§460 Adjustment for Obstruction of Justice
Supreme Court says defendant’s perjury can justify increase for obstruction. (460) The district court increased defendant’s sentence for obstruction of justice under section 3C1.1 after she testified untruthfully at trial. The Fourth Circuit reversed, finding that an increase based on a defendant’s perjury at trial would be unconstitutional. U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991). Writing for a unanimous court, Justice Kennedy ruled that if the accused has committed perjury at trial, enhancement is required by the guidelines and is not in violation of the defendant’s privilege to testify. The district court must review the evidence and make independent findings to establish a willful obstruction or an attempt to obstruct justice. A witness testifying under oath commits perjury under federal law if he or she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake or faulty memory. U.S. v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111 (1993).
3d Circuit says throwing firearm away during flight created substantial risk of serious bodily injury. (460) Section 3C1.2 provides a two-level increase if defendant recklessly created a substantial risk of death or serious bodily injury during flight from a law enforcement officer. A police officer approached defendant with his gun drawn, and defendant, in possession of a firearm, ran from the officer. Defendant then threw the loaded firearm down a residential street, where at least one civilian was present. At defendant’s sentencing for possession of a firearm by a felon, the district court enhanced defendant’s offense level under § 3C1.2. The Third Circuit held that defendant was fleeing from the police officer (not engaging in a “reflexive response”) and that throwing the firearm created a substantial risk to another person. U.S. v. Gray, __ F.3d __ (3d Cir. Nov. 8, 2019) No. 18-3663.
D.C. Circuit finds collateral attack on guideline was procedurally defaulted. (460)(880) In 1994, defendant was convicted of racketeering and drug offenses and sentenced to life in prison. His offense level would have been 52, based partly on an increase for reckless endangerment under § 3C1.2, but the guidelines cap offense levels at 43. After the Supreme Court held in Johnson v. U.S., 135 S.Ct. 2551 (2015), that the residual clause in the Armed Career Criminal Act was unconstitutionally vague, defendant claimed that a similar provision in guideline § 3C1.2 was also void for vagueness. The D.C. Circuit held that defendant had procedurally defaulted this claim by failing to raise it at sentencing or on direct appeal. Because the enhancement in § 3C1.2 could not have affected his offense level, defendant could not show actual prejudice. U.S. v. Hicks, __ F.3d __ (D.C. Cir. Dec. 27, 2018) No. 17-3005.
8th Circuit declines to review enhancement where court would have imposed same sentence regardless. (460)(850) Defendant was convicted of conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a). He was subject to a mandatory minimum 240-month sentence because he had a prior felony drug conviction. At sentencing, the district court added two levels for obstruction of justice under § 3C1.1, but stated that it would impose the same mandatory minimum sentence regardless of whether the enhancement applied. On appeal, the Eighth Circuit declined to review the enhancement because the district court clearly stated that it would have imposed the same sentence regardless. U.S. v. Mayfield, __ F.3d __ (8th Cir. Nov. 28, 2018) No. 17-3211.
10th Circuit agrees that defendant recklessly created substantial risk to another while fleeing from police. (460) Defendant challenged a §3C1.2 enhancement for reckless endangerment during flight. Defendant was sleeping and intoxicated in his vehicle when police surrounded him and ordered him to show his hands. Rather than comply, defendant started his vehicle and rammed a police vehicle parked behind him, leading the district court to find reckless endangerment of the police. Defendant argued that he reacted instinctively, having just been awoken by individuals he mistakenly thought to be assailants. The Tenth Circuit upheld the reckless endangerment enhancement, ruling that the district court did not clearly err in finding that defendant knew he was surrounded by police. The court acknowledged that defendant had not heard the officers identify themselves as police. However, the court noted that the police had ordered defendant to show his hands, and that defendant could have seen the police through the windows of his car. These findings were not clearly erroneous. U.S. v. Simpson, 845 F.3d 1039 (10th Cir. 2017).
7th Circuit requires additional consecutive sentence for failure to appear for sentencing. (460)(470) After being convicted of four tax fraud charges, defendant failed to appear for his sentencing hearing. He later pled guilty to failure to appear, in violation of 18 U.S.C. §3146(a)(1). Guideline §3C1.3 requires a three-level enhancement for violations of 18 U.S.C. §3147. Section 3147, in turn, provides that a defendant convicted of an offense while released shall be subject to an additional punishment of no more than 10 years. Defendant argued that the district court erred by imposing the §3C1.3 enhancement. He contended that 18 U.S.C. §3147 (and guideline §3C1.3, in turn) did not apply to him. The Seventh Circuit upheld the §3C1.3 enhancement, ruling that 18 U.S.C. §3147, through guideline §3C1.3, can enhance a sentence for failure to appear under 18 U.S.C. §3146. Section 3147 provides, without exception, that a defendant “convicted of an offense committed while released under this chapter [Chapter 207] shall” be subject to an additional punishment of no more than 10 years. Failure to appear for sentencing, in violation of 18 U.S.C. §3146, of course, was an “offense”“ under Chapter 207 of Title 18, and it was “committed while released.” Imposing an enhancement under §3147 and U.S.S.G. §3C1.3 was not improper double counting. U.S. v. Marcotte, __ F.3d __ (7th Cir. June 13, 2015) No. 15-1266.
6th Circuit remands to reconsider whether defendant willfully failed to attend hearing. (460) While on pretrial release, defendant failed multiple drug tests, and then failed to appear at a bond revocation hearing. The pretrial services officer made several attempts to contact him, and the court issued an arrest warrant. He was arrested a year later and pled guilty. The district court applied a §3C1.1 obstruction of justice enhancement based on defendant’s pretrial conduct. The court initially expressed reservations that defendant might have confused the date of the hearing, but applied the increase because defendant also repeatedly failed to contact the pretrial services office, failed to submit his monthly reports, and failed to attend a mandatory meeting with his pretrial services officer. The Sixth Circuit agreed that these events suggested that defendant intentionally failed to attend the hearing. However, there was some evidence suggesting that defendant might have been in state custody on the date of the hearing he missed. Since the case was being remanded on other grounds, on remand, the district court could consider the defendant’s willfulness in missing the hearing. U.S. v. Henry, __ F.3d __ (6th Cir. Apr. 8, 2016) No. 15-5578.
7th Circuit reverses for lack of finding that conduct was related to offenses of conviction. (170)(330)(460) Defendant was one of three armed men who robbed a bank. They were arrested over a month later after a high-speed chase. Based on the high-speed chase, the district court applied enhancements under §3C1.2 (reckless endangerment during flight) and §2K2.1(b)(6)(B) (use of a firearm “in connection with” another felony). The Seventh Circuit agreed with defendant that the relevant conduct guideline, §1B1.3(a) required that these enhancements be related to the offense of conviction, and the court erred by failing to make findings on this issue. The application notes to §2K2.1(b)(6)(B) refer directly to §1B1.3(a), making clear that the firearm in question must be “part of the same course of conduct or common scheme or plan” as the offense of conviction. The connection between §§1B1.3(a) and 3C1.2 was similarly undeniable. Here, the district court made no findings that would support the conclusion that the offenses of conviction, all of which stemmed from the robbery, were connected to the behavior underlying the two enhancements applied here. Applying the enhancements without such a finding was error. U.S. v. Seals, __ F.3d __ (7th Cir. Feb. 23, 2016) No. 15-1372.
9th Circuit reiterates that obstruction need not actually hinder investigation. (460) Defendant was charged with committing perjury in testimony to a grand jury, in violation of 18 U.S.C. §1623. At trial, he testified inconsistently with his grand jury testimony. On appeal, he argued that he should not receive an enhancement for obstruction of justice under §3C1.1 because his trial testimony did not impede the jury’s deliberations or the government’s investigation of his perjury. The Ninth Circuit reiterated prior decisions in holding that a defendant can receive an obstruction enhancement even if his obstruction did not actually impede an investigation or trial. U.S. v. Johnson, __ F.3d __ (9th Cir. Feb. 5, 2016) No. 14-10113.
1st Circuit says reckless endangerment and possessing firearm in another felony not double counting. (125)(330)(460) Defendant pled guilty to illegal possession of a firearm. The district court applied a two-point enhancement under §3C1.2 for reckless endangerment during flight. Defendant argued that this was improper double counting because the conduct that formed the basis for the enhancement—leading the troopers on a high speed chase—had already been taken into account when the district court applied the four-point increase under §2K2.1(b)(6)(B) for possessing the firearms “in connection with another felony offense.” The First Circuit found no double counting. Although the district court cited defendant’s high-speed chase in applying the §2K2.1(b)(6)(B) enhancement, it also cited defendant’s burglary of the home from which the firearms were stolen. Since the burglary alone was plainly an uncharged felony, and defendant admitted the burglary in a sentencing memo, any reliance by the district court on the car chase was unnecessary. U.S. v. MacArthur, 805 F.3d 385 (1st Cir. 2015).
11th Circuit finds “reckless endangerment” based on resisting arrest with loaded gun in pocket. (460) A police officer frisked defendant and found a loaded handgun in defendant’s pocket. Defendant fought with the officer for over three minutes in an attempt to flee. Defendant was ultimately arrested, and pled guilty to being a felon in possession of a firearm. The Eleventh Circuit upheld a §3C1.1 enhancement, agreeing that defendant “recklessly created a substantial risk of death or serious bodily injury to another person,” when he resisted arrest with a loaded handgun in his pocket. Defendant wrestled with the officer for “[w]ell over three minutes,” while the officer “held onto the [loaded] revolver” in his pocket. Even if defendant did not reach for the gun (the testimony was unclear), the officer could have unintentionally pulled the trigger during the struggle. The handgun also could have accidentally discharged when it fell out of defendant’s pocket. Struggling with a police officer for three minutes in a residential neighborhood while the officer has his hand on a loaded handgun in the offender’s pocket was undoubtedly reckless and created a substantial risk of death or serious bodily harm to a third party. U.S. v. Matchett, __ F.3d __ (11th Cir. Sept. 21, 2015) No. 14-10396.
4th Circuit says reckless endangerment increase requires defendant to know he is being pursued by police. (460) The district court enhanced defendant’s sentence under §3C1.2, for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” Defendant conceded on appeal that he drove recklessly, but argued that the enhancement did not apply because he was not aware that he was being pursued by a law enforcement officer. The Fourth Circuit agreed that the enhancement applies only when the defendant knows he is being pursued by law enforcement. Here, defendant was already speeding when the police encountered him traveling in the opposite direction, and defendant was no longer in sight when the officer activated his siren and turned around to follow him. Because the district court made no separate finding that defendant was aware that he was being pursued by police, the panel remanded so the district court could apply this newly-announced understanding of §3C1.2. U.S. v. Shell, __ F.3d __ (4th Cir. June 12, 2015) No. 14-4211.
2nd Circuit says Note 5 to §3C1.2 provides standard for reckless endangerment increase based on co-defendant’s conduct. (460) Defendant left the scene of a bank robbery in a getaway car driven by his co-defendant, Sherrod. The vehicle lead police on a high speed chase before ultimately crashing. In support of a §3C1.2 enhancement for reckless endangerment during flight, the government submitted testimony that defendant encouraged Sherrod to flee from police. The district court found it was unnecessary to make any factual finding on this issue because, under the relevant conduct rules of §1B1.3(a)(1)(B), it was sufficient that defendant could have reasonably foreseen that Sherrod would drive the getaway car in a reckless manner. The Second Circuit reversed, holding that Application Note 5 to §3C1.2, not §1B1.3(a)(1)(B), provided the proper standard for applying §3C1.2 based on a co-defendant’s foreseeable conduct. Under Note 5, the court may not apply the §3C1.2 enhancement unless the defendant “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer” or that he “aided[,] abetted,” or otherwise contributed to the creation of such a risk in one of the enumerated ways. The district court erred by applying the enhancement based on a finding that defendant could have reasonably foreseen that his co-defendant would recklessly endanger others while fleeing. U.S. v. McCrimon, __ F.3d __ (2d Cir. June 4, 2015) No. 14-1929.
1st Circuit says departure based on additional obstruction was improper. (460) Defendant and his brother robbed a gun dealership at gunpoint. He received an upward adjustment based on his perjury at trial. The district court also departed upward in part based on defendant’s obstruction of justice, citing (1) defendant’s flight from justice (he evaded arrest for four years), and (2) his extensive perjury, beyond perjury at trial. The First Circuit agreed with defendant that it was not proper to depart based on defendant’s flight from justice. The commentary to the obstruction enhancements lists avoiding or fleeing from arrest as a type of conduct that “ordinarily does not warrant application of this adjustment. The court should have taken this commentary into account when considering whether to apply this departure provision. In addition, there was not an adequate factual predicate for the court’s finding at sentencing that the defendant provided false information to the court and the probation office beyond the perjurious testimony he provided at trial. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit finds no double counting where enhancements were based on two distinct sets of facts. (460) Defendant argued that the district court double counted when it increased his offense level under § 3A1.2(b) (assaulting a law enforcement officer) and § 3C1.2 (recklessly creating substantial risk of bodily harm in the course of fleeing from officers). The First Circuit found no double counting, since the enhancements were based on two distinct sets of facts. The high-speed car chase culminated in the firing of shots in a public area. This behavior put at risk the safety of bystanders as well as police officers. This set of events was distinct from defendant’s firing of a pistol at pursuing officers while fleeing from the scene of the crash. This latter conduct, in and of itself, put others in harm’s way. Each set of events independently warranted an upward adjustment under either or both of the guidelines at issue. U.S. v. Alicea, 205 F.3d 480 (1st Cir. 2000).
1st Circuit rules reckless endangerment was grounds for departure, not enhancement. (460) The district court departed upward in part because at the time of his arrest, defendant led police on a high speed chase along the wrong side of a divided highway. Defendant pointed out that the 1990 guidelines, not applicable to him, added a new provision specifically requiring a two point enhancement in such circumstances under section 3C1.2(b). The 1st Circuit held that the district court properly used the reckless endangerment as a grounds for departure, rather than a section 3C1.2(b) enhancement. Application of the new guideline, which would have required a two-level increase, would have violated the ex post facto clause. Under the earlier 1989 guidelines, the matter was properly left to the court’s departure-related discretion. U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).
1st Circuit finds obstruction notwithstanding irrelevance of lie to guidelines calculations. (460) Defendant told the probation officer that he failed to appear for sentencing because he was traumatized by his wife’s illness. The 1st Circuit concluded that a lie on this issue would be material, and therefore justify an adjustment for obstruction of justice, even though it would not affect determination of defendant’s guidelines scores. The statement was designed to mitigate defendant’s culpability for his offense, and it could have influenced the court’s decision of where within the guidelines range to sentence defendant. The district court’s determination that defendant had overstated the severity of his wife’s illness was not clearly erroneous. U.S. v. Agoro, 996 F.2d 1288 (1st Cir. 1993).
