of conviction falls within the range applicable absent the three-level enhancement. The example in note 2 to § 2J1.7, which allows a different apportionment, is inconsistent with the guideline. Although an improper apportionment might not affect the total sentence, it can have practical sentencing consequences, since the sentence under §2J1.7 must be consecutive to any other sentence of imprisonment. U.S. v. Stevens, 66 F.3d 431 (2d Cir. 1995).
2nd Circuit upholds contempt, suspending lawyer from practicing law in the district. (320) Defendant, a criminal defense attorney, was convicted of criminal contempt for repeatedly speaking to the media in violation of local court rules. Section 2J1.1 instructed the court to apply § 2X5.1, which in turn directed the court to apply the most analogous guideline, and if there was not a sufficiently analogous guideline, to apply 18 U.S.C. § 3553(b). That statute directed the court to impose “an appropriate sentence.” The Second Circuit upheld a sentence of three years probation, a concurrent 180-day suspension from practicing law within the district, and a 90-day period of house arrest. Defendant was not ordered to surrender his license or resign from the Bar. He was simply barred from practicing law before a single federal court during a portion of his probationary period. The connection between defendant’s profession and his contemptuous behavior was readily apparent. No further fact-finding was necessary. The length of the probation was well within the five-year maximum term of probation for misdemeanors. Nonetheless, the court was troubled by the potentially severe collateral consequences of defendant’s probation. U.S. v. Cutler, 58 F.3d 825 (2d Cir. 1995).
2nd Circuit says that perjury defendant was properly sentenced under accessory after the fact guideline. (320) Defendant testified before a grand jury that he had no knowledge of, or involvement with, a particular armed robbery. He was indicted for conspiring to commit armed robbery and numerous perjury counts. A jury acquitted him of the robbery conspiracy and two perjury counts, and convicted him of 12 remaining perjury counts. Defendant argued that the district court erroneously sentenced him under § 2X3.1, accessory after the fact, rather than § 2J1.3, perjury. The Second Circuit held that the district court properly applied § 2X3.1 because § 2J1.3(c) requires application of the accessory after the fact guideline if the perjury was “in respect to a criminal offense” and the resulting offense level is higher. Defendant’s acquittal of the robbery conspiracy charges did not make the cross reference inapplicable. The district court found that the crime of conspiracy to rob had unquestionably been committed, regardless of whether defendant was involved in it. Furthermore, some of defendant’s perjuries clearly related to that crime. U.S. v. Gay, 44 F.3d 93 (2d Cir. 1994).
2nd Circuit agrees that perjury and obstruction interfered with administration of justice. (320) Defendant was an attorney in a law firm involved in bribing witnesses and manufacturing evidence. He was convicted of perjury and obstruction of justice based on false testimony he gave during the investigation and prosecution of other attorneys in the firm. The 2nd Circuit upheld a three level enhancement under sections 2J1.2(b)(2) and 1.3(b)(2) because the offenses resulted in substantial interference with the administration of justice. The district judge made sufficient factual findings on the record at sentencing. The judge presided over the trial of the other attorneys, and explained that his findings reflected not only the expenses associated with defendant’s trial, but also the expenditures associated with the trial of the other attorneys. Truthful and complete testimony by defendant would have saved the government substantial investigative and trial expenses. U.S. v. DeSalvo, 26 F.3d 1216 (2nd Cir. 1994).
2nd Circuit applies obstruction guideline to atypical theft conviction. (320) Defendant, who was helping the government translate tape recordings of wiretaps in an ongoing investigation, became concerned that a new courier was becoming involved in the activity being investigated without knowledge of its criminality. Defendant warned the new courier, and in the process revealed information from the wiretap to both the courier and another target of the investigation. Defendant was convicted of theft of government property under 18 U.S.C. §641. Though the statutory index lists the general theft guideline, §2B1.1, as appropriate for that offense, the district court applied the guideline for obstruction of justice, §2J1.2. The 2nd Circuit affirmed based on the unusual facts of the case. Section 2J1.2 was the guideline “most applicable.” U.S. v. Elefant, 999 F.2d 674 (2nd Cir. 1993).
2nd Circuit applies obstruction of justice guideline to defendant who refused to testify. (320) Defendant was convicted of criminal contempt under 18 U.S.C. section 401 for refusing to testify at the trial of a reputed mobster. The 2nd Circuit affirmed that defendant was properly sentenced under section 2J1.2 (Obstruction of Justice), rather than section 2J1.5 (Failure to Appear by a Material Witness). Since no guideline has been provided for criminal contempt, section 2X5.1 provides for the application of the most analogous guideline. Notwithstanding U.S. v. Underwood, 880 F.2d 612 (1st Cir. 1989), the most analogous guideline for defendant’s refusal to testify was obstruction of justice. Here, the district court specifically found that defendant intended to obstruct justice. The distinction between good faith and bad faith plays a central role in choosing an applicable sentencing guideline in cases of criminal contempt. U.S. v. Remini, 967 F.2d 754 (2nd Cir. 1992).
2nd Circuit rejects claim that criminal contempt was unique crime to which guidelines did not apply. (320) Defendant claimed that the guidelines should not have been applied in his case because the criminal contempt charged was a unique crime requiring individualized sentencing. The 2nd Circuit rejected this contention, since sections 2J1.1 (contempt) and 2X5.1 (other offenses) recognize and provide for the guidelines’ application to criminal contempt. “It is not the function of the courts to create exceptions from the Guidelines for contempts that are ‘unequal’ crimes.” U.S. v. Lohan, 945 F.2d 1214 (2nd Cir. 1991).
2nd Circuit holds acceptance of responsibility is not precluded even though offense committed while on bail. (320) The 2nd Circuit held that a two-level reduction for acceptance of responsibility is not precluded as a matter of law even though defendant already received a three-level increase under guideline § 2J1.7 for committing the offense while on bail. The district court found such a reduction unavailable because defendant’s commission of the new offense contradicted any claim that he had disavowed future criminal conduct. The 2nd Circuit rejected this reasoning. The fact that defendant committed a second offense while awaiting sentencing for a first offense was relevant in denying the acceptance of responsibility reduction to the first offense. But the judge was not precluded as a matter of law from granting such a reduction. The case was remanded for the district court to exercise its discretion as to whether to grant the reduction. U.S. v. Rodriguez, 928 F.2d 65 (2nd Cir. 1991).
2nd Circuit upholds grouping perjury and tax evasion as separate offenses. (320) Defendant received secret cash payments which he did not report on his income tax return. Defendant then lied to a federal grand jury concerning his receipt of such funds. The 2nd Circuit held that the district court properly divided defendant’s offense conduct into two groups, since the laws prohibiting perjury and tax evasion protect wholly disparate interests and involve distinct harms to society. U.S. v. Barone, 913 F.2d 46 (2nd Cir. 1990).
2nd Circuit reverses increase in perjury offense level, finding no interference with the administration of justice. (320) Defendant was convicted of lying to a grand jury and obstruction of justice. The district court increased her base offense level three levels pursuant to U.S.S.G. 2J1.3(b)(2), on the ground that she had substantially interfered with the administration of justice by causing the unnecessary expenditure of substantial government and court resources. The 2nd Circuit reversed. The district court made no specific findings that defendant’s perjury had resulted in a substantial expenditure of government resources. Moreover, defendant provided substantial evidence that the government already had the information defendant had concealed. Finally, defendant’s perjury, standing alone, did not constitute the type of egregious conduct envisioned by the guidelines as substantial interference with the administration of justice. U.S. v. Jones, 900 F.2d 512 (2nd Cir. 1990).
3rd Circuit says destroying hard drive interfered with administration of justice. (320) In 2010, FBI agents interviewed defendant, a police officer, about his viewing of child pornography on his home computer. He told the FBI that the computer he used to view child pornography crashed in 2008, and that he threw out the “fried” hard drive in August 2008. The next day, defendant’s superior found defendant in his car, breaking apart a printed circuit board. Officers recovered from the car a pried-open damaged hard drive on top of defendant’s patrol bag, along with a small screwdriver and hammer. Defendant pled guilty to the destruction, alteration, or falsification of records in a federal investigation. The Third Circuit upheld a three-level enhancement under § 2J1.2(b)(2) for substantial interference with the administration of justice, finding that there was sufficient evidence that defendant destroyed the hard drive after he learned of the FBI investigation. Defendant was seen destroying the circuit board in his car the day after he was interviewed by FBI agents. Officers found the damaged hard drive in defendant’s squad car along with a screwdriver and hammer; the damage caused to the hard drive was consistent with damage done with a screwdriver; and defendant himself stated that there was a 50/50 chance that the hard drive contained child pornography. U.S. v. Waterman, __ F.3d __ (3d Cir. June 17, 2014) No. 13-3825.
3rd Circuit applies cross-reference to accessory guideline where defendant was aware of murder investigation. (320) Six masked gunmen entered a hospital, located a patient, and shot him to death. The gunmen entered the hospital through an employee entrance with the benefit of an employee “swipe card,” proceeded directly to the patient’s room, committed the murder, and left in under three minutes. Defendant, a hospital employee, was convicted of perjury arising out of statements she made at a suppression hearing. Under § 2J1.3, where perjury is “in respect to a criminal offense,” the defendant should be sentenced pursuant to § 2X3.1 as if she were an accessory after the fact to that criminal offense. The Third Circuit upheld the application of the cross-reference to defendant, finding that defendant’s perjury was in respect to the murder of the hospital patient. Her perjury convictions were based on her testimony that she accessed the patient’s hospital records in order to provide his room number to friends and family of the patient, and that her boyfriend was a friend of the patient’s. She gave this testimony at a suppression hearing in criminal proceedings concerning charges that she had made false statements to federal agents specifically investigating the murder. U.S. v. Knight, 700 F.3d 59 (3d Cir. 2012).
3rd Circuit agrees that perjury caused expenditure of substantial government resources. (320) Defendant, a state legislator, was convicted of perjury based on his false testimony before a federal grand jury investigating a scheme in which corporate political contributions were funneled through third-party conduits. In his grand jury testimony, defendant denied that he was reimbursed for one contribution, claiming the money he received was reimbursement for an auto repair. The district court applied a three-level increase under § 2J1.3(b)(2) for “substantial interference with the administration of justice.” “Substantial inference with the administration of justice” includes “the unnecessary expenditure of substantial governmental or court resources.” The court identified the following expenditures of the government’s time: re-interviewing defendant’s aide after defendant’s grand jury appearance, calling the aide to testify before the grand jury a second time, subpoenaing auto repair shops and bank records, interviewing the owner of one auto repair shop and the general manager of another, and interviewing one of defendant’s employees. The Third Circuit held that the district court’s finding that these expenditures were substantial and caused by defendant’s perjury was not clearly erroneous. U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000).
3rd Circuit holds that guideline does not require pre-release notice of enhancement. (320) The district court applied a three-level enhancement under USSG § 2J1.7 because defendant committed the current offense while on pretrial release for a prior federal offense. The background commentary to §2J1.7 states that an enhancement “may be imposed only after sufficient notice to the defendant by the government or the court.” Defendant argued that the enhancement could not be applied to him because he was not given notice, at the beginning of his pretrial release in the prior case, that the commission of a new federal offense during release would subject him to an enhanced sentence in the second case. The Third Circuit held that the commentary mandates only pre-sentencing notice in the second case, not pre-release notice in the first case. Neither the statute on which § 2J1.7 was based (18 U.S.C. § 3147), nor § 2J1.7 itself, contains any notice requirement. See U.S. v. DiPasquale, 864 F.2d 280 (3d Cir. 1988) (§ 3147 “is a self-executing and mandatory provision of law” that applies even in the absence of pre-release notice”). U.S. v. Hecht, 212 F.3d 847 (3d Cir. 2000).
3rd Circuit adopts notice-based approach to finding maximum penalty in bail jumping case. (320) Defendant was charged with being a felon in possession of a firearm. He fled and was eventually convicted of failure to appear for trial. Section 2J1.6(a)(2) bases the offense level on the maximum penalty for the offense for which the defendant failed to appear. The offense of being a felon in possession of a firearm is punishable by a maximum of ten years in prison. However, under 18 U.S.C. § 924(e), the penalty is increased to a 15-year minimum where the defendant’s criminal history is particularly egregious. The district court ruled that the fact that defendant’s indictment referenced § 924(e) constituted notice to defendant when he jumped bail of the government’s intent to seek the enhanced punishment. The Third Circuit adopted this notice-based approach to determining the maximum penalty in bail jumping cases. Where more than one penalty provision is associated with an offense, in order to trigger a penalty under § 2J1.6(b)(2), the government must notify the defendant that it will seek that penalty before the defendant jumps bail. Where the government fails to invoke any penalty provision, it will be assumed, for bail jumping purposes, that the government has chosen to pursue the provision with the lesser maximum penalty. U.S. v. Muhammad, 146 F.3d 161 (3d Cir. 1998).
3rd Circuit holds that applying amended commentary violated ex post facto clause. (320) Defendant was convicted of obstruction of justice. Section 2J1.2(c) cross-references the guideline for the underlying criminal activity when a defendant obstructs “the investigation or prosecution of a criminal offense.” The district court found that defendant conspired to obstruct a fraud proceeding against himself, and applied the fraud guideline. The 3rd Circuit reversed, agreeing with defendant that the commentary to the 1989 guidelines (in effect when he committed his crime), directed a court to use the cross-reference only when the obstruction was aimed at helping another person escape punishment. Therefore, applying the cross-reference to defendant violated the ex post facto clause. The 1991 amendment was not a clarifying amendment, but a substantive change. U.S. v. Bertoli, 40 F.3d 1384 (3rd Cir. 1994).
3rd Circuit says failure to appear was not double counted. (320) Defendant pled guilty to bank fraud and failure to appear. The 3rd Circuit held that the failure to appear was not double counted. The district court followed note 3 to § 2J1.6 when it added two levels for obstruction of justice to the total offense level for the two fraud counts. Because 18 U.S.C. § 3146(b)(2) requires that the sentence for obstruction to be consecutive to any other sentence, the district court had to separate the portion of the total sentence corresponding to the obstruction. The district court determined the appropriate sentence for defendant was 37 months, and then sentenced defendant to 31 months on the fraud counts, and six months for the failure to appear. This sentence did not involve double counting. U.S. v. Pardo, 25 F.3d 1187 (3rd Cir. 1994).
3rd Circuit reverses for failure to apply more lenient guidelines in effect at sentencing. (320) Defendant pled guilty to unlawful flight to avoid prosecution. He was sentenced under the 1989 guidelines in effect at the time of the offense, rather than the 1991 guidelines in effect at sentencing. The 1989 version of section 2J1.6 permitted the court to consider defendant’s underlying murder conviction in calculating his criminal history; the 1991 version did not. The 3rd Circuit reversed, noting that a sentencing court should generally apply the guidelines in effect when the defendant is sentenced; it is only when this would result in a more severe penalty that ex post facto concerns arise and courts must apply the guideline in effect at the time of the offense. Because application of the 1991 guidelines would result in a lesser, not a harsher, penalty, no ex post facto concerns were present. On remand, the court was instructed to apply the guideline in effect at the time of resentencing. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit upholds departure by analogy to obstruction for fleeing to Cuba. (320) After being identified as a prime suspect in the murder of a police officer, defendant fled to Cuba, where he remained for 20 years. When he returned to the U.S., he pled guilty to unlawful flight to avoid prosecution. He was sentenced under section 2J1.6, Failure to Appear, as the most analogous guideline. The 3rd Circuit upheld a two level departure under section 5K2.0 by analogy to the obstruction of justice enhancement, section 3C1.1. The parties agreed that the obstruction guideline could not be applied to the Failure to Appear guideline. However, the aggravating circumstances surrounding defendant’s flight — the length of his absence, his flight to a country from which he could not be extradicted, the resulting difficulty in prosecuting the underlying offense — were extreme and had the effect of obstructing justice. The Sentencing Commission, in promulgating section 2J1.6, did not adequately consider such extreme aggravating circumstances. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit applies failure to appear guideline to flight to avoid prosecution. (320) Defendant pled guilty to unlawful flight to avoid prosecution, in violation of 18 U.S.C. section 1073. Since there was no applicable guideline in effect at the time defendant returned to the United States to be prosecuted, under section 2X5.1, the district court chose the most applicable guideline. The 3rd Circuit agreed that the district court correctly applied section 2J.16, failure to appear, as the most applicable guideline for the flight to avoid prosecution offense. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit upholds reliance on statutory maximum in setting bail-jumping sentence. (320) Defendant was convicted of jumping bail prior to trial. Under §2J1.6(b)(2), defendant’s sentence was based on the statutorily authorized maximum sentence for the underlying offense. The 3rd Circuit rejected defendant’s argument that this scheme violates 28 U.S.C. §991(B). Instead, the guideline rationally provides higher penalties for those who evade trial on offenses carrying higher penalties. U.S. v. Sanchez, 995 F.2d 468 (3rd Cir. 1993).
4th Circuit affirms double counting assault on police officer and possessing gun in connection with another felony. (320) Defendant struggled with officers attempting to detain him. After finally subduing and handcuffing defendant, the officers searched defendant, and found a loaded gun, a bag containing marijuana, and digital scales. He received a six-level enhancement under 3A1.2(c)(1) (assault on a law enforcement officer) and a four-level enhancement under § 2K2.1(b)(6) (possessing the firearm in connection with another felony offense). The Fourth Circuit held that the district court did not engage in impermissible double counting by imposing both enhancements. Double counting is proper where not expressly prohibited by the Guidelines. There was no such express prohibition here. Each of the enhancements in this case addressed different aspects of defendant’s conduct: the § 3A1.2 increase addressed his conduct resulting in the injury to a law enforcement officer, and the § 2K2.1 increase addressed his use of a firearm while violently resisting arrest. U.S. v. Hampton, 628 F.3d 654 (4th Cir. 2010).
4th Circuit uses perjury guideline for defendant who filed bankruptcy petitions in violation of court order. (320) Since 1995, defendant filed for bankruptcy 16 times in three different districts. In 2007, a bankruptcy court barred defendant for five years from filing another bankruptcy case. Defendant violated that order about three months later when she filed a chapter 13 bankruptcy petition in South Carolina. Although the petition required her to disclose, under penalty of perjury, all her previous bankruptcy cases filed in the past eight years, defendant failed to disclose nine cases she previously filed. She pled guilty to fraudulently making a declaration under penalty of perjury in a bankruptcy case. The Fourth Circuit upheld the district court’s use of § 2J1.3 rather than § 2B1.1 to set defendant’s offense level. Defendant’s offense was not, as she contended, more akin to fraud than to perjury. The indictment focused on the fact that her nondisclosure constituted a false declaration made to the bankruptcy court under penalty of perjury. The gravamen of the charge was that defendant interfered with the bankruptcy court’s administration of justice, not that she defrauded any creditors. U.S. v. Boulware, 604 F.3d 832 (4th Cir. 2010).
4th Circuit holds that enhancement for committing crime while on release applies to failure to appear offense. (320) Defendant pled guilty to knowingly failing to appear for sentencing, in violation of 18 U.S.C. § 3146. The district court applied a three-level enhancement under U.S.S.G. § 2J1.7 and 18 U.S.C. § 3147 for committing an offense while on release. The Fourth Circuit held that the enhancement for committing a crime while on release applied to defendant’s offense of failure to appear, and did not constitute improper double counting. The panel agreed with U.S. v. Benson, 134 F.3d 787 (6th Cir. 1998) that § 3147 is unambiguous, and applies to persons convicted of offenses committed while on release under chapter 207 of Title 18 of the U.S. Code. Defendant’s failure to appear offense was clearly an offense committed while on release under chapter 207. Given such unambiguous language, there is no need to apply the rule of lenity. U.S. v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006).
4th Circuit approves § 5K2.9 departure where § 2X3.1 did not account for firearm charge. (320) Defendant was convicted of suborning perjury and related charges based on his attempts to persuade his ex-girlfriend to testify falsely in his favor at his earlier drug and firearm trial. Based on her false testimony, defendant was acquitted on all counts except for a simple possession of marijuana conviction. Defendant’s guideline range for the perjury offenses was 30-37 months. If he had been convicted at his first trial his sentence would have been 60-66 months, given that a § 924(c) charge carried a mandatory minimum sentence of 60 months. Guideline § 2X3.1, which would normally produce a heightened sentence for an offender in similar circumstances, could not be applied to defendant’s § 924(c) offense, since it did not carry a specific offense level. The Fourth Circuit held that the court did not err in departing upward under § 5K2.9, for committing the offense in order to facilitate or conceal the commission of another offense, the unaccounted-for underlying gun possession offense. Although § 2X3.1 generally accounts for the encouraged factor in § 5K2.9, it did not in this case, where one of defendant’s underlying offenses did not carry an offense level. The departure, to a 62-month sentence, was reasonable. U.S. v. Davis, 380 F.3d 183 (4th Cir. 2004).
4th Circuit holds perjurer need not be accessory after the fact to be sentenced as accessory. (320) Defendant, a prisoner, denied to a grand jury that he remembered anything about an assault on another prisoner. Another inmate was charged, and defendant then testified for the defense that he saw the victim grab the inmate, before the inmate beat up the victim. Defendant was convicted of perjury. Section 2J1.3(c) provides for sentencing as an accessory after the fact if the perjury was in respect to a criminal offense. However, the district court refused to sentence defendant as an accessory because he did not act as an accessory. The Fourth Circuit held defendant need not be an accessory to be sentenced under the cross-reference. The commentary to § 2J1.2 says the cross-reference also applies when a defendant attempts to assist another person to escape punishment for an offense. This does not mean that the court must sentence a defendant as an accessory to the most serious underlying charged offense. The district court must make a factual inquiry to determine the proper underlying offense, and it need not look to the offense of conviction. U.S. v. Dickerson, 114 F.3d 464 (4th Cir. 1997).
4th Circuit says applying amendment that overruled circuit precedent would violate ex post facto clause. (320) Defendant was convicted of perjury based on two false declarations he had made to the grand jury regarding his use of marijuana and his involvement with the leader of a marijuana distribution and cultivation ring. Section 2J1.3(c) directs a court to apply § 2X3.1 (Accessory After the Fact) if the offense involved perjury “in respect to a criminal offense.” However, in U.S. v. Pierson, 946 F.2d 1044 (4th Cir. 1991), the court limited § 2X3.1 to false declarations for the purpose of assisting other persons. After Pierson was published, the commentary to § 2J1.2 was amended to expand the § 2X3.1 cross reference to defendants who perjure themselves to protect themselves, so that Pierson was no longer good law. Nevertheless, the Fourth Circuit held that applying the amendment, which went into effect after defendant committed his perjury, would violate the ex post facto clause. Thus Pierson remains circuit precedent for defendants who committed their perjury offense before November 1, 1991. U.S. v. Heater, 63 F.3d 311 (4th Cir. 1995).