1st Circuit says obstruction amendment requiring investigation to be impeded was a clarification. (460) Defendant received an enhancement for obstruction of justice because he made false statements to investigators after his arrest. After he was sentenced, the commentary to section 3C1.1 was amended effective November 1, 1990 to provide that materially false statements to police that “significantly obstructed or impeded the official investigation or prosecution of the instant offense” warrant an enhancement, but other false statements, not under oath, to police do not. The 1st Circuit held that this amendment was a clarification, rather than a substantive change to section 3C1.1, and therefore should be applied to defendant’s sentencing. The case was remanded for a determination of whether defendant’s statements significantly obstructed the official inquiry. Isabel v. U.S., 980 F.2d 60 (1st Cir. 1992).
1st Circuit reviews obstruction enhancement de novo. (460) The 1st Circuit reviewed de novo whether defendant’s conduct was encompassed with the scope of guideline section 3C1.1. U.S. v. Manning, 955 F.2d 170 (1st Cir. 1992).
1st Circuit holds district court must apply obstruction enhancement for defendant’s perjury. (460) At sentencing, the district court found that defendant committed perjury at a hearing on his motion to withdraw his guilty plea. However, the court declined to impose an enhancement under guideline section 3C1.1 for obstruction of justice because the perjury was committed before a judge, not a jury, and the perjury was “hopelessly transparent.” The 1st Circuit reversed, holding that where a defendant perjures himself before the court, the court is without discretion and must impose the two-point enhancement for obstruction of justice. Perjury need not be likely to be successful in order to warrant the enhancement. The fact that the perjury was before a judge rather than a jury was not relevant. U.S. v. Austin, 948 F.2d 783 (1st Cir. 1991).
1st Circuit refuses to require obstruction enhancement where defendant’s testimony was in conflict with court’s findings. (460) The government argued that the district court improperly failed to enhance defendant’s sentence for obstruction based upon defendant’s testimony at trial. Defendant had denied possessing a key to an apartment, yet the district court found defendant was a manager based on the court’s determination that defendant possessed the key. The jury’s finding of guilt was further evidence of perjury, since defendant’s version of the facts was in almost total conflict with the testimony of the government witnesses. The 1st Circuit rejected these arguments. The fact that a sentencing judge bases his or her decision to increase a defendant’s offense level on a fact which the defendant’s own testimony negated during trial does not require the court to enhance the defendant’s sentence for obstruction of justice. Moreover, “to hold that a jury’s verdict of guilty beyond a reasonable doubt on the basis of evidence which was in direct conflict with a defendant’s testimony signals perjury would in effect amount to punishing a defendant for exercising his right to take the witness stand in his own defense.” U.S. v. Martinez, 922 F.2d 914 (1st Cir. 1991).
1st Circuit rules obstruction of justice precludes acceptance of responsibility reduction. (460) A drug defendant argued that the District Court erroneously refused to grant him a two point decrease in his offense level for acceptance of responsibility (§ 3E1.1). The 1st Circuit affirmed the denial, holding that in accordance with Application Note 4 to that section, a defendant who makes false statements or otherwise obstructs justice is not entitled to the adjustment. The District Court had found that the defendant had misrepresented his identity and citizenship to a magistrate and immigration officer. Since this finding was not clearly erroneous, the District Court’s determination would not be disturbed. Furthermore, it is proper to use false statements to both deny the reduction and increase the offense level for obstruction of justice under § 3C1.1. U.S. v. Mata-Grullon, 887 F.2d 23 (1st Cir. 1989).
2nd Circuit applies § 3147 to defendant who continues same offense while on release. (460) Defendant was convicted at trial on charges arising from an elaborate, years-long financial fraud. He continued to take actions in furtherance of the conspiracy to defraud even after he was arrested and released awaiting trial for that same charge. The district court applied 18 U.S.C. § 3147, which enhances the sentence of “[a] person convicted of an offense committed while released.” Defendant argued this was error because he did not commit a separate or additional offense while on release, but only continued to commit the conspiracy. The Second Circuit rejected this distinction, holding that § 3147 applies to a defendant who continues the same offense while on release. Although language in the background commentary to § 3C1.3 refers to “another” federal offense, the text of § 3417 makes clear that it is applicable whenever “[a] person” is “convicted of an offense committed while released.” The statute in no way indicates that the offense committed while on release must be a separate or second offense. U.S. v. Gowing, 683 F.3d 406 (2d Cir. 2012).
2nd Circuit declines to consider claim that court improperly allocated sentence between underlying offense and § 3147 increase. (460) Defendant was convicted of fraud conspiracy charges, and received an enhanced sentence under 18 U.S.C. § 3147 for committing an offense while on release. After applying the three-level enhancement in U.S.S.G. § 3C1.3 (which implements § 3147), the district court calculated defendant’s guidelines range as 235-293 months. It sentenced him to 264 months, and then apportioned 240 months to the conspiracy, and an additional consecutive 24 months for § 3147. Defendant argued for the first time on appeal that this allocation violated the procedure set forth in U.S. v. Stevens, 66 F.3d 431, 436 (2d Cir.1995), which would require allocating less of the sentence to the conspiracy charge and more to § 3147, without changing the overall sentence. The Second Circuit declined to consider this argument. Defendant’s claim of error was hardly plain, given the end of mandatory guideline sentencing after Booker, and the Commission’s apparent rejection, in 2009 amendments, of Stevens. See U.S.S.G. app. C, vol. III, Amend. 734 (2009). Moreover, even if defendant could show error, he did not articulate how that error affected his substantial rights given that his overall sentence was unaffected. U.S. v. Gowing, 683 F.3d 406 (2d Cir. 2012).
2nd Circuit affirms reckless endangerment increase for throwing loaded handgun into area where children were playing. (460) Defendant was convicted of being a felon in possession of a firearm. The Second Circuit affirmed a reckless endangerment enhancement under § 3C1.2 based on defendant’s throwing the loaded handgun in an area where children were playing. Such conduct undoubtedly created a substantial risk of death or serious bodily injury to those children and to the other bystanders, and was a gross deviation from the standard of care that a reasonable person would exercise in such a situation. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit says guidelines mandated grouping of obstruction count with fraud count to avoid double counting. (460) The district court divided defendant’s convictions into two groups: the first consisting of a Hawaii passport fraud, bail-jumping and obstruction of justice counts, and the second count containing only a New York passport fraud count. The Second Circuit found that the court’s enhancement of the New York passport count by two levels under § 3C1.1 for obstruction of justice, while at the same time separately grouping an obstruction count predicated on the same underlying behavior, violated § 3D1.2(c). Note 5 to § 3D1.2 provides that when conduct that represents a separate count is also a specific offense characteristic, the count represented by the conduct is to be grouped with the count to which it constituted an aggravating factor. This provision mandated the grouping of the obstruction count and the New York passport fraud count once the court enhanced the latter by two levels based on the same obstructive behavior. U.S. v. Leung, 360 F.3d 62 (2d Cir. 2004).
2nd Circuit says court must evaluate defendant’s false statements under current standard. (460) While jailed with their co-conspirators, defendants held discussions about what should be said in the grand jury when the co-conspirators were called to testify. The district court analyzed the co-conspirators’ trial testimony, and found that it could not conclude that defendants directed anyone to lie or obstruct justice. The court found it plausible that the discussions were merely speculative and defendants simply suggested that no one need volunteer extra information. The Second Circuit held that the court erroneously evaluated defendants’ statement in the “light most favorable” to the defendants. This language was taken from Note 1 to the 1995 version of the guidelines. However, a November 1997 amendment which became applicable before defendants’ sentencing removed the “most favorable” language and advised courts simply to “be cognizant that inaccurate testimony or statements sometimes may result from confusion, mistaken, or faulty memory and, thus, not all inaccurate testimony or statements necessarily reflect a willful attempt to obstruct justice.” On remand, the court must evaluate the statements under the current standard. U.S. v. Greer, 285 F.3d 158 (2d Cir. 2002).
2nd Circuit holds that defendant recklessly endangered others during flight from police. (460) When police attempted to arrest him, defendant put his Jeep into reverse, jumped it onto the sidewalk, nearly hitting a police vehicle, and sped the wrong way up a one-way street. Carmecci, a nearby police officer, pursued defendant for about two miles at speeds in excess of 70 miles per hour in a 50-mile-per-hour zone. Defendant drove erratically, changing lanes. Carmecci finally apprehended defendant when he stopped at a toll line. The Second Circuit affirmed a § 3C1.2 increase for recklessly endangering others during flight from police. The panel rejected defendant’s claim he was not actually “in flight” from the police because he was not aware of Carmecci’s presence. Carmecci activated his lights and sirens and closed to within 100 feet of defendant. Moreover, although defendant claimed he would have avoided the toll plaza by exiting the highway if he had known he was being pursued, he could not have negotiated the exits while driving 70 miles per hour. The district court did not clearly err in finding that defendant “recklessly created a substantial risk of death or serious bodily injury to another person” during his flight. From the moment defendant was confronted by police, he acted with gross disregard for the consequences of his dangerous driving, from reversing and almost hitting a police vehicle, to speeding the wrong way on a one-way street, to driving significantly over the speed limit while weaving from lane to lane. U.S. v. Williams, 254 F.3d 44 (2d Cir. 2001).
2nd Circuit holds that obstruction increase cannot be offset by departure for “aberrant” perjury. (460) At trial, defendant testified over a two-day period during which she repeatedly denied any knowing involvement in the charged offenses. The jury discredited this testimony and convicted her. In seeking to qualify for safety valve protection, defendant admitted that she had lied at trial. She claimed that she had testified falsely in response to threats made by certain co-conspirators who had told her to keep quiet. After imposing the obstruction of justice increase required by defendant’s confession of perjury, the district court determined that the perjury was “aberrant behavior” warranting an offsetting two-level downward departure. The Second Circuit reversed. Nothing in § 3C1.1 remotely suggests that its mandatory upward adjustment is inapplicable to “aberrant” perjury, or could otherwise be offset or conditioned in this way. Although previous cases have approved “aberrant behavior” departures, see, e.g., Zecevic v. U.S., 163 F.3d 731 (2d Cir. 1998), superseded by rule as stated in U.S. v. Gonzalez, 281 F.3d 38 (2d Cir. 2002), and this concept is now largely codified in § 5K2.20, there is no suggestion that it may also constitute an implied exception to every sentence adjustment. If each individual sentence adjustment were itself subject to nullification on the grounds of aberrance, the entire calculus of the guidelines and its purpose to limit sentencing disparities would be rendered problematic. U.S. v. Ortiz, 251 F.3d 305 (2d Cir. 2001).
2nd Circuit finds record unclear on whether court applied obstruction enhancement. (460) Defendant challenged his receipt of a two-level obstruction of justice enhancement. The Second Circuit remanded because the record was unclear on whether the court actually imposed the § 3C1.1 enhancement. Defendant’s PSR recommended the enhancement. Although the district court never expressly found that defendant obstructed justice, it adopted most of the PSR’s recommendations. However, although the PSR recommended an offense level of 32; the district court, without explanation, found the offense level was 30. Because the district court failed to explain how it reached the base offense level of 30, it was impossible to conduct meaningful review. Moreover, the record, as it stood now, did not support the enhancement. Because defendant objected to the PSR’s proposed § 3C1.1 enhancement, the district court was required to make specific, clear and reviewable findings as to whether defendant intended to obstruct justice. The district court did not resolve defendant’s challenge and the record did not contain the required findings. U.S. v. Bradbury, 189 F.3d 200 (2d Cir. 1999).
2nd Circuit affirms upward departure for multiple acts of obstruction. (460) Defendant pled guilty to drug charges. He failed to appear for sentencing and was re-arrested. On the day of sentencing, he gave documents to his attorney purporting to show he had committed the offense when he was 16 and had absconded when he was only 17 years old. The judge found the documents were fraudulent. The Second Circuit affirmed an upward departure based on defendant’s “renewed and repeated” obstruction of justice. A court may depart for reasons taken into consideration in the guidelines if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate. Defendant’s case presented such circumstances. He obstructed justice more than once through wholly discrete and unrelated acts. Defendant intended to mislead the court about his age in order to be sentenced as a juvenile and submitted a number of fraudulent documents to the court to support that claim. The misrepresentations caused considerable delay and required investigation by a number of officials. In addition, defendant failed to appear for sentencing. U.S. v. Ventura, 146 F.3d 91 (2d Cir. 1998).
2nd Circuit upholds obstruction increase even though § 1001 conviction was vacated. (460) Defendant was convicted of several Food, Drug and Cosmetic Act violations, and one count of making a false statement to the United States in violation of 18 U.S.C. § 1001. On appeal, the Second Circuit vacated the § 1001 conviction because the element of materiality was not submitted to the jury. The conduct underlying this conviction—a false statement to FDA investigators during the execution of a search warrant at defendant’s home—also resulted in an obstruction of justice enhancement. The Second Circuit upheld the obstruction of justice enhancement even though the § 1001 conviction was vacated. Although the definition of materiality was the same in both contexts, the question of whether a false statement is material for purposes of the § 3C1.1 enhancement is for the sentencing judge, rather than the jury. Therefore, although the failure to instruct the jury on materiality voided the § 1001 conviction, there was a sufficient basis to support the court’s finding of materiality and the obstruction enhancement. U.S. v. Ballistrea, 101 F.3d 827 (2d Cir. 1996).
2nd Circuit holds obstruction adjustment mandatory for perjury. (460) Defendant told an entirely exculpatory story at trial but was convicted. The 2nd Circuit concluded that the district court erred in declining to impose an obstruction of justice adjustment on the belief that imposition was discretionary. The jury’s verdict indicated that it disbelieved defendant, as did the judge’s comment that defendant’s story was “entirely incredible.” When the factual predicates for the obstruction adjustment are satisfied, the adjustment must be imposed. U.S. v. Friedman, 998 F.2d 53 (2nd Cir. 1993).