4th Circuit rejects accessory after the fact cross-reference where defendant lied to protect himself. (320) Defendant was convicted of perjury after lying about an official’s involvement in a drug sting in which defendant served as an undercover agent. Section 2J1.3(c) provides that if the offense involved perjury in respect to a criminal offense, a court is to apply section 2X3.1 (Accessory After the Fact) in respect to that offense, if it would result in a higher offense level. The district court refused to apply the cross-reference, believing that U.S. v. Pierson, 946 F.2d 1044 (4th Cir. 1991) prohibited it. The 4th Circuit reversed, holding that Pierson is limited to cases in which a criminal defendant lies to protect himself from criminal punishment for the offense addressed by a false statement. Here, defendant intended through his lies to exculpate the official from a charge of attempted possession of cocaine. Because defendant did not intend to exculpate himself from that or any other charge, the accessory cross-reference should have been applied. U.S. v. Jamison, 996 F.2d 698 (4th Cir. 1993).
4th Circuit applies accessory after the fact guideline to attempt to free prisoner from jail. (320) Defendants were convicted of obstruction of justice and related counts for their foiled plan to free a federal prisoner from a county jail. Section 2J1.2(c)(1) provides for the application of section 2X3.1 (Accessory After the Fact) under certain circumstances if the offense involved obstructing the investigation or prosecution of a criminal offense. The 4th Circuit affirmed the application of section 2X3.1 to defendants through section 2J1.2’s cross reference, even though defendants were convicted of obstruction of justice on an “endeavoring” theory (some effort, although less than an attempt). The word “obstructing” means both actual obstruction and endeavoring to obstruct. U.S. v. Aragon, 983 F.2d 1306 (4th Cir. 1993).
4th Circuit rejects claim that 2J1.7 enhancement after successful appeal was vindictive. (320) Section 2J1.7 requires a three-level increase where the defendant is convicted of an offense while on release. The district court originally declined to impose the enhancement because it found that defendant’s sentence was “sufficiently severe” without it. One reason the sentence was so severe was that the court had erroneously calculated defendant’s criminal history. On defendant’s first appeal, the 4th Circuit remanded for resentencing based on the error in calculating defendant’s criminal history. At resentencing, the district court correctly computed defendant’s criminal history and then imposed the three level enhancement under section 2J1.7. On defendant’s second appeal, the 4th Circuit rejected defendant’s claim that the enhancement was vindictive in retaliation for his successful appeal. A defendant cannot demonstrate a reasonable likelihood of vindictiveness based on a correct application of the guidelines that resulted in a higher guideline range. U.S. v. Kincaid, 964 F.2d 325 (4th Cir. 1992).
4th Circuit finds adequate notice of enhanced penalties for committing crime while on release. (320) 18 U.S.C. section 3147 and guideline section 2J1.7 provide for enhanced penalties for persons who commit an offense while on release. The 4th Circuit affirmed that defendant received adequate notice of the enhancements. U.S. v. Cooper, 827 F.2d 991 (4th Cir. 1987) states that the judicial officer authorizing release must advise the defendant of the conditions of release in a written statement and of the penalties for violating a condition of release, including the penalties for committing an offense while on release. Here, following the arraignment, the magistrate judge instructed defendant that “should you commit any crime while on release, there are minimum mandatory as well as increased maximum penalties that may apply.” Moreover, the magistrate judge reviewed the release order with defendant, instructed him to read it, and obtained defendant’s affirmative response when asked whether he understood the order. Finally, when ordering continuance of bond pending sentencing, the district court advised the parties, without objection from defendant, that the same conditions of release would apply. U.S. v. Kincaid, 964 F.2d 325 (4th Cir. 1992).
5th Circuit holds that any error in application of sentencing enhancements was harmless. (320) Defendant falsely represented himself to be an attorney to the court and to the prosecution, and was convicted of obstruction of justice and making a materially false statement to a governmental agency. The district court applied five sentencing enhancements recommended by defendant’s PSR. This resulted in a guideline range of 57-71 months, and the district court sentenced defendant to 65 months. On appeal, the Fifth Circuit held the government met its burden of showing that any error in the court’s application of the sentencing enhancements was harmless. The district court stated that it would have imposed the same sentence even if none of the enhancements, or any combination of the enhancements short of all five, had been applied to defendant’s offense level. The court also stated that it had considered each of the 18 U.S.C. §3553(a) factors and weighed them in considering a sentence, but determined that any of the resulting guidelines ranges “would be insufficient in this case.” U.S. v. Richardson, 676 F.3d 491 (5th Cir. 2012).
5th Circuit says §3147 increase applies even where sole offense is failure to appear. (320) Defendant pled guilty to failure to surrender for service of sentence, in violation of 18 U.S.C. §3146. She argued that the sentencing enhancement under 18 U.S.C. §3147 and U.S.S.G. §3D.3 for committing an offense while on release should not apply where, as here, the sole offense is failure to appear, since by definition it can only be committed while on release. Given the unambiguous statutory language, the Fifth Circuit disagreed. When the plain language of a statute is unambiguous and does not lead to an absurd result, appellate inquiry begins and ends with the plain meaning of that language. The plain language of §3147 mandates a sentence enhancement to a person convicted of an offense committed while released under Chapter 207 of Title 18. Here, defendant was convicted of an offense that she committed while she was on release under Chapter 207 of Title 18. The §3147 enhancement thus unambiguously applied to her. U.S. v. Dison, 573 F.3d 204 (5th Cir. 2009).
5th Circuit says defendants who obstruct a drug case need not know drug quantities. (320) Defendant accidentally learned about a DEA investigation into cocaine trafficking. He contacted Cordier, who he knew was friends with the target of the investigation. Cordier warned his friend that the government was investigating him and tapping his phone. Defendant pled guilty to conspiracy to obstruct justice, and Cordier pled guilty to conspiracy and accessory after the fact. The obstruction of justice guideline, § 2J1.2, says that when a defendant obstructs the investigation of a criminal offense, the court should apply § 2X3 (Accessory After the Fact) in respect to that criminal offense. The Fifth Circuit held that the district court erroneously calculated defendants’ base offense levels by requiring that they know or reasonably foresee the drug quantities involved in the underlying drug conspiracy. Note 1 to § 2X3.1 instructs courts to apply the base offense level plus any applicable specific offense characteristics that were known or reasonably should have been known by the defendant. For drug offenses, drug quantity is not a specific offense characteristic. Thus, defendants were not required to know or to reasonably foresee the drug quantities involved in the underlying drug offense. U.S. v. Kimbrough, 536 F.3d 463 (5th Cir. 2008).
5th Circuit holds that defendant made threats in connection with criminal trial. (320) Defendant was convicted of using intimidation and threats to a potential witness in a drug case against his brothers, in violation of 18 U.S.C. §1512(b)(2)(A). At the time defendant was sentenced, the statutory maximum for a violation of §1512(b)(2)(A) was 10 years. However, §1512(j) provides that if the offense occurs “in connection with a trial of a criminal case,” the maximum sentence is “the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.” Defendant argued that the phrase “in connection with a trial of a criminal case” means the trial in the related case must be ongoing or scheduled reasonably close in time, and because his brothers’ trial did not meet this standard, the higher statutory maximum in §1512(j) did not apply to him. The Fifth Circuit disagreed, finding the definition of “in connection with” was expansive. Defendant’s threat was made in connection with a trial. His brothers had pled not guilty, and the case was pending in federal district court at the time defendant made his threats. U.S. v. Salazar, 542 F.3d 139 (5th Cir. 2008).
5th Circuit holds that defendant waived all sentencing claims except innocence. (320) Defendant was convicted of using intimidation and threats to persuade a potential witness not to testify against his two brothers in a pending drug case. The district court found that §2J1.2(c)(1) (Obstruction of Justice) required application of the cross-reference to §2X3.1(a) because defendant’s offense involved obstructing the investigation or prosecution of a criminal offense. Defendant challenged the application of the cross-reference on appeal. However, at sentencing, when the district court asked defendant’s counsel if he was making an argument about whether or not §2J1.2 or §2X3.1 applied, counsel responded, “No, Your Honor. We’re seeking to preserve the issue that in fact he is innocent and the conduct didn’t occur and therefore it wasn’t an obstruction of justice.” Thus, defendant’s only claim at sentencing was that the cross-reference to §2X3.1 should not have been applied because he was innocent. The Fifth Circuit held that, except for the innocence assertion, defendant waived his challenge to the application of §2X3.1. U.S. v. Salazar, 542 F.3d 139 (5th Cir. 2008).
5th Circuit holds that defendant received inadequate notice of § 2J1.7 enhancement. (320) Defendant committed the current offense while on release on another federal charge. In such a situation, 18 U.S.C. § 3147 and USSG § 2J1.7 directs a court to add three levels to the offense level for the offense committed while on release. However, this enhancement can only be imposed if the defendant received sufficient notice at the time of the defendant’s release from custody. See U.S. v. Onick, 889 F.2d 1425 (5th Cir. 1998). The Fifth Circuit rejected a § 2J1.7 enhancement because defendant did not receive adequate notice of the enhancement at the time of his release. The government did not file its notice of intent to enhance defendant’s sentence until more than a month after the PSR was initially disclosed to counsel, and 19 days after the deadline for filing objections had passed. There was no support in the record for the belief that defendant was advised about the possible enhancement when he was sentenced on the previous charge. U.S. v. Dadi, 235 F.3d 945 (5th Cir. 2000).
5th Circuit applies increase where perjury impeded administration of justice in non-criminal proceeding. (320) Defendant committed perjury at a bankruptcy proceeding by testifying that he had burned certain money he had taken from his former partners. Defendant argued that a § 2J1.3(b)(2) increase for the substantial interference with the administration of justice applies only where the perjury causes increased costs in the investigation and prosecution of another offense, not the instant perjury conviction. The Fifth Circuit agreed that expenses incurred in the investigation and prosecution of the current perjury offense could not form the sole basis for applying § 2J1.3(b)(2). Otherwise, every perjury conviction would carry this enhancement. However, the enhancement here was also based on the expenditure of resources in the bankruptcy proceeding. The Fifth Circuit held that perjury impeding the administration of justice in a non-criminal proceeding, such as a bankruptcy proceeding, may also trigger § 2J1.3(b)(2). Defendant’s false declarations caused unnecessary expenditures of substantial government resources. It interfered with the bankruptcy court’s ability to adjudicate claims, resulted in the trustee’s filing motions for turnover, sanctions, and civil contempt, and required the court to hold hearings on these motions and ultimately incarcerate defendant. Where a defendant actively conceals evidence of which he is the only source, a court may infer that the defendant’s interference with the administration of justice was substantial. U.S. v. Norris, 217 F.3d 262 (5th Cir. 2000) No. 99-30689.
5th Circuit holds underlying crime was offense being tried when defendant committed perjury. (320) A friend of defendant’s was originally tried for being a felon in possession of a firearm. At trial, defendant testified that he, rather than the friend, was driving the car in which police found a loaded gun. The friend was still convicted of the firearms charges. Defendant was later convicted of perjury and the friend of subornation of perjury. Section 2J1.3 says that if the offense involved perjury, a court should apply § 2X3.1 (Accessory After the Fact) if it would result in a greater offense level. Section 2X3.1 provides for a base offense level of six levels lower than the offense level for the underlying offense. The Fifth Circuit agreed that the underlying offense for defendant’s perjury was the friend’s firearm possession, rather than subornation of perjury. The guidelines essentially directed the court to determine to what crime defendant’s perjury made him an accessory-after-the-fact. That crime was the friend’s firearm possession since it was in the friend’s firearm possession trial that defendant perjured himself. The perjury conviction did not turn on whether the friend suborned perjury, but only on whether defendant made false declarations under oath about a material fact in the firearms possession case. U.S. v. Walker, 148 F.3d 518 (5th Cir. 1998), abrogation on other grounds recognized by Henderson v. Quarterman, 460 F.3d 654 (5th Cir. 2006).
5th Circuit does not require conviction on underlying offense to use perjury cross‑reference. (320) At an initial hearing on drug charges, defendant lied about his identity to conceal his criminal record. He later pled guilty to perjury in exchange for dismissal of the drug charges. Section 2J1.3(c)(1) provides that if the offense involved perjury “in respect to a criminal offense,” the court should apply § 2X3.1. Section 2X3.1 provides for an offense level six levels lower than the offense level for the underlying offense, or 26. The application notes define “underlying offense” as the offense to which the defendant is convicted of being an accessory. The district court refused to apply the cross reference, but the Fifth Circuit held that defendant should have been sentenced under § 2X3.1 even though not convicted of the underlying offense. U.S. v. Martinez, 106 F.3d 620 (5th Cir. 1997).
5th Circuit finds obstructive conduct caused expenses in relation to underlying charge. (320) Defendant pled guilty to conspiring to induce the illegal entry of aliens into the U.S. While awaiting sentencing, he attempted to bribe several aliens to exculpate himself. He then was charged and pled guilty to conspiracy to obstruct justice. Because there had been a substantial expenditure of resources, the district court imposed a § 2J1.2(b)(2) enhancement for substantial interference with the administration of justice. Defendant argued that enhancement only applies when substantial resources are expended in connection to the investigation or prosecution of the initial offense, rather than the obstruction offense. The Fifth Circuit found it unnecessary to resolve that issue since there was a direct connection between the resources expended and the successful prosecution of the alien smuggling charges. Although defendant pled guilty to the alien charges before the obstructive conduct, he had not yet been sentenced. He orchestrated activities underlying the obstructive conduct in an attempt to be allowed to withdraw his guilty plea. U.S. v. Harrington, 82 F.3d 83 (5th Cir. 1996).
5th Circuit upholds increase for crime committed while on release. (320) Defendant committed an obstruction of justice offense while on release pending sentencing. Under 18 U.S.C. § 3147, the district court was required to impose an additional term of imprisonment. Section 2J1.7 specifies that this is to be done by adding three levels to the defendant’s offense level, and then apportioning the sentence. The district court imposed a 54‑month sentence on each obstruction count, and under § 3147, imposed two consecutive three month terms. Defendant argued that the district court erred in sentencing him to more than 54 months because the district court intended that to be the “total punishment.” The Fifth Circuit held that the court properly enhanced defendant’s sentence under § 3147. Although the “total punishment” generally must be within the guideline range, this statement is inapplicable where, as here, the district court departs upward. Moreover, at the sentencing hearing, the judge said he intended for defendant to serve a term of 60 months. U.S. v. Harrington, 82 F.3d 83 (5th Cir. 1996).
5th Circuit refuses to group failure to appear count despite § 2J1.6 commentary. (320) Defendant pled guilty to various counts including failure to appear. The district court grouped all the counts other than the failure to appear count. Note 3 to § 2J1.6 states that the failure to appear count and the counts for the underlying offense are grouped together under § 3D1.2(d). However, 18 U.S.C. § 3146(b)(2) requires the term of imprisonment imposed under it to be consecutive to the sentence for any other offense. The commentary to § 2J1.6 tries to resolves this conflict by providing that the court, after grouping the failure to appear counts with the underlying counts, should earmark a portion of the total punishment as a consecutive sentence for the failure to appear count. The Fifth Circuit upheld the court’s refusal to group the failure to appear count with the underlying counts, finding § 2J1.6’s commentary was inconsistent with § 3146(b)(2). The guideline treatment of § 3146(b)(2) would defeat the statutory intent that a failure to appear offense be considered separate and distinct from the underlying offenses, warranting a separate and distinct penalty. U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995).
5th Circuit holds failure to advise of mandatory sentence for being on release was harmless error. (320) The district court failed to advise defendant at the time of his plea that the maximum sentence would include an additional mandatory sentence under 18 U.S.C. § 3147 for committing the offense while on release. The 5th Circuit held that under U.S. v. Johnson, 1 F.3d 296 (5th Cir. 1993) the court’s less than perfect compliance with Rule 11 was harmless error. The sentencing court informed defendant that his maximum possible prison time was 18 years, when in fact, the maximum period was 28 years. However, defendant was actually sentenced to only six years. Therefore, he was not harmed. Judge Jolly dissented, since under the majority’s analysis, when a defendant is sentenced to a term less than the maximum of which he is advised, the failure to inform him of the actual maximum sentence will always be harmless error. U.S. v. Pierce, 5 F.3d 791 (5th Cir. 1993).
5th Circuit rejects departure where defendant was arrested for additional offense while on release. (320) While on release for this immigration offense, defendant was arrested, pled guilty and was sentenced for a second immigration offense. At sentencing for the instant offense, the government requested an enhancement under 18 U.S.C. section 3147 for committing an offense while on release. The district court refused to impose the enhancement, even though section 2J1.7 directs a sentencing court to add three offense levels if section 3147 applies. Instead, the court departed upward, applying section 2J1.7 by analogy, apparently on the grounds that the government had failed to seek the section 3147 enhancement for the second offense. The 5th Circuit reversed the departure. Under sections 3147 and 2J1.7, an enhancement for post-conduct conviction should be applied to the sentence for the new crime committed while on release, not the original crime for which the defendant is on release. The fact that the government chose not to seek the enhancement for the second offense did not change the analysis. U.S. v. Lara, 975 F.2d 1120 (5th Cir. 1992).
5th Circuit upholds application of section 2X3.1(a) to perjury offense related to murder. (320) Defendant was convicted of perjury and misprision of a felony for lying to a grand jury about his meeting with an individual who later murdered a federal witness. Defendant contended that the district court erred in sentencing him under guideline section 2X3.1 because even though his perjury related to a murder, he was not implicated in the murder as a principal or accessory after the fact. The 5th Circuit affirmed the application of section 2X3.1 to the offenses. Guideline section 2J1.3(c)(1) states that if the offense involved perjury or subornation of perjury in respect to a criminal offense, apply section 2X3.1 (Accessory After the Fact) in respect to that criminal offense. Section 2J1.3(c)(1) does not require that the defendant actually be convicted of the underlying offense or as an accessory to the underlying offense. U.S. v. Salinas, 956 F.2d 80 (5th Cir. 1992).
5th Circuit upholds guideline governing failure to report for service of sentence. (320) Defendant argued that the sentencing commission exceeded its statutory authority in setting the offense levels for failure to report for service of sentence. He contended that guideline § 2J1.6 was irrational because it bases a defendant’s offense level on the maximum potential penalty for the underlying offense, rather than on the defendant’s actual sentence. The 5th Circuit rejected the argument, refusing to follow the 8th Circuit’s opinion in U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989), which invalidated the application of § 2J1.6 to defendants who abscond after sentencing when their sentence is a “fraction” of the maximum possible sentence. “Congress and the Commission could well have concluded that greater social harm may result when defendants convicted of more serious offenses fail to report for service of sentence, regardless of the actual sentence imposed for the underlying offenses.” U.S. v. Harper, 932 F.2d 1073 (5th Cir. 1991).
5th Circuit applies fraud guideline to false statements in bankruptcy. (320) Defendant pled guilty to making a false declaration under penalty of perjury in a bankruptcy proceeding. Defendant contended that the district court erred in sentencing him under the fraud guideline, § 2F1.1, rather than the perjury guideline, § 2J1.3. The 5th Circuit rejected this argument, finding that the Statutory Index specified the fraud guideline. A court may not look beyond the guideline listed in the Index unless that guideline is inappropriate in light of the statute or offense of conviction. Although defendant made his statement under penalty of perjury, his conduct constituted fraud because he attempted to conceal funds from the bankruptcy court. The 5th Circuit also rejected defendant’s argument that sentencing him under the fraud guideline violated due process because of his expectation that he would be sentenced under the perjury guideline. Since defendant stipulated to facts that established a factual basis for fraud, under guideline § 1B1.2(a), defendant could be sentenced to the higher offense. U.S. v. Beard, 913 F.2d 193 (5th Cir. 1990).
5th Circuit holds that uncooperative witness may be subject to enhancement of perjury offense level due to substantial interference with administration of justice. (320) Defendant was convicted of perjury after he denied before the grand jury that someone had told him to “get dumb” if he should be subpoenaed in connection with a grand jury investigation into fraud in the savings and loan industry. The 5th Circuit held that the district court properly enhanced the perjury offense level by three points under § 2J1.3(b)(2), which requires the enhancement if “substantial interference with the administration of justice occurs.” Applying the “clearly erroneous” standard of review to this essentially factual inquiry, the enhancement was affirmed. The findings that he was “uncooperative, provided less than truthful information to the grand jury, and hindered the FBI’s investigation” [by providing information and later recanting] were not clearly erroneous. U.S. v. Barnhart, 889 F.2d 1374 (5th Cir. 1989).
6th Circuit says falsification of documents constituted interference with administration of justice. (320) Defendant, an employee for the sheriff’s department, transferred a prisoner from the hospital to jail. When the prisoner resisted, defendant put him in a “sleeper hold,” and did not stop when the prisoner began to choke and other officers told him to stop. He left the prisoner unconscious, and did not notify medical personnel of the incident. The prisoner could not be resuscitated, was declared brain dead, and ultimately died. Defendant was convicted of depriving rights under color of law, in violation of 18 U.S.C. § 242, and falsifying documents, in violation of 18 U.S.C. § 1519. The Sixth Circuit upheld a § 2J1.2(b)(2) increase for substantial interference with the administration of justice. Defendant’s falsification of documents made the investigation into the prisoner’s death more difficult and delayed defendant’s trial for four years. Had defendant truthfully fulfilled his obligation, much of the investigation in this case would have been unnecessary. The false records required federal agents to perform numerous interviews in order to discover the truth. U.S. v. Gray, 692 F.3d 514 (6th Cir. 2012).
6th Circuit applies cross-reference where defendant knew trial he was obstructing involved over $2 billion. (320) Defendant obstructed justice by attempting to get a witness to provide false information in a pending securities case. He was convicted of obstruction of justice, witness tampering, and conspiracy. The Sixth Circuit held that the district court properly allowed evidence from the securities case to be used in the obstruction case. Section 2J1.2 allows a sentencing enhancement if the offense “involved obstructing the investigation or prosecution of a criminal offense.” Section 2X3.1 creates a base offense level of 6 levels lower than the offense level for the underlying offense, not to fall below four or exceed 30. The enhancement is proper if the specific characteristics of the underlying offense, the securities offense, “were known, or reasonably should have been known, by the defendant.” The indictments and recordings of defendant discussing the securities fraud case demonstrated that he knew that the trial he was attempting to obstruct had over $2 billion at stake. Thus, the application of the enhancement was proper. U.S. v. Poulsen, 655 F.3d 492 (6th Cir. 2011).
6th Circuit upholds probation for police officer in excessive force conspiracy. (320) Defendant was one of several police officers convicted of offenses stemming from the excessive use of force during an arrest. Defendant was only convicted of conspiracy to obstruct justice. His guideline range was 15-21 months, but the district court sentenced him to three years’ probation and six months of home confinement. The Sixth Circuit rejected the government’s claim that the sentence was substantively unreasonable. The district court “exhaustively examined the § 3553 (a) factors and amply justified its outside-Guidelines sentence.” The court noted that the underlying offense was “spontaneous” and involved “a single line in a police report.” Moreover, unlike many police misconduct cases the court had seen, defendant did not have a long record of citizen complaints. His record was spotless and he had been decorated many times. The court felt defendant was the least culpable, and there was no chance he would repeat his crime. U.S. v. Carson, 560 F.3d 566 (6th Cir. 2009).