2nd Circuit reverses downward departure which was based upon defendants’ civil contempt penalty for obstruction. (460) Defendants received civil contempt sentences as a result of their refusal to provide the court with handwriting exemplars. Since defendants were already in pretrial detention, the civil contempt sentence resulted in defendants’ not being given credit for time spent in custody before trial. At sentencing, the court enhanced defendants’ sentences for obstruction of justice based on the failure to provide the exemplars, but offset this increase with an equivalent downward departure, concluding that the guidelines did not consider the imprisonment for civil contempt. The 2nd Circuit reversed, disagreeing with the district court’s equation of the goals of civil contempt and the sentence enhancement for obstruction of justice. The court also found the extent of the departures unreasonable, since they exceeded the amount of time served for civil contempt. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
2nd Circuit reverses for failure to consider psychiatric evidence relevant to defendant’s obstructive conduct and acceptance of responsibility. (460) At the sentencing hearing, defendant asserted that his acts obstructing justice were not willful. He offered the testimony of the jail psychiatrist, asserting that the doctor’s testimony would establish that his obstructive behavior was the result of his mental and physical condition. The district court refused to hear the doctor’s testimony, stating simply that it would not consider the doctor’s comments — which the defendant argued had been misquoted in the presentence report. The 2nd Circuit reversed, holding that U.S.S.G. 3C1.1 contains a clear mens rea requirement that limits its scope to those who “willfully” obstruct justice. Thus the district court erred in excluding the doctor’s medical opinion concerning the defendant’s condition as it related to obstructive conduct. Moreover, since obstruction of justice generally precludes a finding of acceptance of responsibility, the district court’s action also denied defendant the opportunity to establish that he accepted responsibility. U.S. v. Altman, 901 F.2d 1161 (2nd Cir. 1990).
2nd Circuit holds that standard of review of obstruction enhancement depends on nature of issue on appeal. (460) The 2nd Circuit noted that while a district court’s determination of whether a defendant obstructed justice is typically reviewed as a factual finding under the clearly erroneous standard, the issue here — whether mere flight from the crime scene constitutes willful obstruction — turned primarily on the legal interpretation of a guideline term. Consequently the court applied the de novo standard of review. U.S. v. Stroud, 893 F.2d 504 (2nd Cir. 1990).
2nd Circuit holds defendant’s perjury at trial should have been considered as “obstruction” rather than basis for departure. (460) The district court stated that it was departing from the guidelines because the defendant “committed perjury” at trial. The Second Circuit noted that the departure would have been unnecessary if the court had found that the perjury constituted “obstruction of justice,” because it could have increased the sentence by two levels under § 3C1.1 which would have put the defendant’s 96-month sentence within the guideline range. Accordingly the court remanded the case to permit the district court to determine whether to impose the “obstruction” adjustment. U.S. v. Sanchez Solis, 882 F.2d 693 (2nd Cir. 1989).
3rd Circuit holds that § 3147 can increase statutory maximum for underlying offense. (460) Under 18 U.S.C. § 3147(1), a person convicted of an offense committed while pretrial release shall be sentenced, in addition to the sentence for the original offense, to “a term of imprisonment of not more than 10 years if the offense is a felony.” The term of imprisonment imposed under § 3147 must be consecutive to any other sentence. The statutory maximum sentence for defendant’s underlying offense, possession of ammunition by a felony, was ten years. The district court sentenced defendant to 138 months, comprised of two consecutive terms: 96 months for the possession of ammunition offense, and a consecutive 42 months on the § 3147 violation. Defendant argued that the district court committed plain error because it imposed a sentence exceeding the statutory maximum for the underlying crime and treated § 3147 as a separate offense. The Third Circuit held that § 3147 can increase by ten years the statutory maximum sentence for the underlying felony offense committed while on pretrial release. However, because § 3147 is not a separate offense, but a sentencing enhancement, the court did err in sentencing defendant as if he had two convictions. U.S. v. Lewis, 660 F.3d 189 (3d Cir. 2011).
3rd Circuit says obstruction guidelines does not require defendant be aware of investigation at time of obstruction. (460) On three separate occasions, November 6, 1996, March 19, 1997, and March 4, 1999, defendant failed to appear in state court on firearms charges. On March 3, 1999, a federal prosecutor began preparing a federal complaint against him. The district court imposed an obstruction of justice increase based on defendant’s failure to appear in state court. Defendant argued that he was incapable of “willfully” obstructing justice because he was unaware of the federal investigation on March 4. The Third Circuit held that the obstruction guideline does not require a defendant be aware of the federal investigation at the time of the obstructive conduct. The ordinary meaning of “willfully” is “deliberately or intentionally”; in other words, “not negligently, inadvertently, or accidentally.” Defendant’s failure to appear in state court was an intentional action, taken with full awareness of the proceedings. Nonetheless, the enhancement was improper here, since there was no evidence that the federal proceedings were obstructed or impeded in any way by defendant’s conduct. Defendant’s failure to appear in state court before his federal indictment had no effect whatsoever on the later federal proceedings. Without some nexus between the obstruction and the federal offense, § 3C1.1 is inapplicable. U.S. v. Jenkins, 275 F.3d 283 (3d Cir. 2001).
3rd Circuit holds Apprendi does not require obstruction increase to be submitted to jury. (460) The Third Circuit rejected defendant’s argument that he was entitled to have the obstruction of justice issue submitted to a jury. He was not convicted of obstruction, but simply had his sentence increased under guideline § 3C1.1. The Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) is not implicated when the actual sentence imposed does not exceed the statutory maximum. U.S. v. Williams, 235 F.3d 858, 863 (3d Cir. 2000). In addition, Williams stated that Apprendi did not purport to limit the factors that a sentencing judge could consider in imposing a sentence below the statutory maximum. See also U.S. v. Pressler, 256 F.3d 144, 159 (3d Cir. 2001). Here, the sentence fell well below the statutory limit. U.S. v. DeSumma, 272 F.3d 176 (3d Cir. 2001).
3rd Circuit upholds departure by analogy to obstruction for fleeing to Cuba. (460) 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).
4th Circuit says reckless endangerment increase requires active or direct participation in flight. (460) The driver of the car in which defendant was a passenger attempted to evade police by driving the wrong way on a one-way street before colliding with the median. Section 3C1.2 provides for an increase “if the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” The district court found that it was reasonably foreseeable to defendant that her co-defendant might attempt to elude arrest. Note 5 to § 3C1.2 says a fleeing defendant is “accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused.” Joining the Eleventh, Tenth and Ninth Circuits, the Fourth Circuit held that some form of direct or active participation consistent with Note 5 is necessary in order for § 3C1.2 to apply. Here, the record was incomplete as to whether defendant’s own conduct met the Note 5 standard. U.S. v. Chong, 285 F.3d 343 (4th Cir. 2002).
4th Circuit upholds enhancement for official victim rather than reckless endangerment. (460) When a state trooper attempted to arrest defendant for marijuana possession, defendant seized the trooper’s gun and escaped. He argued that he should have received a two level adjustment under section 3C1.2(b) (Reckless Endangerment During Flight) rather than the three-level adjustment he received under section 3A1.2(b) (Official Victim). The 4th Circuit found no error. Under note 1 to section 3C1.2, if both sections apply, the court must apply only the official victim enhancement and increase the offense level by three levels. Defendant clearly assaulted the officer within the meaning of section 3A1.2(b). It was undisputed that defendant resisted arrest, struggled with the officer, and grabbed his gun. The officer testified that he believed defendant had actually pointed the gun directly at him. U.S. v. Sloley, 19 F.3d 149 (4th Cir. 1994).
4th Circuit holds that extraordinary interference with police during arrest may justify obstruction enhancement. (460) Defendant fought with police officers during his arrest, and each side gave differing accounts as to the cause of the fight. The district court enhanced defendant’s sentence for obstruction of justice, finding that “there was a struggle beyond the norm in this case.” The 4th Circuit held that extraordinary interference with or endangerment to law enforcement officials or bystanders during the course of an arrest can constitute an obstruction of justice. Mere flight, or an unpleasant exchange of words would not be sufficient. This case was remanded because the district court did not make sufficient findings. The court did not determine why the struggle ensued or whether it credited the police officer’s testimony that defendant intended to use the gun in his hand. Judge Hall dissented, arguing that the obstruction of justice guideline does not encompass flight or resisting arrest, regardless of the danger posed by such actions. U.S. v. John, 935 F.2d 644 (4th Cir. 1991).
5th Circuit holds that two enhancements resulting from same police chase was not double counting. (460) During a high-speed police chase, defendant traveled through a one lane construction zone, struck another vehicle, drove onto the median causing construction workers to jump out of the way, and continued driving erratically across state lines. Defendant then passed two trucks on the right shoulder and, in doing so, almost struck a sheriff’s patrol car, but caromed off a concrete piling instead. He exited the interstate, sped past a stopped school bus, ran stop signs in a residential neighborhood, and jumped from the car while it was in motion. The Fifth Circuit affirmed a three-level increase under § 3A1.2(b) for assaulting a law enforcement officer and a two-level increase under § 3C1.2 for reckless endangerment of others during flight, ruling that they did not constitute double counting. The high-speed chase clearly endangered both police officers and others. Defendant’s assault against a policeman and his reckless endangerment of others were temporally and geographically separate. Although both occurred during the same car chase, both occurred at different times and in different places. His threat upon police occurred on the interstate and after his endangerment of construction workers on the median. Similarly, the police endangerment occurred before his violations of reckless driving, speeding, disobeying stop signs and signals and illegally passing a school bus in a different vicinity. U.S. v. Gillyard, 261 F.3d 506 (5th Cir. 2001).
5th Circuit approves upward departure for providing false financial information to probation officer. (460) Defendant was convicted of drug charges. The district court applied a § 3C1.1 obstruction of justice enhancement for inducing a co-conspirator to sign a false affidavit exonerating defendant. The Fifth Circuit approved a one-level upward departure for willfully obstructing justice by providing materially false financial information to the probation officer. Multiple acts of obstruction of justice may warrant an upward departure. Here, several witnesses testified about various cars and jewelry purchased by defendant. They also testified that defendant made $5,000-10,000 profit per kilogram sold. Defendant did not report significant assets to the probation officer, and did not disclose his interest in the various cars and jewelry he was observed buying. This information was material to the probation officer’s determination of defendant’s ability to pay a fine. U.S. v. Milton, 147 F.3d 414 (5th Cir. 1998).
5th Circuit upholds obstruction increase based on information from plea negotiations. (460) The district court enhanced defendant’s sentence for obstruction of justice based on his failure to produce subpoenaed corporate records and his lies to the grand jury that he had produced all relevant records. Defendant argued that this violated § 1B1.8 and Fed. R. Crim. P. 11(e)(6)(D) because it was during plea negotiations that the government discovered he had not produced certain records and had lied to the grand jury. The Fifth Circuit affirmed the enhancement. Rule 11(e)(6)(D) does not prohibit statements made during plea negotiations from being used during sentencing. At sentencing, the district court may rely upon any evidence of defendant’s credibility that is sufficiently reliable. The district court correctly found defendant’s statements during plea negotiations were reliable. The false grand jury testimony was sufficiently related to the offense of conviction to apply the enhancement. Section 3C1.1 does not require the obstructive conduct to be directly related to the offense of conviction. U.S. v. Upton, 91 F.3d 677 (5th Cir. 1996).
5th Circuit approves upward departure for multiple acts of obstruction. (460) Defendant was convicted of attempting to evade taxes by hiding his receipt of $150,000, and of making false statements to an IRS agent. The Fifth Circuit departed upward based on at least four instances of obstruction of justice. First, defendant intentionally misrepresented to his probation officer that a secured debt was unsecured, to influence the calculation of defendant’s ability to pay restitution. He also misled the IRS when he sold his stock to a trust in the name of his children, payable in installments over ten years. A day before the transaction, defendant had advised the IRS that his only option was to sell the stock back to the corporation. He was instructed to advise the IRS before finalizing any sale of the stock. The IRS never would have approved the sale given the ten year payment period. Defendant also failed to inform the IRS that the stock had been moved from the bank where, the day before, he had represented it was located. The four level departure was reasonable. U.S. v. Clements, 73 F.3d 1330 (5th Cir. 1996).
5th Circuit reverses enhancements for dangerous weapon and reckless endangerment as double counting. (460) Defendant received a § 3C1.2 enhancement for reckless endangerment during flight because while leaving the parking lot of a bar, he drove his vehicle at a high rate of speed directly at a Border Patrol agent. He also received a § 2D1.1(b) enhancement for use of a dangerous weapon because he used his vehicle to attempt to run down the agent. The 5th Circuit held that the enhancements were improper double counting, because both were based on the same conduct. Since the case was being remanded on other grounds, the district court should correct the error. U.S. v. Cabral-Castillo, 35 F.3d 182 (5th Cir. 1994).
5th Circuit rejects commentary’s limits on official victim adjustment. (460) Section 3A1.2(b) provides for an enhancement if, during an offense or flight from an offense, defendant assaults a law enforcement officer. Application Note 1 states that the enhancement applies when specified individuals are victims of the offense. Defendant contended that since no “specified individuals” were victims of defendant’s drug offense, Note 1 would bar a § 3A1.2(b) enhancement. The 5th Circuit held that Application Note 1 directly conflicted with § 3A1.2(b), and that the guideline was controlling. The court noted that Note 5 expressly refers to subsection (b), and states that section 3A1.2(b) applies to assaults to police during the course of, or during flight from, an offense such as bank robbery. Note 1, in contrast, was part of section 3A1.2 before the addition of subsection (b), and was not amended when subsection (b) was added. U.S. v. Ortiz-Granados, 12 F.3d 39 (5th Cir. 1994).
5th Circuit holds court must make finding on defendant’s perjury after government objects to PSR. (460) The presentence report failed to recommend an obstruction of justice enhancement for defendant’s perjury, and the government objected. Nevertheless, the district court rejected the government’s objection without making a finding. On appeal, the 5th Circuit reversed, because it was unclear whether the rejection was based on an unstated finding that defendant did not commit perjury, or an arbitrary decision not to apply section 3C1.1. On remand, if the district court finds defendant did commit perjury, it must impose the section 3C1.1 enhancement. U.S. v. Humphrey, 7 F.3d 1186 (5th Cir. 1993).
5th Circuit upholds departure for defendant who shot at civilian cars while fleeing police. (460) While fleeing from police after a bank robbery, defendant fired gunshots at police and civilian vehicles. The 5th Circuit affirmed an upward departure based on defendant’s reckless shooting at civilian vehicles while attempting to escape. The court’s reason for departure was not already taken into account by the increases defendant received under section 3A1.2(b) (assaulting a police officer while fleeing from an offense) or under section 3C1.2 (recklessly creating a substantial risk of bodily harm to others while fleeing). Section 5K2.6 permits courts to depart for weapons use. Moreover, defendant attempted to cause auto accidents to block pursuit by shooting out tires and by trying to ignite the gas tank of a truck. These aggravating circumstances went beyond the factors in sections 3A1.2(b) and 3C1.2. The 65-month departure was reasonable. U.S. v. Lee, 989 F.2d 180 (5th Cir. 1993).
5th Circuit upholds upward departure based upon defendant’s obstruction of justice, experience in law enforcement and danger to public safety. (460) Defendant, a county sheriff, became involved in a conspiracy to manufacture and sell methamphetamine. The 5th Circuit upheld an upward departure based upon defendant’s obstruction of justice, his experience in law enforcement and danger to public safety. Although defendant had already received a two-level increase in offense level for obstruction of justice, he had committed numerous acts of obstruction. He discussed with co-conspirators false statements to tell authorities, alerted a co-conspirator of an undercover operation, and instructed a co-conspirator to threaten a man who was speaking to authorities. Given defendant’s egregious behavior in abusing his position as sheriff to further the drug conspiracy, it was reasonable for the district court to rely upon defendant’s position as sheriff. It was also reasonable to rely upon the threat to public safety as a basis for departure. This justification is not limited to national public health and safety offenses. Defendant endangered public safety by recruiting a co-conspirator as a deputy sheriff, transferring a co-conspirator’s parole supervision to defendant’s county, and convincing another county to release a co-conspirator from jail. U.S. v. Wade, 931 F.2d 300 (5th Cir. 1991).
5th Circuit finds reduction for acceptance of responsibility not warranted where defendant obstructed justice. (460) Defendant received a two level increase for obstruction of justice and argued that it should not preclude her from receiving a sentence reduction for acceptance of responsibility. The 5th Circuit noted that contemporaneous adjustments for both obstruction of justice and acceptance of responsibility are permitted, but are rare, and can only occur in “extraordinary circumstances.” Although defendant did offer to cooperate with authorities and to testify at her co-conspirator’s trial, her testimony was never used and she did obstruct justice by failing to notify the DEA of her co-conspirator’s whereabouts. Therefore, this was not an extraordinary circumstance justifying a reduction for acceptance of responsibility. U.S. v. Edwards, 911 F.2d 1031 (5th Cir. 1990).
5th Circuit upholds finding that defendant who obstructed justice was not entitled to reduction for acceptance of responsibility. (460) At the time of defendant’s sentencing, Application Note 4 of § 3E.1 of the guidelines provided that an adjustment for acceptance of responsibility was not available where a defendant obstructed justice. This provision was subsequently amended to permit, in “extraordinary cases,” adjustments for both acceptance of responsibility and obstruction of justice. The 5th Circuit found that even if this amended note had been in effect at the time defendant was sentenced, defendant’s case was not extraordinary. Although defendant had acknowledged his guilt, “a guilty plea does not entitle a defendant to sentence reduction as a matter of right.” U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
5th Circuit holds application note to obstruction section does not require sentencing judge to believe defendant. (460) Application note 2 to § 3C1.1 states that in applying the obstruction of justice provision, “suspect testimony and statements should be evaluated in the light most favorable to the defendant.” The 5th Circuit held that this note does not require the sentencing judge to believe the defendant whenever he denies the allegations. Rather it “simply instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” To hold otherwise would “effectively enable every defendant to nullify its application by self-serving testimony.” U.S. v. Franco-Torres, 869 F.2d 797 (5th Cir. 1989).
6th Circuit holds that reckless endangerment and property damage increases not improper. (460) After robbing a bank, defendant and a co-defendant fled in a stolen car pursed by the police. The getaway car collided with an occupied van and crashed. The district court included in the loss calculation the damage caused to the van during the escape. The court further imposed a § 3C1.2 increase because defendant recklessly endangered others during the escape. Defendant argued that the reckless endangering increase was impermissible double counting since the court included the damage to the van during his escape in calculating loss. The Eighth Circuit disagreed. While the same reckless conduct damaged property (the van) and endangered other persons during the escape, Note 1 to § 3C1.2 explicitly deals with this potential double counting situation: “Do not apply this [reckless endangering] enhancement where the offense guideline in Chapter Two, or another adjustment in Chapter Three, results in an equivalent or greater increase in offense level solely on the basis of the same conduct.” Here, including the property damage to the van in calculating loss increased the robbery offense level by one, which was less than the two-level increase for reckless endangering. U.S. v. Powell, 283 F.3d 946 (8th Cir. 2002).
6th Circuit announces standard of review for obstruction enhancement. (460) Defendant challenged an obstruction of justice enhancement. Noting inconsistent circuit opinions, the Sixth Circuit announced the following three-step standard of review for the application of § 3C1.1. First, the district court’s findings of facts are reviewed under a clearly erroneous standard. Second, the district court’s determination of whether the facts constitute an obstruction of justice is a mixed question of law and fact that is reviewed de novo. Third, once there has been a finding of obstruction of justice, the court must apply the enhancement. Because the enhancement is mandatory rather than discretionary, such enhancement is reviewed under the de novo standard. This standard is inconsistent with U.S. v. Bennett, 975 F.3d 305 (6th Cir. 1992), which applied an abuse of discretion standard. Although one panel cannot overrule a previous panel decision, Bennett was inconsistent with both prior and subsequent case law on the subject, and therefore need not be followed. U.S. v. McDonald, 165 F.3d 1032 (6th Cir. 1999), abrogated on other grounds, U.S. v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002).
6th Circuit says growing beard was obstruction, but trying to hide evidence and proceeds was not. (460) The district court imposed an enhancement for obstruction of justice based on (a) defendant’s failure to comply with its order to be clean shaven at trial (to facilitate identification), (b) his attempt to conceal evidence of his crime when he heard police were at the front door, and (c) his sending of robbery proceeds to his girlfriend in Florida, using aliases for both the sender and the addressee. The 6th Circuit upheld the first ground, but rejected the latter two grounds. The refusal to appear at trial clean shaven was an attempt to disguise himself from witnesses. However, defendant’s hurried attempt to conceal evidence as the police stood at the front door was “contemporaneous with arrest,” and was not, in any way, “a material hindrance” to the investigation or prosecution of his case. Sending the money also did not justify the enhancement, since at the time he sent the money, he had no knowledge that an investigation was under way. U.S. v. Perry, 991 F.2d 304 (6th Cir. 1993).
6th Circuit finds no 6th Amendment violation where defendant’s counsel failed to attend presentence interview. (460) Defendant received a two point enhancement for obstruction of justice based upon misrepresentations defendant made in his presentence interview about his involvement in other offenses. Defendant contended that the enhancement was improper, since the presentence interview was conducted without the assistance of counsel in violation of the 6th Amendment. Defendant’s counsel asserted that had he been present during the interview, he would have objected to the questions. Without determining whether defendant had a 6th Amendment right to counsel in the presentence interview, the 6th Circuit found no constitutional violation. Nothing in the record revealed that defendant’s counsel was not informed of, or was excluded from the presentence interview. “When a defendant’s counsel makes a choice not to attend the presentence interview, the defendant cannot argue on appeal that the government deprived him of his [6th Amendment] right to counsel.” Therefore, the upward adjustment was proper. U.S. v. Saenz, 915 F.2d 1046 (6th Cir. 1990).
7th Circuit approves above-Guidelines sentence for multiple instances of obstruction. (460) Defendant was convicted of drug charges. Although the district court calculated a Guidelines range of 84-107 months, which included a two-point enhancement for obstruction of justice, the district court imposed a 180-month sentence, finding that defendant’s multiple lies, criminal history, and refusal to accept responsibility required a lengthy sentence. Defendant argued that the court did not adequately explain its upward departure, and that the two-level obstruction enhancement he received fully accounted for any and all instances of perjury. The Seventh Circuit upheld the 180-month sentence as reasonable. While the district court could not impose multiple obstruction of justice enhancements, it could consider multiple acts of obstruction in determining a sentence that achieves the policy goals outlined in § 3553(a)(2). U.S. v. Boling, 648 F.3d 474 (7th Cir. 2011).
7th Circuit holds that defendant was not entitled to notice of court’s intent to reject PSR’s recommendation of acceptance reduction. (460) Defendant argued that he was entitled to notice, prior to the sentencing hearing, that the district court intended to reject the PSR’s recommendation of acceptance of responsibility and to impose instead an obstruction of justice enhancement. Although the notice requirement for adjustments is less exacting than the one applicable to departures, Rule 32 does mandate that the defendant receive some notice of potential adjustments so that defense counsel has a full opportunity to challenge disputed factors relating to the adjustment. The Seventh Circuit ruled that the district court did not commit clear error in denying defendant the acceptance reduction and imposing the obstruction increase. Defendant had ample notice from the plea agreement and from the court that the acceptance of responsibility recommendation was conditional in nature. The agreement noted that “to date” defendant had demonstrated acceptance of responsibility, and that “if he continue[d] to accept responsibility,” he should receive the reduction. At sentencing, after noting that defendant appeared to be “very forthcoming” the night of his arrest, the court found that defendant took the stand and provided “materially false testimony” that contradicted the PSR, the plea agreement, and other evidence. The district court could not have given defendant advance notice of the grounds for the obstruction increase because it was predicated on defendant’s false testimony at sentencing. Defendant acknowledged as part of his plea agreement that if he provided materially false information to the judge or probation officer, the court could impose the obstruction increase. U.S. v. Sharp, 436 F.3d 730 (7th Cir. 2006).
7th Circuit finds employee who awarded contracts and certified completion had position of trust. (460) Defendant, an employee of the U.S. Postal Service, hired contractors to perform work on post offices in exchange for kickbacks of money, vehicles, services and real estate. The district court applied a § 3B1.3 increase for abusing a position of public or private trust. The Seventh Circuit held that defendant occupied a position of trust because he had authority over “valuable things,” namely awarding repair jobs and formal construction contracts on post offices throughout central Illinois, and certifying the completion of work. The fact that the Postal Service did not authorize defendant to approve payment of invoices did not alter the fact that the Postal Service entrusted him to select contractors and certify the completion of their work. Defendant’s abuse of this trust facilitated the crime because a crucial element of the scheme involved defendant’s awarding of contracts and repair jobs to contractors who would provide him with kickbacks. U.S. v. Emerson, 128 F.3d 557 (7th Cir. 1997).
7th Circuit says defendant may not claim that evidence he sought to suppress with perjured testimony was not material. (460) Defendant was convicted of drug charges. Before trial, defendant moved to suppress a statement he made to police at the time of his arrest. He testified at the suppression hearing that the statement was coerced. The district court enhanced his sentence for obstruction of justice based on perjury at the suppression hearing. Defendant argued that his testimony was not materially false because the statement was cumulative of the evidence offered by the government. The Seventh Circuit found it inconsistent to argue that evidence he moved to suppress was not important to the government’s case. The district court found that defendant lied as to nearly everything he said in support of his motion to suppress the statement. U.S. v. Reddrick, 90 F.3d 1276 (7th Cir. 1996).
7th Circuit says prosecution for obstructive conduct previously used to enhance sentence did not violate double jeopardy. (460) After pleading guilty to drug charges, defendant threatened the government’s informant. His drug sentence was enhanced for obstruction of justice under § 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 says reckless endangerment section should be used before departing upward. (460) When police tried to search defendant’s car for drugs, he led them on a 10-mile high speed chase along local roads, forcing about 30 cars off the road. He pled guilty to drug charges and assaulting or resisting an officer. The district court rejected a § 3C1.2 reckless endangerment enhancement since it covered conduct partially covered by the resisting arrest count. It departed upward, however, based on defendant’s reckless flight. The 7th Circuit held that the court lacked authority to depart without first applying § 3C1.2. The conduct on which the court based the departure was exactly the sort of reckless behavior covered by § 3C1.2. The enhancement was clearly appropriate because defendant not only resisted arrest and assaulted police, but also placed 30 lives in danger. U.S. v. Giacometti, 28 F.3d 698 (7th Cir. 1994).
7th Circuit remands to reconsider sentence in light of new evidence. (460) Defendants received an enhancement for obstruction of justice and were denied a reduction for acceptance of responsibility because the court believed they lied at their pretrial hearing. On the day of oral argument, the defendants filed motions asking the court to take judicial notice of a letter they received from the AUSA, advising them of potentially exculpatory information. A police detective present during one of the defendant’s interviews after his arrest had a recollection different than some of the testimony offered during the suppression hearing. Neither the court nor defendants knew the content or significance of that information. Because of the possibility of injustice, the case was remanded for further factfinding on the obstruction of justice and acceptance of responsibility issues. U.S. v. Severson, 3 F.3d 1005 (7th Cir. 1993).
7th Circuit holds findings sufficient to comply with Dunnigan requirements for obstruction adjustment based on perjury. (460) Defendant objected to the district court’s adjustment of his offense level for obstruction of justice based on perjury at trial. The 7th Circuit found the district court’s findings sufficient to comply with the requirements of U.S. v. Dunnigan, 507 U.S. 87 (1993). The court’s statement that the defendant “made a number of denials going to the very heart of the case” satisfied the requirement of a finding of materiality. The court’s statement that defendant’s testimony “not only didn’t square with what other witnesses had to say but simply didn’t square with reality” satisfied the requirement that the court find the false testimony was willful rather than the result of confusion, mistake, or faulty memory. U.S. v. Rodriguez, 995 F.2d 776 (2nd Cir. 1993).
7th Circuit refuses to consider argument that probation officer violated internal directive. (460) Defendant argued that the probation officer’s conclusion as to whether defendant’s sentence should be enhanced for obstruction of justice under guideline § 3C1.1 was in violation of a probation office directive. The 7th Circuit refused to consider this argument because it was simply a reformulation of defendant’s rejected claim that the district court erred in enhancing his sentence for obstruction of justice. U.S. v. Caicedo, 937 F.2d 1227 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s failure to recommend acceptance of responsibility reduction. (460) Defendant contended that according to his plea agreement, the government agreed to recommend a reduction for acceptance of responsibility. He further contended that the government’s introduction of evidence concerning defendant’s obstruction of justice breached the plea agreement because it was an attempt to deny defendant the acceptance of responsibility reduction. The 7th Circuit found no breach of the plea agreement. At the time the government entered into the plea agreement, it was unaware that defendant had sought the help of others to kill government witnesses. Once it learned of such attempt, the government was entitled to withdraw from the plea agreement on the ground defendant was not accepting responsibility for his crime and was in fact planning a more serious crime. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit upholds denial of acceptance of responsibility adjustment for defendant who obstructed justice. (460) The 7th Circuit held that defendant, who pled guilty only after being confronted with evidence of his perjury, was not entitled to a downward adjustment for acceptance of responsibility. Defendant’s sentence had been adjusted upward for obstruction of justice, and the court noted that under the guidelines, an enhancement for obstruction of justice “ordinarily indicates that defendant has not accepted responsibility for his criminal conduct.” U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
7th Circuit holds that obstruction of justice precludes credit for acceptance of responsibility. (460) The defendant gave two false names during questioning. The trial court specifically found this to be an obstruction of justice within the meaning of § 3C1.1, and the defendant did not challenge this finding on appeal. The 7th Circuit noted that under application note 4 of § 3E1.1, a reduction for acceptance of responsibility “is not warranted where a defendant . . . obstructs the trial or administration of justice.” Thus the court held that defendant could not receive a reduction for acceptance of responsibility and therefore had no standing to challenge the constitutionality of that section of the guidelines. U.S. v. McNeal, 900 F.2d 119 (7th Cir. 1990).