6th Circuit upholds use of cross-reference where obstructive conduct influenced judge to grant undeserved departure. (320) Prior to sentencing on bank robbery charges, defendant submitted to the court forged letters of reference in order to influence the court to grant him a downward departure. Based on this conduct, he was convicted of obstruction of justice. Guideline § 2J1.2(c) directs a court to apply § 2X3.1 (Accessory After the Fact) if the offense obstructed the investigation or prosecution of a criminal offense. Defendant argued that because he did not obstruct the investigation or prosecution of his bank robbery, the court should have applied § 2J1.2(a) rather than § 2J1.2(c). The Sixth Circuit affirmed the use of § 2J1.2(c), finding that defendant’s conduct obstructed the prosecution of the bank robbery because it resulted in an unwarranted sentence of 18 months rather than the statutory 30-33 months. The false documents materially influenced the judge in the robbery case to award an undeserved downward departure. U.S. v. Roche, 321 F.3d 607 (6th Cir. 2003).
6th Circuit says that failure to appear should be grouped with underlying offense. (320) In 1990, defendant failed to appear for sentencing on drug charges. He was later arrested and pled guilty to failing to appear. He was sentenced to 151 months’ imprisonment on the drug charges and 14 consecutive months on the failure to appear, for a total of 165 months. He argued that his offenses should not have been grouped together under the 1998 guidelines because grouping was not consistent with the failure to appear statute. However, the failure to appear statute, 18 U.S.C. § 3146(b), does not specify a set term of imprisonment; instead, it states that a violation may be punished by a fine, imprisonment, or both. The statute’s only requirement is that, if a sentence of imprisonment is imposed, that sentence must run consecutively to any sentence imposed for the underlying offense(s). The Sixth Circuit, agreeing with the majority of circuits to decide this issue, held that the guidelines, USSG §§ 3D1.1, 2J1.6, and 3D1.2, clearly call for grouping a failure to appear with the underlying offense and do not violate the consecutive sentence requirement in § 3146(b)(2). “The creative approach taken by the Sentencing Guidelines, which enhances the underlying offense and then designates a portion of the total punishment as the consecutive sentence for the failure to appear offense, does not offend the plain language of the statute. The court still technically issues a separate, consecutive sentence for the failure to appear offense.” U.S. v. Green, 305 F.3d 422 (6th Cir. 2002).
6th Circuit holds that application of cross-reference to accessory guideline was mandatory. (320) While serving a state prison sentence, defendant was called to testify before a grand jury investigating Winston and Clemmons. In exchange for his testimony, defendant was offered immunity. Defendant testified before the grand jury, but refused to testify at trial. He was convicted of criminal contempt for his refusal to testify. Guideline § 2J1.2 contains a sentencing cross-reference to § 2X3.1 (Accessory After the Fact), which is to be applied if the “offense involved obstructing the investigation or prosecution of a criminal offense.” Defendant argued that the district court erred by applying the § 2X3.1 cross-reference. The Sixth Circuit rejected this argument because application of the § 2X3.1 cross-reference is mandatory. Defendant’s claim that he was not actually an accessory after the fact to the homicide at issue was not relevant, since it does not matter whether the defendant is actually guilty of the crime referenced in § 2X3.1 in order for the higher sentence recommendation to be imposed. U.S. v. Kimble, 305 F.3d 480 (6th Cir. 2002).
6th Circuit says accessory is responsible for principal’s adjustments if accessory knew of them. (320) Defendant approached Corrado, an acquaintance on trial for RICO charges, and told him he had two people on the jury who would be willing to “hang” the jury for him. Defendant was convicted of obstruction of justice. Guideline § 2J1.2 says that if the offense involved obstructing the investigation or prosecution of a criminal offense, the court should apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense if it would result in a higher offense level. The Sixth Circuit considered whether defendant’s offense level should be based on the offense level for the underlying RICO offense or on Corrado’s total offense level, which included adjustments for multiple counts, role in the offense, and specific offense characteristics. Application Note 1 to § 2X3.1 directs the court to apply “the base offense level [of the underlying offense obstructed] plus any applicable specific offense characteristics that were known, or reasonably should have been known, by the defendant.” Thus, adjustments to a principal’s base offense level enter into the determination of an accessory-defendant’s offense level, but only if the defendant had knowledge of those elements. In the absence of factual findings regarding defendant’s knowledge of those circumstances that increased Corrado’s base offense level, the district court erred by simply adopting Corrado’s total offense level of 33 as a component of defendant’s base offense level. U.S. v. Shabazz, 263 F.3d 603 (6th Cir. 2001).
6th Circuit holds that increases for physical injury and extreme conduct were not double counting. (320) Defendant’s cousin threw sulfuric acid at a woman who had previously testified against defendant. Defendant was involved in planning the attack. As a result of the attack, the woman lost her right eye and suffered severe acid burns to her face, chest, arms and legs. He received an eight-level enhancement under § 2J1.2(b)(1) for causing physical injury. The district court also departed upward under § 5K2.2 (significant physical injury) and § 5K2.8 (extreme conduct). The Sixth Circuit found no double counting. The § 5K2.2 departure did not result from “precisely the same aspect of a defendant’s conduct” that was considered under § 2J1.2(b)(1). Section 2J1.2(b)(1) was applied because the offense caused physical injury, but § 5K2.2 directed the court to consider the extent of the injury. The § 5K2.8 departure was based on yet another aspect of defendant’s conduct. Section 5K2.8 focuses on the depravity of defendant’s conduct, and both the physical and mental effect that the conduct had on the victim. A victim can have extensive physical injuries as a result of negligent conduct that does not fall within § 5K2.8, and extreme conduct can lead to prolonged humiliation but not extensive physical injuries. U.S. v. Levy, 250 F.3d 1015 (6th Cir. 2001).
6th Circuit rules that increase for causing physical injury to witness was not double counting. (320) Defendant was convicted of retaliating against a witness, in violation of 18 U.S.C. § 1513, after his cousin threw sulfuric acid at a woman who had previously testified against defendant. Defendant was involved in planning the attack. As a result of the attack, the woman lost her right eye and suffered severe acid burns to her face, chest, arms and legs. He received an eight-level increase under § 2J1.2(b)(1) for causing physical injury. The Sixth Circuit rejected defendant’s claim that the enhancement constituted double counting. Section 1513 criminalizes retaliation against witnesses that involve actual or threatened bodily injury. The base offense level under USSG § 2J2.1 applies regardless of whether bodily injury occurred. Hence, the § 2J1.2(b) bodily injury increase does not take into account conduct that was already taken into account in setting the base offense level. U.S. v. Levy, 250 F.3d 1015 (6th Cir. 2001).
6th Circuit holds that enhancement for failing to appear while on release not double counting. (320) While considering the merits of defendant’s appeal to his civil rights conviction, the en banc court ordered defendant to surrender to the U.S. marshal. He fled to Mexico, but later pled guilty to failure to appear, in violation of 18 U.S.C. § 3146. Section 2J1.7 provides for a three-level enhancement for offenses committed while a defendant is on release. Defendant argued that the § 2J1.7 enhancement was double counting, since his failure to appear offense was necessarily committed while on release. In U.S. v. Benson, 134 F.3d 787 (6th Cir. 1998), the Sixth Circuit rejected this precise argument. The Sixth Circuit found that it was bound by Benson. One panel of the court cannot overturn a decision of another panel; only the court sitting en banc can overturn such a decision. U.S. v. Lanier, 201 F.3d 842 (6th Cir. 2000).
6th Circuit holds § 2J1.7 enhancement applies to failure to appear rather than underlying offense. (320) Defendant was convicted of multiple offenses, including one count of failure to appear under 18 U.S.C. § 3146. The district court grouped the convictions into a single group, and then applied several enhancements, including a § 2J1.7 enhancement for committing an offense while on release. The § 2J1.7 enhancement was based on defendant’s failure to appear conviction. The Sixth Circuit held that the district court erred in applying the § 2J1.7 enhancement to defendant’s underlying money laundering conviction. Section 2J1.7 clearly states that it applies to “the offense committed while on release,” which in this case was the failure to appear. Because there were multiple counts of conviction, the district court should have engaged in separate guideline calculations for enhancements to each offense separately. Under 18 U.S.C. § 3147, the portion of the sentence attributable to an enhancement under USSG § 2J1.7 must run consecutively to any other sentence of imprisonment. U.S. v. Bahhur, 200 F.3d 917 (6th Cir. 2000).
6th Circuit applies enhancement for substantial interference with administration of justice. (320) Defendants’ son Brian was charged with carrying a gun during an arson committed December 6, 1991. Defendants convinced the firearms dealer who sold the gun to Brian to list a purchase date of December 16, 1991 on a form 4473. Section 2J1.2(b)(2) provides for a three-level increase if the offense “resulted in substantial interference with the administration of justice,” which includes “the unnecessary expenditure of substantial governmental or court resources.” See Note 1 to § 2J1.2. The Sixth Circuit agreed that defendants’ deception caused expenses necessary for the prosecution of Brian, and that this expense was “substantial.” The court considered the expense related to calling the grand jury, and the expense of the AFT investigation into the veracity of the form 4473. The Sixth Circuit further held that where a defendant actively conceals important evidence of which she is the only source, a court may infer that the defendant’s interference with the administration of justice was substantial. Defendants fell within this category, since they were the only two people who knew about the falsified form and its relationship to Brian’s prosecution. U.S. v. Tackett, 193 F.3d 880 (6th Cir. 1999).
6th Circuit increases sentence for committing new offense while on release. (320) Defendant argued that the enhancement for committing a new offense while on release under 18 U.S.C. § 3147 and guideline § 2J1.7 should not apply to his sentence for failing to appear pursuant to 18 U.S.C. § 3146 because § 3147 does not apply to failing to appear. The Sixth Circuit held that § 3147 clearly applies to violations of § 3146. Section 3147 is not ambiguous and clearly states that it applies to a person convicted of an offense committed while under release under this chapter 207. Defendant’s § 3146 violation was an offense under chapter 207 of Title 18. Thus, the court did not err in applying § 3147 and guideline § 2J1.7. U.S. v. Benson, 134 F.3d 787 (6th Cir. 1998).
6th Circuit remands for findings regarding basis for obstruction enhancement. (320) After defendants’ son was indicted on arson and firearms charges, they falsified records and attempted to influence a witness. The district court enhanced their sentences under § 2J1.2(b)(2) for “substantial interference with the administration of justice.” The Sixth Circuit remanded because the court made no findings regarding the basis for the enhancement. Although the PSR said that defendants delayed the investigation and caused the government to waste time and effort, defendants disputed this. The government argued at sentencing that § 2J1.2(b)(2) was not the correct guideline, but that § 2J1.2(c) and by cross reference, § 2X3.1, should apply. The district court sentenced both defendants as recommended in their PSRs without ruling on the government’s legal argument or making any findings of fact. With respect to controverted matters, Rule 32(c)(1) requires a sentencing court to either make a finding on the allegation or to state that the controverted matter will not be taken into account. The court did not address the contested question of how much time and effort defendants’ conduct had caused nor did it decide which guideline applied. U.S. v. Tackett, 113 F.3d 603 (6th Cir. 1997).
6th Circuit applies § 2J1.3 to defendant who solicited and accepted bribe for false testimony. (320) Defendant solicited and accepted a bribe of $20,000 in exchange for testifying favorably for a defendant in a civil lawsuit. The Sixth Circuit held that she was correctly sentenced under § 2J1.3 (Perjury of Subordination of Perjury; Bribery of Witness) rather than § 2J1.9 (Payment to Witness). Section 2J1.3 applies to perjury, subordination of perjury, and witness bribery prosecuted under certain statutes. The law defendant violated, 18 U.S.C. § 201(b)(4), is one of the referenced statutes. Defendant offered no authority for the application of § 2J1.9. U.S. v. Donathan, 65 F.3d 537 (6th Cir. 1995).
6th Circuit says defendant need not be notified of enhancement for crimes committed on bond. (320) Under 18 U.S.C. section 3147, a defendant who commits an additional offense while released on bond is subject to an additional consecutive sentence. To implement this, guideline section 2J1.7 provides for a three level offense level enhancement. Following the 3rd Circuit and rejecting the 4th Circuit, the 6th Circuit held that the judge who initially authorizes a defendant’s release on bond need not give specific notice to the defendant of the additional punishment for committing an offense while on bond. Section 3147 is self-executing and unambiguously mandates that courts impose additional consecutive sentences. Moreover, even if there were a notice requirement, defendant received it. He conceded that the release papers he signed contained the language of section 3147 but not a citation to the statute. U.S. v. Lewis, 991 F.2d 322 (6th Cir. 1993).
6th Circuit affirms that defendant’s perjury in court was “in respect to a criminal offense.” (320) Defendant was convicted of eight counts of making a false statement before a court, after he recanted in court incriminating testimony he had given against his drug co-conspirators. Section 2J1.3(c)(a) provides that if the offense involved perjury “in respect to a criminal offense,” apply section 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if it results in a higher offense level. The 6th Circuit affirmed that defendant’s perjury was “in respect to” the drug conspiracy. The false testimony was intended to grant the co-conspirators a new trial. Accordingly, section 2X3.1 was applicable. Defendant was an unindicted co-conspirator and an active member of the conspiracy who was granted immunity from prosecution in exchange for testimony. He became an accessory after the fact when he committed perjury to assist his co-conspirators in obtaining a new trial. U.S. v. Colbert, 977 F.2d 203 (6th Cir. 1992).
6th Circuit bases bail jumping sentence on maximum term for underlying offense. (320) Guideline section 2J1.6, which applies to bond jumping, increases a defendant’s base offense level nine levels if the underlying offense was punishable by 15 or more years of imprisonment. The 6th Circuit reversed the district court’s ruling that this provision was arbitrary and capricious. This sentencing structure reflects the recognition that those defendants facing a longer potential prison term need a greater deterrent from bond jumping. Defendant also argued that at the time he failed to appear for sentencing, he was no longer facing the maximum sentence because he could estimate his guideline sentence. The 6th Circuit rejected this argument, noting that the sentencing judge had not yet adopted the presentence report and could have departed from that sentence for many reasons. In view of the uncertainty of the guidelines, it was neither arbitrary or capricious for the bond-jumping sentence to reflect the severity of the crime for which the defendant was being held. U.S. v. Kincaid, 959 F.2d 54 (6th Cir. 1992).
6th Circuit upholds perjury sentence based on level for underlying offense. (320) Defendant was convicted of perjury in connection with misrepresentations he made in a pro se challenge to a drug conviction. The 6th Circuit affirmed the district court’s determination that defendant had a base offense level of 20 for his perjury conviction. Guideline § 2J1.3 states that if the perjury involved another criminal offense, guideline § 2X3.1 is to be applied if the offense level is greater than 12. Under § 2X3.1(a), the base offense level is six levels lower than the offense level for the underlying offense, but in no event less than four or more than 30. The underlying offense for the perjury conviction was defendant’s drug conviction, which had a base offense level of 26. Therefore, the offense level for defendant’s perjury conviction was 20. U.S. v. Gomez-Vigil, 929 F.2d 254 (6th Cir. 1991).
6th Circuit affirms adding two points to criminal history category for offense committed while under criminal justice sentence. (320) Defendant failed to report to prison and was charged with escape. Two points were added to defendant’s criminal history score because his offense was committed while he was on escape status from a prior sentence. Defendant appealed, arguing that the addition of the two points was impermissible double counting because an escape offense can only be committed while under a criminal justice sentence and this factor was considered in setting the base offense level. The 6th Circuit rejected the argument, holding that the Sentencing Commission was aware that points would be added to a defendant’s criminal history score under § 4A1.1(d) when it developed the base offense level, and intended “a stiffer sentence for one who failed appear while under a criminal justice sentence.” U.S. v. Lewis, 900 F.2d 877 (6th Cir. 1990).
7th Circuit approves upward variance in failure to appear case. (320)(742) Defendants pled guilty to two counts of conspiracy, absconded, were apprehended 12 years later, and then pled guilty to failure to appear at sentencing. The district court grouped the three counts together, and imposed above-guideline sentences. Defendants argued for the first time on appeal that the district court failed to properly follow the guidelines procedure for imposing sentences on the failure to appear counts. The Seventh Circuit disagreed. The district court acknowledged that it was to apportion part of the total sentence to the underlying offenses and part to the failure to appear. However, after considering the 18 U.S.C. § 3553 factors, it determined that a variance was warranted. The district court noted that the victims of the defendants’ fraud were neither wealthy nor sophisticated, and many were elderly. The money they lost was their life savings that they intended as a loan to someone they regarded as a friend, not an investment with attendant risk. The main aggravating factor was the fact that the defendants had avoided the consequences of their crimes for 12 years. The defendants stole not only their victims’ money, but also their right to a sense of justice, particularly from those victims who died before defendants were apprehended. U.S. v. Hallahan, 744 F.3d 497 (7th Cir. 2014).
7th Circuit says increase for violating court order was improper double counting. (320) Defendant was convicted of willful failure to pay child support, in violation of the Deadbeat Parents Punishment Act of 1998, 18 U.S.C. § 228(a)(3) (DPPA). The applicable offense level is set by cross-reference to § 2B1.1 for theft, property destruction and fraud. U.S.S.G. § 2J1.1, Note 2. The Seventh Circuit agreed with defendant that an enhancement under § 2B1.1(b) (8)(C) for a violation of a court order was impermissible double counting, because defendant’s violation of the order was an element of the offense of conviction. A “support obligation” under the DPPA is defined as “any amount determined under a court order … to be due from a person for the support and maintenance of a child ….” Thus, violation of a judicial or administrative order is an element of the offense. Although some circuits apply a “separate harms” theory of double counting, which examines whether the conduct may be permissibly teased into severable “aspects” for purposes of sentencing, the Seventh Circuit has not embraced this theory. U.S. v. Bell, 598 F.3d 366 (7th Cir. 2010).
7th Circuit says defendant who impersonated FBI agent did not act “under color of official right.” (320) Defendant ran scams on unsuspecting immigrants, offering to make various immigration and criminal problems go away in return for cash. As part of his scheme, he sometimes claimed to be an FBI agent, and was convicted of impersonating an FBI agent. Guideline § 2J1.4 provides that if the impersonation was to facilitate another offense, the court should apply the guideline for that offense if it would result in a higher offense level. The district court followed the cross-reference in § 2J1.4 to sentence defendant under § 2C1.1 (the color of official right guideline). The Seventh Circuit ruled that defendant’s impersonation of a public official was not action “under color of official right.” Section 2C1.1 is inapplicable when the defendant was not a public official and did not accept money in exchange for action involving any official duties. Nevertheless, the error was harmless because the judge said she would have imposed the same sentence even if § 2C1.1 did not apply. U.S. v. Abbas, 560 F.3d 660 (7th Cir. 2009).
7th Circuit reverses district court’s finding that threats were akin to attempted murder. (320). Defendant was convicted of several obstruction counts under 18 U.S.C. § 1512 based on threats he made to family members to prevent them from testifying against him. Appendix A does not list § 2J1.2 as a guideline applicable to § 1512 convictions, so the court sentenced defendant under § 2A2.1, the attempted murder guideline. On defendant’s first appeal, the Seventh Circuit remanded, finding that the absence of § 2J1.2 from the statutory index was likely a scrivener’s error. Defendant’s guideline range under § 2A2.1 was 210-262 months; his guideline range under § 2J1.2 would have been 92-115 months. Nevertheless, at resentencing, the court reimposed the same 210-month sentence. The court repeatedly expressed its belief that defendant was “like the attempted murderer” and should be sentenced as such. The Seventh Circuit reversed, finding insufficient evidence that defendant would have attempted murder. Defendant’s family members all testified that they did not feel threatened by defendant’s statements. The victim believed that defendant was merely “blowing off steam” in issuing threats. U.S. v. England, 555 F.3d 616 (7th Cir. 2008).
7th Circuit reverses where court did not address need to avoid unwarranted sentencing disparities. (320) Defendant threatened to kill his brother-in-law, who was cooperating with police in an criminal investigation of defendant. Defendant was convicted of threatening physical force with the intent to prevent the testimony of a witness, in violation of 18 U.S.C. § 1512(a). The court sentenced defendant under U.S.S.G. § 2A2.1, Assault with Intent to Commit Murder, Attempted Murder, rejecting defendants claim that it should apply § 2J1.2, Obstruction of Justice (and which the guidelines do not link to § 1512(a) violations). The difference was significant. Attempted murder carries a base offense level of 33 while threats of physical injury to obstruct justice carry a base offense level of 22. Defendant challenged his 262-month sentence as unreasonable. The Seventh Circuit found it unnecessary to address the reasonableness issue because the record on appeal did not indicate that the district court considered “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). The court gave no indication that it considered the disparity that might arise from defendant’s sentence when it discussed a variance under § 3553(a), even though defendant pointed to the factual dissimilarity between his threat and the applicable guidelines section. This was important where, as here, it appeared that the Sentencing Guidelines might have a scrivener’s error in the Statutory Index due to 2002 changes in the witness tampering statute that were not reflect in the Sentencing Guidelines. U.S. v. England, 507 F.3d 581 (7th Cir. 2007).
7th Circuit reverses obstruction increase for giving false name to police. (320) Defendant failed to report to prison, and was arrested 15 years later by the FBI, where he was living under the name of David Cohn. When agents came to arrest him, he claimed to be Cohn, denied knowing any Alfred Elliot (his real name), and denied recognizing his own photo. The agents were not fooled by that ploy, or his claim that he was on his way to an urgent medical appointment for a life-threatening condition (it was a routine check-up). He was convicted of failure to appear to begin a sentence, and received a two-level obstruction increase based on his effort to persuade the FBI either that he was “Cohn” or that he must be allowed to visit his doctor (and thus have another chance to flee). The Seventh Circuit reversed. Note 7 to § 3C1.1 says that using an alias does not justify an obstruction increase for failure to appear unless “significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself.” This was not the case. Defendant’s “feeble” efforts were not significant. He simply stuck with the alias he had been using for more than a decade. The 21-month sentence imposed was not unreasonably high, and in fact seemed unreasonably low. Guideline § 2J1.6 does not take into account the duration of the flight from justice. U.S. v. Elliott, 467 F.3d 688 (7th Cir. 2006).
7th Circuit upholds 480-month sentence for white supremacist who plotted to kill federal judge. (320) Defendant was convicted by a jury of obstructing justice and soliciting a crime of violence in connection with his resistance to a judgment entered against his white supremacist organization and his involvement in a plot to have the judge murdered. His offense level of 45, combined with his criminal history category of VI, resulted in an advisory guideline sentence of life imprisonment. The Seventh Circuit held that the 480-month sentence imposed was reasonable. Defendant’s sentence was within the properly calculated guideline range and thus was presumptively reasonable. Defendant’s claim that the government had a role in the offense amounted to a claim of sentencing entrapment. The government overcomes an alleged entrapment defense by establishing that the defendant was predisposed to commit the offense charged. Here, defendant asserted that he would not have solicited the judge’s murder if not for the government’s involvement, but he did not establish that the government, through the confidential informant, used “extraordinary inducements” to elicit criminal activity. The court considered the other factors mentioned by defendant (lack of prior criminal record, law school graduate, and his father was retired police officer) and found that the guideline sentence was still proper. U.S. v. Hale, 448 F.3d 971 (7th Cir. 2006).