8th Circuit applies reckless endangerment increase for fleeing officers in hazardous road conditions. (460) When police officers attempted to speak to defendant, he fled in his vehicle. With the officers following, defendant drove unsafely and too fast for the road conditions, and therefore, the officers suspended their pursuit. Some time later, officers relocated his vehicle and resumed pursuit with their emergency lights activated. While being pursued, defendant wove in and out of traffic in hazardous conditions, including slippery roads caused by heavy snow and ice. Because defendant refused to stop, an officer executed a PIT maneuver, causing defendant’s vehicle to spin out of control and come to a stop. He would not leave his vehicle until the police K-9 assisted the officers. The Eighth Circuit upheld a § 3C1.2 enhancement for recklessly creating a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer. The record contradicted defendant’s claim that he did not know he was being pursed by law enforcement. The court also did not err in finding that defendant was aware of the risk created by his conduct, and that his disregard for this risk “constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation.” U.S. v. Bazaldua, 506 F.3d 671 (8th Cir. 2007).
8th Circuit holds that “law of the case” did not require obstruction increase. (460) Defendant hired an employee to destroy his club so that defendant could collect on its insurance. The building exploded and the employee was killed. The court initially declined to impose an obstruction increase, and the appellate court reversed because it believed that the court’s reason for failing to impose the enhancement was its erroneous belief that the enhancement did not apply to unsuccessful attempts to obstruct justice. At resentencing, the court stated that his decision not to impose the enhancement was not based on this, but rather, its finding that defendant had not obstructed justice. The court believed itself bound to impose the enhancement and sentenced defendant accordingly. The Supreme Court then decided U.S. v. Booker, 543 U.S. 220 (2005), and the appellate court remanded for resentencing in light of Booker. The district court again indicated that while it did not believe that the government had proved obstruction of justice, it considered itself bound to impose the increase. The Eighth Circuit reversed. Its previous opinion did not address or resolve the question of whether defendant actually had engaged in conduct that would support the enhancement. Instead, it relied on the (erroneous) conclusion that the district court had found that defendant made an attempt to obstruct justice. U.S. v. Manfre, 456 F.3d 871 (8th Cir. 2006).
8th Circuit holds that court erred in not considering whether to impose obstruction increase. (460) The PSR recommended an obstruction of justice increase under U.S.S.G. § 3C1.1 because defendant’s trial testimony materially differed from and contradicted his earlier proffers to law enforcement. The district court, pursuant to its policy not to apply enhancements not found by a jury, denied the government’s motion seeking the obstruction enhancement. The court made no factual inquiry or analysis into whether defendant actually obstructed justice, but instead suggested that U.S. v. Booker, 543 U.S. 220 (2005), required the prosecution to bring a perjury charge against defendant because the enhancement increased defendant’s maximum sentence by a factor not found by the jury. The Eighth Circuit held that the district court erred in not considering whether to impose an obstruction of justice increase. Booker did not change how the guidelines are calculated. In determining the advisory guidelines sentence, the district court must rule on all applicable guidelines departures and adjustments. Application of the obstruction increase is not discretionary if the requisite factual findings are made. U.S. v. Smith, 450 F.3d 856 (8th Cir. 2006).
8th Circuit holds that defendant did not meet burden of showing his sentence was not influenced by Booker error. (460) Defendant was convicted by a jury of a drug conspiracy involving 50 to 500 grams of methamphetamine. Although the court treated the guidelines as mandatory, it considered the jury finding of drug quantity to be binding, and refused to hold defendant responsible for more drugs or to apply a firearm enhancement. It also enhanced his sentence for obstruction of justice on the assumption that the guilty verdict meant the jury had found his testimony to be false. Both sides agreed that the district court committed Booker error by treating the guidelines as mandatory and by applying an obstruction enhancement based upon the jury’s general verdict. The Eighth Circuit agreed. The court also erred by refusing to make independent determinations as to the quantity for drugs for which defendant was responsible and as to whether he possessed firearms during his offense. As the beneficiary of the Booker error, defendant had to show that his sentence was not substantially influenced by it, and he did not meet that burden. The PSR recommended that defendant be held responsible for at least 1.5 kilograms of methamphetamine and enhancements for obstruction of justice and possession of a firearm. Had these enhancements been applied, defendant would have had a total offense level of 38 rather than 32, and a guideline range of 324-405 months instead of 168-210 months. Thus, the errors clearly influenced his sentence. U.S. v. Gutierrez, 437 F.3d 733 (8th Cir. 2006).
8th Circuit says defendant who rammed police car created substantial risk of death or serious bodily injury. (460) Defendant challenged a two-level enhancement under § 3C1.2 for recklessly creating a substantial risk of death or serious bodily injury to others while fleeing from law enforcement. The Eighth Circuit concluded that the district court did not clearly err in applying the § 3C1.2 enhancement. When defendant rammed a police officer’s vehicle with his truck multiple time, he recklessly created a substantial risk of death or serious bodily injury to others. U.S. v. Pierce, 388 F.3d 1136 (8th Cir. 2004).
8th Circuit rejects need for Burns notice of intent to impose obstruction enhancement. (460)) Although defendant’s presentence report stated that the probation office was unaware of any grounds for an obstruction of justice enhancement, the district court, sua sponte, imposed the enhancement. Relying on Circuit precedent, the 8th Circuit rejected defendant’s claim that he was entitled to prior notice of the court’s intent to impose the enhancement. Burns v. U.S., 111 S.Ct. 2182 (1991) does not mandate that notice be given before a district court sua sponte addresses an adjustment. Given the fact that defendant knew of the potential bases for enhancement in the guidelines and the potential factual bases in the trial testimony, he could not claim that he was surprised and unable to comment upon the enhancement at sentencing. U.S. v. Willis, 997 F.2d 407 (8th Cir. 1993).
8th Circuit affirms upward departure based on extent of defendant’s obstruction of justice. (460) Because of the extent of defendant’s obstruction of justice, the district court chose not to enhance defendant sentence under section 3C1.1, instead departing upward under section 5K2.0. The 8th Circuit upheld the departure, finding the circumstances justified a departure and defendant’s 58-month sentence was reasonable. Defendant’s behavior included perjury, suborning perjury, an extensive and long term participation in the instant tax fraud offense, and flooding the court with frivolous motions, including some challenging the court’s Article III status. U.S. v. Jagim, 978 F.2d 1032 (8th Cir. 1992).
8th Circuit affirms departure for serious nature of defendants’ obstructive conduct. (460) Defendants were convicted of drug charges and of threatening a witness. The latter conviction arose from defendants’ threats to a co-defendant to kill him, his wife, family and anybody he cared about if he cooperated. The district court departed upward four points based on the serious nature the threats. The court reasoned that the eight-level increase authorized by the obstruction guideline, section 2J1.2(b)(1), for threats to cause physical injury, would have no effect because the offense level for the drug charges exceeded the adjusted offense level for obstruction. The 8th Circuit agreed. Application note 6 to section 3C1.1 directly addresses this situation and mandates that the offense level equal the offense level for the underlying offense plus a two level enhancement for obstruction of justice. The two level enhancement, however, did not adequately account for the nature of defendants’ conduct, so the equivalent of a four level departure was proper. Judge Bright concurred. U.S. v. Wint, 974 F.2d 961 (8th Cir. 1992).
8th Circuit affirms that obstruction enhancement for failure to appear does not bar later prosecution for same conduct. (460) Defendant received an enhancement for obstruction of justice after failing to appear at sentencing for an underlying drug offense. He received a 144-month sentence, of which 23 months were found to be attributable to the enhancement. The 8th Circuit ruled that double jeopardy did not prohibit defendant’s subsequent conviction and sentence for failure to appear in violation of 18 U.S.C. section 3146. The district court avoided any double counting by reducing his guideline sentence for failure to appear by the 23 months that his prior sentence was enhanced due the failure to appear. U.S. v. Bolding, 972 F.2d 184 (8th Cir. 1992).
8th Circuit rejects upward departure based upon extent of defendant’s perjury. (460) Defendant received an enhancement for obstruction of justice for committing perjury before a grand jury. The district court also departed upward for the same perjury before the grand jury, plus defendant’s perjury at trial and his subornation of perjury by his wife. The 8th Circuit rejected defendant’s perjury as grounds for an upward departure, finding that his conduct was not significantly in excess of the acts of obstruction contemplated by section 3C1.1. Although the presentence report did not list defendant’s perjury at trial and subornation of perjury as reasons for the obstruction enhancement, committing, suborning or attempting to suborn perjury are examples of the very type of conduct to which the obstruction enhancement applies. Defendant’s perjury was not extensive, since all instances related to the same subject matter. Moreover, the conduct did not involve any significant collateral consequences. U.S. v. Griess, 971 F.2d 1368 (8th Cir. 1992).
8th Circuit affirms upward departure despite reliance upon some improper factors. (460) In departing upward, the court properly relied on the similarity of defendant’s prior offense, and the need for deter him from further such activity. However, the 8th Circuit held that it was improper, to rely on the defendant’s dangerous high speed chase. Effective November 1, 1990, the Sentencing Commission added section 3C1.2, which authorizes a two-point enhancement for high speed chases, but defendant had already received a two level enhancement for obstruction of justice. The court’s reliance on defendant’s exploitation of a trusting, vulnerable woman who he used as a pawn in his drug operation did not justify a departure because there was no support in the record for the court’s finding. Nevertheless, although the court relied upon some improper grounds, the departure was upheld because the district court placed no special reliance upon the improper factors and only a minimal departure was involved. U.S. v. Estrada, 965 F.2d 651 (8th Cir. 1992).
8th Circuit refuses to group perjury with underlying offense absent obstruction enhancement. (460) 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 says defendant’s conviction for resisting arrest on instant offense should be excluded from criminal history. (460) The 8th Circuit held that the district court erred in including in defendant’s criminal history his conviction for resisting arrest, since that charge arose from his arrest on the instant offense. The resisting arrest charge was a part of the conduct of the instant offense, and thus was not a “prior sentence.” The conduct could be taken into account under the guidelines as obstruction of justice. U.S. v. Simpkins, 953 F.2d 443 (8th Cir. 1992).
8th Circuit rules defendant’s denial of government’s position did not preclude obstruction enhancement. (460) Application note 2 to section 3C1.1 provides that “suspect testimony” should be viewed in a light most favorable to the defendant. The 8th Circuit found that this note does not mean that a mere denial by a defendant precludes a finding contrary to the defendant’s position. It adopted the 5th Circuit’s view that the note “instructs the sentencing judge to resolve in favor of the defendant those conflicts about which the judge, after weighing the evidence, has no firm conviction.” Thus, the district court was free to reject defendant’s characterization of his conversation about killing the “snitch.” Any doubt by the district court about the seriousness of defendant’s intent to obstruct the investigation would have been dispelled by defendant giving a co-defendant money to hire an assassin. U.S. v. Tallman, 952 F.2d 164 (8th Cir. 1991).
8th Circuit rules no double jeopardy in conviction of jury tampering and enhancement for obstruction of justice. (460) Defendant was convicted of fraudulently selling cattle and timber. As a result of his efforts to improperly influence two of the jurors in his case, defendant received a two-level enhancement for obstruction of justice. He was then convicted of jury tampering, but the district court voided the jury tampering sentence because it thought that such a sentence would constitute double jeopardy, since the fraud sentence had been enhanced on the basis of jury tampering. The 8th Circuit reversed. The defendant was not put “in jeopardy” for the jury tampering until the actual trial for jury tampering. Defendant merely received a harsher sentence for the fraud offense that he otherwise would have received. The guidelines handle this situation in § 3D1.2(c), which provides that when conduct that represents a separate count, such as obstruction of justice, is also a specific offense characteristic or other adjustment to another count, the count represented by the conduct is to be “grouped” with the count to which it constitutes as aggravating factor. Thus, the guidelines required the grouping of the cattle case and the jury tampering case. U.S. v. Williams, 935 F.2d 1531 (8th Cir. 1991).
8th Circuit upholds obstruction adjustment where defendant tried to flush the cocaine. (460) A detective heard the toilet flush just prior to the defendant’s exit from the bathroom. Approximately 580 grams of cocaine was then discovered, most of it in the bathroom. The 8th Circuit held that these actions supported an upward adjustment for obstruction of justice under § 3C1.1 of the guidelines. U.S. v. Baker, 907 F. 2d 53 (8th Cir. 1990).
8th Circuit holds that adjustment for more than minimal planning was improperly based on same conduct as obstruction adjustment. (460) The bank embezzlement guideline, § 2B1.1, authorizes a two-level upward adjustment for “more than minimal planning,” when “significant affirmative steps are taken to conceal the offense.” Since the district court found there was more than minimal planning here, it was improper for the court to find on the same facts that defendant obstructed justice under U.S.S.G. § 3C1.1. This constituted cumulative punishment for the same conduct, and required reversal. U.S. v. Werlinger, 894 F.2d 1015 (8th Cir. 1990).
8th Circuit affirms upward departure for attempted murder of government witness. (460) The district court departed upward under guideline § 5K2.0 for a drug defendant who was also convicted of attempted murder of a government witness. The 8th Circuit held that the upward departure was not an abuse of discretion even though defendant’s sentence was also adjusted upward under guideline § 3C1.1 for willful obstruction of proceedings. The court ruled that § 3C1.1 does not adequately take into account attempts to murder a government witness. U.S. v. Drew, 894 F.2d 965 (8th Cir. 1990).