7th Circuit applies enhancement even though failure to appear was by co-conspirator. (320) Defendant helped Shah, his former brother-in-law, flee from this country while Shah was awaiting sentencing on multiple fraud convictions. Guideline § 2X1.1 directed the court to sentence defendant under § 2J1.6, which applies to Failure to Appear by Defendant. Section 2J1.6(b)(2)(A) provides for a nine-level increase in cases in which the “underlying offense” is punishable by imprisonment for a term of 15 years or more. Note 1 defines “underlying offense” as “the offense in respect to which the defendant failed to appear.” Defendant argued that the increase did not apply to him because it was Shah, and not defendant, who failed to appear on the underlying charges. The Seventh Circuit disagreed, holding that the enhancement was properly applied to defendant. Even if defendant was correct that the underlying statutory exposure must be either known or reasonable foreseeable in order for § 2J1.6(b)(2) (A) to be applied to a co-conspirator, the increase was applicable to defendant. Defendant and Shah were often in contact with one another soon after Shah was convicted, and defendant knew that Shah was subject to electronic monitoring. U.S. v. Zamora, 320 F.3d 704 (7th Cir. 2003).
7th Circuit affirms increase where contempt substantially interfered with administration of justice. (320) While under a preliminary injunction that prohibited defendant from disposing of or transferring any of his assets, defendant sold his yacht, and attempted to transfer and conceal the proceeds of the sale. He pled guilty to two counts of contempt of court. Section 2J1.2(b)(2) provides for a three-level increase “if the offense resulted in substantial interference with the administration of justice.” This includes “the unnecessary expenditure of substantial governmental or court resources.” See Note 1 to § 2J1.2. Here, defendant failed to comply with the court’s preliminary injunction, and as a result of that failure, the government and the receiver expended substantial resources investigating defendant and securing his assets. The Seventh Circuit affirmed the increase, rejecting defendant’s claim that it constituted double counting. Double counting occurs only when a sentencing court applies two or more adjustments based on the same conduct. Here, the court convicted defendant of criminal contempt because he sold his yacht and attempted to transfer the proceeds to the Bahamas. Then, at sentencing, the court enhanced defendant’s sentence because that conduct resulted in a substantial interference with the administration of justice. U.S. v. Tankersley, 296 F.3d 620 (7th Cir. 2002).
7th Circuit upholds application of obstruction guideline to criminal contempt conviction. (320) Defendant was charged with contempt of court, in violation of 18 U.S.C. § 401(3), for failing to testify before a federal grand jury as ordered. The grand jury was investigating the criminal activity of Hamas, a political organization promoting violence to help establish a Palestinian homeland. Criminal contempt does not have a separate guideline. See Note 1 to § 2J1.1. Although the court is referred to § 2X5.1 to apply the most analogous offense guideline, § 2J1.1 recognizes that in some cases a defendant’s conduct may justify the application of § 2J1.2 for obstruction of justice. The judge found that “in no uncertain terms” defendant’s refusal to testify “was an effort to obstruct an ongoing investigation into potential criminal activities by various individuals and various organizations.” The judge branded defendant’s explanation of fearing for the safety of himself and his family and his explanation of his travel to the Middle East as perjurious. The Seventh Circuit held that the trial judge’s view of the situation and his application of § 2J1.2 was fully sustained by the record. The evidence also supported a § 2J1.2(b)(2) enhancement for “substantial interference with the administration of justice.” U.S. v. Alwan, 279 F.3d 431 (7th Cir. 2002).
7th Circuit departs upward to take away benefit received at earlier sentencing. (320) Defendant promised in his cooperation agreement to “provide complete and truthful testimony” in any proceeding as requested by the government. Pursuant to the agreement, defendant provided grand jury testimony, and as a result, he received a downward departure. However, on five occasions after sentencing, despite a direct court order and a grant of immunity, defendant refused to take oath or provide testimony, and as a result, was convicted of criminal contempt, in violation of 18 U.S.C. § 401. The district court departed upward in order to take away the 66-month benefit conferred upon defendant at his earlier sentencing, finding that his refusal to cooperate amounted to a breach of the cooperation agreement. The Seventh Circuit affirmed. As in U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000), defendant initially agreed to cooperate, testified, received a benefit for his cooperation, and then refused to testify. The 17-level departure, which resulted in a 66-month sentence increase, was reasonable “because it took away the benefit conferred upon” defendant by the downward departure applied to his drug sentence. U.S. v. Jones, 278 F.3d 711 (7th Cir. 2002).
7th Circuit departs upward where refusal to testimony against accomplice had elements of obstruction. (320) Defendant testified at trial against Reed, his robbery accomplice, and it ended in a mistrial. For his cooperation, defendant received a six-level downward departure. When Reed’s retrial began, defendant no longer wanted to testify against Reed. The district court warned defendant that he could be found in contempt. Defendant’s attorney then asked the government whether defendant would be entitled to additional sentencing credit, but the government refused. Defendant then refused to testify, claiming the government reneged on his plea agreement. He wrote a letter to Reed informing him that he had refused to testify or cooperate with the government in Reed’s prosecution. Reed presented the letter at his retrial to dispute the credibility of defendant’s original testimony. Defendant was convicted of criminal contempt. The Seventh Circuit affirmed an upward departure, finding defendant’s knowing refusal to testify, as well has his change of heart as evidenced by his letter to Reed, took his conduct outside the heartland of conduct contemplated by § 2J1.5(a). Section 2J1.5(a) applies in all cases where a material witness, for any reason, fails to testify in a criminal trial. Defendant’s refusal to testify despite a clear court order to do so, and his letter to Reed, which compromised the credibility of his previous testimony, contained many elements of obstruction of justice. U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000).
7th Circuit affirms upward departure for extreme obstruction and concealment of millions in illegal income. (320) Defendant leased illegal gambling machines to bars and clubs. None of the income from the gambling machines was reported. When defendant and his co-conspirators learned of an IRS investigation, they lied to investigating authorities, pressured bar owners to lie about how much income was generated from the machines, and intimidated the bar owners into signing backdated leased which misrepresented the income generated by the machines. Defendant ultimately was convicted of conspiracy to defraud the IRS, witness tampering, obstruction of justice and dealing in unregistered gambling devices. The Seventh Circuit affirmed an upward departure based on the extent and egregiousness of defendant’s obstructive conduct and his concealment of millions of dollars of income from the illegal gambling business. The egregiousness of defendant’s conduct in obstructing justice and hiding millions of dollars in assets took this case outside the heartland cases involving conspiracy to defraud the IRS. U.S. v. Furkin, 119 F.3d 1276 (7th Cir. 1997).
7th Circuit agrees that defendant’s perjury in grand jury interfered with administration of justice. (320) Defendant was a peripheral participant in a large-scale marijuana distribution ring centered around a marijuana distributor and a drug dealer who bought marijuana from the distributor. Defendant often accompanied the dealer on trips to buy marijuana from the distributor. However, in testimony before the grand jury, defendant denied that he had ever met the distributor and denied knowing from whom the dealer purchased marijuana. He was convicted of making a false statement before the grand jury. The Seventh Circuit affirmed a § 2J1.3(b)(2) enhancement for substantial interference with the administration of justice. The commentary explains that this includes “the unnecessary expenditure of substantial government or court resources.” Regardless of whether the government was seeking new facts or verification of facts it already possessed, defendant’s lies forced the government to look elsewhere for the information it sought, thereby expending additional resources. Moreover, the government was forced to grant immunity to additional witnesses to corroborate its information, resulting in the termination of felony prosecutions against those witnesses. U.S. v. O’Neill, 116 F.3d 245 (7th Cir. 1997).
7th Circuit says most analogous guideline for material witness’s failure to appear was contempt. (320) Defendant and an associate were arrested on drug charges. Defendant was sentenced first. When the associate was prosecuted, defendant was produced in court to testify on the government’s behalf and refused, despite being given immunity and ordered to testify by the court. He did, however, acknowledge that he knew the associate. Defendant was then convicted of criminal contempt for his refusal to testify. Section 2J1.1 directs a court to § 2X5.1, which in turns directs a court to apply the most analogous guideline. The Seventh Circuit held that § 2J1.5 (Failure to Appear by Material Witness), rather than § 2X3.1( (Accessory After the Fact) was the most analogous guideline. There was no evidence that defendant’s refusal to testify was designed to assist the associate escape punishment. Defendant actually assisted the government at the associate’s trial by admitting that he was arrested for selling drugs, identifying the arresting agent, and indicating that he knew the associate. The record suggested that defendant refused to testify to avoid being labeled a “snitch.” Moreover, the base offense level of 20 for accessory after the fact was “seriously out of kilter” with defendant’s offense. U.S. v. Ortiz, 84 F.3d 977 (7th Cir. 1996).
7th Circuit says § 2J1.2(b) is not a sentence adjustment requiring factual findings. (320) Defendant was convicted of retaliating against a federal witness in violation of 18 U.S.C. § 1513. He argued that the court erred in applying § 2J1.2(b), which provides for an increased offense level if the offense “involved causing or threatening to cause physical injury to a person.” The Seventh Circuit held that § 2J1.2(b) is not a sentence adjustment that requires factual findings; it is a provision that mandates a higher offense level for those § 2J1.2 offenses that involve real or threatened physical injury. Section 1513, by its language, only applies to actions causing or threatening physical injury; therefore, the higher offense level is normally applicable to § 1513 offenses. U.S. v. Cunningham, 54 F.3d 295 (7th Cir. 1995).
7th Circuit finds adequate notice of increased penalty for committing crime while on release. (320) When defendant was released pending trial, he was advised that the penalty for committing a felony while on bond was an increase in sentence of between two and ten years. After his release, the guidelines were adopted and the statute amended so that the minimum term was set by the guidelines. In defendant’s case, the guidelines-mandated minimum rose to 67 months. Defendant argued that he was inadequately informed of the penalties for violating a condition of release under 21 U.S.C. § 3142(h)(2)(A). The Seventh Circuit held that defendant received adequate notice. He was advised that a felony conviction while on bond could result in his sentence being increased from two to ten years. The subsequent amendment did not cause this information to be false, it simply narrowed the sentencing judge’s discretion in this area. The releasing judge could not be expected to estimate exactly how the subsequent judge would exercise that discretion. U.S. v. Sturman, 49 F.3d 1275 (7th Cir. 1995).
7th Circuit finds obstruction enhancement was not double counting despite obstruction conviction. (320) Defendant was convicted of money laundering and obstruction of justice. She argued that an enhancement for obstruction of justice constituted improper double counting. The Seventh Circuit held that the court properly followed note 6 to § 3C1.1. The court grouped the money laundering and obstruction of justice offenses under § 3D1.2(c). The money laundering count was the most serious, and so the court applied its offense level. The enhancement for obstruction of justice was not double counting because it was used to enhance only the money laundering offense level. If the obstruction count had carried a higher offense level, note 6 would have required the obstruction offense level to be applied without the enhancement. Note 6 was written to avoid double counting. U.S. v. Maggi, 44 F.3d 478 (7th Cir. 1995).
7th Circuit says prosecution for obstructive conduct previously used to enhance sentence did not violate double jeopardy. (320) After pleading guilty to drug charges, defendant threatened the government’s informant. His drug sentence was enhanced for obstruction of justice under section 3C1.1. He subsequently pled guilty to witness retaliation for having threatened the informant, and received a 37-month sentence to run concurrently to his drug sentence. The 7th Circuit held that the prosecution and punishment for witness retaliation did not violate double jeopardy. Defendant was not prosecuted or punished for the obstructive conduct in the first proceeding. The obstruction was merely taken into account in determining the proper punishment for the drug offense. U.S. v. Duarte, 28 F.3d 47 (7th Cir. 1994).
7th Circuit suggests enhancement and departure for crimes committed while on release may be double counting. (320) The district court departed upward by one criminal history level on two grounds. First, defendant’s criminal history was low due to the leniency of her state court sentences, and did not adequately reflect the likelihood of recidivism. Second, defendant had continued to engage in fraud following her initial arrest. She committed the acts charged in counts II-IV after being released on bond for the conduct charged in count I. The 7th Circuit approved the first ground for departure, but suggested that the second ground might constitute double-counting, since defendant had already received a three-level increase in offense level under section 2J1.7 for committing offenses while released on bond. On remand, the district court was directed to reconsider the departure. U.S. v. Panadero, 7 F.3d 691 (7th Cir. 1993).
7th Circuit holds that court may impose imprisonment or fine for contempt, but not both. (320) The criminal contempt statute, 18 U.S.C section 401, provides for either a fine or imprisonment. Guideline section 5E1.2(a) requires a fine in all cases unless the defendant is unable to pay. Defendant argued that because a fine is required under the guidelines, and because the contempt statute does not allow the imposition of both, the district court could only impose a fine, and could not imprison him for contempt. The 7th Circuit held that a court may impose either imprisonment or a fine, but not both. The guidelines do not trump statutes. Because section 401 states that punishments may only be disjunctive, the mandatory fine provision in the guidelines cannot be given effect. The court also rejected the government’s argument that 18 U.S.C. section 3551, which permits a fine to be imposed in addition to any other sentence, constituted a repeal of the disjunctive sentencing provision of the criminal contempt statute. U.S. v. Holloway, 991 F.2d 370 (7th Cir. 1993).
7th Circuit uses 2X3.1 for defendant who perjured himself to protect others. (320) Defendant, a conspirator in a marijuana farm, was convicted of perjury for testifying before a grand jury that he had no knowledge that his co-conspirators were involved in a marijuana operation. Section 2J1.3(c)(1) directs that if the perjury was in respect to another criminal offense, apply section 2X3.1 (Accessory After the Fact) with respect to that offense. Relying on U.S. v. Huppert, 917 F.2d 507 (11th Cir. 1990), defendant argued that he was improperly sentenced as an accessory after the fact under sections 2J1.3(c)(1) and 2X3.1 because as a principal in the marijuana-growing conspiracy, he could not also be sentenced as an accessory. The 7th Circuit affirmed, distinguishing Huppert. Unlike Huppert, defendant was clearly trying to protect others, and not himself. Defendant was immunized for his testimony, and thus had no reason to protect himself. U.S. v. Curry, 977 F.2d 1042 (7th Cir. 1992).
7th Circuit refuses to include underlying offense in criminal history of defendant who failed to report for trial. (320) Defendant failed to report for trial on drug charges. After he was located, he was found guilty of the drug charges. He was subsequently found guilty of a failure to appear charge. At sentencing on the failure to appear charge, the district court included in his criminal history his conviction for the underlying drug offense. The 7th Circuit found that this was improper under application note 4 to guideline section 2J1.6. That note provides that if the defendant is sentenced on the underlying offense before the failure to appear offense, criminal history points are to be imposed for the underlying offense only where the failure to appear offense constituted a failure to report for service of sentence. Since defendant’s case involved a failure to report for trial, his drug conviction should not have been included in his criminal history. U.S. v. Lechuga, 975 F.2d 397 (7th Cir. 1992).
7th Circuit says sentence for failure to appear may not exceed sentence for underlying offense. (320) Defendant failed to report for trial on drug charges. After he was located, he was convicted of the drug charges. In a second proceeding, he was found guilty of failing to appear. The case was remanded for resentencing because the district court improperly calculated defendant’s criminal history. In so remanding, the 7th Circuit ruled that when a defendant is convicted of two crimes that would be grouped in a single trial, the second sentence must be commensurate with the sentence defendant would have received at a single trial, even if the court must depart downward to achieve this result. If defendant’s drug charge and failure to appear charge had been grouped in a single proceeding, he would have had a sentencing range of 78 to 97 months. Since defendant already received two concurrent 75-month sentences on the drug charges, on remand his sentence on the failure to appear charge could not exceed 22 months. U.S. v. Lechuga, 975 F.2d 397 (7th Cir. 1992).
7th Circuit reverses sentence for committing offense while on bail. (320) Guideline section 2J1.7 provides for a three level enhancement if 18 U.S.C. section 3147 applies because the defendant committed the offense while released on bail. Section 3147 requires a consecutive 10-year sentence. With the three levels, defendant had a minimum guideline range of 87 months. But since he was currently serving a 101 month sentence, the district judge thought that a total sentence of 188 months was too long, and instead imposed a 147-month sentence, to run concurrently with the 101 month sentence. The 7th Circuit remanded for resentencing. The application notes to section 2J1.7 provide that to comply with section 3147, the court should state on the judgment form what part of the sentence is attributable to the underlying offense and what part is attributable to the enhancement. The portion attributable to the enhancement must run consecutively to any other sentence of imprisonment. U.S. v. Wilson, 966 F.2d 243 (7th Cir. 1992).
7th Circuit affirms that defendant who suborned perjury substantially interfered with administration of justice. (320) Defendant caused three men to perjure themselves before a grand jury. At their subsequent perjury trials, defendant repeated the same lie. Defendant was convicted of subornation of perjury and received a three level increase under guideline section 2J1.3(b)(2) for substantial interference with the administration of justice. Defendant claimed the enhancement was improper because the government never believed the false testimony and therefore never expended additional resources because of the lies. The 7th Circuit affirmed the enhancement because defendant’s conduct not only impaired grand jury proceedings, but necessitated four perjury-related trials within three years. U.S. v. Bradach, 949 F.2d 1461 (7th Cir. 1991).
7th Circuit finds perjury and obstruction guidelines consistent with enabling legislation. (320) Defendant argued that the sentencing guidelines are inconsistent with their enabling legislation and are therefore invalid to the extent they preclude, absent a downward departure, a probationary sentence for a first offender who has committed the nonviolent offenses of perjury and obstruction of justice. Enabling language for the guidelines provide that the sentencing guidelines should “reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or otherwise serious offense.” The 7th Circuit found that the guidelines are consistent with the enabling legislation and rejected defendant’s argument that perjury and obstruction of justice were not “serious” offenses. U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
7th Circuit upholds finding that defendant’s perjury substantially interfered with the administration of justice. (320) Defendant, after twice lying to and producing false documents before a grand jury, pled guilty to one count of perjury. Defendant argued that increasing his base level offense by three for substantially interfering with the administration of justice was improper. Substantial interference with the administration of justice is defined, in part, as conduct that results in “the unnecessary expenditure of substantial governmental or court resources.” The 7th Circuit found that evidence that defendant’s initial perjury caused two government agents to spend two weeks trying to sort out the truth adequately supported the district court’s finding that defendant had substantially interfered with the administration of justice. U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
7th Circuit holds two level increase for physical restraint is proper after conviction for impersonation. (320) Defendant who impersonated a DEA agent to “arrest” and subsequently rob drug dealers was given a two level increase under guideline 3A1.3 for physically restraining the victims. Defendant argued that the court “double counted” in giving the increase because physical restraint is part of the specific offense characteristic for impersonation. The 7th Circuit disagreed, holding that physical restraint is not a specific offense characteristic of impersonation and therefore the district court acted properly in giving a two level increase for physical restraint. U.S. v. Tholl, 895 F.2d 1178 (7th Cir. 1990).
7th Circuit holds guideline for failure to surrender is constitutional. (320) Defendant argued that § 2J1.6(a) (failure to surrender) is unconstitutional because it does not allow a judge to consider mitigating circumstances, whereas § 2P1.1(b)(2) (escape) allows for a 7 level reduction for an escapee from a nonsecure facility who returns within 96 hours. The 7th Circuit rejected his argument, noting that prompt surrender may be relied upon as grounds for departure. Furthermore, § 2P1.1(b)(2) only addresses escape from non-secure facilities, to which the defendant would not have been likely to have been sent. Moreover, since failure to report under 18 U.S.C. § 3146(c) may be subject to the affirmative defense of “uncontrollable circumstances,” the commission might well have concluded that there was no need for a separate consideration of the excuse in sentencing. The court stated that the gist of the defendant’s argument was about grounds for departure, not the validity of the guidelines. U.S. v. Savage, 888 F.2d 528 (7th Cir. 1989).
8th Circuit approves cross reference for obstructing criminal prosecution. (320) Defendant was a member of a prescription drug trafficking conspiracy. While in jail awaiting sentencing, she assaulted co-conspirator Vos, who had cooperated with the government. Defendant was convicted of witness retaliation. The Eighth Circuit upheld the application of a § 2J1.2(c) cross reference, which directs the sentencing court to apply § 2X3.1 if a defendant’s conduct involved obstructing the prosecution of a criminal offense. Defendant argued that because she attacked Vos after Vos had completed her testimony in the trial of another conspirator, the attack could not have been intended to obstruct the prosecution. The Court rejected an almost identical argument in U.S. v. Gallimore, 491 F.3d 871 (8th Cir. 2007). The commentary for § 2J1.2 lists “causing a witness bodily injury … in retaliation for providing testimony … in a federal proceeding” as an example of an obstruction of justice warranting a cross reference to § 2X3.1. Defendant intentionally attacked and injured Vos for testifying in a federal trial. The district court did not err in applying the § 2J1.2(c)(1) cross reference to calculate her guideline sentencing range. U.S. v. Muckle, __ F.3d __ (8th Cir. May 27, 2014) No. 13-2744.
8th Circuit approves enhancement for threatening to cause injury in order to obstruct justice. (320) Defendant sent a threatening email to an attorney who was defending a corporation in a defamation lawsuit brought by defendant. The attorney suspected that defendant had forged the allegedly defamatory emails from the corporation, and had filed a motion seeking to inspect defendant’s computer. Based on the threatening email, defendant ultimately pled guilty to obstruction of justice. The Eighth Circuit upheld an eight-level enhancement under § 2J1.2(b)(1)(B) for “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” Defendant went to great lengths to discover information about the lawyer’s family, including taking photographs of his house, finding photographs of his children online, doctoring the photographs to add the cross-hairs, writing a menacing email, and displaying a loaded rifle to the victim’s law partner. The message was clear: defendant purported to harm the lawyer’s family and portrayed himself as willing to execute the threat if the lawyer continued to pursue his belief that defendant had falsified the emails in the civil lawsuit. U.S. v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013).
8th Circuit agrees that email threat with photos of victim’s family made offense “extensive.” (320) Defendant sent a threatening email to the attorney who represented a corporation in three lawsuits brought by defendant. The “sender” was an account opened in the lawyer’s son’s and daughter-in-law’s names. The email, titled, “Eric and Jamie sitting in a tree,” called the lawyer offensive terms and included six attached photographs: three of the lawyer’s house, two of the lawyer’s son and daughter-in-law, in which a rifle cross-hairs had been imposed upon their faces, and one of a young girl who the file referred to as, but in fact was not, the lawyer’s daughter. Defendant pled guilty to obstruction of justice. The Eighth Circuit upheld a two-level enhancement under § 2J1.2(b)(3)(C) for an offense that was “extensive in scope, planning, or preparation.” The Eighth Circuit affirmed. Defendant engaged in extensive planning to obtain the photographs of the lawyer’s house and family members, create a false email account, and otherwise plan and disguise his actions. U.S. v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013).