9th Circuit finds no double counting in denying acceptance and finding obstruction. (460) At defendant’s sentencing for illegal reentry after deportation, the district court declined to grant defendant a reduction in offense level for acceptance of responsibility because the defendant had escaped from custody before sentencing. The court also enhanced defendant’s sentence for obstruction of justice, again based on his escape pending sentencing. Defendant argued that the failure to grant an acceptance reduction while imposing an obstruction enhancement constituted impermissible double counting. The Ninth Circuit held that denying a reduction and imposing an enhancement based on the same conduct was not impermissible double counting. U.S. v. Gallegos, 613 F.3d 1211 (9th Cir. 2010).
9th Circuit holds that district judge must find that false testimony is material for obstruction enhancement. (460) Defendant testified in his own defense at trial, but the jury rejected his testimony and convicted him. At sentencing, the district court found that defendant had “willfully” given “incredible” testimony and that it was clear that defendant intended to obstruct justice. For that reason, it enhanced defendant’s sentence for obstruction of justice under § 3C1.1. The Ninth Circuit held that the district court erred in failing expressly to find that defendant’s false testimony was material and remanded for a factual finding on that issue. U.S. v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007).
9th Circuit holds that effort to influence witness need not succeed. (460) Commentary to the obstruction enhancement, § 3C1.1, states that it applies to attempts to influence a witness. Defendant threatened a witness and induced him to lie to the authorities. Eventually, however, the witness cooperated with the government and testified against defendant. The district court refused to enhance defendant’s sentence for obstruction of justice because defendant’s actions did not materially impede the investigation. The Ninth Circuit reversed, holding that the obstruction guideline does not include a materiality requirement and that defendant’s attempt to influence a witness was sufficient to trigger the obstruction enhancement. U.S. v. Phillips, 367 F.3d 846 (9th Cir. 2004).
9th Circuit holds that findings are unnecessary when court does not impose obstruction enhancement. (460) In U.S. v. Dunnigan, 507 U.S. 87 (1993), the court held that when a court imposes an enhancement for obstruction of justice under § 3C1.1 based on a defendant’s testimony at trial, it must find that the testimony was false, material, and willful. In a government appeal, the Ninth Circuit held that a court that declines to impose an obstruction enhancement when a defendant testifies at trial need not make factual findings to support its decision. U.S. v. Alvarado-Guizar, 361 F.3d 597 (9th Cir. 2004).
9th Circuit finds accomplice’s reckless endangerment during flight not attributable to defendant who was not present. (460) Guideline § 3C1.2 provides for an offense level enhancement if the defendant recklessly created a substantial risk of flight while fleeing from a law enforcement officer. The commentary states that a defendant is responsible for reckless endangerment during flight if he “aided or abetted, counseled, commanded, induced, procured, or willfully caused” the endangering conduct. Defendant and his accomplices planned a robbery, but the robbery did not occur for several months, and defendant was not present during the robbery or ensuing high-speed chase. Under these circumstances, the Ninth Circuit held that the district court had erred in enhancing defendant’s sentence under § 3C1.2. U.S. v. Franklin, 321 F.3d 1231 (9th Cir. 2003).
9th Circuit reverses double increase for reckless endangerment in alien smuggling offense. (460) Under § 2L1.1(b)(5), an alien-smuggling defendant is subject to an increase for recklessly creating a risk to others. Section 3C1.2 provides an increase for reckless endangerment during flight from a law enforcement officer. Commentary to § 2L1.1 says a defendant should not receive an enhancement under both that guideline and § 3C1.2 if the increase is based solely on conduct related to fleeing from police officers. Here, the defendant led border patrol officers on a high-speed chase while attempting to smuggle aliens into the U.S. She then crashed into the median, and got out of her car and ran across the highway before she was apprehended. At sentencing, the district court found that the high-speed chase and the flight across the interstate constituted separate acts endangering others and enhanced defendant’s sentence under both guidelines. The Ninth Circuit reversed, finding that defendant’s actions constituted a single course of conduct related to fleeing from authorities. U.S. v. Lopez-Garcia, 316 F.3d 967 (9th Cir. 2003).
9th Circuit finds no double counting in increases for separately endangering the public and a law officer. (460) Defendant drove a pickup truck loaded with marijuana into the United States from Mexico going the wrong way on the freeway. He then sped through commercial and residential areas at speeds exceeding 80 miles per hour. When he was stopped, two highway patrol cars boxed him in, but he rammed the patrol car behind him, then changed gears and rammed the other patrol car before speeding away. The impact injured one of the officers in the car. At sentencing, the district court increased the offense level by two under § 3C1.2 for “placing the motoring public and pedestrians at great risk of bodily injury” and added three levels under § 3A1.2(b) for “the separate act of creating a substantial risk of injury to the officers.” On appeal, the Ninth Circuit affirmed, holding that applying both adjustments was not impermissible “double counting.” The panel acknowledged that Application Note 1 to § 3C1.2 says courts should not apply the enhancement for reckless endangerment where another adjustment in Chapter 3 results in an increase in offense level “solely on the basis of the same conduct.” But here, the district court found that defendant’s assaults on known law enforcement officers were “separate acts” from his endangerment of the public, “even though there was only one chase.” U.S. v. Hernandez-Sandoval, 211 F.3d 1115 (9th Cir. 2000).
9th Circuit holds increase for reckless driving is independent of increase for putting aliens in trunk. (460) Section 2L1.1(b)(5) provides for an increase in alien smuggling cases where the defendant recklessly endangers the life of any person. However, § 3C1.2 provides a similar enhancement for reckless endangerment during flight from a law enforcement officer. To avoid double counting, the two guidelines prohibit a sentencing court from imposing the enhancements concurrently if they are based on the same conduct. Here, however, the Ninth Circuit found the enhancements were not based on the same conduct. The § 3C1.2 increase was based on defendant’s driving northbound in the southbound lane of an interstate highway, creating a substantial risk of death or serious bodily injury to the motoring public. That conduct was independent of his conduct in placing the two aliens in the hatchback area of the vehicle. (In any event, because the aliens were not in the trunk, the § 2L1.1(b)(5) enhancement was reversed on the ground that the aliens were not endangered). U.S. v. Dixon, 201 F.3d 1223 (9th Cir. 2000).
9th Circuit says false statements need not actually obstruct justice if they have the potential. (460) In a footnote, the Ninth Circuit observed that that “it is not necessary that a defendant’s false statements actually mislead or impede the machinery of justice, only that they have the potential for doing so.” U.S. v. Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994), citing U.S. v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990) (“Section 3C1.1 on its face encompasses ‘attempted’ obstruction of justice as well as actual obstruction”). U.S. v. Flores, 172 F.3d 695 (9th Cir. 1999).
9th Circuit avoids ruling on claim that perjury finding must be based on higher standard of proof. (460) Defendant argued that a higher standard of proof than preponderance of the evidence was required to find that he committed perjury and thereby obstructed justice. He based his argument on application note 1 to § 3C1.1 which provides “[i]n applying this provision in respect to alleged false testimony or statement by the defendant such testimony or statements should be evaluated in a light most favorable to the defendant.” (emphasis added) In this case, however the adjustment for obstruction of justice was not based on defendant’s own perjured testimony, but rather on the fact that he suborned the perjured testimony of a witness. The Ninth Circuit agreed with the Second Circuit’s opinion in U.S. v. Johnson, 968 F.2d 208, 216 (2d Cir. 1992), that Application Note 1 applies only to perjury by the defendant, not subornation of perjury. Therefore, the Ninth Circuit found it unnecessary to decide whether Application Note 1 required a higher standard for perjury. The district court was only required to find by a preponderance of the evidence that defendant suborned the witness’s perjury. U.S. v. Garcia, 135 F.3d 667 (9th Cir. 1998).
9th Circuit does not require findings as to specific parts of defendant’s testimony believed to be false. (460) In U.S. v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir. 1990), cert. denied, 498 U.S. 961 (1990), the Ninth Circuit held that the district court was not required to make specific findings as to specific portions of a defendant’s testimony believed to be false. Thereafter in U.S. v. Dunnigan, 507 U.S. 87 (1993), the Supreme Court held that the district court must make a finding that “encompasses all the factual predicates for a finding of perjury.” In a post-Dunnigan opinion, U.S. v. Arias-Villanueva, 998 F.2d 1491, 1512 (9th Cir. 1993), cert. denied 510 U.S. 937 (1993), the Ninth Circuit rejected the contention that Dunnigan effectively overruled Barbosa, stating that “so long as the district court finds that a defendant’s trial testimony satisfies the elements for perjury as set forth in Dunnigan, an enhancement for obstruction of justice is proper.” Id. at 1512. In the present case, the district court found that the defense witness committed perjury and that defendant suborned that perjury. It did not matter that the witness had not yet been convicted of perjury at the time of sentencing. Nor did it matter that there was no direct evidence of subornation. Based on circumstantial evidence, the district court properly found that it was more likely than not that defendant suborned the witness’ perjury. U.S. v. Garcia, 135 F.3d 667 (9th Cir. 1998).
9th Circuit says obstruction increase is proper even if justice is not actually obstructed or impeded. (460) Defendant failed to inform the probation officer about a fourth marriage, which ended in divorce before his then–current fifth marriage. He argued that this omission was not material and therefore it was improper for the district court to increase his sentence under § 3C1.1 for obstruction of justice. The Ninth Circuit noted that “for purposes of the obstruction adjustment, it is irrelevant whether justice is actually obstructed or impeded.” Here, defendant omitted the information because he had been subject to a temporary restraining order due to violent conduct toward his former spouse. He also owed her $50,000 in unpaid spousal support. The district court properly found that defendant’s omission was “conscious, material and had the potential to impede sentencing.” U.S. v. Barnes, 125 F.3d 1287 (9th Cir. 1997).
9th Circuit says flight on foot through busy traffic was “reckless endangerment.” (460) Defendants were driving a load of illegal aliens in a van when they were pulled over by immigration officers. One defendant fled on foot across three lanes of traffic on a busy thoroughfare. It was nighttime and the speed limit was 35 or 40 mpg, with medium to heavy traffic. The Ninth Circuit held that this conduct was not simply “instinctive flight.”. Rather, defendant recklessly created a substantial risk to the motoring public, and therefore the district court properly increased his sentence by two levels under guideline §3C1.2. The other defendant fled on foot but did not cross the roadway. The Ninth Circuit found the record insufficient to support a §3C1.2 enhancement as to this defendant. Flight alone is insufficient, and there was no indication that his behavior during the apprehension endangered the officer. Judge Thomas dissented, arguing that both enhancements should have been reversed. U.S. v. Reyes-Oseguera, 106 F.3d 1481 (9th Cir. 1997).
9th Circuit requires specific findings for obstruction based on perjury. (460) Reversing on other grounds, the 9th Circuit admonished that on remand, if the district court again applied a two point enhancement for obstruction of justice based on defendant’s allegedly perjurious trial testimony, “the court must make more complete and specific findings than it did.” The court must find that defendant gave “(1) false testimony, (2) on a material matter, (3) with willful intent.” U.S. v. Ancheta, 38 F.3d 1114, 1118 (9th Cir. 1994). Quoting from U.S. v. Dunnigan, 113 S.Ct. 1111, 1117 (1993), the court noted that although the district court need not specifically address each of these elements, its findings must “encompass[ ] all of the factual predicates for a finding of perjury.” U.S. v. Robinson, 63 F.3d 889 (9th Cir. 1995).
9th Circuit remands where judge changed mind about obstruction after notice of appeal filed. (460) The judge increased defendant’s sentence by two levels for obstruction based on defendant’s untruthful testimony at trial. After defendant filed a notice of appeal however, the judge issued a sentencing order retracting the obstruction enhancement on the ground that his testimony at trial did not rise to the level of obstruction. However, the judge did not recalculate the sentence. Because of the judge’s re-evaluation of defendant’s testimony, the case was remanded to recalculate the sentence. On remand, the court was also directed to examine an apparent discrepancy in defendant’s criminal history score. U.S. v. Oliver, 60 F.3d 547 (9th Cir. 1995).
9th Circuit finds no double counting for official victim and reckless endangerment in high speed chase. (460) Defendants led officers on a lengthy high speed chase, during which they fired shots at the pursuing officers. The Ninth Circuit found no double counting in separate enhancements for reckless endangerment of the public under 3C1.2 and assault on official victims for shooting at the police officers under 3A1.1. The enhancements punished separate harms. U.S. v. Alexander, 48 F.3d 1477 (9th Cir. 1995).
9th Circuit relies on double hearsay in finding obstruction. (460) The district court’s finding that defendant obstructed justice was based on an affidavit from codefendant’s counsel stating that defendant had attempted to dissuade the codefendant from cooperating, and that the codefendant feared retaliation from the defendant and had absconded. The Ninth Circuit found no error in relying on this double hearsay, because it bore “sufficient indicia of reliability to support its probable accuracy.” The codefendant made the statement in an effort to obtain protection from the government as part of his plea agreement. There is no requirement that the affidavit be corroborated. U.S. v. Alonso, 48 F.3d 1536 (9th Cir. 1995).
9th Circuit applies obstruction guideline where taxpayer’s filings interfered with IRS. (460) 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 says threat may obstruct justice even though it is ambiguous. (460) The district court increased defendant’s offense level by two levels under § 3C1.1 for obstruction of justice because defendant told his confederates not to disclose the plan to murder the victim to law enforcement authorities or they “might not even get there.” The district court apparently thought “there” referred to “jail.” On appeal, defendant argued that this statement was too ambiguous to be a threat, and that ambiguous statements should not warrant any type of enhancement. The 9th Circuit rejected the argument, relying on U.S. v. Jackson, 974 F.2d 104 (9th Cir. 1992) which held that “[w]here a defendant’s statements can be reasonably construed as a threat, even if they are not made directly to the threatened person, the defendant has obstructed justice.” That case shows that § 3C1.1 “does not require the conduct obstructing justice to be unambiguous.” U.S. v. Dota, 33 F.3d 1179 (9th Cir. 1994).
9th Circuit says defendant may aid and abet reckless endangerment during flight, but findings are necessary. (460) After robbing the bank at gunpoint, the three robbers jumped into a red van. After a high speed chase, the van crashed into a tree and the three robbers attempted to hide in a residential neighborhood but were eventually caught. At sentencing, the court enhanced each defendant’s sentence two levels for reckless endangerment during flight, under § 3C1.2. The 9th Circuit reversed as to the two passengers in the van. Commentary note 5 says that a defendant is responsible not only for his own conduct but for conduct that he “aided of abetted, counseled, commanded, induced, procured, or willfully caused.” But here, the district court made no findings that the passengers had aided and abetted the driver’s reckless conduct. Judge Wiggins concurred separately, arguing that on remand the court should also consider the conduct of the passengers before and after the high speed chase. U.S. v. Young, 33 F.3d 31 (9th Cir. 1994).