8th Circuit says increase for failure to appear does not require proof that defendant committed underlying offense. (320) Defendant pled guilty to failure to appear at a change of plea hearing in a drug trafficking case. In calculating his advisory sentencing range, the district court applied a nine-level increase under § 2J1.6(b)(2) (A), because the “underlying offense” for which defendant failed to appear carried a maximum sentence of life imprisonment. Defendant argued for the first time on appeal that the increase was error because the government did not prove that he actually committed the underlying drug offense. The Eighth Circuit upheld the enhancement. There is no requirement that the prosecution prove the underlying offense. The underlying offense is “the offense in respect to which the defendant failed to appear.” § 2J1.6, Note 1. If that offense is “punishable” by imprisonment for a term of 15 years or more, then the guidelines direct the court to apply a nine-level increase. The focus of § 2J1.6(b)(2) is on the punishment authorized for the offense with which the defendant had been charged when he failed to appear, not whether the defendant actually committed the underlying offense. U.S. v. Jacobo, 700 F.3d 1159 (8th Cir. 2012).
8th Circuit upholds enhancement for threatening physical injury to obstruct justice. (320) Defendant confronted Garcia and made several threatening statements toward him and his family. At the time, Garcia’s wife was a cooperating witness in a federal criminal case against three of defendant’s children. Defendant was convicted of witness tampering, and received an eight-level enhancement under §2J1.2(b)(1)(B) for threatening physical injury to a person in order to obstruct the administration of justice. The Eighth Circuit upheld the application of the §2J1.2(b)(1)(B) enhancement. Defendant’s argument that the statements were not meant as threats contradicted the jury’s determination that defendant knowingly engaged in witness intimidation when she spoke to Garcia. The district court’s view of the nature of defendant’s remarks was a reasonable one. U.S. v. Sanchez, 676 F.3d 627 (8th Cir. 2012).
8th Circuit says “underlying offense” refers to offense for which defendant failed to appear, not the supervised release violation. (320) Defendant pled guilty to criminal contempt, arising from his failure to appear at a supervised release revocation hearing. The Eighth Circuit held that the district court did not abuse its discretion by imposing a 12-month prison sentence for the contempt offense, to run consecutive to the 24-month sentence defendant was already serving for his supervised release violation. The court properly applied a nine-level enhancement under §2J1.6(b)(2) because the “underlying offense” was punishable by death or imprisonment for more than 15 years. “Underlying offense” means “the offense in respect to which the defendant failed to appear,” not the supervised release violation. The underlying offense here was bank robbery. Defendant’s 12-month sentence was at the low end of his 12-18 month guideline range. Given the evidence that defendant had more than minimal involvement in the bank robberies and that, in failing to appear before the court for his final revocation hearing, defendant had absconded to Mexico, the district court did not abuse its discretion by imposing a one-year sentence to run consecutive to the two-year sentence for his supervised release violation. U.S. v. Woodward, 675 F.3d 1147 (8th Cir. 2012).
8th Circuit finds obstruction guideline was most analogous for contempt conviction. (320) Defendant entered into a plea agreement under which he agreed to testify for the government. After testifying at his uncle’s trial, the government called defendant to testify in a later trial against his cousins. Defendant refused, citing his Fifth Amendment privilege against self-incrimination. The district court found that he had no Fifth Amendment privilege and found him guilty of contempt. The guideline for contempt, § 2J1.1, does not provide a base offense level. It references § 2X5.1, which instructs the district court to apply the most analogous guideline. Defendant argued that the district court erred in selecting § 2J1.2 (Obstruction of Justice) rather than § 2J1.5 (Failure to Appear by a Material Witness). The Eighth Circuit ruled that the facts supported the district court selection of the obstruction guideline. Defendant’s reason for refusing to testify against his cousins arose out of his desire to hinder their prosecution. Defendant told the district court that he would respond to questioning from defense counsel, but not from the government. This was indicative of his desire to avoid answering questions that would potentially incriminate his cousins. U.S. v. Allmon, 594 F.3d 981 (8th Cir. 2010).
8th Circuit upholds use of § 2J1.2 cross-reference. (320) Defendant and another man assaulted Carter in retaliation for his grand jury testimony against defendant. The grand jury was investigating defendant’s drug trafficking. Defendant pled guilty to retaliating against a grand jury witness in violation of 18 U.S.C. § 1513(b)(1) and (2). Section 2J1.2(c) provides that if an offense involved obstructing the investigation or prosecution of another offense, the defendant’s offense level should be calculated under § 2X3.1, the accessory after the fact guideline. The Eighth Circuit upheld the application of the § 2J1.2(c) cross-reference. The government was not required to prove that defendant’s assault on Carter actually made the victim or any other witness less likely to testify in the drug case. The Sentencing Commission was concerned that retaliation against a witness for past testimony was likely to interfere with the effective administration of justice. The fact that the assault took place before the victim had an opportunity to testify at the underlying drug trail increased the likelihood that it would impact future criminal proceedings. U.S. v. Gallimore, 491 F.3d 871 (8th Cir. 2007).
8th Circuit upholds nine-level increase for perjury conviction arising out of gruesome murder. (320) Defendant and her boyfriend murdered a man, stole his property, and traveled across state lines. At her boyfriend’s murder trial in state court, defendant testified that after watching her boyfriend kill the victim, she helped him dismember and dispose of the body and conceal the murder. Defendant later pleaded guilty in federal court to interstate transportation of the murder victim’s stolen property. At sentencing, she testified that she did not know what happened to the victim’s body and that she had a minimal role in covering up the murder. Based on her sentencing testimony, she was later convicted of perjury. At sentencing, the district court imposed the statutory maximum of 60 months, which represented a nine-level increase above the guideline range. The court explained that defendant made many false statements at her prior federal sentencing in order to obtain a lower sentence, that her lies had prolonged the victim’s family’s suffering, and that she had received no sanction for her role in disposing of the victim’s body. The Eighth Circuit held that the sentence was justified by the “exceptional circumstances” of defendant’s perjury conviction and therefore was reasonable. U.S. v. Miller, 479 F.3d 984 (8th Cir. 2007).
8th Circuit holds that official victim increase was not double counting. (320) While in prison on drug charges, defendant attempted to place liens on real property of the federal judge and prosecutor involved in his drug-conviction. Defendant was convicted of conspiring to injure judicial officers in their property, 18 U.S.C. § 372, and attempting to intimidate a federal prosecutor, 18 U.S.C. § 1503(a). He argued that a § 3A1.2(a) official victim enhancement constituted improper double counting because his statute of conviction, § 1503(a), made it a crime to conspire against government officials. The Eighth Circuit found no double counting since the guideline applicable to the offense, U.S.S.G. § 2J1.2, did not incorporate the victim’s official status. Section 2J1.2 is the guideline generally applicable to obstruction of justice offenses. It does not take into consideration the fact that a defendant’s conduct was motivated by the official status of the victim. U.S. v. Joiner, 418 F.3d 863 (8th Cir. 2005).
8th Circuit applies increase even though threats were never communicated to intended victim. (320) Section 2J1.2(b)(1) provides for an eight-level enhancement if the offense involved “threatening to cause physical injury to a person … in order to obstruct the administration of justice.” In a pre-Blakely case, the Eighth Circuit held that the § 2J1.2(b)(1) increase applied to defendant, even though the threat of physical injury was never communicated to the victim. Here, defendant made threatening statements to Alvarez suggesting that he tell the victim that she was at risk of receiving physical injuries if she did not comply with his request to tell authorities that she had lied about his previous assault. The making of these statements was sufficient to warrant the application of § 2J1.2(b)(1), even though Alvarez ultimately decided not to relay the threats. U.S. v. Grap, 368 F.3d 824 (8th Cir. 2004).
8th Circuit holds that fraud guideline was most analogous guideline for violation of consent judgment. (320) Defendant fraudulently sold business opportunities to customers, knowing that they would not receive some of all of the things he had promised. When customers began complaining, defendant would restart his scheme under a new company with a different name. In response to a 1983 lawsuit brought by the Federal Trade Commission, defendant entered into a consent agreement with the United States. In spite of a consent judgment entered by the district court, defendant continued to operate and close eight additional companies. He pled guilty to contempt of court, in violation of 18 U.S.C. § 401, for violating the 1983 court order. Section 2J1.1, the guideline applicable to § 401 violations, directs a court to apply § 2X5.1. Section 2X5.1 applies when there is no expressly applicable guideline, and directs the court to apply the most analogous guideline. The Eighth Circuit upheld the district court’s decision to sentence defendant under the fraud guideline, § 2F1.1, rather than the obstruction of justice guideline, § 2J1.2. The essence of defendant’s conduct was fraud. U.S. v. Ferrara, 334 F.3d 774 (8th Cir. 2003).
8th Circuit says perjury cross-reference applies if defendant is advised of nature of grand jury inquiry. (320) Defendant was convicted of committing perjury before a grand jury investigating a string of robberies. Section 2J1.3(c)(1) states that if “the offense involved perjury … in respect to a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense ….” Although the government advised defendant before and during her grand jury testimony that the focus of the investigation was a series of bank robberies, the district court refused to apply the increase, finding that “notice to the defendant that you are investigating “x” number of crimes in the grand jury doesn’t get you to the enhancement, because the enhancement is basically made for people that are accessories after the fact.” The Eighth Circuit disagreed. Application of the cross-reference only imposes § 2X1.1’s sentencing formula, it does not require that the defendant be found in any degree to be an accessory to the underlying crime. U.S. v. Gay, 44 F.3d 93 (2d Cir. 1994). The panel agreed with the Second Circuit that “[a]s long as the witness has been alerted to the fact that the grand jury is investigating a criminal offense, false answers to material questions will almost always merit enhanced punishment.” U.S. v. Suleiman, 208 F.3d 32 (2d Cir. 2000). A witness is put on notice when an AUSA informs that witness of the nature of the grand jury’s inquiry either prior to or during her grand jury testimony. U.S. v. Blanton, 281 F.3d 771 (8th Cir 2002).
8th Circuit holds that cross-reference to accessory guideline does not require conviction as accessory. (320) Defendant worked as a confidential informant in an undercover drug operation called “Operation Wholesale.” After testifying against several drug dealers, defendant signed affidavits exonerating ten Operation Wholesale defendants. In addition, he later testified in federal court directly contradicting his earlier testimony. Section 2J1.2(c) provides that if “the offense involved obstructing the investigation or prosecution of a criminal offense,” the court should apply § 2X3.1, the accessory-after-the-fact guideline. Defendant argued that to apply the cross-reference, the government was required to prove his guilt as an accessory after the fact in the drug crimes used to calculate his sentence. The Eighth Circuit disagreed, ruling that where the defendant has obstructed the investigation or prosecution of a criminal offense, the government need not charge or convict the defendant as an accessory after the fact to apply the § 2J1.2(c) cross-reference. The guidelines base defendant’s sentence upon the acts he took in obstructing the investigation or prosecution of a criminal offense, and not upon criminal liability for acting as an accessory after the fact. The cross-reference merely provides flexibility within the provisions of § 2J1.2 so that the guideline may apply to both less and more serious forms of obstruction. U.S. v. Russell, 234 F.3d 404 (8th Cir. 2000).
8th Circuit applies obstruction enhancement where perjury defendant threatened cohorts. (320) Defendant gave perjured testimony before the grand jury and instructed his co-conspirators to give perjured testimony. He eventually pled guilty to perjury and obstruction of justice. The district court enhanced his sentence under § 2J1.2(b)(1), finding he had threatened several of his cohorts with physical violence if they testified against him. The Eighth Circuit upheld the increase despite defendant’s denial of making the threats, since a district court’s decision to credit one witness’s testimony over that of another can almost never be clear error. The court also rejected defendant’s claim that his conduct was not “serious enough” to warrant a eight-level enhancement. Section 2J1.2(b)(1) prescribes the enhancement if the offense involved “causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” This language does not impose an additional “seriousness” requirement beyond the fact of a violent threat. Finally, there was a sufficient connection between the threat and the conduct underlying the obstruction of justice. The fact that defendant’s threat to his cohorts took place before his obstruction of justice did not mean that the threat could not be considered relevant conduct. U.S. v. Plumley, 207 F.3d 1086 (8th Cir. 2000).
8th Circuit holds that conduct underlying obstruction increase was separate from perjury. (320) Defendant’s base offense level for perjury was increased under § 2J1.3(b)(2) because the perjury “resulted in substantial interference with the administration of justice.” Defendant argued that the enhancement amounted to double-counting a single statement repeated on multiple occasions, and that this penalized him for exercising his right to testify on his own behalf. The Eighth Circuit found no double counting, since the perjury charge was based on one statement, and the enhancement was based on two incidents wholly separate from this statement. The perjury conviction was based on defendant’s grand jury testimony in which he flatly denied any involvement in a motorcycle theft. The § 2J1.3(b)(2) enhancement was based on statements regarding legal representation that defendant made during two suppression hearings. The court found that defendant had lied at both suppression hearings, and such credibility determinations are “close to invulnerable on appeal.” U.S. v. Plumley, 207 F.3d 1086 (8th Cir. 2000).
8th Circuit says statute requires consecutive sentence for failure to appear, despite commentary. (320) Defendant pled guilty to one count of arson and one count of failure to appear. The statute, 18 U.S.C. § 3146(b)(2), requires a consecutive sentence for failure to appear. However, Application Note 3 to § 2J1.6 suggests that a sentencing court might determine a total sentence for the underlying offense and the failure to appear and then divide the sentence among the convictions. To avoid double counting, the district court did not use the failure to appear conviction to adjust the base offense level upward. Instead, it treated the convictions separately and imposed consecutive sentences of 37 months for the arson and 12 months for the failure to appear. The Eighth Circuit held that the district court properly followed § 3146(b)(2) and guideline § 2J1.6 in imposing separate and consecutive sentences. The suggested “grouping” calculation in Application Note 3 to § 2J1.6 conflicts with the statute’s consecutive sentencing requirement, and the statute prevails over the Sentencing Guidelines. U.S. v. Crow Dog, 149 F.3d 847 (8th Cir. 1998).
8th Circuit reverses § 2J1.2(b)(2) increase where no link between defendant’s crime and government’s expense. (320) An associate’s lawyer provided the conspirators with a typed copy of notes taken during an informant’s grand jury testimony, thus informing defendant that his co-conspirator was a “snitch” who had been cooperating with police. Defendant threatened the informant at gunpoint about the matter. The district court applied § 2J1.2(b)(2), which requires an enhancement if the offense resulted in substantial interference with the administration of justice. Although the informant had not been dissuaded from cooperating, the court reasoned that defendant’s actions forced the government to use its resources to figure out how the grand jury materials had been leaked. The Eighth Circuit reversed, finding no causal link between defendant’s crimes and the government’s need to investigate the leak. The person who created the need to investigate the leak was not defendant, and defendant neither procured nor disseminated the leaked summaries. Although defendant’s crimes were triggered by the contents of the summaries, he was not responsible for their release. U.S. v. Jackson, 67 F.3d 1359 (8th Cir. 1995).
8th Circuit upholds application of section 2J1.2 to attempt to obstruct IRS. (320) Defendant sent false 1099-Misc forms to certain individuals, then notified the IRS that the individuals had received nonemployee compensation for which they had failed to pay taxes. He was convicted of various tax counts, including attempting to obstruct the administration of the Internal Revenue laws, in violation of 21 U.S.C. section 7212(a). The 8th Circuit affirmed that guideline section 2J1.2 (obstruction of justice) rather than section 2A2.4 (obstructing or impeding officers) was most appropriate for the 7212(a) violation. A violation of the omnibus clause of section 7212(a) is substantially the same as a violation of portions of 18 U.S.C. sections 1503 or 1505, to which section 2J1.2 applies. U.S. v. Dykstra, 991 F.2d 450 (8th Cir. 1993).
8th Circuit says Failure to Appear guideline complies with statutory directive. (320) The November, 1988, version of guideline section 2J1.6 (Failure to Appear) provided for the base offense level of six to be increased according to the maximum statutory penalty for the underlying offense. In U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989), the 8th Circuit concluded that this guideline did not comply with Congress’ statutory directive because it failed to differentiate between defendants who fail to appear to serve a sentence already imposed and defendants who fail to appear for trial, appeal, or sentencing. The 8th Circuit held that the November, 1990, amendment adequately addressed the issues raised in Lee. Section 2J1.6 now differentiates between failure to report cases on the basis of the amount of time the defendant is delinquent in reporting and on the type of facility to which the sentenced defendant is to report. U.S. v. Marion, 977 F.2d 1284 (8th Cir. 1992).
8th Circuit affirms physical injury enhancement where victim went to hospital. (320) The 8th Circuit affirmed an eight-level upward adjustment under section 2J1.2(b)(1) based upon the physical injury defendant caused his victim. It was clear that the victim suffered bodily injury, inasmuch as he went to the hospital and spent time at the hospital to assess the nature and character and extent of injuries suffered. U.S. v. Schnurstein, 977 F.2d 449 (8th Cir. 1992).
8th Circuit refuses to group perjury with underlying offense absent obstruction enhancement. (320) Defendant was convicted of mail fraud. He was later convicted of four counts of suborning perjury during the mail fraud trial. The 8th Circuit rejected his contention that the district court should have grouped his perjury conviction with his prior mail fraud conviction. If an obstruction offense has been used to adjust the sentence for a related offense, the court is required to group that offense with the related offense even when the two offense were separately charged, tried and sentenced. However, in this case, defendant did not receive an obstruction enhancement for his mail fraud conviction. Thus, his obstruction of justice was not doubly counted. U.S. v. Lincoln, 956 F.2d 1465 (8th Cir. 1992).
8th Circuit upholds consecutive sentence for offense committed while on release. (320) Defendant was originally convicted of mail fraud. He was then convicted of suborning perjury during the mail fraud trial. Because he committed the subornation offense while on release pending trial, his sentence was subject to enhancement under 18 U.S.C. 3147. That section requires a separate consecutive sentence of imprisonment in addition to the underlying offense. The guidelines handle this in section 2J1.7 by providing for a three level enhancement. Application Note 2 to section 2J1.7 states that to comply with the consecutive sentence requirement, the court should divide the sentence on the judgment form between the sentence for the underlying offense and the sentence for the enhancement. Defendant argued that only the portion of his subornation sentence attributable to the three-level enhancement required by section 2J1.7 could be consecutive to his previously-imposed mail fraud sentence. The 8th Circuit rejected the argument, ruling that the term “total punishment” in 2J1.7 includes the sentence attributable to the offense committed while on release plus the enhancement. U.S. v. Lincoln, 956 F.2d 1465 (8th Cir. 1992).
8th Circuit upholds addition of criminal history points for prior conviction in failure to appear case. (320) Defendant pled guilty to failing to surrender for service of a sentence for fraud. He contended that it was impermissible double counting for him to receive three criminal history points under section 4A1.1(a) for the fraud conviction, since the conviction was a necessary element of his instant failure to appeal offense. The 8th Circuit rejected this argument, since the unambiguous language of section 4A1.1(a) does not provide an exception for the offense of failure to appear for service of a sentence. Moreover, criminal history is calculated independently of offense level. The court also rejected defendant’s claim that it constituted “double” double counting to add an additional two criminal history points under section 4A1.1(d) for committing the instant offense while under a criminal justice sentence. U.S. v. Burnett, 952 F.2d 187 (8th Cir. 1991).
8th Circuit upholds enhancement for offense committed on bond and denial of credit for acceptance of responsibility. (320) Based on defendant’s series of arrests both before and after being arrested on the instant offense, the district court denied defendant a reduction for acceptance of responsibility. Defendant also received a three-level enhancement under guideline § 2J1.7 because the instant offense was committed while he was released on bond. The 8th Circuit affirmed, finding no impermissible double counting. The denial of the reduction for acceptance of responsibility was based on his continued criminal conduct, and not his release status. U.S. v. Hibbert, 929 F.2d 434 (8th Cir. 1991).
8th Circuit rules guideline for failure to report for service of sentence violates Congressional directive. (320) A drug defendant was convicted of failing to report for service of her sentence. Under § 2J1.6, the base offense level of 6 is increased based upon the statutory maximum of the underlying penalty. In this case, the 15 year maximum for drug distribution resulted in an additional 9 points, resulting in a sentence range of 18-24 months. The defendant received an 18 month sentence. The 8th Circuit vacated the sentence, holding that § 2J1.6 violated 28 U.S.C. § 994(c)(2) by failing to consider the actual sentence imposed. That section requires the Commission to consider “all circumstances which would aggravate or mitigate the seriousness of the offense. It also violated § 991(b)(1), which requires certainty and fairness in sentencing. Here, the sentence was not fair because the defendant had received a sentence (18 months) for her drug distribution which was substantially below the statutory maximum (15 years). U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989).
9th Circuit says sentence for failure to appear to serve supervised release sentence depends on underlying offense. (320) A statute, 18 U.S.C. § 3146, makes it a crime to fail to appear to serve a federal sentence. The maximum punishment for a violation of § 3146 depends on the underlying offense for which the defendant failed to appear. Defendant failed to appear to serve a sentence on a supervised release violation, which carries a maximum sentence of two years. The supervised release term had been imposed when defendant pleaded guilty to unlawful possession of a mail key, which carries a maximum sentence of 10 years. The Ninth Circuit held that defendant’s maximum sentence depended on the underlying criminal offense, not the supervised release violation. Because unlawful possession of a mail key carried a 10-year maximum sentence, defendant faced a maximum sentence under § 3146(b)(1)(A)(ii) of 10 years. U.S. v. Jensen, 705 F.3d 976 (9th Cir. 2013).
9th Circuit holds that contempt based on escape carries three-year supervised release term. (320) Under 18 U.S.C. § 3583, when a district court finds that a defendant has violated the terms of supervised release, the maximum sentence depends on the seriousness of the underlying offense. Defendant violated a term of supervised release imposed after his conviction for contempt, in violation of 18 U.S.C. § 401. Because contempt does not have a statutory maximum, the district court analogized defendant’s conduct to escape and found that it was a Class D felony subject to a three-year maximum term of supervised release. The Ninth Circuit reaffirmed that the severity of contempt violations turns on the most analogous underlying offense, and it held that defendant’s contempt offense was most analogous to escape. Because the maximum sentence for escape is five years, the court held that it was a Class D felony. U.S. v. Broussard, 611 F.3d 1069 (9th Cir. 2010).
9th Circuit says maximum sentence for failure to appear is one year absent proof that underlying offense was a felony. (320) The failure-to-appear statute, 18 U.S.C. § 3146, makes it a crime to fail to appear in court when the defendant has been released on bail for another offense. The statute provides that a defendant may be punished by a term of imprisonment of more than one year only if the offense on which the defendant failed to appear is a felony. At trial, the government proved that defendant failed to appear, but did not prove beyond a reasonable doubt that the underlying offense was a felony. The Ninth Circuit held that the government’s failure to prove that the underlying offense was a felony meant that defendant could be sentenced to no more than one year. U.S. v. Locklin, 530 F.3d 908 (9th Cir. 2008).
9th Circuit says obstruction-of-justice enhancement applies to retaliation against witness. (320) Defendant participated in a plot to obtain revenge against a witness who testified in defendant’s accomplice’s criminal trial. As a result of the scheme, another accomplice shot the witness and caused him serious injuries. Defendant was convicted of retaliating against a federal witness, in violation of 18 U.S.C. § 1513(b). At sentencing, the district court imposed an eight-level enhancement under § 2J1.2(b)(1) because the offense caused physical injury to a person “in order to obstruct the administration of justice.” The Ninth Circuit held that imposition of this enhancement was permissible even though no judicial proceeding was pending at the time that the offense occurred. U.S. v. Calvert, 511 F.3d 1237 (9th Cir. 2008).
9th Circuit says suspended sentence for driving with a suspended license does not count in criminal history. (320) Guideline § 4A1.1 requires calculation of the defendant’s offense level based on the “prior sentence of imprisonment” that the defendant received for a conviction. Section 4A1.2(b)(1) states that the term “sentence of imprisonment” refers to the actual sentence imposed, and a comment to that provision states that a sentence does not qualify as a “sentence of imprisonment” unless the defendant actually served a period of imprisonment. Guideline § 4A1.2(c) states that convictions for offenses such as driving with a suspended license are counted toward defendant’s criminal history only if the defendant received a sentence of “a term of imprisonment of at least thirty days.” Sitting en banc, the Ninth Circuit held that a totally suspended 30-day sentence imposed for driving with a suspended license is not a “prior sentence” that counts toward a defendant’s criminal history. U.S. v. Gonzales, 506 F.3d 940 (9th Cir. 2007) (en banc).
9th Circuit applies increase for threatening physical injury to offense of retaliating against witness. (320) The guideline for retaliating against a federal witness, § 2J1.2(b)(1), provides for an eight-level increase if “the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” The Ninth Circuit held that to qualify for this enhancement, a defendant need not intend to act with a “forward-looking specific intent to obstruct justice.” U.S. v. Smith, 387 F.3d 826 (9th Cir. 2004).
9th Circuit finds no double counting in impersonation guideline’s reference to facilitated offense guideline. (320) The guideline for false impersonation of a government officer, § 2J1.4(c), states that if the offense was committed to facilitate another offense, the guideline for the other offense should be applied if it results in a higher offense level. Defendant impersonated a federal officer to commit a fraud, so the court applied the fraud guideline, 2F1.1. That guideline requires an enhancement when the defendant misrepresents that she is acting on behalf of a government agency. The Ninth Circuit rejected defendant’s argument that applying this enhancement would be double counting because defendant’s impersonation of a government official was “counted” by the fact that the cross-reference in § 2J1.4 applies only if the offense level for the facilitated offense is higher than the level required by § 2J1.4. U.S. v. Romero, 293 F.3d 1120 (9th Cir. 2002).
9th Circuit says cross-reference for obstruction applies even if underlying offense is not provable. (320) Defendant was convicted of witness intimidation but acquitted of the underlying drug charges. When a defendant is convicted of tampering with a witness, the offense level is driven by the offense level of the crime whose prosecution was obstructed. The guidelines accomplish this in § 2J1.2(c)(1) by a cross-reference to § 2X3.1. Here, the district court refused to apply the cross-reference because the underlying offenses had not been proved by at least a preponderance of the evidence. On appeal, the Ninth Circuit reversed, holding that the cross-reference applies without regard to whether the underlying offense is provable. Moreover, under § 1B1.5, Commentary Note 3, if there is more than one offense with respect to which obstruction occurred, the most serious offense is to be used. U.S. v. Arias, 253 F.3d 453 (9th Cir. 2001).
9th Circuit upholds sentence for offense while on bail despite failure to warn when defendant was released. (320) Defendant challenged his sentence primarily on the ground that he was not given adequate notice in the pre-trial release order that committing a new offense while released on bail could lead not only to a new prosecution, but also to an enhanced sentence under 18 U.S.C. § 3147. The Ninth Circuit joined the majority of other circuits in holding that failure to give specific notice in the pre-trial release order of the increased penalty in § 3147 (and USSG § 2J1.7) for being convicted of an offense committed while on release does not prelude the sentencing judge from imposing it. Although the commentary to § 2J1.7 says an enhancement under § 3147 may be imposed only after sufficient notice to the defendant by the government or the court, this is a “pre-sentence requirement rather than a pre-release requirement.” See U.S. v. Hecht, 212 F.3d 847 (3d Cir. 2000). Defendant’s sentence for telemarketing, and continuing his telemarketing activities while released on bail was affirmed. U.S. v. Kentz, 251 F.3d 835 (9th Cir. 2001).
9th Circuit says “stacking” sentences for offense while on bail does not violate Apprendi. (320) Defendant was convicted on 21 counts of telemarketing fraud, in violation of 18 U.S.C. §§ 1341 and 2326, in addition to committing an offense while released on bail, in violation of 18 U.S.C. § 3147. He argued that it violated Apprendi v. New Jersey, 530 U.S. 466 (2000) to sentence him to 160-months (10 months of which were attributable to § 3147) because the issue of whether he committed an offense while in pre-trial release was not charged in the indictment, or determined by the jury beyond a reasonable doubt. The Ninth Circuit found no plain error. Defendant was convicted on 21 counts of fraud, each bearing a 5-year maximum sentence, so the statutory maximum found by the jury was 105 years. Contrary to defendant’s claim that “stacking” sentences is improper, USSG § 5G1.2(d) requires the sentence to be consecutive to the extent necessary to achieve the total punishment. Moreover, the district court did not plainly err in considering the statutory maximum to be 15 years on the counts which charged defendant under 18 U.S.C. § 2326 with telemarketing which impacts more than ten victims over the age of 55. U.S. v. Kentz, 251 F.3d 835 (9th Cir. 2001).
9th Circuit holds that person is “on release” even after an arrest warrant is issued. (320) The district judge increased defendant’s sentence by three levels under § 2J1.7 because he committed his offense of firearm possession while “on release” pending sentencing in an explosives case. He argued that he was not “on release” when he was arrested because the district court had earlier issued a bench warrant for his arrest when he failed to appear for sentencing on the underlying charge. He relied on U.S. v. Castaldo, 636 F.2d 1169 (9th Cir. 1980). However, the Ninth Circuit distinguished Castaldo on the ground that in that case, after issuing a bench warrant, the judge ordered the defendant to appear at a second hearing. Thus, the court held that he was a “fugitive” at the time of the second hearing. In the present case, however, defendant was convicted of failing to appear at the first hearing, and the court held that the mere issuance of a bench warrant did not free him from the obligation to abide by all of the conditions of his release. U.S. v. Ellis, 241 F.3d 1096 (9th Cir. 2001).
9th Circuit finds no Apprendi error where sentence did not exceed statutory maximum for offense of conviction. (320) Defendant argued that a violation of 18 U.S.C. § 3147 (failure to appear) constitutes a separate criminal offense, rather than a mere sentencing enhancement under guideline § 2J1.7, and that the question of his guilt should therefore have been submitted to a jury and proved beyond a reasonable doubt under Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). The Ninth Circuit rejected the argument, because defendant “failed to satisfy the threshold condition of Apprendi that the actual sentence imposed be longer than the maximum sentence for the crime for which defendant has been validly convicted.” Here, defendant received “only 87 months of imprisonment, far less than the 120-month maximum term for his firearm conviction alone.” U.S. v. Ellis, 241 F.3d 1096 (9th Cir. 2001).
9th Circuit upholds consecutive sentence for committing offense while on pretrial release. (320) Defendant continued dealing drugs while on pretrial release in another federal narcotics case. He was convicted of violating 18 U.S.C. § 3147 and given a consecutive six-month term. On appeal, defendant argued that the district court improperly considered his drug dealing twice: first to raise his offense level under the guidelines and then to impose a consecutive term of imprisonment under § 3147. The Ninth Circuit found that guideline § 2J1.7 disposed of his argument, because it requires a three-level increase to the offense level for the offense committed while on release if an enhancement under 18 U.S.C. § 3147 applies. U.S. v. Tavakkoly, 238 F.3d 1062 (9th Cir. 2001).
9th Circuit rules offense underlying perjury was money laundering, not drugs. (320) Under guideline § 2J1.3(c)(1), if “the offense involved perjury … in respect to a criminal offense,” the offense level should be six levels lower than the underlying offense (cross-referencing § 2X3.1 (Accessory After The Fact)). Perjury is in respect to a criminal offense where “the defendant knew or had reason to know, at the time of his perjury, that his testimony concerned such a criminal offense.” U.S. v. Rude, 88 F.3d 1538, 1543 (9th Cir. 1996). In this case, the defendant’s false testimony at the earlier trial concerned the cattle business and financial affairs of the defendants in that trial. He did not testify about any drug activities. Because of the “insignificant effect” defendant’s testimony would have had on the drug trafficking charges, the Ninth Circuit held that the district court properly exercised its discretion in determining that defendant’s perjury was only in respect to the money laundering charges. U.S. v. Leon-Reyes, 177 F.3d 816 (9th Cir. 1999).
9th Circuit uses tax guideline, not obstruction guideline, for obstructing tax collection. (320) Defendants were convicted of conspiracy under 18 U.S.C. § 371 and obstruction of IRS proceedings under 18 U.S.C. § 1505. Guideline section 1B1.2 instructs the court to determine “the offense guideline section … most applicable to the offense of conviction.” The accompanying commentary refers to the guidelines’ statutory index in Appendix A. However, Appendix A permits the court in an atypical case to use “the guideline section most applicable to the nature of the offense conduct charged.” In the present case, the district court properly sentenced the defendants under § 2T1.9, which covers conspiracies to “impede, impair, obstruct or defeat tax.” See § 2X1.1(c)(1) (“When an attempt, solicitation, or conspiracy is expressly covered by a clear offense guideline section, apply that guideline section.”) The Ninth Circuit agreed that § 2J1.2 did not consider the amount of tax liability the defendants attempted to obstruct or the sometimes violent nature of the conspiracy. U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999).
9th Circuit upholds departure in obstruction case for facilitating another offense. (320) Defendant was convicted of obstruction of justice after it was discovered that he had bribed a juror in his first trial on drug charges and in the meantime had committed bank fraud. In his first appeal, the Ninth Circuit reversed the sentence. On remand, the district court departed upward under § 5K2.9 because defendant committed the obstruction of justice in order to facilitate or conceal the commission of other offenses. These offenses were a counterfeit check scheme and a fraudulent wire transfer scheme. The extent of the departure – thirteen levels – was “necessary to account for the seriousness of the crime the defendant avoided punishment for by his obstruction of justice, that is, the narcotics offense.” The district court added that the extent of the departure was “necessary to account for the extensive fraud schemes that defendant was able to complete because he tampered with the jury in the narcotics case.” On appeal, the Ninth Circuit affirmed, finding that the district court’s explanation for the extent of the departures “cannot be said to be unreasonable.” Judge Betty Fletcher dissented on other grounds. U.S. v. Washington, 172 F.3d 1116 (9th Cir. 1999).
9th Circuit says failure to report for urinalysis was properly sentenced under § 2J1.1. (320) Defendant was convicted of contempt of court for violating several conditions of his release, including failure to report for urinalysis and failure to appear for court proceedings. He argued that his sentence should be reversed because the district court failed to specify whether his 33-month sentence was based on the failure to report for urinalysis or the failure to appear (which had been reversed on appeal). The Ninth Circuit found that in the circumstances of this case, there was no need to differentiate between the two violations. The most analogous offense for defendant’s contempt was failure to appear under guideline section 2J1.1 “whether the analogy is applied to a failure to report for urinalysis or to a failure to appear at other proceedings.” The failure to appear for urinalysis was therefore sufficient to support the court’s selection of the base offense level under § 2J1.1. U.S. v. Fisher, 137 F.3d 1158 (9th Cir. 1998).
9th Circuit denies rehearing en banc in double-counting case. (320) Defendant pled guilty to failing to surrender to serve a sentence, in violation of 18 U.S.C. § 3146(a)(2). He was given three criminal history points under § 4A1.1(a) for his underlying marijuana conviction. He also received two criminal history points for committing the offense while under a criminal justice sentence, pursuant to 4A1.1(d), and one point for committing the offense while on escape status, pursuant to § 4A1.1(e). On appeal, he argued that the increases under § 4A1.1(d) and (e) constituted impermissible double counting because the conduct which gave rise to these enhancements was also a necessary element of the offense. The Ninth Circuit found no error, ruling that the determinations for criminal history and offense level serve “unique purposes under the guidelines.” Thus “there is no impermissible double counting where conduct which gives rise to criminal history enhancements is also a necessary element of the offense.” The full court denied rehearing en banc, with four judges vigorously dissenting. U.S. v. Parker, 136 F.3d 653 (9th Cir. 1998).
9th Circuit says Appendix A is not mandatory; court should have used guideline for impeding federal officer. (320) Defendant argued that the court should have used guideline § 2A2.4, which deals with obstructing or impeding federal officers, rather than relying on the statutory index to the guidelines which referred to the obstruction section, 2J1.2. The Ninth Circuit agreed, holding that the guidelines cross-referenced in the statutory index are not mandatory. Appendix A says that “if in an atypical case the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved [the court should] use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” The Ninth Circuit held that defendant’s conduct was more analogous to impeding a federal officer than to obstructing justice, and therefore remanded the case for resentencing under § 2A2.4. U.S. v. Fulbright, 105 F.3d 443 (9th Cir. 1997), overruled on other grounds by U.S. v. Heredia, 483 F.3d 913 (9th Cir. 2007).
9th Circuit says court need not articulate reasons for applying perjury cross-reference. (320) Defendant argued that the district court erred in failing to make factual findings in applying the cross-reference in § 2J1.3(c)(1). That section says that if the offense involved perjury in respect to a criminal offense, the court should apply § 2X3.1 (accessory after the fact) in respect to that criminal offense, if the resulting offense level is greater. Defendant argued that the court simply deferred to the probation officer’s recommendation without addressing defendant’s objections. The Ninth Circuit rejected the argument, noting that the court expressly found the cross-reference applicable, and “Rule 32(c)(1) does not require the court to articulate the reasoning for its finding.” “Although the court did not articulate the facts upon which it relied in ruling as it did, we are satisfied that the requisite finding was made.” U.S. v. Rude, 88 F.3d 1538 (9th Cir. 1996).
9th Circuit says cross-reference does not require perjury to be in respect to defendant’s own offense. (320) The Ninth Circuit held that for cross-referencing to be justified, § 2J1.3(c)(1) requires only that defendant’s perjury be “in respect to a criminal offense.” It does not require the perjury to be in respect to his own criminal offense, nor even an adjudicated criminal offense. As long as an indictment and conviction are forthcoming, as they were here, and as long as the defendant knew or had reason to know at the time of his perjury, that his testimony concerned such a criminal offense, the “in respect to” element of § 2J1.3(c)(1) is satisfied. U.S. v. Rude, 88 F.3d 1538 (9th Cir. 1996).
9th Circuit says amendment was substantive despite Commission’s “clarifying” label. (320) Defendant bribed one of the jurors in his trial on drug charges. At the time of the bribery, the cross-reference in § 2J1.2(c) to the “Accessory After the Fact” guideline was limited to cases in which the defendant was an accessory to another person’s crime. On November 1, 1991, however, before defendant’s trial on bribery charges, the Commentary to §2J1.2 was amended to permit a defendant to be sentenced as an accessory to his own crime. The Commission stated that the amendment “clarifies” the circumstances to which the guidelines apply. However, the Ninth Circuit agreed with other circuits that the Commission’s view is not conclusive because this would enable it to make substantive changes “in the guise of clarification.” The court agreed with U.S. v. Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994), cert denied, 115 S.Ct. 1110 (1995), that the 1991 amendment is a substantive rather than a clarifying change. Thus the ex post facto clause prohibited its application to defendant, and his sentence was vacated. U.S. v. Washington, 66 F.3d 1101 (9th Cir. 1995).
9th Circuit finds no double jeopardy in prosecution for failure to appear despite earlier sentence for same conduct. (320) Defendant was convicted of drug and counterfeiting charges, and failed to appear for sentencing. When he was apprehended, his offense level was increased by two levels under section 3C1.1 for the failure to appear, giving him an offense level of 28 (87 to 108 months). Thereafter, he pleaded guilty before a different judge to failing to appear, in violation of 18 U.S.C. § 3146(a)(1), and was sentenced to five months consecutive. On appeal, the Ninth Circuit rejected his argument that sentencing him for conduct already taken into account in the first sentence violated double jeopardy, noting that a similar argument had been rejected in Witte v. U.S., 515 U.S. 389 (1995). The court added that Note 3 to Guideline section 5G1.3(c) requires the second judge to impose incremental punishment “that most nearly approximates the sentence that would have been imposed had all the sentences been imposed at the same time.” Under section 2J1.6, that sentence could not exceed 108 months. Thus the combined sentence of 105 months was consistent with the guidelines. U.S. v. Jernigan, 60 F.3d 562 (9th Cir. 1995).
9th Circuit says “instant offense” includes counts that are “grouped” with instant offense. (320) After defendant committed mail fraud, he was placed on state probation for an unrelated offense. Thereafter, he was indicted and pled guilty to the mail fraud and to failing to appear on the mail fraud charge. At sentencing, these two counts were “grouped” together under 3D1.2(c) and he was assessed two criminal history points under 4A1.1(d) for committing the “instant offense” while on probation. Defendant argued that because the two offenses were “grouped” as required by Note 3 to 2J1.6, the offense of failing to appear was simply an “adjustment” to the mail fraud offense. Therefore, he argued, the “instant offense” was mail fraud, and since he was not on probation when he committed the mail fraud, it was improper to assess two criminal history points for committing the “instant offense” while on probation. In a 2-1 decision with Judge Reinhardt dissenting, the 9th Circuit found no merit in this argument, holding that the failure to appear offense remained part of the “instant offense” even after being “grouped” with the mail fraud offense. U.S. v. Buchanan, 59 F.3d 914 (9th Cir. 1995).
9th Circuit says unauthorized flight to avoid prosecution is a continuing offense. (320) In U.S. v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989), cert. denied, 495 U.S. 930 (1990), the Ninth Circuit held that failure to appear for sentencing, in violation of 18 U.S.C. § 3146(a), is a continuing offense. Relying on Gray, the Ninth Circuit in this case held that unauthorized flight to avoid prosecution (UFAP) in violation of 18 U.S.C § 1073, is also a continuing offense. Thus it was proper to apply the sentencing guidelines even though defendant fled before the effective date of the guidelines, because his flight continued after the guidelines became effective. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit applies obstruction guideline to unauthorized flight to avoid prosecution. (320) No specific guideline exists for the crime of unauthorized flight to avoid prosecution under 18 U.S.C. § 1073. Defendants argued that the most analogous guideline was 2J1.6, failure to appear. The Ninth Circuit agreed with the district court that defendants’ conduct went beyond mere failure to appear. The district court found that they were determined never to face pending charges, which made the conduct more like obstruction of justice than an isolated instance of failure to appear. Thus, it was proper for the court to apply the obstruction guideline, 2J1.2. The court noted that the Eleventh Circuit in U.S. v. Gabay, 923 F.2d 1536, 1544-45 (11th Cir. 1991), reached a similar conclusion. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit upholds 3-level enhancement for substantial interference with justice. (320) The obstruction of justice guideline, 2J1.2(b)(2), provides for a three-level increase if defendant’s conduct resulted in substantial interference with the administration of justice. In this case, defendant remained at large for a total of five years, and ample government resources were spent searching for him. Accordingly, it was proper to increase his offense level by three levels. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit applies obstruction guideline to tax conviction. (320) Defendants, husband and wife, sent 1099 forms to various IRS officials, claiming they paid hundreds of thousands of dollars to the officials. Then they filed 1096 transmittal forms and 1040 forms with the IRS, claiming these “payments” as accounts receivables, and seeking refunds based on the claim that the IRS had withheld the same amount as taxes. After a jury trial, they were convicted of filing false tax returns and obstructing the administration of the tax laws under 26 U.S.C. 7212(a). The guideline applicable to violations of section 7212(a) is the assault guideline, 2A2.2. However, the district court found that guideline was not appropriate, and applied the guideline for obstruction of justice, 2J1.2. On appeal, the Ninth Circuit affirmed, ruling that on the facts of this case, the obstruction guideline was correctly applied. The conduct here did not involve an assault, and went beyond the misdemeanor offense contemplated by the guideline for fraudulent tax returns, 2T1.5. Defendants specifically targeted IRS officials and attempted to intimidate them. U.S. v. Koff, 43 F.3d 417 (9th Cir. 1994).
9th Circuit permits departure where 3 levels inadequate to account for government’s loss. (320) The FBI wasted approximately $89,000 unraveling defendant’s “twisted tale.” The district court imposed a three-level adjustment under 2J1.2(b)(2) for substantial interference with the administration of justice, based on the financial loss to the government. It also departed upward by one level under 5K2.5 for the same loss. On appeal, the 9th Circuit affirmed, finding that “double counting” the financial loss was appropriate because the three-level increase was inadequate to account for the total loss in this case. Quoting U.S. v. Reese, 2 F.3d 870, 895 (9th Cir. 1993), cert. denied 114 S.Ct. 928 (1994), the court said “there is nothing wrong with ‘double counting’ when it is necessary to make the defendant’s sentence reflect the full extent of the wrongfulness of his conduct.” U.S. v. Haggard, 41 F.3d 1320 (9th Cir. 1994).
9th Circuit applies obstruction guideline where taxpayer’s filings interfered with IRS. (320) Defendant engaged in a “redemption” scheme, filing false tax returns and 1099 forms, and seeking tax levies on innocent taxpayers. He was convicted of corrupt interference with the administration of IRS laws, in violation of 26 U.S.C. § 7206(1). The district court applied the obstruction guideline, § 2J1.2(a), which is one of three possible guidelines listed in Appendix A of the Guidelines Manual. On appeal, the 9th Circuit affirmed, rejecting defendant’s argument that the court should have applied the guideline for fraudulent returns, § 2T1.5. Section 2B1.2 of the Guideline Manual says that the court should determine which guideline applies “based on the nature of the offense charged in the count of which the defendant was convicted,” and the district court correctly concluded that the most applicable guideline was obstruction of justice. U.S. v. Van Krieken, 39 F.3d 227 (9th Cir. 1994).
9th Circuit upholds consecutive sentence for failure to appear even though other sentence not yet imposed. (320) At the time of his sentencing for failure to appear, defendant’s conviction for his underlying offense had been reversed on appeal. He therefore argued that it was improper to sentence him consecutively to a sentence that had not yet been imposed on the underlying offense. The 9th Circuit, relying on 18 U.S.C. §3146(b)(2) found “no practical reason to require the district court to await conviction and sentencing for an underlying offense before it can impose a sentence for a failure to appear.” If defendant is eventually acquitted of his underlying offense he will serve only the sentence for failure to appear. U.S. v. Gray, 31 F.3d 1443 (9th Cir. 1994).
9th Circuit says defendant need not be orally warned of enhanced penalties for offense committed on bail. (320) When a defendant is released on bond, the release order must include a written statement of the penalties for violating a condition of release. 18 U.S.C. § 3142(h). If the defendant commits an offense while released on bond, he must be sentenced consecutively. 18 U.S.C. § 3147. In addition, the guidelines provide that if § 3147 applies, the court shall increase the offense level by three. U.S.S.G. § 2J1.7 In this case, the written order of release reprinted an out of date version of § 3147. and the judge did not advise the defendant orally of the enhancement. On appeal, the 9th Circuit affirmed a three level increase under § 2J1.7, holding that the statute does not require the magistrate judge to orally advise the defendant of the enhancement. Moreover, the fact that the release order recited an out-of-date version of the statute did not prejudice the defendant. U.S. v. Night, 29 F.3d 479 (9th Cir. 1994).