9th Circuit upholds reliance on unsworn statements to find obstruction of justice. (460) The district court did not indicate whether it relied on the unsworn statements to conclude that defendant had obstructed justice. However, the 9th Circuit said that even if the court considered the unsworn statements, “it did not err.” Defendant also admitted his obstructive conduct by signing a plea memorandum which expressly stated that he burned evidence and attempted to buy false alibis. In determining the facts at sentencing, judges are not restricted to evidence that would be admissible at trial. U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
9th Circuit upholds both acceptance of responsibility and obstruction of justice. (460) After the guidelines became effective in 1987, application note 4 to § 3E1.1 was amended to state that there may be extraordinary cases in which adjustments for obstruction of justice and acceptance of responsibility may apply. The 9th Circuit held that the “relevant inquiry for determining if a case is an extraordinary case within the meaning of application note 4 is whether the defendant’s obstructive conduct is not inconsistent with the defendant’s acceptance of responsibility.” Here, the defendant’s obstructive conduct of burning evidence and attempting to procure false alibis was not inconsistent with his subsequent confession of guilt and disclosure of information relating to the crime. Therefore, the court did not err in allowing simultaneous adjustments for acceptance and obstruction. U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
9th Circuit finds running stop signs and leaving vehicle rolling was “reckless endangerment.” (460) Defendant was convicted of two bank robberies. During one of the getaways, the robbers ran three stop signs, eventually stopped in the middle of the road and when the deputy approached the car, the driver reached down toward the floorboards where a gun was later found. The robbers fled a short distance in the car and then jumped out and left the car rolling. The district court increased his offense level by 2 levels under § 3C1.2 finding these actions involved “reckless endangerment.” Defendant argued the increase was improper because he was not the getaway driver and the conduct did not rise to the level of reckless endangerment. The Ninth Circuit concluded that the increase was justified based on the traffic related conduct. Running three stop signs in a residential area and leaving a vehicle rolling unattended posed a substantial risk of serious bodily injury or death to other motorists or pedestrians. U.S. v. Luna, 21 F.3d 864 (9th Cir. 1994).
9th Circuit raises question of whether reaching for gun to avoid capture is reckless endangerment. (460) The district court increased the defendant’s bank robbery offense level under § 3C1.2 finding the getaway chase involved “reckless endangerment”. The getaway car driver ran three stop signs and stopped in the middle of the road. As the deputy walked toward the car, the driver reached toward the floorboard where a gun was eventually found. The Ninth Circuit sustained the increase based on the traffic related conduct without deciding whether the essentially preparatory act of reaching for the gun can constitute reckless endangerment. In U.S. v. Bell, 953 F.2d 6 (1st Cir. 1992), the First Circuit held that mere possession of a gun and intent to use it to avoid capture by a police officer did not constitute reckless endangerment. U.S. v. Luna, 21 F.3d 864 (9th Cir. 1994).
9th Circuit says court need not specify which parts of defendant’s testimony are false. (460) Relying on U.S. v. Barbosa, 906 F.2d 1366, 1370 (9th Cir.), cert denied, 498 U.S. 961 (1990), the 9th Circuit held that “a district court is not required to enumerate specifically which portion of a defendant’s testimony are false to justify an enhancement for obstruction of justice.” Thus the district court did not err in failing to identify which portions of the defendant’s testimony were false in this case. U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).
9th Circuit holds that violation of a plea bargain is an obstruction of justice. (460) Following the 8th Circuit’s opinion in U.S. v. Duke, 935 F.2d 161, 162 (8th Cir. 1991), the 9th Circuit held that violation of a plea bargain warrants a sentence enhancement for obstruction of justice under U.S.S.G. section 3C1.1. In this case, as part of his plea agreement, the defendant agreed to be interviewed and to testify truthfully at trial. Three days later he gave testimony that the district court found to be clearly false and unworthy of belief. This justified an enhancement for obstruction of justice. U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).
9th Circuit upholds obstruction enhancement for attempt to obstruct justice in closely related case. (460) Defendant argued that even if his trial testimony was false, it was not an obstruction of justice related to his “instant offense” because he only testified falsely about his co-conspirators’ conduct. The 9th Circuit rejected the argument, relying on U.S. v. Bernaugh, 969 F.2d 858, 861 (10th Cir. 1992), which held that section 3C1.1 applies when “a defendant attempts to obstruct justice in a case closely related to his own, such as that of a codefendant.” The court also noted that in U.S. v. Morales, 977 F.2d 1330, 1331 (9th Cir. 1992), cert denied, 113 S.Ct. 1399 (1993), the court concluded that the defendant’s refusal to testify at a codefendant’s trial after receiving immunity constituted obstruction of justice. U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993).
9th Circuit finds “greater sting” of obstruction increase at higher offense levels does not violate equal protection. (460) Defendant was convicted of narcotics offenses and the district court increased his offense level under §3C1.1 based on his testimony at trial. The Ninth Circuit sustained the increase, finding that the fact the obstruction increase will have a “greater sting” for defendants at higher offense levels did not constitute disproportionate punishment and was not irrational under the Equal Protection Clause of the Fifth Amendment. It is entirely rational to punish perjury more severely when the underlying crime about which the defendant is trying to lie is more serious. However, the case was remanded because the district court’s finding that defendant’s testimony was “inaccurate” was not a sufficient finding to justify the increase based on perjury. U.S. v. Rubio-Topete, 999 F.2d 1334 (9th Cir. 1993).
9th Circuit finds factual findings insufficient to establish perjury increase. (460) Defendant’ sentence was adjusted upward for obstruction of justice based on perjured testimony at trial. The Ninth Circuit reaffirmed its decision in U.S. v. Barbosa, 906 F.2d 1366, 1369 (9th Cir.) cert denied, 498 U.S. 961 (1990) upheld by the Supreme Court in U.S. v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111 (1993) that increasing the offense level based on perjury is constitutional. However, the district court only found that defendant’s “behavior [and] his testimony . . . indicate that the obstruction of justice finding is appropriate” and that the defense testimony was “inaccurate.” This was insufficient to encompass the factual predicates for a finding of perjury. The case was remanded for resentencing. U.S. v. Rubio-Topete, 999 F.2d 1334 (9th Cir. 1993).
9th Circuit upholds departure for egregious perjury in addition to two levels for obstruction. (460) Defendant argued that once a court has adjusted a sentence upward under section 3C1.1 for perjury at trial, as a matter of law the court may not depart from the sentence on the basis of the same perjury. The 9th Circuit rejected this argument based on the controlling authority of U.S. v. Ward, 914 F.2d 1340 (9th Cir. 1990). Ward held that after granting an upward adjustment under section 3B1.1, the sentencing court may in addition depart upward if the defendant’s perjury is “significantly more egregious than the ordinary cases of obstruction listed in the application notes to section 3C1.1.” Here, the district judge found that defendant “had engaged in the greatest fraud upon this court which has ever been perpetrated in my courtroom.” The departure was upheld. U.S. v. Momeni, 991 F.2d 493 (9th Cir. 1993).
9th Circuit reverses obstruction enhancement where conduct may not have been willful. (460) The Sentencing Reform Act does not require a district court to give a statement of reasons for sentencing guideline adjustments. Thus, “[a]lthough the section 3C1.1 enhancement must be premised on willful conduct that has the purpose of obstructing justice, the district court need not specify the reasons for its factual finding of obstruction of justice.” However, in this case, the district judge expressly stated that his finding of obstruction was based on the defendant’s assault on the officer without regard to whether he acted “knowingly or not.” The 9th Circuit held that this conclusion was erroneous and vacated the conviction. U.S. v. Gardner, 988 F.2d 82 (9th Cir. 1993).
9th Circuit says giving false information to probation officer was obstruction. (460) Under U.S.S.G. section 3C1.1, Application Note 3(h), providing “materially false information to a probation officer in respect to a presentence or other investigation for the court is obstruction of justice.” Here, the district court, found that defendant had supplied materially false information about his prior arrests and convictions that had recently occurred. The obstruction was material even though the lie could be, and was, detected. The stipulation as to criminal history did not bind the district court. The court only followed the stipulation because on the day of sentencing defendant was able to expunge one of the shoplifting convictions from his record. The enhancement for obstruction of justice was justified. U.S. v. Donine, 985 F.2d 463 (9th Cir. 1993).
9th Circuit permits departure under 2L1.1 plus obstruction enhancement for high-speed chase in immigration case. (460) While transporting five aliens in the back of his car, defendant led Border Patrol agents on a three hour high speed chase. The district court added two levels for obstruction of justice under 3C1.2, and also departed upward under Commentary Note 8 to Section 2L1.1 which authorizes an upward departure for offenses involving “dangerous or inhumane treatment” of the aliens. The 9th Circuit affirmed, holding that the obstruction enhancement did not prevent the court from departing upward under 2L1.1. The court indicated that an upward departure would also be authorized under Section 3C1.2 if defendant’s conduct was more than reckless, but the government failed to make such a showing here. The court rejected the government’s argument that because 3C1.2 is written in the singular, an upward departure is warranted when the defendant’s actions endanger more than one person. “We decline to adopt a construction of section 3C1.2 that would mandate departure in almost every case.” The court noted in a footnote however, that an amendment to section 3C1.2 effective November 1, 1992, may change this result. U.S. v. Hernandez-Rodriguez, 975 F.2d 622 (9th Cir. 1992).
9th Circuit holds that defendant waived right to challenge adjustment for obstruction by failing to object. (460) At sentencing, the district court summarized the recommendations of the probation officer in the presentence report, including the addition of “two levels because the defendant lied at trial.” When asked if there was any objection to the probation officer’s computation, defense counsel replied, “no, we concur.” Later, the court asked if there were any other objections to the presentence report, and defense counsel replied “no, your honor.” Rule 32(c)(3)(D), Fed. R. Crim. P. provides that “where factual inaccuracy is alleged, the defendant has the burden of introducing, or at least proffering, evidence to show the inaccuracy.” Relying on this language and cases in other circuits, the 9th Circuit held that the defendant waived his right to challenge the two-level increase for obstructing justice under 3C1.1, “because he agreed to the adjustment and failed to present the issue in the district court.” U.S. v. Visman, 919 F.2d 1390 (9th Cir. 1990).
9th Circuit concludes that adjustment for false testimony violates neither right to trial nor right to testify. (460) Defendant’s offense level was adjusted upward for obstruction of justice based on his false testimony at trial. The 9th Circuit rejected defendant’s arguments that this adjustment violated defendant’s rights to trial and to testify in his own behalf. Though giving false testimony is independently punishable under several federal laws, the court concluded that that fact did not establish the validity of the adjustment. Nor does the upward adjustment unconstitutionally chill a defendant’s right to testify, for the right to testify does not include a right to commit perjury. The sentencing judge’s failure to specify precisely which portions of defendant’s testimony were false did not preclude the adjustment, and the sentencing judge did not commit clear error in concluding that defendant’s exculpatory testimony was “pure fantasy” in light of the circumstantial evidence of guilt. U.S. v. Barbosa, 906 F.2d 1366 (9th Cir. 1990).
10th Circuit rejects categorical rule that all high-speed car chases warrant departure. (460) Defendant received a two-level enhancement under § 3C1.2 because he “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” The district court also departed upward an additional two levels. Noting that defendant was involved in a high-speed car chase through a Wal-Mart parking lot, the court found that (1) a high-speed car chase “always endangers more than one person,” and thus should “automatically qualify for consideration for an upward departure”; and (2) defendant’s particular high-speed chase “put a huge number of people at risk.” The Tenth Circuit rejected a categorical rule that all high-speed car chases “automatically” warrant upward departures. However, the panel upheld the upward departure, agreeing that the facts of defendant’s high-speed car chase were exceptional. Defendant made repeated high speed passes through and past the Wal-Mart store parking lot, a gas station and a McDonald’s, which “put a huge number of people at risk.” U.S. v. Osborne, 593 F.3d 1149 (10th Cir. 2010).
10th Circuit holds that plain error in imposing obstruction increase did not warrant remand. (460) The district court applied a two-level obstruction of justice increase because defendant absconded from supervision after offering assistance to the government. The Tenth Circuit agreed that the enhancement violated Booker, because the court made the finding that defendant absconded from supervision, a fact not found by a jury, and one to which she did not plead guilty. However, remand was not warranted because defendant could not satisfy the third prong of the plain error test – she could not show that the constitutional error affected her substantial rights. There was no reason to think a jury would not have found the same material facts as the judge nor any indication that the court would have sentenced any differently had it analyzed the proper sentencing factors. Defendant never suggested that she did not abscond from supervision while under arrest; to the contrary, she admitted during sentencing that she was sorry “for the fact that I ran.” U.S. v. Bradford, 423 F.3d 1149 (10th Cir. 2005).
10th Circuit holds that obstruction enhancement did not bar later perjury charge. (460) Defendant pled guilty to bank robbery. At sentencing, she received a § 3C1.1 obstruction of justice increase for lying at a co-conspirator’s trial. Because of the enhancement, the district court dismissed a later perjury indictment on double jeopardy grounds. The Tenth Circuit reversed, holding that the § 3C1.1 enhancement did not bar the perjury charge. The enhancement was neither a punishment nor a prosecution for perjury. When a court bases a sentence on relevant conduct, it does not punish the defendant for that conduct. A defendant is punished, for double jeopardy purposes, only for the offense of conviction. The court’s consideration of defendant’s perjury did not constitute a prosecution for double jeopardy purposes. A sentencing hearing in which a court bases a sentence in part on relevant conduct does not constitute a de facto prosecution for the relevant conduct. U.S. v. Rohde, 159 F.3d 1298 (10th Cir. 1998).
10th Circuit says obstruction increase and judgment on bond did not violate double jeopardy. (460) The district court applied a § 3C1.1 enhancement because defendant failed to appear for arraignment as ordered. Defendant argued that the enhancement violated double jeopardy because judgment was previously entered against him on his $50,000 appearance bond as a result of the same conduct. The Tenth Circuit held that the § 3C1.1 enhancement did not violate double jeopardy. The $50,000 judgment for violating the appearance bond was not overly disproportionate to the government’s anticipated costs associated with being forced to delay defendant’s criminal proceeding and hunt him down. The judgment was remedial and not punitive, posing no double jeopardy bar to the § 3C1.1 enhancement. Moreover, the enhancement was not punishment for the failure to appear, but for the offense to which he pled guilty. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).