9th Circuit holds that violation of “judicial order” in 2F1.1(b)(3)(B) does not include bail order. (320) Guideline Section 2F1.1(b)(3)(B) provides: “If the offense involved . . . violation of any judicial or administrative order, injunction, decree or process, increase by two levels.” The defendant here committed his mail fraud offenses while under a bail order containing a condition that he commit no crimes. The district court concluded that the bail order was a “judicial order” and increased his base offense level by two. On appeal, the 9th Circuit reversed, holding that the Sentencing Commission did not intend to include general bail conditions under the judicial orders covered by section 2F1.1. The court noted that two other guideline sections were applicable. Section 2J1.7 requires a three level enhancement for offenses committed while on release, and 4A1.3 allows the district court to depart upward if “the defendant was pending trial, sentencing or appeal or another charge at the time of the instant offense.” U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992)
9th Circuit says it was not double counting to increase offense level and criminal history for bail jumping. (320) Defendant was convicted of failing to appear, and his sentence was increased by nine levels under § 2J1.6 because the underlying offense, drug manufacturing, carried a statutory maximum sentence of 20 years. His conviction on that underlying offense was also used to calculate his criminal history score, raising it by three points. On appeal defendant argued that this was improper under § 4A1.2(a) because “the offense of establishing a manufacturing operation was part of the offense of failing to appear.” The 9th Circuit rejected the argument, noting that in U.S. v. Nelson, 919 F.2d 1381 (9th Cir. 1990), the court upheld an enhancement under 2J1.6 for an underlying methamphetamine charge even though the defendant had been acquitted of it. This demonstrated that the underlying charge was not part of the offense of failing to appear. “The offenses are separate and there was no double counting.” U.S. v. Schomburg, 929 F.2d 505 (9th Cir. 1991).
9th Circuit holds that repetition of the same false testimony did not justify upward departure in perjury case. (320) Defendant was convicted of making false declarations in violation of 18 U.S.C. § 1623 during the trial of his wife. The district court departed upward from 16-24 months based on its conclusion that the 70 pages of defendant’s testimony contained “more than 100 of these one-statement lies.” The 9th Circuit reversed, holding that the essential conduct “is ordinarily the same regardless of the number of questions and answers it takes to illicit the tale.” Thus is was improper for the court to “consider that fact that a number of false statements have been charged in a single count” as a ground for an upward departure. The district court’s finding that these false declarations were “somehow extraordinary” was clearly erroneous. U.S. v. Goodrich, 919 F.2d 1365 (9th Cir. 1990).
9th Circuit upholds guideline for failure to appear despite acquittal on underlying charge. (320) Defendant failed to appear on drug charges. He was later apprehended and tried jointly on the drug charges and for failing to appear. The judge granted his motion for judgment of acquittal on the drug charges and he then pled guilty to failure to appear. On appeal, defendant argued that guideline § 2J1.6(b)(1) violated the statutory mandate by failing to distinguish between a defendant’s conviction of the underlying charge and his acquittal of that same charge. Making a “narrow inquiry” into whether the Sentencing Commission’s construction is “sufficiently reasonable,” the 9th Circuit found it reasonable for the Commission to consider the maximum term of imprisonment for the underlying offense without regard to whether the defendant is actually acquitted. The court distinguished the 8th Circuit’s opinion in U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989) which held that the Commission violated its statutory mandate by failing to consider the actual sentence imposed on a defendant who failed to appear after she had been sentenced. U.S. v. Nelson, 919 F.2d 1381 (9th Cir. 1990).
9th Circuit states that guidelines apply to “continuing offenses” that continue after November 1, 1987. (320) Relying on U.S. v. Frank, 864 F.2d 992, 1008 (3rd Cir. 1988), the 9th Circuit stated that the “Sentencing Guidelines apply to offenses initiated before November 1, 1987, but not completed until after November 1, 1987.” Thus the guidelines applied to defendant’s “continuing” offense of failure to appear in violation of 18 U.S.C. § 3146(a). U.S. v. Gray, 876 F.2d 1411 (9th Cir. 1989).
10th Circuit affirms use of tax evasion, rather than obstruction guideline, for interfering with IRS. (320) Defendant was convicted of interfering with the administration of the internal revenue laws, in violation of the omnibus clause of 26 U.S.C. § 7212(a). Violations of the omnibus clause may be sentenced under either § 2T1.1, the guideline for tax evasion, or § 2J1.2, the guideline for obstruction of justice. The Tenth Circuit upheld the district court’s finding that defendant’s conduct fell within the § 2T1.1 tax evasion provision, rather than § 2J1.2. Although some of defendant’s conduct may also have obstructed justice, his conduct overall had more to do with taxation. The actions he stipulated to – using third parties to transfer property to trusts, reporting different financial information to the IRS than he reported to lenders, mailing frivolous letters seeking to “redeem” the value of his birth certificate, declaring that he was not subject to the laws of the United States, harassing IRS employees, and seeking to satisfy his tax debts through “Bills of Exchange” rather than payment – were more akin to the other types of tax offenses covered by § 2T1.1 than to the other types of obstruction of justice covered by § 2J1.2. U.S. v. Neilson, 721 F.3d 1185 (10th Cir. 2013).
10th Circuit says most analogous guideline for refusal to testify was obstruction. (320) Defendant, an animal activist, was convicted of criminal contempt for refusing to testify before a grand jury investigating attacks on three mink farms. The guideline for contempt, § 2J1.1, incorporates § 2X5.1, which directs the district court to apply “the most analogous offense guideline.” The district court applied § 2J1.2, Obstruction of Justice. Defendant argued that § 2J1.2 was not the most analogous guideline because he refused to testify as a matter of conscience, rather than out of any intent to impede the grand jury. The Tenth Circuit disagreed, finding that the record supported the district court’s conclusion that defendant was “motivated by a desire to impede prosecution.” Defendant was in frequent communication with Viehl, who was ultimately convicted in two mink farm attacks. He told Viehl that they needed to “get on the same page” after defendant’s first grand jury appearance. He also expressed a disdainful view of grand juries and said he intended to “resist” the grand jury. U.S. v. Halliday, 665 F.3d 129 (10th Cir. 2011).
10th Circuit upholds increase for causing physical injury to witness who testified against defendant. (320) Defendant was convicted of conspiracy and retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(1), based on his involvement in the beating of a witness who testified against defendant in a tax fraud case. Section 2J1.2(b)(1)(A) provides for an eight-level enhancement if the offense involved causing or threatening to cause physical injury to a person or property damage in order to obstruct the administration of justice. The commentary to the Guidelines lists § 1513 as one of the statutes to which the adjustment applies. The Tenth Circuit held that the district court did not clearly err in applying the adjustment. Given the evidence, the jury necessarily found the factual prerequisite for the adjustment – that defendant knowingly threatened to, and in fact, did cause the witness to suffer bodily injury because the witness testified against defendant in the tax-fraud case. U.S. v. Wardell, 591 F.3d 1279 (10th Cir. 2009).
10th Circuit agrees that defendant’s perjury was “in respect to a criminal investigation.” (320) Defendant gave false testimony before a grand jury investigating the disappearance of a local teenager. He denied confronting and threatening Olsen, a witness who made statements implicating defendant in the disappearance. Defendant pled guilty to one count of perjury. The district court applied §2J1.3(c), which instructs a court to apply the accessory-after-the-fact cross reference in §2X3.1 if the perjury was “in respect to a criminal offense.” The court found that defendant’s perjury was in respect to second-degree murder. The Tenth Circuit found no error. Defendant was the target of the grand jury investigating the teen’s disappearance and was served with a target letter. Defendant was asked about the teen’s “disappearance” and “death.” He was also asked about confronting Olsen for telling authorities that defendant was involved with the disappearance and murder, and he admitted he stopped talking to Olsen because of this issue. Only then did defendant give false statements that gave rise to the perjury charges. U.S. v. Leifson, 568 F.3d 1215 (10th Cir. 2009).
10th Circuit applies cross-reference for perjury during grand jury murder investigation. (320) Defendant was convicted of committing perjury before a grand jury investigating the murder of a 15-year-old girl. Under § 2J1.3(a), when the perjury occurs “in respect to a criminal offense,” the offense level must be computed under § 2X3.1, the guideline for an “Accessory after the Fact.” Defendant argued that the district court should have applied a heightened evidentiary standard to its finding that the § 2X3.1 cross-reference applied. The Tenth Circuit found that the cross reference only required the judge to find that the perjury interfered with a murder investigation, not that defendant committed a murder. The record would have compelled the court to make this finding under any conceivable standard of proof. During his day of testimony, defendant was questioned extensively about prior statements he had made indicating that the victim had been murdered. The evidence clearly showed that defendant perjured himself before a grand jury investigating the victim’s disappearance and whether that disappearance resulted from a murder. U.S. v. Olsen, 519 F.3d 1096 (10th Cir. 2008).
10th Circuit bases loss on amount of child support defendant owed. (320) Defendant was convicted of two counts of failure to pay child support obligations in violation of the Child Support Recovery Act, 18 U.S.C. § 228(a)(1), and the Deadbeat Parents Punishment Act, 18 U.S.C. § 228(a)(3). The Tenth Circuit ruled that the government presented sufficient evidence at trial to prove that defendant owed more than $40,000 in unpaid child support, thus establishing the amount of “loss” under U.S.S.G. § 2B1.1 and supporting a seven-level upward adjustment in offense level. See U.S.S.G. § 2J1.1 (most analogous guideline is § 2B1.1). The district court properly relied on a calculation by the Virginia Division of Child Support Enforcement to find that defendant owed $66,415.56 in child support. U.S. v. Monts, 311 F.3d 993 (10th Cir. 2002).
10th Circuit rules court should have grouped failure to appear and underlying drug offense. (320) Defendant pled guilty to drug charges and then failed to appear for sentencing. She pled guilty to failure to appear, in violation of 18 U.S.C. § 3146(a)(2). The district court sentenced her to 18 months’ imprisonment, to run partially concurrently with her drug sentence. The Tenth Circuit held that the district court should have grouped defendant’s drug offense and her failure to appear offense for sentencing, and imposed a total punishment with consecutive sentences. Section 3146(b)(2) directs a court to impose the sentence for failure to appear consecutively to the sentence for the underlying offense. When a defendant is convicted of both failure to appear and the underlying offense, the failure to appear offense is treated as an obstruction of the underlying offense under § 3C1.1. The two offenses are then grouped pursuant to § 3D1.2(c). See note 5 and § 2J1.6 note 3. Once the offenses are grouped, the district court is to determine the offense level of the group, set the total punishment, and impose consecutive sentences within the total punishment. U.S. v. Gigley, 213 F.3d 503 (10th Cir. 2000).
10th Circuit finds perjury at suppression hearing was “in respect to a criminal offense” despite acquittal. (320) At a suppression hearing, defendant testified that he had never given consent to search his home and that the signature on the consent form was not his. Defendant’s son testified that it was he who had signed the form and that it pertained to his home, not his father’s. Before the court ruled on the motion, defendant withdrew the motion to suppress. A jury acquitted defendant on all charges, but defendant and his son were later convicted of making false statements under oath at the suppression hearing. Section 2J1.3(c)(1) directs a court to apply § 2X3.1 if the offense involved perjury “in respect to a criminal offense” and it would result in a higher offense level. The district court refused to apply the cross-reference, concluding that the phrase “in respect to a criminal offense” was “hopelessly ambiguous.” On appeal, the Tenth Circuit reversed, holding that defendant’s perjury at the suppression hearing was committed “in respect to a criminal offense,” despite the acquittal on the drug charges. Neither § 2J1.3(c)(1) nor § 2X3.1 require that the defendant be convicted of the underlying offense. The cross-reference was also applicable to defendant’s son, even though he was never charged in the underlying offense. U.S. v. Renteria, 138 F.3d 1328 (10th Cir. 1998).
10th Circuit uses obstruction guideline for forging federal judge’s signature. (320) Defendant, an attorney, was retained to pursue a personal injury claim. Rather than filing the claim, defendant lied to the client and told him that it had been submitted to arbitration. He then prepared and presented to the client a document under the heading of the local district court purporting to award the client money damages. Defendant was convicted of forging a federal judge’s signature in violation of 18 U.S.C. § 505. The Tenth Circuit held that defendant was properly sentenced under the obstruction of justice guideline, § 2J1.2, rather than the fraud guideline, § 2F1.1. The Statutory Index for § 505 refers to both § 2J1.2 and § 2F1.1. Where the Index refers to more than one guideline, a court must determine the applicable guideline based upon the nature of the offense of conviction. The district court properly rejected application of the fraud guidelines because defendant’s conduct was not designed to defraud his client of any property. Rather, defendant’s deceit jeopardized the client’s right to have his legal claims heard, and this is more akin to obstruction of justice. U.S. v. Cowan, 116 F.3d 1360 (10th Cir. 1997).
10th Circuit upholds increase for perjury that was “cornerstone” of friends’ defense. (320) Defendant committed perjury at the trial of two friends charged with being felons in possession of a firearm. Defendant testified that before the gun was found by police, he saw two men carry the gun into his friends’ apartment. Although two witnesses originally confirmed this testimony, they recanted after conferring with prosecutors. One friend later admitted that he had asked defendant to testify falsely regarding the delivery of the firearm. Although it was a close question, the Tenth Circuit upheld a § 2J1.3(b)(2) enhancement for substantial interference with the administration of justice. Expenses associated with defendant’s perjury offense could not form the basis of this adjustment. It was debatable whether the initial testimony of the two witnesses and the prosecution’s re-interviewing and recalling of them at the trial involved a substantial expenditure of government or court resources. But the enhancement was not unreasonable based on the district court’s finding that defendant’s perjured testimony was the “cornerstone” of his friends’ defense. U.S. v. Sinclair, 109 F.3d 1527 (10th Cir. 1997).
10th Circuit holds refusal to produce subpoenaed records was interference with justice. (320) Defendants were convicted of criminal contempt for failing to produce documents subpoenaed by the grand jury. The Tenth Circuit affirmed a § 2J1.2(b)(2) enhancement for substantial interference with the administration of justice. The district court found defendants caused the government to expend substantial unnecessary time and effort in an attempt to determine the income of their organization’s members, and frustrated a criminal investigation of themselves and their activities. Moreover, the enhancement applies to the unnecessary expenditure of court resources. Defendants’ initial failure to respond to the subpoenas resulted in the issuance of additional subpoenas, the conducting of additional court proceedings and the issuance of court orders requiring production of the subject documents. If defendants had complied with the subpoenas after the initial motion to quash had been denied, then many of the subsequent court proceedings would not have been necessary. U.S. v. Voss, 82 F.3d 1521 (10th Cir. 1996).
10th Circuit agrees that § 2J1.2 is most analogous guideline for contempt conviction. (320) Defendants were convicted of criminal contempt under 18 U.S.C. § 401(3) for failing to produce documents subpoenaed by the grand jury. Section 2J1.1 directs a court to apply § 2X5.1, while § 2X5.1 directs a court to apply the most analogous guideline. The Tenth Circuit upheld the district court’s determination that § 2J1.2 (Obstruction of Justice), rather than § 2J1.5 (Failure to Appear by Material Witness), was the most analogous guideline. The district court found that by refusing to comply with the court’s lawful orders even after having a civil contempt fine imposed, the defendants prevented the grand jury from getting records that would have been of assistance to the grand jury in finding what actually occurred. U.S. v. Voss, 82 F.3d 1521 (10th Cir. 1996).
10th Circuit holds that 18 U.S.C. § 3147 is self-executing sentence enhancement provision. (320) Section 2J1.7, which implements 18 U.S.C. § 3147, requires a three-level increase if the offense of conviction was committed while the defendant was on release on another federal charge. Defendant argued that the government did not give proper notice that it intended to ask for an enhanced sentence. The only notice defendant received of the possibility of a § 3147 penalty was through his presentence report. The Tenth Circuit held that § 3147 is a self-executing sentence enhancement rather than a separate offense of conviction; therefore, the notice he received in his PSR was adequate. Defendant was notified of the possibility of enhancement prior to sentencing and thus had the opportunity to object. U.S. v. Browning, 61 F.3d 752 (10th Cir. 1995).
10th Circuit requires sentence under § 3147 to run consecutive to any other term of imprisonment. (320) Defendant pled guilty to drug charges in Texas federal court. He failed to appear for a presentence interview, and was caught six months later in possession of a gun. He was sentenced to 211 months for the drug charge, and 46 months for possessing a firearm while a fugitive. The district court then imposed 17-month enhancement for committing an offense while on bond, pursuant to 18 U.S.C. § 3147, but made it consecutive only to the 46-month firearms sentence. The Tenth Circuit held that 18 U.S.C. § 3147 required the 17-month enhancement sentence to run consecutive to all other sentences, including the 211-month drug sentence. Even if the general provisions of guideline § 5G1.3(b) were otherwise applicable, the specific terms of § 3147 and guideline § 2J1.7 would take precedence. U.S. v. McCary, 58 F.3d 521 (10th Cir. 1995).
10th Circuit holds perjury defendant need not be accessory after the fact to sentence under § 2X3.1. (320) Defendant testified at his brother’s trial that his brother operated a methamphetamine laboratory. He later executed an affidavit that his brother never participated in the methamphetamine laboratory. Defendant pled guilty to making irreconcilable sworn statements. Section 2J1.3 provides that a perjury defendant shall be sentenced under § 2X3.1 (Accessory After the Fact) if the perjury was in respect to a criminal offense, and it would result in a higher offense level. Defendant claimed that § 2X3.1 can only be used if the declarant is an accessory after the fact, since the application notes define “underlying offense” as the offense “as to which the defendant is convicted of being an accessory.” The Tenth Circuit held that the district court properly applied § 2X3.1 even though defendant may not have been an accessory after the fact. The application notes are not relevant because § 2X3.1 is being used simply as a formula for the perjury offense. The court disagreed with circuits holding that the cross-reference is inapplicable when the perjury assists the declarant as opposed to a third party. U.S. v. Glover, 52 F.3d 283 (10th Cir. 1995).
10th Circuit says enhancement for offense while on bond does not require offense in same district. (320) While on bond for a drug offense, defendant committed a firearm offense in a different federal district. The district court declined to impose the enhancement under guideline § 2J1.7 and 18 U.S.C. § 3147, concluding that the enhancement only applies when the new offense is in the jurisdiction where the bond is recorded. The 10th Circuit rejected this limitation, finding nothing in 18 U.S.C. § 3147 or guideline § 2J1.7 which would so limit their application. U.S. v. McCary, 14 F.3d 1502 (10th Cir. 1994).
10th Circuit upholds “Failure to Appear” guideline against statutory challenges. (320) Defendant claimed that it was improper to base the “failure to appear” guideline, § 2J1.6, on the maximum penalty for the underlying charge, rather than the sentence actually received. Defendant’s maximum sentence for the underlying offense was five years, but he was actually sentenced was two concurrent 10-month terms. The 10th Circuit rejected defendant’s argument that the guideline fails to comply with 18 U.S.C. § 3553’s requirement that courts impose a sentence consistent with the seriousness of the offense. Following the 9th Circuit’s reasoning in U.S. v. Nelson, 919 F.2d 1381 (9th Cir. 1990), the court found that there was a direct relationship between the length of the potential sentence and the seriousness of the failure to appear. The court also rejected defendant’s argument that § 2J1.6 violates 28 U.S.C. § 994’s requirement that all mitigating and aggravating circumstances be considered. The sentence actually imposed on a defendant is not an aggravating or mitigating circumstance. U.S. v. Agbai, 930 F.2d 1447 (10th Cir. 1991).
11th Circuit says abduction of son interfered with administration of justice. (320) In violation of a state custody order, defendant abducted his son and fled to Yemen. Their whereabouts remained unknown for eight years. Defendant eventually pled guilty to violating the International Parental Kidnapping Crime Act, 18 U.S.C. § 1204. The Eleventh Circuit upheld a § 2J1.2(b)(2) increase for an offense that resulted in “substantial interference with the administration of justice.” The district court found that defendant was dissatisfied with the custody order and, rather than challenge it through lawful channels, he subverted the legal process and exercised a “self-help appeal” from the state court’s decision. Application of the enhancement in this context would not result in a per se rule that the enhancement applies in every § 1204(a) case where a custody order has been issued. It was the nexus between defendant’s dissatisfaction with the custody determination and his intent to frustrate the judicial process, not just the order itself, that made § 2J1.2(b)(2) applicable. U.S. v. Newman, 614 F.3d 1232 (11th Cir. 2010).
11th Circuit says eight-year duration of abduction scheme did not make it extensive. (320) In violation of a state custody order, defendant abducted his three-year old son and took him to Yemen. Their whereabouts remained unknown for eight years. Defendant eventually pled guilty to violating of the International Parental Kidnapping Crime Act, 18 U.S.C. § 1204. The district court applied a § 2J1.2(b)(3) (C) enhancement for an offense that was otherwise extensive in scope, planning or preparation, focusing primarily on the eight-year duration of the offense. The court also considered that defendant chose the Middle East as his destination because it would be “extraordinarily difficult” for authorities to locate and return the child. The Eleventh Circuit held that the district court’s findings were clearly erroneous, and reversed. To the extent defendant selected Yemen because it would be “extraordinarily difficult” to locate and return the child, that finding was unsupported by the record. The only competent evidence indicated that defendant selected Yemen for religious and cultural reasons. Moreover, the duration of an offense is not equivalent to its “scope” for purposes of § 2J1.2(b)(3)(C). U.S. v. Newman, 614 F.3d 1232 (11th Cir. 2010).
11th Circuit says court should have cross-referenced arson guideline in extortion case. (320) Defendant, his son and his son’s friend were charged with a scheme to extort money from a victim who allegedly owed money to defendant. The friend also hired defendant’s son to set fire to the friend’s motel for insurance purposes. Defendant was charged with witness tampering for threatening his daughter-in-law to prevent her from helping authorities with the prosecution of the extortion and arson offenses. While in jail awaiting trial, defendant attempted to persuade his girlfriend to testify to his version of the facts regarding the witness-tampering conversation. For this, he was convicted of obstruction of justice. Section 2J1.2, the obstruction of justice guideline, provides for a cross-reference if the obstruction occurred “in respect to” other underlying crimes. The district court found that defendant’s obstruction conviction related only to the crime of witness tampering. The Eleventh Circuit reversed, holding that the court should have cross-referenced the arson guideline. Defendant’s attempt to get his girlfriend to testify falsely had the potential to derail the government’s prosecution of the arson charges by undermining the credibility of the daughter-in-law, who was the government’s star witness. If the jury believed the girlfriend’s version of the conversation, it might have concluded that the daughter-in-law was not a credible witness, and it might have rejected her testimony on the arson-related charges. The court was not required to reference the extortion/Hobbs Act offenses because these offenses had been severed from the trial of witness tampering charges and arson offenses. U.S. v. Harrell, 524 F.3d 1223 (11th Cir. 2008).