10th Circuit considers statements made during withdrawn guilty plea. (460) Defendant originally pled guilty to drug charges. However, after a dispute regarding the anticipated sentence and the recommendations in the PSR, defendant was permitted to withdraw his plea and new counsel was appointed. Defendant then was convicted at trial, despite his testimony denying his involvement in the offense. The district court, relying on the statements defendant made at his first plea hearing, found that defendant committed perjury and imposed a § 2D1.1(b)(1) enhancement. Defendant argued that Fed. R. Evid. 410 and Fed. R. Crim. P. 11(e)(6) prohibit the admission of evidence relating to pleas of guilty which are later withdrawn in any civil or criminal proceeding. The Tenth Circuit upheld the consideration at sentencing of the statements made during defendant’s plea hearing, even though the plea was later withdrawn. Under U.S. v. Ruminer, 786 F.2d 381 (10th Cir. 1986), these rules are not applicable at sentencing. No limitation shall be placed on the information a court may consider at sentencing concerning the background character, or conduct of defendant. U.S. v. Medina-Estrada, 81 F.3d 981 (10th Cir. 1996).
10th Circuit affirms upward departure based upon more than minimal planning and obstruction of justice. (460) Defendant pled guilty to making a false statement in a passport application. The court increased the offense level by two for “more than minimal planning,” and by two additional points because the offense had been committed to escape detection for other crimes, and thus was an attempt to obstruct justice. The 10th Circuit affirmed, although it found that the sentence in fact was a departure from the guidelines. Although several guidelines contain a two-point enhancement for more than minimal planning, guideline § 2L2.4 does not. Similarly, the court did not adjust defendant’s sentence based upon obstruction of justice under guideline § 3C1.1, since this concerns attempts to obstruct the investigation of the instant offense. However, both were proper grounds for an upward departure. Guideline § 2L2.4 was intended to be used for illegal aliens convicted of fraudulently acquiring passports to enter or remain in the country. The sentencing commission did not contemplate its use in sentencing citizens who engage in a more serious offense by fraudulently acquiring a passport to avoid prosecution. U.S. v. Strickland, 941 F.2d 1047 (10th Cir. 1991).
10th Circuit upholds obstruction of justice on the basis of multiple hearsay. (460) In finding that defendant obstructed justice, the district court relied upon a statement in the presentence report that the probation officer had reviewed an affidavit by a government agent which contained an inmate’s statement that the defendant had threatened two trial witnesses. According to the report, the inmate contacted one of the witnesses, who in turn contacted the government. The 10th Circuit found that the multiple hearsay had sufficient indicia of reliability to be relied upon by the district court. First, the inmate was aware of the witnesses by name, which suggested that the defendant was the source of the threat. Second, the inmate contacted the witness, not the government. It was only when the witness complained to the government that the government became involved. Finally, the statement was consistent with defendant’s denial of involvement in drug distribution, notwithstanding overwhelming evidence to the contrary. U.S. v. Reid, 911 F.2d 1456 (10th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Cruz Camacho, 137 F.3d 1220 (10th Cir. 1998).
10th Circuit upholds denial of acceptance of responsibility for defendant who obstructed justice. (460) Defendant challenged the district court’s failure to reduce his base offense level for acceptance of responsibility. The 10th Circuit found that the district court’s determination was supported by the defendant’s obstruction of justice. Although the evidence that he had threatened certain witnesses was hearsay, the 10th Circuit found that the sentencing court may consider hearsay evidence during sentencing so long as it does not “rely on ‘misinformation of constitutional magnitude.’” U.S. v. Johnson, 911 F.2d 1394 (10th Cir. 1990).
10th Circuit upholds obstruction adjustment in 2 cases where brothers each testified untruthfully. (460) In two separate cases involving two brothers, the 10th Circuit upheld the district court’s increasing the offense level of each by 2 levels for obstruction of justice under U.S.S.G. § 3C1.1, based each defendant’s perjury at trial. The court rejected arguments that the adjustment violated the defendant’s due process right to testify on their own behalf. In a pre-guidelines case, U.S. v. Grayson, 438 U.S. 41 (1978), the Supreme Court upheld the imposition of additional penalties for false testimony. There is no protected right to commit perjury. U.S. v. Beaulieu, 900 F.2d 1537 (10th Cir. 1990).
11th Circuit finds no double counting in increases for substantial risk of bodily injury and reckless endangerment during flight. (460) Defendant was part of an operation that smuggled individuals from Cuba to Florida by boat. The district court applied two separate enhancements – one for intentionally or recklessly creating a substantial risk of death or bodily injury to another person under § 2L1.1(b)(6), and another for reckless endangerment during flight under § 3C1.2. The Eleventh Circuit rejected defendant’s claim that the application of both enhancements was double counting. The enhancement for substantial risk of death was applied because defendant had 36 individuals on board a vessel designed to hold no more than 12 people, and there were no life jackets available. This qualified as a substantial risk of serious injury or death to the Cuban migrants under § 2L1.1(b)(6). In contrast, the enhancement under § 3C1.2 for endangerment during flight applied because defendant led the Coast Guard on a two-hour high-speed chase in the darkness. Because the enhancements were not for the same conduct, the district court did not commit impermissible double counting in applying both enhancements. U.S. v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010).
11th Circuit holds that high-speed flight by car into parking garage constituted reckless endangerment. (460) Defendant fled from a bank robbery in his car. Police officers pursued defendant into the parking garage of a condominium association. Defendant’s car slipped under the security gate as it was closing, but the police officers did not clear the gate in time, and the collision caused damage to both the police cars and the gate. The Eleventh Circuit upheld a § 3C1.2 increase for reckless endangerment during flight. Defendant drove his car at “a higher rate of speed” in an attempt to evade the police. The court, after viewing the surveillance video from the parking lot, found that there were people in the garage close to the time defendant entered the garage. Driving a car at high speed in an area where people are likely to be found constitutes reckless disregard for others’ safety. U.S. v. Washington, 434 F.3d 1265 (11th Cir. 2006).
11th Circuit refuses to follow amended commentary prohibiting obstruction enhancement for contemporaneous destruction of evidence. (460) At the time of his arrest, defendant attempted to hand his jacket to a couple standing nearby. The jacket contained drugs. The 11th Circuit affirmed the enhancement, despite a November 1990 amendment to the commentary to section 3C1.1 which would seem to prohibit the enhancement in such a situation. That commentary provides that an attempt to dispose of material evidence made contemporaneously with arrest, shall not, by itself, be grounds for an obstruction enhancement. Since the 11th Circuit previously determined as a matter of law that an attempt to destroy evidence just before arrest constituted obstruction of justice, the court declined to be bound by guideline commentary changes unless or until Congress amends the guideline itself to reflect the change. U.S. v. Louis, 967 F.2d 1550 (11th Cir. 1992).
11th Circuit rules obstruction of justice precludes downward adjustment for acceptance of responsibility. (460) The defendant argued that his sentence was erroneous because although the District Court found that he had accepted responsibility for his actions, it failed to reduce his offense level by 2 points under § 3E1.1. However, the 5th Circuit found that this error was harmless because a defendant who has obstructed justice under § 3C1.1 cannot, as a matter of law, receive a reduction in his offense level for acceptance of responsibility. U.S. v. Rivera, 879 F.2d 1247 (11th Cir. 1989).
D.C. Circuit finds amendment adding “failure to appear” was merely clarifying. (460) Prior to 1990, the application notes to 3C1.1 did not list failure to appear in its “non-exhaustive” list of the types of conduct that can constitute obstruction of justice. Defendant therefore argued that her failure to appear could not support the adjustment. The D.C. Circuit disagreed, finding the amendment to be a simple clarification of the prior guideline. The court noted that even before the amendment, several courts had included failure to appear among the types of conduct that could trigger the adjustment. Accordingly, the court did not reach defendant’s argument that application of the 1990 note would violate the ex post facto clause. U.S. v. Monroe, 990 F.2d 1370 (D.C. Cir. 1993).
Kentucky District Court holds government has burden to show obstruction of justice. (460) The Western District Court of Kentucky held that the burden of proof lies with the government to establish that a defendant obstructed justice under § 3C1.1. He held that the magistrate’s implicit determination that the government had not met its burden was not clearly erroneous and therefore the denial was proper. U.S. v. Ligon, 716 F.Supp. 1009 (W.D.Ky. 1989).
Commission resolves conflict over obstruction of justice. (460) The Commission resolved a circuit conflict to allow an increase for obstruction of justice under § 3C1.1 for conduct before the offense of conviction that was calculated to thwart the investigation of the offense of conviction. Amendment 693, effective November 1, 2006.
Commission increases penalties for internet “spam.” (460) The Commission implemented the CAN-SPAM Act,” 15 U.S.C. § 7704(d), by creating a new guideline at § 3C1.4 to provide a 2-level adjustment where an online offense was facilitated by the use of a domain name registered with materially false contact information. Amendment 689, effective November 1, 2006.
Commission clarifies three-level increase for committing new offense while on supervised release. (460) 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 2, effective November 1, 2006.
Commission clarifies the term “instant offense” in the obstruction of justice guideline. (460) The circuits have been split over whether the adjustment for obstruction of justice in § 3C1.1 applies to obstructions that occur in cases closely related to the defendant’s case or only those specifically related to the offense of which the defendant was convicted. Compare U.S. v. Powell, 113 F.3d 464 (3d Cir.), cert. denied, 118 S.Ct. 454 (1997) (adjustment applies if defendant attempts to impede the prosecution of a defendant who is charged with the same offense for which defendant was convicted); U.S. v. Walker, 119 F.3d 403 (6th Cir.), cert. denied, 118 S.Ct. 643 (1997) (same); U.S. v. Acuna, 9 F.3d 1442 (9th Cir. 1993) (adjustment applies if defendant attempts to obstruct justice in a case closely related to his own); and U.S. v. Bernaugh, 969 F.2d 858 (10th Cir. 1992) (adjustment applies when defendant testifies falsely at his own hearing about co-defendants’ roles in the offense), with U.S. v. Perdomo, 927 F.2d 111 (2d Cir. 1991) (cannot apply adjustment based on obstructive conduct outside the scope of charged offense), and U.S. v. Partee, 31 F.3d 529 (7th Cir. 1994) (same). In its 1998 amendments, the Sentencing Commission adopted the majority view, stating that obstruction must relate either to the defendant’s offense of conviction (including any relevant conduct) or to a closely related case. Amendment 581, effective November 1, 1998.
Commission says lying to probation officer about drug use while on bail is not obstruction of justice. (460) In its 1998 amendments, the Sentencing Commission amended section 3C1.1 to resolve a circuit conflict over whether lying to a probation officer about drug use while released on bail is obstruction of justice. Compare U.S. v. Belletiere, 971 F.2d 961 (3d Cir. 1992) (lying about drug use is not obstructive conduct that impedes government’s investigation of instant offense), and U.S. v. Thompson, 944 F.2d 1331 (7th Cir. 1991), cert. denied, 501 U.S. 1097 (1992), (same) with U.S. v. Garcia, 20 F.3d 670 (6th Cir. 1994), cert. denied, 513 U.S. 1159 (1995) (falsely denying drug use, while not outcome-determinative, is relevant). The amendment adopts the majority view, excluding from application of § 3C1.1 a defendant’s denial of drug use while on pretrial release. However, the amendment provides that such conduct may be relevant in determining whether defendant has accepted responsibility under § 3E1.1. Amendment 582, effective November 1, 1998.
Commission says perjury increase does not require heightened standard of proof. (460) There is a split in the circuits over whether the last sentence of Application Note 1 in § 3C1.1 requires the use of a heightened standard of proof when the court applies an enhancement for perjury. Compare U.S. v. Montague, 40 F.3d 1251 (D.C. Cir. 1994) (applying the clear and convincing standard) with U.S. v. Zajac, 62 F.3d 145 (6th Cir.) (applying the preponderance of the evidence standard), cert. denied 116 S. Ct. 681 (1995). To resolve the conflict, the Commission changed the last sentence of Application Note 1 so that it no longer suggests the use of a heightened standard of proof. Instead, it says that the court should be mindful that not all inaccurate testimony reflects a willful attempt to obstruct justice. Also, in response to concerns expressed in U.S. v. Giacometti, 28 F.3d 698 (7th Cir. 1994), the amendment clarifies the meaning of the phrase “absent a separate count of conviction.” Amendment 566 effective November 1, 1997.
Commission amends obstruction commentary to include aiding and abetting. (460) On September 16, 1992, effective November 1, 1992, the Sentencing Commission amended the commentary to sections 3C1.1 and 3C1.2 to state that “[u]nder this section, the defendant is accountable for his own conduct and for conduct he aided or abetted, counseled, commanded, induced, procured, or willfully caused.”
Commission amends “reckless flight” commentary to permit departures for risk of bodily injury to more than one person. (460) In an amendment effective November 1, 1992, the Commission amended the Commentary to section 3C1.2 to add an application note 5 stating that “[i]f death or bodily injury results or the conduct posed a substantial risk of death or bodily injury to more than one person, an upward departure may be warranted.”
Article proposes middle ground on perjury enhancement. (460) The guidelines call for an adjustment for obstruction of justice when the defendant commits perjury at trial. A student author maintains that neither applying the adjustment to all defendants who commit perjury at trial nor rejecting it altogether is appropriate. Instead, the adjustment should be permitted only in those cases that historically would have been viewed as obstructing justice sufficiently to permit the court’s exercise of the contempt power. However, the author notes that dicta in U.S. v. Dunnigan, 507 U.S. 87 (1993), states that the Court will permit the adjustment outside that context. Note, Oh What a Tangled Web We Weave When First We Practice to Deceive Under the Federal Sentencing Guidelines — Enhancing Sentences for Defendant Perjury at Trial, 44 Florida L. Rev. 661-94 (1992).
Article recommends different approach to perjury at trial. (460) Peter J. Henning reviews the varying approaches courts have taken to the question of when the obstruction of justice enhancement should be applied to a defendant who testifies at trial but is convicted, noting that some courts almost automatically enhance the sentence in such cases while some take the position that almost any such enhancement is overly burdensome on defendant’s right to testify. The author finds both approaches problematic. He recommends that courts not feel bound by the jury’s verdict in assessing whether perjury was committed. He also suggests that the enhancement be limited to “egregious cases” of perjury and that the court carefully consider the effect the adjustment could have on future defendants’ decisions whether to testify, exercising special caution in applying the enhancement where defendant has been convicted on all counts. Peter J. Henning, Balancing the Need for Enhanced Sentences for Perjury at Trial under Section 3C1.1 of the Sentencing Guidelines and the Defendant’s Right to Testify, 29 Am. Crim. L. Rev. 933-60 (1992).