11th Circuit upholds enhancement for substantial interference with the administration of justice. (320) Defendant worked as a consultant for a client who was being investigated for violations of the Clean Water Act. Defendant was convicted of obstruction of justice and making false statements to a grand jury investigating these violations. The district court applied a three-level increase under § 2J1.3(b)(2) after finding that defendant’s perjury “resulted in substantial interference with the administration of justice.” The Eleventh Circuit affirmed the increase. The government expected defendant to be able to provide a complete account of his client’s illegal fill activity because of his unique position as a consultant throughout the dock project. However, because defendant testified falsely before the grand jury about his knowledge of the illegal fill activity, the government was required to conduct further investigation into the client’s conduct. Thus, the government was required to expend additional resources in order to identify and interview several other witnesses, such as truck drivers and neighbors, who could testify as to the timing of the client’s conduct. U.S. v. Johnson, 485 F.3d 1264 (11th Cir. 2007).
11th Circuit holds that failure to advise of enhancement under § 3147 and § 2J1.7 was not plain error. (320) Defendant complained that he was not advised that his ten-year minimum sentence would be automatically enhanced under 18 U.S.C. § 3147 and USSG § 2J1.7 for committing the current offense while on bond in another matter. The Eleventh Circuit held that the failure to notify defendant of the effect of § 2J1.7 and § 3147 was not plain error. When a defendant is informed of a mandatory minimum and maximum statutory sentence and sentenced within that range, the failure to advise of a sentencing range is harmless error, as long as the defendant knew that the Sentencing Guidelines existed and would affect his sentence. U.S. v. Mosley, 173 F.3d 1318 (11th Cir. 1999). The district court here confirmed during the plea colloquy that defendant knew that the Sentencing Guidelines existed and would affect his sentence. Thus, the only question was whether defendant was informed of the mandatory minimum sentence. Although § 3147 is a sentence enhancement statute, it does not specify a minimum enhancement. It requires only that defendant be sentenced to an additional prison term of “not more than” ten years. Thus, a single additional day of imprisonment would comply with § 3147. Because the required enhancement was de minimus, the failure of the court to advise defendant of it was not material. U.S. v. Tyndale, 209 F.3d 1292 (11th Cir. 2000).
11th Circuit directs court to consider clarifying amendment to § 2J1.6. (320) Section 2J1.6, the failure to appear guideline, contains a graduated set of offense levels based on the punishment for the “underlying offense.” In U.S. v. Magluta, 198 F.3d 1265 (11th Cir. 1999), the Eleventh Circuit held that the term “the underlying offense” refers to one count in the indictment–the most serious of the counts—and not the aggregate of all the maximum penalties. On petition for rehearing, defendant requested rehearing de novo on the court’s application of § 2J1.6 and asked that he be allowed to argue on remand that a subsequent clarifying amendment, Amendment 579, be applied to him. The Eleventh Circuit rejected defendant’s request for rehearing de novo. However, since the applicable sentencing guideline has been amended to clarify the issue, the Eleventh Circuit directed the district court to follow the amended application note. U.S. v. Magluta, 203 F.3d 1304 (11th Cir. 2000).
11th Circuit applies § 2J1.2(c)(1) to conviction for endeavoring to obstruct justice. (320) While he was a grand jury member, defendant disclosed grand jury secrets to the target of a grand jury investigation. The district court assigned him an offense level of 30, based on the cross-reference in § 2J1.2(c)(1) to § 2X3.1. Defendant argued that § 2J1.2(c)(1) requires an actual obstruction of justice and that his conviction for unsuccessfully “endeavoring” to obstruct justice rendered this provision inapplicable. The Eleventh Circuit held that § 2J1.2(c)(1) applied to defendant’s convictions conspiring to obstruct justice under 18 U.S.C. § 371 and endeavoring to obstruct justice under 18 U.S.C. § 1503. Each of these offenses involves “obstructing the investigation or prosecution of a criminal offense.” U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
11th Circuit says obstruction defendant sentenced under § 2X3.1 need not be accessory. (320) While a grand jury member, defendant disclosed grand jury secrets to the target of a grand jury investigation. He challenged the district court’s use of the cross-reference in § 2J1.2 (c)(1) to § 2X3.1, since he was not convicted of being an accessory after the fact. The Eleventh Circuit held that defendant was properly sentenced under § 2X3.1. Defendant need not be proven to be an accessory after the fact because the application of § 2X3.1 was due to the cross-referencing requirement in § 2J1.2 (c)(1) and not based on defendant being an accessory after the fact. The use of § 2X3.1 is not intended to treat defendant as having committed the underlying offense, but to weigh the severity of his action in obstructing justice based on the severity of the underlying offense that was the subject of the judicial proceeding sought to be obstructed. U.S. v. Brenson, 104 F.3d 1267 (11th Cir. 1997).
11th Circuit applies cross‑reference despite acquittal on underlying offense. (320) In return for favorable business treatment, defendant paid the school tuition for the children of a city official. When the FBI began investigating, defendant warned the official to say nothing and suggested if subpoenaed, the official should exercise his Fifth Amendment rights. Defendant was acquitted of seven money laundering counts but convicted of tampering with a witness. Section 2J1.2(c)(1) and § 2X3.1 direct that if the offense involved obstructing the investigation or prosecution of a criminal offense, the offense level shall be six levels lower than the offense level for the underlying offense. The underlying offense here was money laundering, but the district court refused to apply the cross‑ reference because defendant had been acquitted of these charges. The Eleventh Circuit held that the cross‑reference applies even if a defendant is acquitted of the underlying offense. The amended commentary to § 2J1.2 now states that the cross‑reference applies when a defendant has acted to avoid punishment for an offense that the defendant has committed or to assist another person to escape punishment. This makes it clear that no conviction for the underlying offense is necessary. U.S. v. McQueen, 86 F.3d 180 (11th Cir. 1996).
11th Circuit reverses downward departure for perjury in a civil case. (320) Defendant lied to the court about his financial status, and was convicted of perjury. The district court refused to apply the guideline applicable to perjury cases, departing downward because the perjury occurred in a civil case rather than in a criminal case. The 11th Circuit held that the fact that defendant’s perjury occurred in a civil case was an improper ground for a departure. Neither defendant’s conduct nor the circumstances surrounding his offense were atypical or significantly different from the conduct to which the perjury statute normally applies. U.S. v. Holland, 22 F.3d 1040 (11th Cir. 1994).
11th Circuit affirms enhancement for threatening harm even though threat was not directly communicated to victim. (320) Defendant was convicted of 13 counts of obstructing justice and other related offenses. The district court applied an enhancement under section 2J1.2(b)(1) for threatening harm based on defendant’s statement to one witness that he had connections to the Miami Mafia and that if the Mafia were to find out that the witness’s mother had “said anything to anybody,” both he and the mother would be murdered. The 11th Circuit affirmed, despite the fact that the threats were not made directly to the mother. There was support for the factual finding that defendant intended the daughter to relay the threat to her mother. U.S. v. Moody, 977 F.2d 1420 (11th Cir. 1992).
11th Circuit upholds basing offense level on pre-guidelines offense. (320) In 1990, defendant committed perjury with regard to his involvement in a 1986 marijuana conspiracy. Guideline section 2J1.3(c)(1) provides that if the offense involved perjury in respect to another criminal offense, section 2X3.1 should be applied. Section 2X3.1(a) calls for sentencing the defendant based upon the underlying offense, which in this case was the 1986 marijuana conspiracy. The 11th Circuit rejected defendant’s argument that the application of section 2X3.1 violated the ex post facto clause, even though the underlying conspiracy occurred before the effective date of the guidelines. Defendant was sentenced under guidelines which were in effect at the time he committed his perjury offense. It was proper to use the underlying offense as a measure of the severity of the perjury offense. U.S. v. Roderick, 974 F.2d 1270 (11th Cir. 1992).
11th Circuit bases sentence for failure to appear for trial on maximum sentence for underlying offense. (320) Former guideline section 2J1.6, applicable for failure to appear offenses, provides for various sentence enhancements based upon the maximum term of imprisonment for the underlying offense. Defendant was convicted of failure to appear for trial. The 11th Circuit upheld the application of the enhancement in section 2J1.6 to defendant even though the sentence he received for the underlying offense was well below the statutory maximum. The court distinguished U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989), which held that former section 2J1.6(b) exceeded the statutory grant of authority when applied to a failure to report to serve a sentence. This case involved a failure to appear for trial. The Sentencing Commission did not violate its statutory mandate by calculating the sentence for failure to appear for trial with reference to the maximum, rather than the actual, sentence for the underlying offense. U.S. v. Gardiner, 955 F.2d 1492 (11th Cir. 1992).
11th Circuit upholds 60-month sentence for bail jumping. (320) Defendant was convicted of criminal contempt in connection with jumping bail. Because the kinds of conduct constituting contempt vary significantly, the applicable guideline, § 2J1.1, does not contain a specific offense level but directs a court to impose a sentence based on the purposes for sentencing. An application note refers to guideline 2X5.1, which instructs a district court to look to analogous guidelines. The district court found there was no analogous guideline, and imposed a 60-month sentence. The 11th Circuit affirmed. Although defendant argued that § 2J1.6 — failure to appear — was an analogous guideline, the 11th Circuit agreed that defendant’s actions were more serious than just failing to appear. Defendant fled shortly before trial, leaving behind a videotape explaining the reasons for his flight. Extensive efforts were necessary to recapture him, and resulted in two trials. U.S. v. Gabay, 923 F.2d 1536 (11th Cir. 1991).
11th Circuit reverses a consecutive term of 10 years for committing a felony while on release. (320) Under § 2J1.7 of the guidelines, commission of an offense while on release is assigned a base offense level of 6, and 6 more levels are added if the offense committed while on release was punishable by a term of 15 years or more, as was the case here. With a criminal history category III, the defendant should have been sentenced to serve a consecutive term of 15-21 months in addition to his 20 year sentence on the CCE charge. Absent reasons for departure, the district court improperly imposed a ten year consecutive sentence under § 3147. Thus, the sentence was vacated and remanded so that the district court could determine the appropriate sentence to be imposed in connection with his commission of the felony while on release. U.S. v. Martell, 906 F.2d 555 (11th Cir. 1990).
11th Circuit holds enhancement of perjury offense level for interference with administration of justice was improper. (320) Guideline § 2J1.3(b) states, “If the defendant’s perjury or subornation of perjury substantially interfered with the administration of justice, increase by three levels.” The commentary focuses on “the unnecessary expenditure of substantial governmental or court resources.” The district court applied the enhancement because the government spent 600 hours in investigation, probably caused by defendant’s false statements to the federal agents. On appeal, however, the government conceded that these hours, which were spent before defendant’s perjury, and were not caused by it, and should not have been used as the basis for the enhancement. The 11th Circuit agreed, and reversed the sentence. The court expressed no view on the government’s argument that, on remand these hours might be considered as the basis for a departure. U.S. v. Leeper, 886 F.2d 293 (11th Cir. 1989).
D.C. Circuit applies § 2J1.2(c)(1) enhancement to attempt to obstruct justice. (320) The FBI uncovered a kickback scheme that defrauded the Department of Education. Defendant was the chief financial officer of the DOE during the scheme and was friends with one of the participants. It was unclear what role he played in the scheme, but at the very least, he knew about the scheme and accepted hush money to keep quiet about it. After FBI sought an interview with a conspirator, defendant advised the conspirator to lie, and advised him to burn all copies of any incriminating documents. Defendant was convicted of witness tampering and obstruction of justice. Section 2J1.2(c)(1) provides for an enhancement where “the offense involved obstructing the investigation or prosecution of a criminal offense.” Defendant argued for the first time on appeal that (c)(1) applies only where a defendant actually tampers with a witness or an investigation, and not where he only made the attempt. The D.C. Circuit found no plain error. Every circuit to consider the issue has held that the (c)(1) enhancement covers attempts. U.S. v. Solofa, 745 F.3d 1226 (D.C. Cir. 2014).
D.C. Circuit holds that Apprendi does not apply to enhancement for committing offense while on release. (320) Because defendant committed his second drug offense while on release pending sentencing, USSG § 2J1.7 provided for a three-level increase in offense level, which increased his sentencing range from 108-135 months to a range of 151-188 months. Because § 2J1.7 applies only if “an enhancement under 18 U.S.C. § 3147 applies,” defendant argued that a court could not apply the three-level enhancement unless the jury finds that he committed the offense while on release. Because that did not happen here, defendant argued that the sentence enhancement was barred by Apprendi v. New Jersey, 530 U.S. 466 (2000). The D.C. Circuit held that Apprendi did not apply to the § 2J1.7 enhancement. Defendant was not separately charged and convicted under § 3147. The court merely sentenced him under the guideline for the drug offenses to which he did plead guilty, considering the fact that he committed an offense while on release, just as the court would have considered any other specific offense characteristic that adjusts an offense level upward. The fact that the offense characteristic specified here, committing the offense while on release, was specified by statute, does not matter. U.S. v. Samuel, 296 F.3d 1169 (D.C. Cir. 2002).
D.C. Circuit includes in tax loss amounts reported in later tax returns. (380) Defendants conspired to evade personal and corporate income taxes by failing to report certain income. When one of the conspirators resigned and refused to turn over incriminating tapes and documents he possessed, defendants either filed amended returns which accounted for these amounts or included the amounts in later tax returns. The D.C. Circuit affirmed that it was proper to include in the calculation of tax loss under section 2T1.1 the unreported income, even though it was properly accounted for in later returns. Tax loss under section 2T1.1 includes the amounts the taxpayer evaded or attempted to evade. The fact that the tax evasion object was not completed did not entitle defendants to a reduction under section 2X1.1(b)(2). The offense would have been completed but for the co-conspirator’s resignation and refusal to turn over the incriminating tapes and documents he possessed. U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993).
D.C. Circuit affirms enhancement for failure to appear based on offense charged. (320) Defendant was indicted on a charge of possession with intent to distribute five grams of cocaine base. He subsequently failed to appear for a status call. Defendant eventually was convicted of simple possession, a misdemeanor, and of failure to appear. The guideline provides that a sentence for failure to appear be enhanced in proportion to the maximum penalty authorized for the “underlying offense.” The D.C. Circuit rejected defendant’s argument that because the jury convicted him of only of possession, his sentence should not be enhanced on the basis of the felony with which he was charged. At the time defendant failed to appear for his status call before trial, only the offense of indictment was relevant. He could not have failed to appear with respect to any other crime. U.S. v. Williams, 932 F.2d 1515 (D.C. Cir. 1991).
Indiana District Court rules guideline sentence for criminal contempt is vested in the court’s discretion. (320) Because the guidelines provide no specific offense level for criminal contempt, the court must impose sentence based upon 18 U.S.C. § 3553(a)(2), which provides for the consideration of various factors. Moreover, § 2J1.1 directs the court to look for an analogous guideline. The court looked to § 2J1.2 (obstruction of justice). However, the court held that the guidelines did not apply to the defendant because his offense occurred prior to Nov. 1, 1987. The court imposed a 10 year sentence, which would have been a warranted departure from the guidelines, had they been applicable, given the nature of the defendant’s underlying fraud offense. U.S. v. Misenheimer, 677 F.Supp. 1386 (N.D. Ind. 1988).
Commission bars double-counting in child support cases. (320) Guideline § 2B1.1(b)(8)(C) provides an increase of two levels and a minimum offense level of level 10 if the offense involved “a violation of any prior, specific judicial or administrative order, injunction, decree, or process not addressed elsewhere in the guidelines.” Offenses under 18 U.S.C. § 228 are referenced in Appendix A to § 2J1.1 (Contempt), which provides in Note 2 that, in a case involving a violation of § 228, the most analogous guideline is § 2B1.1. The Second and Eleventh Circuits have held that applying § 2B1.1(b)(8)(C) in a § 228 case is permissible because the failure to pay the child support and the violation of the order are distinct harms. See U.S. v. Maloney, 406 F.3d 149, 153-54 (2d Cir. 2005); U.S. v. Phillips, 363 F.3d 1167, 1169 (11th Cir. 2004). However, the Seventh Circuit has held that applying subsection (b)(8)(C) in a § 228 case is impermissible double counting. See U.S. v. Bell, 598 F.3d 366 (7th Cir. 2010), overruled, U.S. v. Vizcarra, 668 F.3d 516 (7th Cir. 2012). The amendment resolves the conflict by amending the commentary to § 2J1.1 to specify that, in a case involving a violation of § 228, subsection(b)(8)(C) does not apply. Amendment 752, effective November 1, 2011.
Commission clarifies guidelines for committing offense while on release. (320) Section 3C1.3 (formerly §2J1.7, see Appendix C to the Guidelines Manual, Amendment 684) provides a three-level adjustment if the defendant is subject to the statutory enhancement at 18 U.S.C. § 3147—that is, if the defendant has committed the underlying offense while on release. Application Note 1 to §3C1.3 states that, in order to comply with the statute’s requirement that a consecutive sentence be imposed, the sentencing court must “divide the sentence on the judgment form between the sentence attributable to the underlying offense and the sentence attributable to the enhancement.” The Second and Seventh Circuits have held that, according to the terms of Application Note 2 to §2J1.7 (now Application Note 1 to §3C1.3), a sentencing court cannot apportion to the underlying offense more than the maximum of the guideline range absent the three-level adjustment. See U.S. v. Confredo, 528 F.3d 143 (2d Cir. 2008); U.S. v. Stevens, 66 F.3d 431 (2d Cir. 1995); U.S. v. Wilson, 966 F.2d 243 (7th Cir. 1992). In response, the Commission amended § 3C1.3 to clarify that the court determines the applicable guideline range for a defendant who committed an offense while on release and is subject to the enhancement at 18 U.S.C. § 3147 as in any other case. The court determines an appropriate “total punishment” using that applicable guideline range, and then divides the total sentence between the underlying offense and the Section 3147 enhancement as the court considers appropriate. Amendment 734, effective November 1, 2009.
Commission increases penalties for child sex offenses. (320) The Adam Walsh Child Protection and Safety Act of 2006 amended 18 U.S.C. § 2241(c) to add a new 30-year mandatory minimum for aggravated sexual abuse of a child. In response, the Commission increased the base offense level at § 2A3.1 from level 30 to level 38. Second, the Act increased the statutory maximum under 18 U.S.C. § 2243(b) for sexual abuse of a person in official detention, so the Commission increased the base offense level in § 2A3.3 from 12 to 14. Third, in response to a new subsection (a)(5) to 18 U.S.C. § 2244, the Commission increased the minimum offense level in the age enhancement in subsection (b)(1) of § 2A3.4 from level 20 to level 22. Fourth, the Act created a new offense under 18 U.S.C. § 2250(a) for failure to register as a sex offender, so the Commission created a new guideline, § 2A3.5, with three alternative base offense levels. Fifth, the Act created new aggravated offenses in 18 U.S.C. § 2250(c) and 2260A for committing various offenses while in a failure to register status, so the Commission adopted a new guideline at § 2A3.6 to cover this. Sixth, the Act added a 15-year mandatory minimum under 18 U.S.C. § 1591(b) (1) for sex trafficking of an adult by force, fraud, or coercion, so the Commission provided a new base offense level of 34 in § 2G1.1 for such convictions. Seventh, the Act added 10 and 15-year mandatory minimums under 18 U.S.C. § 1591(b)(1) for sex trafficking of children, so the Commission provided alternative base offense levels in § 2G1.3 for these statutes. Eighth, the Act created a new section, 18 U.S.C. § 2257A, adopting new recordkeeping obligations for visual depiction of simulated sexually explicit conduct, which the Commission referenced to § 2G2.5. Ninth, the Act created a new offense in 18 U.S.C. § 2252A(g) prohibiting engaging in child exploitation enterprises, for which the Commission set the base offense level at 35. Tenth, the Act increased the statutory maximum in 18 U.S.C. § 2252B(b) for knowingly using a misleading domain name with the intent to deceive a minor into viewing material harmful to minors on the Internet. In response the Commission expanded the scope of subsection (b)(2) of § 2G3.1. Eleventh, the Act added a new provision in 18 U.S.C. § 1001 for making materially false or fraudulent statements that relate to sex offenses, so the Commission added a new specific offense characteristic at subsection (b)(1)(A) of § 2J1.2. Amendment 701, effective November 1, 2007.
Commission clarifies three-level increase for committing new offense while on supervised release. (320) A defendant who commits a new offense while on supervised release is subject to a three-level increase under § 2J1.7. On November 1, 2006, the Commission deleted this guideline in favor of a new guideline at § 3C1.3 to ensure that the enhancement is not overlooked and is consistent with the other Chapter Three adjustments, all of which apply to a broad range of offenses. Amendment 684, effective November 1, 2006.
Commission increases sentences for false statements involving terrorism. (320) Section 6703 of the Intelligence Reform and Prevention Act of 2004, Pub. L. 108–458. provides an enhanced penalty of not more than eight years of imprisonment for false statements in violation of 18 U.S.C. §§ 1001(a) and 1505, “if the offense involves international or domestic terrorism (as defined in section 2331).” In response, the Commission adopted a temporary emergency amendment providing a 12-level increase under § 2J1.2 for false statements under 1001(a) and 1505 “when the statutory maximum term of imprisonment relating to international or domestic terrorism is applicable.” The amendment also added a definitions for “domestic terrorism” and “international terrorism” in Application Note 1. Finally, the terrorism guideline, § 3A1.4, was amended in Application Note 2 to instruct that if § 3A1.4 applies, then § 2J1.2(b)(1)(B) does not apply. Amendment 676, effective October 24, 2005.
Commission ensures incremental, consecutive penalty for failure to appear. (320) In its 1998 proposed amendments, the Sentencing Commission amended §§ 2J1.6, 2P1.2, 3D1.1, 3D1.2 and 5G1.2 to ensure that there would be an incremental, consecutive penalty for defendants convicted of failure to appear. Specifically, the amendment more clearly distinguishes between statutes that require imposition of a consecutive term of imprisonment and statutes that require both a minimum term of imprisonment and a consecutive sentence. The amendment adds an upward departure provision if the offense involves multiple obstructive acts. The amendment also addresses a circuit conflict over whether grouping the failure to appear count with the count of conviction for the underlying offense violates the statutory mandate to impose a consecutive sentence. Compare U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993) (grouping rules apply) with U.S. v. Packer, 70 F.3d 357 (5th Cir. 1995), cert. denied, 117 S.Ct. 75 (1996) (grouping rules defeat statutory purposes of 18 U.S.C. § 3146). Amendment 579, effective November 1, 1998.
Commission clarifies that sentence for failure to appear is to be imposed consecutively. (320) Effective November 1, 1991, the Commission amended Application Note 3 to section 3J1.6 to clarify that in the case of a failure to appear to serve a sentence, any term of imprisonment imposed on the failure to appear is to be imposed consecutively. In addition, Application Note 4 was added to instruct the criminal history points for the underlying offense are to be counted in determining the guideline range on the failure to appear offense only where the offense constituted a failure to report for service of sentence.